Argued
February 11, 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district of Litchfield, where the action was withdrawn as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.; thereafter, 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).
Alvord, Sheldon and Moll, Js.
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
executing 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 defendant
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 Litchfield. 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
lien[2]
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 plaintiffs delinquent account, at the expense of the
plaintiff, by any of several means, including assigning the
plaintiffs 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 plaintiffs 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 plaintiffs 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 attachments. 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 equipment, 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 General Statutes
§ 12-144b, as follows: $453.34 for the defendant'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 plaintiffs outstanding delinquent tax bill.
After
the tax collector applied the plaintiffs 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 plaintiffs 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 plaintiffs 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 consider 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 "lookfed]
for interpretative guidance in the statutes' legislative
history, 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)
(concluding same under General Statutes § 12-166 for
utilizing 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
payment from assets in his bank. But its effect also depends
on the [marshal's] . . . ...