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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.; 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).
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 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 delinquent 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 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 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 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 ‘‘look[ed] 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] . . . 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 Concerning Changes to Municipal Revenue Collection Statutes]. . . . 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 otherwise in writing. The bill eliminates these requirements

and instead requires tax collectors to apply all tax payments first to outstanding unsecured taxes (i.e., personal 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 delinquency; 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 accompanying 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 Substitute House Bill No. 6476, An Act Concerning State Marshals]. . . . 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 constable. 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 Marshals 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.], submitted 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 [marshals] 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 addition, 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 underlying these statutes are to make it easier for municipalities 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. CV303581-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 taxpayer, not the municipality. To recover the additional

fees under the statute the sheriff must execute the warrant 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 collection 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 underlying 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 actually 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 determined 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 District Court found that ‘[w]hen [the state marshal] properly 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 paying the judgment debtor directly. While [the state marshal] 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 judgment 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 constitutes 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 defendant’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 property with judgment liens. Id. When the debt remained

unsatisfied, the plaintiffs applied for and obtained a

bank execution. Id. The deputy sheriff served the execution and the defendants objected. Id., 449–50. Subsequently, 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 payment 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 interpreted the statute as indicating the intention of the legislature 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 execution 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 marshal defendant executed the alias tax warrant and collected 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 enforcement action was warranted, the plaintiff was responsible for paying all of the costs of collection that are

incurred in these efforts, in addition to the taxes, interest and charges due. . . .

‘‘Pursuant to the alias tax warrant, the . . . defendant was ‘hereby commanded to collect forthwith’ the

delinquent taxes. . . . Rather than proceed immediately 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 delinquent 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 execution, 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 delinquent municipal taxes. The . . . defendant’s efforts

made it easier for the town to collect the delinquent

taxes, which were months overdue. The . . . defendant’s demand letter was effective in satisfying the tax

delinquency, and there was no need for further collection efforts; these facts were not reasons to deny the

defendant his fee under § 52-261. In addition, the plaintiff 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). Likewise, 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) (setting forth process of ascertaining legislative intent pursuant 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 legislative 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 subsequent 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 marshal 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 certified two questions to our Supreme Court. Corsair Special 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 execution. See 30 Am. Jur. 2d 202, Executions and Enforcement of Judgments § 192 (2005) (‘A levy on personal

property is generally defined as a seizure of the property. Thus, in most jurisdictions, it is essential to the

completion of a levy of execution upon personal property 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, constructive 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 original.) Corsair Special Situations Fund, L.P. v. Engineered 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 latter, 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, Sutherland 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 antecedent rule also is confirmed by a review of predecessors

of § 52-261. For more than a century, the statute provided 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 original.) Corsair Special Situations Fund, L.P. v. Engineered 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 circumstances 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 Mental 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 construction 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 statutory 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 construction would create an incentive for judgment creditors 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 prevented sheriff from completing final action statute

required to be entitled to fee) . . . Nemeth v. Gun

Rack, Ltd., supra, 38 Conn. App. 54–55 (applying expansive interpretation of time limitation for applying for

turnover order when facts made it impossible for judgment creditor to commence and complete levy on goods

within period prescribed, and creditor had done everything 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 marshal 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 conclusion 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 summary 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 pursuant 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 provided 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 judgment 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 judgment 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 nonexempt 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 possession 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. . . .’’