O'Brien-Kelley, Ltd. v. Goshen , 190 Conn. App. 420 ( 2019 )

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O’BRIEN-KELLEY, LTD v. TOWN
OF GOSHEN ET AL.
(AC 41443)
Alvord, Sheldon and Moll, Js.
Syllabus
The plaintiff property owner sought to recover damages for conversion from
the defendant state marshal, who had sought to recover delinquent real
estate taxes and interest from the plaintiff on behalf of the town of
Goshen. The town tax collector had issued to the plaintiff a delinquent
notice, which stated that if payment in full was not timely submitted
to the town, collection of the delinquent taxes could be enforced by,
inter alia, having a state marshal serve on the plaintiff an alias tax
warrant pursuant to statute (§ 12-162 [c]). When the plaintiff failed to
pay the delinquent tax bill, the tax collector issued the tax warrant to
the defendant, who then mailed a letter to the plaintiff informing it that
he was in receipt of the tax warrant and that it authorized him to collect
the delinquent real estate taxes. The plaintiff thereafter made payments
to the tax collector, a portion of which was paid to the defendant, in
accordance with § 12-162, as his fee of 15 percent of the tax, interest,
fees and costs. The plaintiff alleged that the defendant was not entitled
to the 15 percent fee under § 12-162 because he did not execute on the
tax warrant or collect the delinquent taxes, but merely mailed notice
of the tax warrant to the plaintiff, which prompted the plaintiff to pay
the delinquent tax and interest to the town directly before the warrant
was served. The trial court granted the defendant’s motion for summary
judgment and rendered judgment for the defendant, from which the
plaintiff appealed to this court. Held that the trial court properly granted
the defendant’s motion for summary judgment and concluded that the
defendant was entitled to the 15 percent fee under § 12-162; that court,
which carefully reviewed the record before it and thoroughly reviewed
the applicable statutory language, its legislative history and relevant
case law, properly concluded that, by sending the demand letter and a
copy of the tax warrant to the plaintiff, the defendant placed the plaintiff
on notice of its legal obligation to pay the delinquent taxes and his
responsibility to collect them, and thereby constructively executed the
tax warrant, which thereby entitled the defendant to his statutory fee
under § 12-162.
Argued February 11—officially released June 4, 2019
Procedural History
Action to recover damages for, inter alia, conversion,
and for other relief, brought to the Superior Court in
the judicial district of Litchfield, where the action was
withdrawn as against the named defendant et al.; there-
after, the court, Bentivegna, J., granted the motion for
summary judgment filed by the defendant Arthur R.
Quinn III and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
James Stedronsky, for the appellant (plaintiff).
Thomas Plotkin, with whom, on the brief, was Joseph
B. Burns, for the appellee (defendant Arthur R.
Quinn III).
Opinion
SHELDON, J. In this action arising from an alias tax
warrant issued by the town of Goshen for delinquent
municipal real estate taxes, the plaintiff, O’Brien-Kelley,
Ltd., appeals from the summary judgment of the trial
court rendered in favor of the defendant Arthur R.
Quinn III,1 a state marshal, which concluded that the
defendant was entitled, under General Statutes § 12-
162 (c), to be paid a 15 percent statutory fee for execut-
ing the subject tax warrant. The plaintiff claims that
the trial court erred in holding that the defendant was
entitled to be paid the statutory fee because the defen-
dant had not executed on the tax warrant or collected
the delinquent taxes, but merely mailed notice of the
tax warrant to the plaintiff, prompting the plaintiff to
pay the delinquent tax and interest to the town directly
before the warrant was served. We disagree, and,
accordingly, affirm the judgment of the trial court.
The following undisputed facts are relevant to our
resolution of this appeal. The plaintiff is a Connecticut
corporation having offices at 39 West Street in Litch-
field. It owns a single-family lakefront house at 72 Sandy
Beach Road in Goshen, which it manages, by and
through its president and sole member, Edward James
Murphy, Jr., for a private, extended family.
In February, 2016, the tax collector for the town of
Goshen determined that the plaintiff had failed to pay
the January 1, 2016 installment of its 2014 property tax
bill. Therefore, on February 9, 2016, the tax collector
issued a delinquent notice, notifying the plaintiff that
it owed the outstanding tax, plus interest calculated
through February 29, 2016. The notice expressly stated
that the plaintiff owed a total of $3302.21, consisting
of $3206.03 in back taxes and $96.18 in interest.
In March, 2016, the tax collector further determined
that the plaintiff still had not paid its January 1, 2016
installment of its 2014 property tax bill. Consequently,
on March 8, 2016, the tax collector issued to the plaintiff
a notice of intent to lien, in which she indicated that
the plaintiff owed $3206.03 in delinquent taxes, plus
interest, calculated though April 30, 2016, in the amount
of $192.36, for a total amount due of $3398.39. The
notice of intent to lien2 indicated that payment in full
of the delinquent tax bill was due by April 12, 2016, and
that if that payment was not timely submitted, the tax
collector could enforce collection of the plaintiff’s delin-
quent account, at the expense of the plaintiff, by any
of several means, including assigning the plaintiff’s
account to a state marshal for the service of an alias
tax warrant.
The plaintiff once again failed to pay its delinquent
tax bill by the April 12, 2016 due date. Consequently,
on April 26, 2016, the tax collector issued a ‘‘Property
Alias Warrant’’ (alias tax warrant) to the defendant,
commanding the defendant to collect the plaintiff’s
property taxes in the amount of $3476.48, consisting of
$3206.03 in taxes, $240.45 in interest calculated through
May 30, 2016, a $24 lien fee and a $6 warrant fee, and
the defendant’s ‘‘lawful charges.’’
