Opinion
No. CV08-4016602S
February 11, 2010
MEMORANDUM OF DECISION
This is an action for declaratory judgment to determine the priority of various claims by creditors of Intercity Development, LLC (Intercity) to the proceeds of a judgment recovered by Intercity as a result of a separate action against Irene Andrade and Joao Andrade (Andrades). The parties making claims are as follows: plaintiff Robert Ghent, defendant Northeast Builder Supply Home Center, LLC (Northeast), defendants Victor Stewart and Ann Marie Stewart (Stewarts), the defendant State of Connecticut Department of Consumer Protection (State), and the defendant Paul Rose. The Andrades have no claim to the fund.
Rose has not filed an appearance in this action.
Intercity withdrew its claim against the Andrades on August 13, 2008.
The issues presented in the motions for summary judgment filed by four of the parties: Intercity (#114), the State (#138), Northeast (#142) and Ghent (#145). The facts, as alleged in the amended complaint filed on January 22, 2009, are as follows:
Intercity is a Connecticut limited liability company owned by a single member, Anthony Stewart, who is also the sole member of a second limited liability company, Whispering Knolls Development, LLC (Whispering Knolls). Ghent has performed various legal services for Anthony Stewart, Intercity and Whispering Knolls.
Anthony Stewart is not related to Victor Stewart or Ann Marie Stewart.
Ghent represented Intercity in a civil action brought against the Andrades entitled Intercity Development, LLC v. Andrade, bearing docket number CV 02 0079156 S (Andrade). As a result of the action, Intercity obtained a judgment in the amount of $153,192.03 on August 1, 2008.
Ghent also represented Intercity in related appellate matters bearing docket numbers AC 25918, AC 26319, SC 17848 and SC 17849.
The Andrades paid Intercity $153,192.03, the full amount of the judgment on August 4, 2008, thereby creating the fund. From the proceeds of the fund, the sum of $69,000 was deposited with Robert P. Hanahan, Esq., acting as an escrow agent. As detailed below, various claims against the fund have arisen.
CLAIMS
By Northeast: On August 16, 2002, Northeast commenced an action bearing docket number CV 02 0395997 S against Intercity in the judicial district of Fairfield. On December 27, 2004, Northeast obtained a default judgment in the amount of $41,214.13. Northeast was aware of Andrade, which was pending at the time, and served two property executions on both Intercity and the Andrades. The first was served on Intercity on November 13, 2007, and then served on the Andrades on December 17, 2007. The second was served on all parties on June 3, 2008. Both were served before the judgment in Andrade was finally rendered. Northeast has a claim against the fund, by virtue of the property execution served on June 3, 2008, in the amount of $41,249.13. By the Stewarts: In 2004, the Stewarts commenced a civil action against Intercity bearing docket number CV 04 0411620 S. The parties settled the claim on September 28, 2005, by entering into a judgment by stipulation awarding the Stewarts $12,000. Pursuant to the stipulation, Ghent, acting as counsel for Intercity, provided a letter of protection promising to pay the judgment from any proceeds recovered by Intercity in Andrade. On June 21, 2007, the Stewarts assigned their right to payment under the stipulated judgment to the State. On May 23, 2008, the Stewarts served a property execution on Intercity in the amount of $2,284.93. The Stewarts claim that they are owed $2,284.93 from the fund as a result of the property execution.
According to the marshal's return, attached to Ghent's supplemental memorandum of law filed on October 16, 2009, the marshal had previously attempted to serve the Andrades on November 16, 2007, but had gone to the wrong address.
Northeast contends that both executions are valid, however. Furthermore, in its memorandum of law in support of its motion for summary judgment, Northeast asserts that its claim is actually for $57,952.30. This figure is calculated by taking the amount of the default judgment, $41,214.13, adding $16,703.17 in postjudgment interest and adding $35 for a property execution fee. The amount asserted as Northeast's claim in the amended complaint apparently represents only the amount of the judgment and the $35 fee.
By the State: On June 21, 2007, the Stewarts assigned to the State their right to the satisfaction of the stipulated judgment from the fund. Accordingly, the State claims a right to payment of $12,000 from the fund. By Ghent: In addition to the services rendered in Andrade, Ghent performed other legal services for Intercity, for which he had not been paid. Furthermore, Ghent also performed past legal services for Anthony Stewart personally and for Whispering Knolls, for which he had not been paid. There was an agreement that these unpaid legal fees, totaling $144,023.38, would be satisfied out of the fund. On May 22, 2008, Intercity assigned a portion of the proceeds of the Andrade judgment to Ghent not only for services rendered in Andrade but also for the other services rendered to Intercity and to the services to Whispering Knolls and to Anthony Stewart. Subsequently, Intercity paid Ghent $84,192.03. As to the remaining $59,831.35, Ghent claims a common law charging lien against the fund.
Ghent agrees that the State's Motion for Summary Judgment should be granted (Memorandum of Law dated January 8, 2009).
By Rose: Rose brought an action against Intercity seeking to recover amounts due under a promissory note and an indemnity agreement. On August 17, 2008, the court granted Rose's application for a prejudgment remedy against Intercity seeking to garnish the fund in the amount of $45,000. The attachment order was served on Intercity on October 2, 2008. Rose has an interest in $45,000 from the fund due to the attachment order.
