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Colon-Collazo v. Cox

Court of Appeals of Connecticut

October 1, 2019

JUAN COLON-COLLAZO
v.
LESLIE COX

          Argued May 15, 2019

         Procedural History

         Action to recover damages for defamation and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant filed acounter-claim; thereafter, the plaintiff withdrew the complaint; subsequently, the matter was transferred to the judicial district of Stamford, where the court, Heller, J., rendered judgment on the counterclaim for the defendant in accordance with a stipulation of the parties; thereafter, the court, Hon. Edward J. Karazin, Jr., judge trial referee, ordered that certain property of the plaintiff was exempt from a property execution, and the defendant appealed to this court. Reversed in part; further proceedings.

          Thomas B. Noonan, for the appellant (defendant).

          Juan Colon-Collazo, pro se, the appellee (plaintiff) filed a brief.

          Lavine, Prescott and Eveleigh, Js.

          OPINION

          PRESCOTT, J.

         In this appeal from postjudgment proceedings to obtain satisfaction of a civil dissolution judgment, the defendant judgment creditor, Leslie Cox, appeals from the judgment of the trial court ordering that certain property of the plaintiff judgment debtor, Juan Colon-Collazo, is exempt from a property execution.[1] On appeal, the judgment creditor claims that the court improperly concluded that certain property she sought to levy was exempt because (1) the judgment debtor never filed a claim for an exemption as required by our statutes and case law and (2) its conclusion was not supported by any evidence. We reverse, in part, the judgment of the trial court.

         The following facts, as found by the trial court, and procedural history are relevant. In February, 2012, the judgment debtor initiated an action against his former wife, the judgment creditor, alleging defamation. The judgment debtor withdrew the complaint, and the action proceeded on the judgment creditor’s amended counterclaim, which alleged various breaches of the parties’ separation agreement, including that the judgment debtor was in arrears on his obligations to pay unallocated alimony and child support. The judgment debtor was unrepresented during these underlying proceedings and on appeal. The parties stipulated to the amount due on the counterclaim, and, on November 23, 2015, the court, Heller, J., rendered judgment on the counterclaim in the amount of $448, 946.61, plus postjudgment interest.

         On August 15, 2016, the judgment creditor applied for a property execution pursuant to General Statutes § 52-356a, which was issued by the clerk of the court. A levying officer seized the property in a storage unit at Uncle Bob’s Self Service Storage in Stamford (storage unit).[2]

         On May 12, 2017, the judgment creditor filed a ‘‘Claim for Determination of Interests in Disputed Property’’ form that sought a determination of the parties’ interests in the personal property in the storage unit, stating that the storage unit was leased in the name of the judgment debtor’s father, Juan Colon-Pagan, but that the judgment debtor stored property in the storage unit that either belonged to him or was a former marital asset. See General Statutes § 52-356c.

         The clerk of the court signed the section of the ‘‘Claim for Determination of Interests in Disputed Property’’ form entitled ‘‘Order For Hearing and Notice’’ and set a hearing date for June 5, 2017. Following an evidentiary hearing, the court, Hon. Edward R. Karazin, Jr., judge trial referee, issued a memorandum of decision on July 28, 2017, that determined the interest in the disputed property contained in the storage unit. The court found that the storage unit was in the name of the judgment debtor’s father, but that the judgment debtor owned the contents of the storage unit. The court noted that none of the witnesses provided a complete list of the items in the storage unit, and that it searched the records and photographs of the inside of the storage unit to determine its contents. The court determined that a variety of items in the storage unit statutorily were exempt, pursuant to General Statutes § 52-352b, from property execution and that various other items were to be sold.[3] The court ordered that all other boxes and items not identified were to be sold except that the judgment debtor would have the ability to review those boxes to retain financial papers containing personal, identifying information. The court ordered that the net proceeds of the sale exceeding $1000 be turned over to the judgment creditor, and that the judgment debtor was to retain up to the first $1000. The judgment creditor filed a motion to reargue, which the court denied. This appeal followed.

         I

         The judgment creditor claims that because the judgment debtor did not claim that some or all of the goods were exempt from levy execution by filing an exemption claim form, the court’s determination that certain property statutorily was exempt from execution was improper. We agree.

         To place the judgment debtor’s claim on appeal in the proper context, we turn to the relevant statutory scheme.[4] General Statutes § 52-356a (a) (1) provides in relevant part: ‘‘On application of a judgment creditor or a judgment creditor’s attorney, stating that a judgment remains unsatisfied and the amount due thereon, and subject to the expiration of any stay of enforcement and expiration of any right of appeal, the clerk of the court in which the money judgment was rendered shall issue an execution pursuant to this section against the nonexempt personal property of the judgment debtor . . . .’’ Pursuant to General Statutes § 52-350f, ‘‘[a] money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under section . . . 52-352b . . . .’’ Section 52-352b provides a list of personal property that is exempt from a property execution.

         The procedure by which a judgment debtor may claim an exemption is set forth in General Statutes § 52-361b (d), which provides in relevant part: ‘‘[A] judgment debtor may claim an exemption as to property . . . sought to be levied on . . . in a supplemental proceeding to the original action by return of a signed exemption claim form, indicating the property . . . claimed to be exempt . . . . Any claim with respect to a personal property execution under section 52-356a shall be returned within twenty days after levy on such property. On receipt of the claim, the clerk of the court shall promptly set the matter for a short calendar hearing and give notice of the exemption . . . claimed and the hearing date to all parties . . . .’’ (Emphasis altered.)

         Accordingly, this claim presents an issue of statutory construction over which our review is plenary. ‘‘The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . Issues of statutory construction involve questions of law over which we exercise plenary review.’’ (Citation omitted; internal quotation marks omitted.) State v. Rodriguez Roman, 297 Conn. 66, 74–75, 3 A.3d 783 (2010).

         The plain language of § 52-361b (d) provides that a judgment debtor may claim an exemption by returning a signed exemption claim form indicating the property claimed to be exempt. The use of the words ‘‘may’’ in the statute denotes that claiming an exemption is permissive conduct on the part of the judgment debtor. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 20, 848 A.2d 418 (2004) (generally ‘‘may’’ imports permissive conduct and conferral of discretion). That same subsection provides that a judgment debtor ‘‘shall’’ return a signed claim form, which suggests that the legislature intended to mandate a procedure that a judgment debtor must follow in order to make a claim for an exemption.[5] See id. (when legislature uses ‘‘shall’’ and ‘‘may’’ in same statute, those words ‘‘must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings’’ [internal quotation marks omitted]); see also Bailey v. State, 65 Conn.App. 592, 604, 783 A.2d 491 (2001) (absent indication to contrary, use of mandatory term ‘‘shall’’ indicates mandatory legislative directive).

         ‘‘The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied ...


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