On May 1, 2016, the defendant mailed a letter to the
plaintiff, informing it that he was in receipt of an alias
tax warrant authorizing him to collect the plaintiff’s
delinquent real estate taxes for the town of Goshen and
enclosing a copy of the warrant. The letter stated, inter
alia: ‘‘This Alias Tax Warrant commands me to make
demand upon you for the sum of $3,997.95, payable to:
State Marshal Arthur Quinn, before making any attach-
ments. THIS PROPERTY WILL BE SUBJECT TO TAX
AUCTION IF DELINQUENCY REMAINS UNPAID
AFTER MAY 30, 2016.’’ The letter further warned: ‘‘If
no contact is made immediately, we will proceed to
attach any wages earned or any existing bank accounts
to include but not limited to the seizure of any equip-
ment, property, vehicles, or assets for auction.’’ The
letter instructed that full payment of all sums due,
including the defendant’s statutory fee of $521.47, be
remitted to the defendant.
On May 24, 2016, the tax collector received payment
from the plaintiff in the amount of $3476.48. The tax
collector applied that payment, in accordance with Gen-
eral Statutes § 12-144b, as follows: $453.34 for the defen-
dant’s statutory fee of 15 percent of the tax, interest,
fees and costs, which totaled $3023.03; $240.45 for
accrued interest; $24 for the lien fee; $6 for the warrant
fee; and $2752.58 toward the plaintiff’s outstanding
delinquent tax bill.
After the tax collector applied the plaintiff’s payment
to its account, the 2014 tax bill still had an unpaid
balance in the amount of $453.45 due and owing, in
addition to any applicable interest, fees and costs. The
plaintiff thereafter submitted payment for that
remaining balance.
On July 26, 2016, the plaintiff mailed a letter to the
defendant, demanding that he return to it the sum of
$453.45 that the town had paid to him as his fee. The
defendant did not respond to the plaintiff’s demand.
The plaintiff thereafter filed this action, alleging that
the defendant was not entitled to a 15 percent statutory
fee under § 12-162 because he never executed the alias
tax warrant. The plaintiff further alleged that, because
the defendant was not entitled to that fee under § 12-
162, he was liable to it for conversion of that sum under
General Statutes § 52-564.3
On September 15, 2017, the parties filed cross
motions for summary judgment. The plaintiff argued
that it was entitled to judgment as a matter of law on
its conversion claim because the defendant collected
and retained his claimed fee without executing the alias
tax warrant or collecting the delinquent taxes that the
plaintiff owed to the town of Goshen, as required under
§ 12-162. The defendant countered that ‘‘[t]here is no
genuine issue as to any material fact establishing that
the defendant was at all times acting in his official
capacity as a Connecticut state marshal, engaged in the
lawful service and execution of a valid alias tax warrant
in accordance with applicable law and within the scope
of his lawful duties, and thus was lawfully authorized to
receive and exercise control of his lawful statutory fee.’’
On February 27, 2018, by way of a memorandum
of decision, the court denied the plaintiff’s motion for
summary judgment and granted the defendant’s motion
for summary judgment. In its decision, the court
described its task as to determine the meaning of the
language, ‘‘executes such warrant and collects any
delinquent municipal taxes,’’ in § 12-162 (c),4 and con-
sider that language specifically in relation to General
Statutes § 52-261,5 which pertains to fees and expenses
of officers serving process or performing other duties,
and § 12-144b, which sets forth the proper order of
application of tax payments. The court set forth the
applicable law governing our interpretation of statutory
language, found that the phrase, ‘‘executes such warrant
and collects any delinquent municipal taxes,’’ under
§ 12-162 (c) ‘‘is susceptible to more than one reasonable
interpretation,’’ and thus concluded that the language
is not plain or unambiguous. (Internal quotation marks
omitted.) Having so concluded, the court ‘‘look[ed] for
interpretative guidance in the statutes’ legislative his-
tory, legislative policy and relationship to other
statutes.’’
The court set forth the following reasoning: ‘‘The
obvious policy underlying § 12-162 (c), is that, ‘if a
municipality chooses to use [a state marshal] to collect
delinquent taxes, the cost of that collection should be
borne by the delinquent taxpayers rather than by those
who duly pay their taxes.’ See also New Haven v.
Bonner, 272 Conn. 489, 496, 863 A.2d 680 (2005) (con-
cluding same under General Statutes § 12-166 for utiliz-
ing a ‘collection agency’). ‘The tax collector can use an
alias tax warrant, which authorizes a [marshal] . . . to
collect the delinquent taxes, interest and charges. [§ 12-
162 and General Statutes § 12-135 (a)]. The warrant
contains language threatening the taxpayer with the
sale of his property, garnishment of his wages, or pay-
ment from assets in his bank. But its effect also depends
on the [marshal’s] . . . persistence . . . .’ [Office of
Legislative Research, Connecticut General Assembly,
Report No. 2001-R-0468, Towns’ Authority to Contract
With Private Agencies to Collect Delinquent Taxes (May
9, 2001)]. . . .
‘‘The court must also interpret [§] 12-162 (c) in light
of § 12-144b. In 2013, our legislature made changes to
§ 12-144b to ‘improve tax collectors’ ability to collect
taxes . . . .’ [Public Acts 2013, No. 13-276, § 20 (P.A.