DISCUSSION
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts . . ." (Citations omitted.) Credit One, LLC v. Head, 117 Conn.App. 92, 97, 977 A.2d 767.
The first issue is what priority an attorney's charging lien has against the claims of third parties. An attorney's charging lien "is a lien placed upon any money recovery or fund due the client at the conclusion of suit." Marsh, Day Calhoun v. Solomon, 204 Conn. 639, 643, 529 A.2d 702 (1987). "[The] lien is founded upon the equity of paying an attorney for fees and disbursements out of the judgment obtained through the attorney's efforts." Butterworth Scheck, Inc. v. Cristwood Contracting, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 94 0318818 (June 18, 1999, Nadeau, J.) ( 25 Conn. L. Rptr. 130). The source of the recovery may be a settlement as well as a judgment. McNamara Goodman v. Pink, 44 Conn.Sup. 592, 602, 696 A.2d 1328 (1997). This lien was first recognized by the Connecticut Supreme Court in 1836 in Cager v. Watson, 11 Conn. 168, 173 (1836). D'Urso v. Lyons, 97 Conn.App. 253, 256, 903 A.2d 697, cert. denied, 280 Conn. 928, 909 A.2d 523 (2006). Unlike in other jurisdictions, a charging lien in Connecticut is an equitable remedy deriving from the common law; it is not created or regulated by statute. McNamara Goodman v. Pink, supra, 600-01. Furthermore, "Connecticut law concerning attorney charging liens is relatively undeveloped." (Internal quotation marks omitted.) Gordon v. Ignal, Superior Court, judicial district of Fairfield, Docket No. CV 96 339700 (March 9, 2001, Rush, J.).
Article 9 of the Uniform Commercial Code, codified at General Statutes § 42a-9-101 et seq., which governs security interests generally, does not apply to charging liens under Connecticut law. See General Statutes § 42a-9-109(d)(2), see also Kubeck v. Cossette, supra, 28 Conn. L. Rptr. 35 (rejecting contention in W. Hairston, "The Ranking of Attorney's against Other Liens in the United States," 7 J. Legal Prof. 193, 196 n. 16 (1982), that common law charging liens are governed by Article 9 on the ground that no Connecticut case has ever required compliance with Article 9 and that "the solicitous treatment" of charging liens by court suggests that law would not impose such requirement). "The charging lien concept recognizes that the attorney played a role in creating the asset and when a client has agreed to pay a fee out of that specific asset, the attorney obtains an equitable interest in that property." See 7 Am.Jur.2d, section 344.
General Statutes § 42a-9-109(d) provides in relevant part: "This article does not apply to . . . (2) A lien, other than an agricultural lien, given by statute or other rule of law for services or materials . . ." It should be noted that, despite the general rule just cited, the priority of certain common law liens whose existence depends on possession of the attached property, which does not include charging liens, is governed by General Statutes § 42a-9-333. Charging liens, to the contrary, are based in equity and do not depend on the possession of any property. See B. Shea, "Attorney's Liens: A Practical Overview," 6 U. Brpt. L. Rev. 77, 91, 91 n. 73 (1985) (citing In re Heinsheimer v. Schulte, 214 N.Y. 361, 361, 108 N.E. 636 (1915)).
A charging lien may be created in two ways. First, as an equitable remedy, the lien arises merely by virtue of the client's recovery of money due to the attorney's efforts. See Andrews v. Morse, 12 Conn. 444, 446 (1838); Perimutter v. Johnson, 6 Conn.App. 292, 298, 505 A.2d 13, cert. denied, 200 Conn. 801, 509 A.2d 517 (1986), cert. denied, 479 U.S. 1035, 107 S.Ct. 886, 93 L.Ed.2d 839 (1987). Second, the charging lien may be created by agreement, which may be oral, between the attorney and the client allowing the attorney to take his or her fee from the proceeds recovered. See Cooke v. Thresher, 51 Conn. 105, 107 (1883). In general, no notice is needed to effectuate a common law charging lien. See Paine Webber, Inc. v. Chapman, Moran, Hubbard Zimmerman, Superior Court, judicial district of Fairfield, Docket No. CV 290715 (September 7, 1994, McGrath, J.) (citing what is now 7 Am.Jur.2d 352, Attorneys at Law § 317 (2007)). A valid and enforceable fee agreement, however, is required for the lien to be created. Id.
Andrews v. Morse, supra, 12 Conn. 447, illustrates that notice is required, however, if the attorney attempts to enforce the lien via an execution upon a judgment debtor of the client who had not yet paid the judgment. Andrews, nevertheless, does not stand for the proposition that notice is an essential element for the creation of the lien itself.
