O'brien-Kelley, Ltd. v. Town of Goshen

• Decision Date: 04 June 2019
• Docket Number: AC 41443
• Citation: 210 A.3d 641,190 Conn.App. 420
• Court: Connecticut Court of Appeals
• Parties: O'BRIEN-KELLEY, LTD. v. TOWN OF GOSHEN et al.

190 Conn.App. 420

210 A.3d 641

O'BRIEN-KELLEY, LTD.

v.TOWN OF GOSHEN et al.

AC 41443

Appellate Court of Connecticut.

Argued February 11, 2019

Officially released June 4, 2019

James Stedronsky, for the appellant (plaintiff).

Thomas Plotkin, with whom, on the brief, was Joseph B. Burns, Hartford, for the appellee (defendant Arthur R. Quinn III).

Alvord, Sheldon and Moll, Js.

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...