13-276), Office of Fiscal Analysis, Connecticut General
Assembly, Fiscal Note, Senate Bill No. 965, An Act Con-
cerning Changes to Municipal Revenue Collection Stat-
utes]. . . . The 2013 revisions ‘modif[y] the order in
which tax collectors must apply property tax payments,
giving priority to expenses incurred related to the tax
and delinquency-related charges before the principal
on the oldest outstanding tax . . . .’ [P.A. 13-276, Office
of Legislative Research, Connecticut General Assembly,
Bill Analysis for Senate Bill No. 965, An Act Concerning
Changes to Municipal Revenue Collection Statutes].
. . .
‘‘The legislative history of § 12-144b also includes the
following: ‘§§ 20 [and] 43—Order of Applying Property
Tax Payments. Under current law, tax collectors must
apply (1) tax payments on any specific property to the
oldest outstanding tax and (2) partial tax payments or
installments on any assessment list containing both real
and personal property to the personal property tax first,
unless the person making the payment directs other-
wise in writing. The bill eliminates these requirements
and instead requires tax collectors to apply all tax pay-
ments first to outstanding unsecured taxes (i.e., per-
sonal property taxes) and then to outstanding secured
taxes (i.e., real property taxes). The tax payments for
these respective taxes apply as follows: 1. first to
expenses, including attorney’s fees, collection
expenses, recording fees, collector’s fees, and other
expenses and charges related to a taxpayer’s delin-
quency; 2. next to accrued interest; and 3. lastly, to
principal, in chronological order. The bill also specifies
that a municipality is not bound by any notation accom-
panying a tax payment that (1) purports to be payment
in full, (2) proposes to waive any of the municipality’s
rights or powers, or (3) directs the application of the
payment in any manner that contradicts applicable
law.’ Id.
’’The legislative history and purpose of § 52-261 is
illustrative. In the 2003 revisions to § 52-261, ‘[t]he bill
[Public Acts 2003, No. 03-224 (P.A. 03-224)] increases
the fee for a person who levies an execution and either
collects and pays money or secures a debt from 10
[percent] to 15 [percent] of the amount of the execution.
It increases the minimum fee for this execution from
$20 to $30.’ [P.A. 03-224, Office of Legislative Research,
Connecticut General Assembly, Bill Analysis for Substi-
tute House Bill No. 6476, An Act Concerning State Mar-
shals]. . . . An Office of Legislative Research report
provided the following, ‘ALIAS TAX WARRANTS. After
making a demand for unpaid taxes, a tax collector can
issue an alias tax warrant to a state marshal or consta-
ble. The alias tax warrant commands the officer to
collect the tax, interest, penalty, and charges from the
taxpayer. The officer can garnish the taxpayer’s wages
or collect funds from a bank account or the taxpayer’s
goods or real estate ([§ 12-162]). If the officer levies on
real estate, the property is sold under the procedures
for a tax sale (see below, [General Statutes] § 12-157).
The tax collector’s fee for issuing an alias tax warrant
is $6 ([General Statutes] § 12-140). An officer serving
an alias tax warrant is entitled to collect the fees
allowed by law for serving executions issued by a court.
A state marshal or constable who executes a warrant
and collects delinquent municipal taxes receives, in
addition to expenses otherwise allowed, 15 [percent] of
the taxes collected under the warrant or a $30 minimum
(§§ 12-162 and 52-261). The amount a taxpayer owes is
not just the amount due on the tax but includes interest
on the delinquent portion of the principal of any tax
due at a rate of 18 [percent] per year from the time it
is due until it is paid ([General Statutes] § 12-146). This
is the amount put into the alias tax warrant and the state
marshal’s 15 [percent] is calculated on this amount. If
a state marshal performs some other functions, such
as publishing advertisements or conducting title
searches, he or she could also be separately reimbursed
for costs.’ [Office of Legislative Research, Connecticut
General Assembly, Report No. 2008-R-0518, State Mar-
shals and Selling Residential Real Estate for Delinquent
Taxes (September 10, 2008)]. . . .
‘‘Additional legislative history to P.A. 03-224
addresses a marshal’s collection of money under § 52-
261. For example, Robert S. Miller, the president of the
Connecticut State [Marshal’s Association, Inc.], submit-
ted the following relevant written remarks to the
[House] [J]udiciary [C]ommittee in support of the 2003
amendments that ‘the vast majority of executions
[were] both small [and] uncollectible [and] the [mar-
shals] expend[ed] much effort, time and money trying
to collect these debts and [made] no money at all,’ and
that P.A. 03-224, which would increase the fees for
executions to [15] percent and raise the minimum to
$30, was ‘the first raise in [thirteen] years and [would]
bring the fees in line with the minimum that collection
agencies charge[d].’ [Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 6, 2003 Sess., p. 1964]. In addi-
tion, Representative Michael P. Lawlor explained in his
remarks before the House of Representatives that ‘a
[s]tate [m]arshal . . . is collecting money on behalf of
a creditor’ under § 52-261. [46 H.R. Proc., Pt. 17, 2003
Sess., p. 5443, remarks of Representative Lawlor on
P.A. 03-224].
‘‘Pursuant to [General Statutes] § 1-2z, the court
agrees with the state marshal defendant that §§ 12-162
(c), 12-144b and 52-261 may be construed more broadly
than the plaintiff contends, given some purposes under-
lying these statutes are to make it easier for municipali-
ties to collect delinquent taxes and to have the cost of
delinquent tax collection be borne by the delinquent
taxpayers rather than by those who duly pay their taxes.
