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 ...