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Corsair Special Situations Fund, L.P. v. Engineered Framing Systems Inc.

United States District Court, D. Connecticut

January 11, 2016

CORSAIR SPECIAL SITUATIONS FUND, L.P. Plaintiff,
v.
ENGINEERED FRAMING SYSTEMS INC., et al., JANUARY 11, 2016 Defendants.

RULING RE: MOTION FOR AWARD OF FEES (DOC. NO. 98-1)

JANET C. HALL, District Judge.

I. INTRODUCTION

On September 27, 2011, after successfully obtaining a judgment against the Defendants Engineered Framing Systems, Inc., EFS Structures, Inc., John J. Hildreth, and Marie N. Hildreth in the United States District Court for the District of Maryland, the plaintiff Corsair Special Situations Fund, L.P. ("Corsair") registered the foreign judgment in this court. See Registration of Foreign Judgment (Doc. No. 1). On September 29, 2011, Corsair obtained a Writ of Execution. See Writ of Execution (Doc. No. 7) (the "Writ"). On September 30, 2011, Interested Party State Marshal Mark A. Pesiri ("Pesiri") served the Writ and discovery requests on various third parties (collectively, "National Resources"). See Ruling Granting Plaintiff's Motion for Turnover Order at 2 (Doc. No. 73) ("Turnover Order").

After nearly two years had passed without satisfaction of the execution or the discovery requests, and significant proceedings in and out of court, the court issued the Turnover Order ordering the third parties to pay into court $2, 308, 504. See id. at 24. The Court of Appeals for the Second Circuit affirmed this Turnover Order on March 11, 2015. See Summary Order (Doc. No. 96). On March 25, 2015, Corsair notified Pesiri that the case had come to a close and requested an invoice for his services. See Partial Opposition to Connecticut State Marshal Mark A. Pesiri's Motion to Intervene at 5 (Doc. No. 99) ("Pl.'s Mot. for Award of Fees Opp'n"). In response, Pesiri demanded a fee of $346, 275.60, which is 15% of the amount the court granted Corsair in the Turnover Order. Id.[1] Corsair contends that Pesiri is due a fee of only $30, plus compensation for mileage. Id. at 10.

On June 5, 2015, $2, 311, 043 was wired to the court in satisfaction of the Turnover Order. See Order at 1 (Doc. No. 106). On June 16, the court ordered that $1, 964, 767.40, which represented the difference between the $2, 311, 043 that was wired to the court and the $346, 275.60 that Pesiri sought in fees, be paid over to Corsair. See id. at 2.

Pending before the court is Pesiri's Motion for Award of Fees (Doc. No. 98-1) ("Mot. for Award of Fees"), in which Pesiri requests an award of fees in the amount of $346, 275.60. See Mot. for Award of Fees at 6, ¶ (b). For the following reasons, the Motion is granted.

II. DISCUSSION

Pesiri claims that, upon effective service of the Writ, he became entitled to 15% of the execution amount, pursuant to C.G.S.A. § 52-261(a). See id. at 1-2. In response, Corsair argues that, in order for Pesiri to have become entitled to the 15% fee provided for in C.G.S.A. § 52-261(a)(2)(F), he must have first levied on National Resources' property. See Pl.'s Mot. for Award of Fees Opp'n at 7. Corsair asserts that Pesiri merely served the Writ on National Resources, without ever levying National Resources' property. Id.

Section 52-261 of the Connecticut General Statutes is titled, "Fees and expenses of officers and persons serving process or performing other duties." C.G.S.A. § 52-261.[2] At the outset, it provides that "each officer or person who serves process, summons or attachments... shall receive a fee of not more than forty dollars for each process served." Id . It subsequently provides that additional "fees shall be allowed and paid" for various acts. Id . Of importance to this case, subsection (a)(2)(F) states that the following fee should be "allowed and paid": "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." Id.

Before the court can determine whether Pesiri's actions entitled him to the 15% fee, the court must first determine what must occur in order for the entitlement to arise. It is not immediately clear whether section 52-261(a)(2)(F) contemplates two factual circumstances in which the 15% fee entitlement is triggered, or three. Section 52-261(a)(2)(F) contains five distinct clauses, each of which is separated from the other clauses by a comma. The final two clauses are uncontroversial, as they simply state the additional fee amount envisaged by subsection (F): either 15% of the amount of the execution or $30, whichever is greater.

On the other hand, the first three clauses are clumsily drafted and require greater attention. One interpretation of these three clauses, with which the court agrees, is that the second and third clauses modify the first clause. Under this interpretation, the officer qualifies to become entitled to the additional fee: (1) if there is a "levy of an execution" and the money is "actually collected and paid over" or, (2) there is a "levy of an execution" and "the debt or a portion of the debt is secured by the officer."

A second interpretation reads the first three clauses as disjunctive, and contemplates three scenarios in which the officer becomes entitled to the additional fee. Under this interpretation, an officer becomes entitled to the 15% fee if any one of the following three events occurs: (1) the [officer's] levy of the execution; (2) the money is actually paid over from the judgment debtor or a third party to the judgment creditor; or, (3) the officer secures the debt, or a portion thereof.

The broader structure of section 52-261 convinces the court that the former interpretation is the correct one. Section 52-261 contains the following 11 subsections, each of which provides an additional fee for a particular action:

The following fees shall be allowed and paid: (A) For taking bail or bail bond, one dollar; (B) for copies of writs and complaints, exclusive of endorsements, one dollar per page, not to exceed a total amount of nine hundred dollars in any particular matter; (C) for endorsements, forty cents per page or fraction thereof; (D) for service of a warrant for the seizure of intoxicating liquors, or for posting and leaving notices after the seizure, or for the destruction or delivery of any such liquors under order of court, twenty dollars; (E) for the removal and custody of such liquors so seized, reasonable expenses, and twenty dollars; (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; (G) on the levy of an execution on real property and on application for sale of personal property attached, to each appraiser, for each half day of actual service, reasonable and customary expenses; (H) for causing an execution levied on real property to be recorded, fees for travel, twenty dollars and costs; (I) for services on an application for the sale of personal property attached, or in selling mortgaged property foreclosed under a decree of court, the same fees as for similar ...

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