The court must next consider the related case law.
‘‘The plaintiff cites to Danbury v. Sullivan, Superior
Court, judicial district of Danbury, Docket No. CV-
303581-S (December 4, 1991) (Fuller, J.) (5 Conn. L.
Rptr. 325), as being directly on point. In that case, the
defendant, a deputy sheriff, filed a counterclaim seeking
to collect fees related to the collection of delinquent
taxes. Id. The city filed a motion to strike, including
the second count, which attempted ‘to collect sheriff’s
fees on amounts paid directly by the taxpayer [to the
city] for overdue taxes.’ Id. In granting the motion to
strike the second count, the court found that ‘[i]t is
apparent from the terms of the statute that any deputy
sheriff who serves an alias tax warrant is required to
collect the fees for serving the execution from the tax-
payer, not the municipality. To recover the additional
fees under the statute the sheriff must execute the war-
rant and collect delinquent taxes. Merely serving the
alias tax warrant on the taxpayer is not enough.’ . . .
Id., 326. The plaintiff also makes the point that this is
not a case of the town hiring a collection agency instead
of a marshal. See New Haven v. Bonner, supra, 272
Conn. 496 (finding ‘the obvious policy underlying [§ 12-
166] is that, if a municipality chooses to employ a collec-
tion agency to collect delinquent taxes, the cost of that
collection should be borne by the delinquent taxpayers
rather than those who duly pay their taxes’). The . . .
defendant contends that Sullivan is not persuasive
authority because [t]he trial court’s interpretation is
that there is a requirement of the physical collection
of the delinquent tax payment by the marshal, and
ignores the reality that, absent the marshal’s efforts, no
tax payment would have been ‘collected’ at all. Indeed,
the tax was in fact ‘collected.’ Further, the [court in]
Sullivan completely ignores the mandates of the tax
warrant itself, commanding the delinquent taxpayer to
make payment of the delinquent tax to the marshal.
. . . The court agrees with the defendant that Sullivan
has limited persuasive authority given the policy under-
lying the statutory framework for the collection of
municipal delinquent taxes and the development of the
law since 1991.
‘‘The . . . defendant argues that he had either actu-
ally or constructively seized moneys owed to the town
because he performed his official duty and enforced the
alias tax warrant. He cites Corsair Special Situations
Fund, L.P., v. Engineered Framing Systems, Inc.,
Docket No. 3:11-CV-01980 (JCH), 2016 WL 128089 (D.
Conn. January 11, 2016), where the District Court deter-
mined whether the state marshal was entitled to recover
his 15 percent fee and construed § 52-261 (a) (2) (F)
along with the Appellate Court’s decision of Nemeth v.
Gun Rack, Ltd., 38 Conn. App. 44, 52, 659 A.2d 722
(1995). After reviewing the statutory language, the Dis-
trict Court found that ‘[w]hen [the state marshal] prop-
erly served [the third party] with the [w]rit, he imposed
upon [that third party] a legal obligation to pay him the
money it owed the judgment debtor, rather than pay-
ing the judgment debtor directly. While [the state mar-
shal] did not actually seize the money that [the third
party] owed the judgment debtor, he did constructively
seize it by putting [that third party] on notice of its
legal obligation to deliver the money it owed the judg-
ment debtor to [the state marshal]. And, given that levy
has been defined as an actual or constructive seizure,
[the state marshal’s] constructive seizure of the debt
owed by [the third party] to the judgment debtor consti-
tutes a levy.’ Corsair Special Situations Fund, L.P. v.
Engineered Framing Systems, Inc., supra, 2016 WL
128089, *4.
‘‘The case of Masayda v. Pedroncelli, Superior Court,
judicial district of Waterbury, Docket No. CV-94-
0120878-S (July 20, 1998) (West, J.) (22 Conn. L. Rptr.
449), also provides support for the state marshal defen-
dant’s argument. There, judgment was entered by the
court for the plaintiffs, and reasonable attorney’s fees
and costs were awarded. Id. To collect on the judgment,
the plaintiffs encumbered [the] defendants’ real prop-
erty with judgment liens. Id. When the debt remained
unsatisfied, the plaintiffs applied for and obtained a
bank execution. Id. The deputy sheriff served the execu-
tion and the defendants objected. Id., 449–50. Subse-
quently, the defendants’ counsel forwarded to [the]
plaintiffs’ counsel the sum of $18,014.31, which came
from a source other than [the] defendants’ executed
upon bank accounts. Id., 450. The plaintiffs sought pay-
ment of the deputy sheriff’s fee for levying execution
on [the] defendants’ bank accounts, in an amount which
they claim[ed] [was] $1800 pursuant to the controlling
[statute], § 52-261, and argued that the judgment in this
case remained unsatisfied in an amount equal to that
fee. Id. The defendants denied owing any fee for the
levying of the bank execution. Id. ‘In the alternative,
however, they argue[d] that [if] the sheriff [is] entitled
to a fee, that fee would be the statutory minimum of
$20 and no more.’ Id. The defendants argued that ‘for
the deputy sheriff to be entitled to anything other than
the $20 minimum fee under [§] 52-261, money would
have had to have been actually collected or paid over
from the accounts against which the execution was
levied.’ Id. In construing § 52-261, the court found that
‘[c]ontrary to [the] defendants’ reading,’ § 52-261 ‘does
not require that the money be collected and paid over
from the account levied upon.’ Id. The court did not
agree with the defendants’ reading of § 52-261 to add
an additional requirement that the source of payment be
considered. Id. ‘Certainly, after levying the execution,
payment by the debtor directly to the creditor should
not deprive the sheriff of his fee.’ Id. The court interpre-
ted the statute as indicating the intention of the legisla-
ture to entitle a sheriff to his fee when he has performed
his duty, although payment is made from another
source. Id. ‘In accord with the foregoing, the court
[found] that the sheriff ha[d] satisfied the requirements
of [General Statutes] § 52-261 . . . [he] levied an exe-
cution and the money [was] collected and paid over to
the plaintiffs and, as a result, he [was] entitled to his
fee of $1800 as provided by said statutes.’ Id.
