Turner v. Smith
| Decision Date | 13 May 1992 |
| Docket Number | No. 300665,300665 |
| Court | Connecticut Superior Court |
| Parties | David TURNER v. Gary SMITH et al. |
Ronald Voog, for plaintiff.
No appearance for named defendant.
Halloran & Sage, for defendant Town of New Milford.
The present case, which originally began as a breach of contract action for failure to pay the costs to restore and repair an automobile, has evolved into a dispute over lien priorities resulting from seizure of the car under the federal drug forfeiture statute, 21 U.S.C. § 881. The plaintiff claims priority as a result of a prejudgment remedy issued on October 12, 1989. After the federal Drug Enforcement Agency (DEA) seized the car, it was given to the New Milford police department for purposes of storage and sale. When the car was sold in disregard of a notice of attachment previously placed on the car's windshield, the plaintiff cited in the town of New Milford as an additional defendant for selling the car without notice to the plaintiff and for disregarding the prejudgment remedy for a possible judgment against the original car owner. The defendant town of New Milford, has moved for summary judgment on the ground that the forfeiture proceedings extinguished any ownership interest the plaintiff had in the car.
A summary judgment may be granted under § 384 of the Practice Book if the pleadings, affidavits and other proof submitted with the motion show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Connelly v. Housing Authority, 213 Conn. 354, 364, 567 A.2d 1212 (1990). To prove that there is no genuine issue of material fact, the moving party must make a showing that it is quite clear what the truth is, and that it excludes any real doubt as to the existence of any material fact. Fogarty v. Rashaw, 193 Conn. 442, 445, 476 A.2d 582 (1984). A material fact has been defined as a fact that will make a difference in the result of the case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). In deciding whether there is a material issue of fact, the court considers the evidence in the light most favorable to the nonmoving party. Connell v. Colwell, 214 Conn. 242, 247, 571 A.2d 116 (1990). " 'Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.' " State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988).
There is no material disputed question of fact in the present case. Conclusions and inadmissible evidence in the plaintiff's affidavit, including speculation that criminal charges against the defendant Gary Smith were dismissed, must be disregarded. Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980). From July 1, 1988, through August, 1989, the plaintiff, acting on a contract with Smith, rebuilt and restored a 1982 Ford Custom Cobra automobile at his garage. The value of the services was about $25,000. When the plaintiff commenced this action, the Superior Court, Stodolink J., granted him a prejudgment remedy on October 12, 1989, allowing for the attachment of the car to the value of $25,000. Four days later, David E. Pare, a deputy sheriff for Litchfield county, made service of the prejudgment remedy and the complaint at Smith's residence and at the New Milford police department, which then had the car in its possession. The car had been seized by the DEA on September 26, 1989. The DEA designated the New Milford police department as the site at which it held custody to the property, and notified Smith of the seizure and attempted to notify any existing lienholders, but determined that no one had filed any liens on the title of the car. The plaintiff had not filed any lien and had no recorded interest or attachment on the car at least until October 16, 1989.
In August, 1989, the plaintiff had allowed Smith to take the car from the plaintiff's garage to use on an interim basis and to decide whether additional repair work was required. Smith was later arrested by the DEA on a charge of violating federal statutes on the sale and trafficking of illegal narcotics, and the car was seized at the time of Smith's arrest. While the plaintiff had no knowledge that Smith was engaged in narcotics trafficking, that is immaterial as to the priority of lien rights between the plaintiff and the DEA.
A copy of the attachment was apparently placed on the windshield of the car by the sheriff on October 16, 1989. The federal government published notice of the seizure in the newspaper U.S.A. Today on November 29, 1989. While the New Milford police department knew about the attachment, no claim to the car was filed and no bond was given to the United States customs officer within twenty days of the first publication of the notice of seizure as required by 19 U.S.C. § 1608. The car was declared forfeited on January 4, 1990. The sheriff served the prejudgment remedy a second time on January 11, 1990, gave a copy to an officer in the New Milford police department and placed another copy on the car windshield. The plaintiff claims that the town removed the attachment from the automobile. Whether or not that occurred, the car was sold at public auction for $22,000, which was apparently much less than its fair market value at the time. Prior to the sale, title to the car had been transferred to the New Milford police department for disposition pursuant to 21 U.S.C. § 881(e).
Where there is no genuine issue as to any material fact, the next question on a summary judgment is whether the moving party is entitled to judgment as a matter of law. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983). That question is resolved by applying to the established facts the same test used in determining whether a party would be entitled to a directed verdict on the same facts. Connell v. Colwell, 214 Conn. at supra, 247, 571 A.2d 116; Connelly v. Housing Authority, supra, 213 Conn. at 364, 567 A.2d 1212. This requires a determination whether the plaintiff had a valid lien on the property before the car was seized by the DEA, whether the federal forfeiture procedures were correctly followed under the circumstances, and whether the actions of the New Milford police department illegally deprived the plaintiff of any perfected property rights to the car. The operation of a municipal police department is a governmental function. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988). The police department is not a separate legal entity, but a department of the defendant town, and the department acted for the town in selling the car.
Before determining whether the sale was lawful under the circumstances, the court must resolve the issue of the plaintiff's property interest in the car. The bailment of an automobile for repairs has been held to subject the car to a lien for the amount of repairs. New Britain Real Estate & Title Co. v. Collington, 102 Conn. 652, 656, 129 A. 780 (1925). See also General Statutes § 49-61. The lien is dependent upon retention of possession of the property, however, and it is immediately lost when possession is surrendered, even where the owner takes the property for his personal use without objection with an agreement that it will be returned. Fishell v. Morris, 57 Conn. 547, 551, 552, 18 A. 717 (1889) (). If the plaintiff had a bailee's lien on the car for the value of his repair services, it was lost when he allowed Smith to take the car in August, 1989. The car was seized when used in drug trafficking at a time when it was not in the possession of the plaintiff. Accordingly, on September 26, 1989, when the United States DEA seized the car, it was not subject to any lien of the plaintiff.
Under 21 U.S.C. § 881(a)(4) any vehicles that are used to transport or facilitate the transportation, sale, receipt, possession or concealment of controlled substances, such as narcotics, "shall be subject to forfeiture to the United States and no property right shall exist in them." This is an in rem proceeding, and it is civil, not criminal. Due process does not replace preseizure notice of an opportunity to be heard be given to the owner of a vehicle subject to forfeiture. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679, 94 S.Ct. 2080, 2089-90, 40 L.Ed.2d 452 (1974); United States v. One 1977 Mercedes Benz, 708 F.2d 444, 450 (9th Cir.1983). Property taken or detained under § 881 is not repleviable and is considered to be in the custody of the Attorney General subject only to orders and decrees of the United States District Court or the official having jurisdiction over the property. 21 U.S.C. § 881(c). Moreover, 21 U.S.C. § 881(h) provides that "[a]ll right, title, and interest in property described in subsection (a) of this section shall vest in the United States upon commission of the act giving rise to forfeiture under this section." Since the statute relates back to the wrongful act resulting in forfeiture, the United States has priority over a creditor that acquired rights in the property after the wrongful act even if there was no notice to the creditor of the illegal narcotics transaction. United States v. Four Parcels of Real Property on Lake Forrest Circle, 870 F.2d 586, 593-94 (11th Cir.1989). The United States government held title and custody to the car, and was allowed to remove it to the New Milford police department. 21 U.S.C. § 881(c)(2). The form attached to the motion for summary judgment indicates that title to the property was not actually transferred to the New Milford police department until April 27, 1990. Even though the granting of the prejudgment remedy by the Superior Court authorized the...
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