‘‘This court must determine whether the state mar-
shal defendant executed the alias tax warrant and col-
lected any delinquent municipal taxes pursuant to § 12-
162 (c), either actually or constructively. In Benjamin
v. Hathaway, 3 Conn. 528, 532 (1821), the Supreme
Court, in considering the mode of levy, noted that ‘[t]he
law cannot define precisely, in every case, how these
acts shall be done. It prescribes general rules; and these
have been complied with.’ A broad interpretation of
‘levy’ is also consistent with Nemeth v. Gun Rack, Ltd.,
supra, 38 Conn. App. 51, where the court found that
‘[l]evy,’ which is not a defined term in the [Uniform
Commercial Code, General Statutes § 42a-1-101 et seq.],
should be read broadly as including not only levies
of execution proper but also attachment, garnishment,
trustee process, receivership, or whatever proceeding,
under the state’s practice, is used to apply a debtor’s
property to payment of his debts.’
‘‘In the present case, the . . . defendant performed
his duty and enforced the alias tax warrant when he
mailed the plaintiff notice of the alias tax warrant and
demanded payment. . . . The town’s notice of intent
to lien, issued on March 8, 2016, already placed the
plaintiff on notice that if this type of collection enforce-
ment action was warranted, the plaintiff was responsi-
ble for paying all of the costs of collection that are
incurred in these efforts, in addition to the taxes, inter-
est and charges due. . . .
‘‘Pursuant to the alias tax warrant, the . . . defen-
dant was ‘hereby commanded to collect forthwith’ the
delinquent taxes. . . . Rather than proceed immedi-
ately against the plaintiff by levy on the real estate,
goods or chattel owned by the taxpayer, garnish the
taxpayer’s wages, or to seize the taxpayer’s funds on
deposit in a bank, the . . . defendant took the less
drastic step of sending a demand letter to the plaintiff.
The letter made demand for the payment of $3997.95,
which constituted the tax owed, $3476.48, interest and
fees, plus an additional 15 percent of said amount
($521.47) as part of the marshal fees. After receiving
the demand letter, the plaintiff made payment to the
town in the amount of $3476.48. From that amount, the
town paid the marshal’s fees, including the 15 percent
fee in accordance with § 12-144b. The . . . defendant
should not be denied his 15 percent fee because he
took the less drastic step of first sending the plaintiff
a demand letter rather than proceeding directly to
attachment of the plaintiff’s property, wages and/or
bank account. The state marshal defendant was clearly
engaged in a lawful collection enforcement effort
authorized by the alias tax warrant.
‘‘By analogy to Corsair Special Situations Fund, L.P.
v. Engineered Framing Systems, Inc., supra, 2016 WL
128089, when the . . . defendant sent a demand letter
to the plaintiff, he placed the plaintiff on notice of its
legal obligation to pay the delinquent taxes and the state
marshal defendant’s legal duty to collect the delinquent
taxes, and, therefore, constructively executed the alias
tax warrant pursuant to § 12-162 (c). The plaintiff did
not pay the delinquent taxes after the notice of intent
to lien, but only after the demand letter was sent. As
a result of the state marshal defendant’s actions, the
plaintiff made efforts to address its tax delinquency.
The . . . defendant’s efforts in collecting the delin-
quent taxes were successful without having to resort
to further levy and execution on the plaintiff’s property.
The . . . defendant earned his statutory fee based on
his performance of his statutory duties.
‘‘Similar to Masayda v. Pedroncelli, supra, 22 Conn.
L. Rptr. 449, the state marshal defendant is entitled to
his fee even though the plaintiff made payment directly
to the town. ‘In [Masayda], the sheriff levied an execu-
tion, and the money was actually collected and paid
over, albeit not from the accounts levied upon. Contrary
to [the] defendants’ reading, however, the statute does
not require that the money be collected and paid over
from the account levied upon. Section 52-261 of the
General Statutes is clear on its face. The defendants’
reading adds a nonexistent, additional requirement that
the source of payment be considered. Certainly, after
levying the execution, payment by the debtor directly
to the creditor should not deprive the sheriff of his fee.’
Id., 450.
‘‘Pursuant to Benjamin v. Hathaway, supra, 3 Conn.
532, the . . . defendant constructively made levy of
the alias tax warrant based upon the totality of the
circumstances. The court finds that the . . . defendant
satisfied the requirements of § 12-162 (c) and, as a
result, he was entitled to collect his 15 percent fee. This
finding is also consistent with [the] legislative purpose
of the statutory framework for the collection of delin-
quent municipal taxes. The . . . defendant’s efforts
made it easier for the town to collect the delinquent
taxes, which were months overdue. The . . . defen-
dant’s demand letter was effective in satisfying the tax
delinquency, and there was no need for further collec-
tion efforts; these facts were not reasons to deny the
defendant his fee under § 52-261. In addition, the plain-
tiff should bear the costs of the . . . defendant’s efforts
rather than town residents who pay their taxes on time.’’
(Citations omitted; emphasis in original.)
On the basis of the foregoing analysis, the court
denied the plaintiff’s motion for summary judgment and
granted the defendant’s motion for summary judgment.
This appeal followed.
The plaintiff claims on appeal that the trial court
erred in determining that the defendant was entitled to
the statutory 15 percent fee pursuant to § 12-162 (c)
because the defendant neither executed the alias tax
warrant nor collected the delinquent taxes owed to the
town of Goshen. We disagree.
‘‘Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Boone v. William W. Backus
Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). Like-
wise, issues of statutory construction present questions
of law, our review of which also is plenary. See Hicks
v. State, 297 Conn. 798, 800–801, 1 A.3d 39 (2010) (set-
ting forth process of ascertaining legislative intent pur-
suant to § 1-2z, and noting that, ‘‘[w]hen construing a
statute, [o]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature’’
[internal quotation marks omitted]).
The trial court carefully examined the record before
it and concluded that the defendant was entitled to the
15 percent statutory fee provided by § 12-162. We agree
with the trial court’s thoughtful and comprehensive
memorandum of decision, in which it thoroughly
reviewed the applicable statutory language, its legisla-
tive history, and relevant case holdings. Because that
memorandum of decision fully states and meets the
arguments raised in the present appeal, we adopt the
trial court’s well reasoned legal analysis, as set forth
herein, as a statement of the applicable law on these
issues. We are persuaded by the trial court’s application
of the holding in Corsair to this case, particularly in
light of the proceedings that occurred in Corsair subse-
quent to the District Court’s initial ruling regarding the
statutory fee, upon which the trial court in this case
relied in concluding that the defendant was entitled to
the 15 percent statutory fee.
As noted, the trial court in this case relied on the
decision issued by the United States District Court for
the District of Connecticut in concluding that the mar-
shal had constructively seized the delinquent taxes that
the plaintiff paid to the town of Goshen. Following the
District Court’s order, Corsair appealed to the United
States Court of Appeals for the Second Circuit, which
determined that § 52-261 is ambiguous, and thus certi-
fied two questions to our Supreme Court. Corsair Spe-
cial Situations Fund, L.P. v. Pesiri, 863 F.3d 176,
179–82 (2d Cir. 2017). Our Supreme Court accepted the
certification of the following questions: ‘‘(1) Was [the
state marshal] . . . entitled to a [15] percent fee under
the terms of [§ 52-261 (a) (F)]?
‘‘(2) In answering the first question, does it matter
that the writ was ignored and that the monies that were
the subject of the writ were procured only after the
judgment creditor, not the marshal, pursued further
enforcement proceedings in the courts?’’ Id., 183.
In addressing the certified questions, our Supreme
Court agreed with the Second Circuit’s conclusion that
the language of § 52-261 is ambiguous. Corsair Special
Situations Fund, L.P. v. Engineered Framing Systems,
Inc., 327 Conn. 467, 472–73, 174 A.3d 791 (2018). In
construing the phrase ‘‘levy of an execution,’’ the court
reasoned, inter alia: ‘‘As our Appellate Court previously
has recognized; see Nemeth v. Gun Rack, Ltd., [supra,
38 Conn. App. 52–53] . . . it is generally accepted that
a levy of an execution may be satisfied by a constructive
seizure of the property that is the subject of the execu-
tion. See 30 Am. Jur. 2d 202, Executions and Enforce-
ment of Judgments § 192 (2005) (‘A levy on personal
property is generally defined as a seizure of the prop-
erty. Thus, in most jurisdictions, it is essential to the
completion of a levy of execution upon personal prop-
erty that there be a seizure, either actual or constructive,
of the property.’ . . . Ballentine’s Law Dictionary (3d
Ed. 1969) p. 728 (‘At common law a levy on goods
consisted of an officer’s entering the premises where
they were and either leaving an assistant in charge of
them or removing them after taking an inventory. Today
courts differ as to what is a valid levy, but by the weight
of authority there must be an actual or constructive
seizure of the goods.’).
‘‘What constitutes a constructive seizure under our
law depends on the circumstances, i.e., the nature of
what is to be seized and from whom it is to be seized. See
General Statutes § 52-356a (a) (setting forth procedures
for execution against nonexempt personal property and
levying officer’s responsibilities).6 Those circumstances
dictate the levying officer’s authority, set forth in the
writ of execution. When levying an execution on debt
owed that is in the possession of a third party, construc-
tive seizure is effectuated when the writ of execution
is properly served on, and the demand of payment made
to, the third party, provided that the debt has or will
mature within the statutory term.’’ (Footnote in origi-
nal.) Corsair Special Situations Fund, L.P. v. Engi-
neered Framing Systems, Inc., supra, 327 Conn.
473–74.
The court then turned to the issue of the collection
of the debt, reasoning: ‘‘The right to the commission fee
accrues only after either of two conditions is satisfied:
‘when the money is actually collected and paid over,
or the debt or a portion of the debt is secured by the
officer . . . .’ General Statutes § 52-261 (a) (F). We
therefore turn to the question of whether the phrase
‘by the officer’ modifies the former, as well as the lat-
ter, condition.
‘‘Construing the phrase ‘by the officer’ to apply only
to the latter condition is supported by rules of grammar,
the genealogy of the statute, and simple common sense.
Under the last antecedent rule, ‘[r]eferential and qualify-
ing words and phrases, where no contrary intention
appears, refer solely to the last antecedent. The last
antecedent is the last word, phrase, or clause that can
be made an antecedent without impairing the meaning
of the sentence.’ . . . 2A N. Singer & J. Singer, Suther-
land Statutory Construction (7th Ed. 2007) § 47:33, pp.
487–89; see, e.g., Foley v. State Elections Enforcement
Commission, 297 Conn. 764, 786, 2 A.3d 823 (2010)
(applying rule); LaProvidenza v. State Employees’
Retirement Commission, 178 Conn. 23, 27, 420 A.2d
905 (1979) (same). There is not clear evidence of a
contrary intention in the statutory text, as ‘collected’
may refer to the debtor/third party from whom the
money is being collected or the person collecting the
money. Moreover, had the legislature intended for ‘by
the officer’ to apply to the first condition as well, it
could have expressed such an intention more clearly
by inserting a comma between the second condition
and that phrase (when the money is actually collected
and paid over, or the debt or a portion of the debt is
secured, by the officer). Application of the last anteced-
ent rule also is confirmed by a review of predecessors
of § 52-261. For more than a century, the statute pro-
vided for the fee ‘when the money is actually collected
and paid over, or the debt secured by the officer to the
acceptance of the creditor . . . .’ ’’ (Emphasis in origi-
nal.) Corsair Special Situations Fund, L.P. v. Engi-
neered Framing Systems, Inc., supra, 327 Conn.
475–76, quoting General Statutes (1902 Rev.) § 4850;
accord General Statutes (Rev. to 2001) § 52-261 (a) (6).
‘‘It is clear that the italicized phrase would not have
applied to the first condition. That phrase necessarily
reflected that the officer exercises some discretion in
the means or manner by which the debt is secured. The
officer exercises no similar discretion when money is
collected from the third party or debtor; the officer
merely accepts the money that is provided. . . .
Accordingly, if the phrase ‘to the acceptance of the
creditor’ did not modify the first condition, then the
preceding phrase ‘by the officer’ similarly would not
modify that condition. Although the legislature recently
excised the phrase ‘to the acceptance of the creditor’
from the statute; [P.A. 03-224], § 10; it gave no indication
that this change was intended to expand application of
the phrase ‘by the officer’ to the collection of money
or that it understood the previous statute to have such
a meaning. See 46 H.R. Proc., [supra], p. 5443, remarks
of [Representative Lawlor] (explaining that proposed
changes ‘will make it easier for the marshals to carry
out their responsibilities and for the [State Marshal]
Commission to conduct the oversight that is called for
under the reforms of a number of years ago’).
‘‘Finally, common sense dictates that we should not
construe the statute to limit the fee to only those circum-
stances in which the marshal has personally collected
the money and paid it over to the creditor, as Corsair
suggests. See Christopher R. v. Commissioner of Men-
tal Retardation, 277 Conn. 594, 608–609, 893 A.2d 431
(2006) (‘[i]n construing a statute, common sense must
be used and courts must assume that a reasonable and
rational result was intended’ . . .). Corsair’s construc-
tion of the statute also would deprive a levying officer
of the statutory commission if the third party violated
the order in the writ by paying the levied upon funds
directly to the creditor instead of the officer, whether
mistakenly or intentionally. See, e.g., Fair Cadillac
Oldsmobile Corp. v. Allard, 41 Conn. App. 659, 660, 677
A.2d 462 (1996) (after sheriff levied bank execution,
bank paid funds directly to creditor, instead of to sheriff,
at direction of creditor) . . . see also Masayda v.
Pedroncelli, [supra, 22 Conn. L. Rptr. 449, 450] (after
deputy sheriff served bank execution, judgment debtor
paid judgment creditor from source other than bank
account). Under Corsair’s interpretation of the statu-
tory scheme, the officer would not be entitled to the
fee, even though the creditor received the benefit of
the officer’s service because the third party’s obligation
to the judgment creditor arose only as a result of the
proper service of the writ of execution. Corsair’s con-
struction would create an incentive for judgment credi-
tors to circumvent the statutory commission, a process
that could inure to the benefit of both creditor and
debtor by an agreement to reduce the debt by an amount
less than the 15 percent fee in exchange for direct
payment. . . . Our courts previously have applied
common sense constructions to the facts of a given
case involving the levy of an execution when a possible
reading of the statute would have yielded a result that
the legislature reasonably could not have intended. See
Preston v. Bacon, 4 Conn. 471, 479–80 (1823) (sheriff
entitled to fee when sheriff had substantially performed,
and agreement by creditor and debtor’s attorney pre-
vented sheriff from completing final action statute
required to be entitled to fee) . . . Nemeth v. Gun
Rack, Ltd., supra, 38 Conn. App. 54–55 (applying expan-
sive interpretation of time limitation for applying for
turnover order when facts made it impossible for judg-
ment creditor to commence and complete levy on goods
within period prescribed, and creditor had done every-
thing that could reasonably be required under statute).’’
Corsair Special Situations Fund, L.P. v. Engineered
Framing Systems, Inc., supra, 327 Conn. 476–79.
On the basis of the foregoing, our Supreme Court
answered the first certified question, ‘‘[y]es,’’ the mar-
shal was entitled to the statutory fee. The court
answered the second certified question, ‘‘[n]o,’’ it did
not matter that the writ was ignored by the judgment
creditor and the funds were obtained through separate
enforcement proceedings. Id., 481.
Upon receipt of our Supreme Court’s response to the
two certified questions, the Second Circuit determined
that the marshal was entitled to the full 15 percent
statutory fee and affirmed the District Court’s decision
to award that amount. Corsair Special Situations
Fund, L.P. v. Pesiri, 887 F.3d 589, 591 (2d Cir. 2018).
The holding in Corsair supports the trial court’s con-
clusion that, by sending the demand letter and a copy
of the warrant, to the plaintiff, the defendant placed
the plaintiff on notice of its legal obligation to pay the
delinquent taxes and his responsibility to collect them,
and thereby constructively executed the tax warrant,
and thus that the defendant was entitled to his statutory
fee under § 12-162. We therefore conclude that the trial
court properly granted the defendant’s motion for sum-
mary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The town of Goshen and its tax collector, Rebecca M. Juchert-Derungs,
were defendants in this action until the plaintiff withdrew its complaint
against them on May 4, 2017. As Quinn is the only remaining defendant
herein, any reference to the defendant herein is only to him.
2
The notice of intent to lien stated, in part: ‘‘According to our records,
your REAL ESTATE taxes are past due. In accordance with CT General
State Statute 12-155, payment is hereby demanded for the taxes due on
this statement. The Tax [Collector’s] Office reserves the right to enforce
collection of the taxes listed herein by use of any of the following methods,
which include but are not limited to:
‘‘Assign your unpaid account to a Connecticut State Marshal for service
of an Alias Tax Warrant and enforced collection. State law provides those
servicing tax warrants with the ability to levy upon, seize and sell any real
estate, goods and chattels owed by you; to garnish your wages; and to seize
funds on deposit in any banking institution.
‘‘Please note that if this type of collection enforcement action is warranted,
you will also be responsible for paying all of the costs of collection that are
incurred in these efforts, in addition to the taxes, interest and charges due.
‘‘In order to avoid those actions, your account must be * * * PAID IN
FULL BY TUESDAY, APRIL 12, 2016 * * * or you must begin to make regular
monthly payments. Please call my office to set up a payment agreement. *
* * In compliance with State Statute 12-173, a lien will be placed on your
2014 Grand List property taxes on April 14, 2016 if not paid in full at that time.
‘‘Per § 12-144b, I must apply any payment made on this property to the
oldest outstanding tax levied with the interest thereon.’’
3
The plaintiff also alleged that the defendant violated its rights under the
Connecticut constitution. The trial court rejected that claim, and the plaintiff
has not challenged that ruling on appeal.
4
General Statutes § 12-162 (c) provides: ‘‘Any officer serving an alias tax
warrant pursuant to this section shall make return to the collector of such
officer’s actions thereon within ten days of the completion of such service
and shall be entitled to collect from such person the fees allowed by law
for serving executions issued by any court. Any state marshal or constable,
authorized as provided in this section, who executes such warrant and
collects any delinquent municipal taxes or water or sanitation charges as
a result thereof shall receive, in addition to expenses otherwise allowed,
a percentage of the taxes or the water or sanitation charges collected pursu-
ant to such warrant, calculated at the rate applicable for the levy of an
execution as provided in section 52-261. The minimum fee for such service
shall be thirty dollars. Any officer unable to serve such warrant shall, within
sixty days after the date of issuance, return such warrant to the collector
and in writing state the reason it was not served.’’ (Emphasis added.)
5
General Statutes § 52-261 provides in relevant part: ‘‘(a) Except as pro-
vided in subsection (b) of this section and section 52-261a, each officer or
person who serves process, summons or attachments on behalf of: (1) An
official of . . . any municipal official acting in his or her official capacity
. . . shall be allowed and paid . . . (F) for the levy of an execution, when
the money is actually collected and paid over, or the debt or a portion of
the debt is secured by the officer, fifteen per cent on the amount of the
execution, provided the minimum fee for such execution shall be thirty
dollars . . . .’’ (Emphasis added.)
6
General Statutes § 52-356a (a) provides in relevant part: ‘‘(2) The property
execution shall require a proper levying officer to enforce the money judg-
ment and shall state the names and last-known addresses of the judgment
creditor and judgment debtor, the court in which and the date on which
the money judgment was rendered, the original amount of the money judg-
ment and the amount due thereon, and any information which the judgment
creditor considers necessary or appropriate to identify the judgment debtor.
The property execution shall notify any person served therewith that the
judgment debtor’s nonexempt personal property is subject to levy, seizure
and sale by the levying officer pursuant to the execution . . . .
‘‘(3) A property execution shall be returned to court within four months
after issuance. . . .
‘‘(4) The levying officer shall personally serve a copy of the execution on
the judgment debtor and make demand for payment by the judgment debtor
of all sums due under the money judgment. On failure of the judgment
debtor to make immediate payment, the levying officer shall levy on nonex-
empt personal property of the judgment debtor, other than debts due from a
banking institution or earnings, sufficient to satisfy the judgment, as follows:
‘‘(A) If such nonexempt personal property is in the possession of the
judgment debtor, the levying officer shall take such property into his posses-
sion as is accessible without breach of the peace;
‘‘(B) With respect to a judgment debtor who is not a natural person, if
such personal property, including any debt owed, is in the possession of a
third person, the levying officer shall serve that person with a copy of the
execution and that person shall forthwith deliver the property or pay the
amount of the debt due or payable to the levying officer, provided, if the
debt is not yet payable, payment shall be made when the debt matures if
within four months after issuance of the execution . . . .
‘‘(5) Levy under this section on property held by, or a debt due from, a
third person shall bar an action for such property against the third person
provided the third person acted in compliance with the execution. . . .’’