There is no appellate authority as to when a charging lien becomes effective. While it is true that the lien remains technically inchoate unless and until there exists a judgment to which it may attach; Parmanand v. Capewell Components, LLC, 289 F.Sup.2d 35, 37-38 (D.Conn. 2003); the effectiveness of the lien "relates back" to when services were commenced by the attorney. Butterworth Scheck, Inc. v. Cristwood Contracting, Inc., supra, 25 Conn. L. Rptr. 130; Paine Webber, Inc. v. Chapman, Moran, Hubbard Zimmerman, supra, Superior Court, Docket No. CV 290715; see also Kubeck v. Cossette, supra, CT Page 4883 28 Conn. L. Rptr. 35 (determining that "[charging] lien . . . became effective upon the commencement of services or, at the latest, upon the return of a verdict").
There is authority, however, that suggests the lien may relate back to the date the contract for services or fee agreement was executed. See, e.g., Hill v. Hill, Superior Court, judicial district of Fairfield, Docket No. FA 91 0374254 (January 8, 2001, Sheedy, J.), aff'd, 75 Conn.App. 902, 818 A.2d 901, cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003) ("The lien is created at the time of the contract for service and has priority on attachments levied on a judgment by a creditor of the client."); McGannon v. Kramer, Superior Court, judicial district of Danbury, Docket No. CV 89 0298295 (October 3, 2000, Adams, J.) ( 28 Conn. L. Rptr. 268) ("The attorney's charging lien on the settlement proceeds relates back to the date of the fee agreement . . ."). This authority is not as convincing as the contrary authority explained above. In Hill, the court mentions that the lien is created at the time of the contract for service but does not say anything explicitly about relation back or when the lien becomes effective. In McGannon, the court cites Butterworth Scheck, Inc. v. Cristwood Contracting, Inc., supra, 25 Conn. L. Rptr. 130, which fixes the commencement of services at the point to which the lien relates back, in support of the proposition that the lien relates back to the time the fee agreement is executed.
The common-law rule regarding the priority of liens is that "first in time is first in right . . ." Linden Condominium Ass'n., Inc. v. McKenna, 247 Conn. 575, 584, 726 A.2d 502 (1999). It appears that this rule is followed in Connecticut, with the additional consideration that the effectiveness of the charging lien relates back to when services were first performed. See, e.g., Kubeck v. Cossette, supra, 28 Conn. L. Rptr. 35 ("The verdicts in these cases were returned on September 13, 1999. Mr. Mollica's execution on Mr. Kubeck's award was not issued until February 7, 2000. Thus, it cannot take precedence over the attorney's charging lien."); Butterworth Scheck, Inc. v. Cristwood Contracting, Inc., supra, 25 Conn. L. Rptr. 130 ("[T]he firm's charging lien, because it relates back to the time the firm rendered services to Cristwood in the BCHC action, is superior in priority to the secured liens held by plaintiff and Peerless."); see also B. Shea, "Attorney's Liens: A Practical Overview," 6 U. Brpt. L. Rev. 77, 99 n. 106 (1985) ("In most states, the priority of the attorney's lien is based on the doctrine of . . . [p]riority in time gives preference in law." (Internal quotation marks omitted.)). Therefore, "[w]hen [the charging lien] attaches to a judgment it is superior to the claim of a creditor of the client who levies on the judgment, even though he or she levies prior to notice of the lien, and it is superior to a subsequent attachment, garnishment, or trustee process." Butterworth Scheck, Inc. v. Cristwood Contracting, Inc., supra, 25 Conn. L. Rptr. 130 (citing what is now 7 Am.Jur.2d 358, Attorneys At Law § 324 (2007)). This rule is consistent with the pronouncement in the early cases that "the attorney's lien upon judgments is subject to . . . the rights of third persons, which cannot be varied or affected, by such lien." Gager v. Watson, supra, 11 Conn. 173.
In sum, an attorney's charging lien is valid at the time it is created, but remains inchoate until there is a recovery to which it may attach. When it attaches, it relates back to the point in time at which the attorney began performing services. Any preexisting claims against the client as of this point in time will prevail over the charging lien but any claims arising after such time, even if the lien was still inchoate, will be subordinate to it.
The second issue is whether an attorney's charging lien may be used to satisfy unpaid fees owed by related clients from unrelated matters, such as fees owed personally by a member of the current client who is a limited liability company. Generally, a charging lien arising in a particular representation covers only the amount that the attorney is owed for fees and expenses owed pursuant to the fee agreement executed by the attorney and the client for that representation. See D'Urso v. Lyons, supra, 97 Conn.App. 257; Butterworth Scheck, Inc. v. Cristwood Contracting, Inc., supra, 25 Conn. L. Rptr. 130; 7 Am.Jur.2d 355, Attorneys at Law § 321 (2007) ("In the absence of a statute or special agreement, a charging lien does not extend beyond the charges and fees in the suit in which the judgment was recovered . . ."). There is an exception to this rule where the other representations for which fees and expenses are owed are incidental to the representation producing the recovery. Butterworth Scheck, Inc. v. Cristwood Contracting, Inc., supra, 25 Conn. L. Rptr. 130.
Under Cooke v. Thresher, supra, 51 Conn. 107, however, if the lien is created pursuant to an express agreement granting the attorney a lien on the proceeds of a judgment or settlement, the lien will cover whatever fees and expenses the parties agreed would be covered, including those due from past unrelated representations. While some cases apply the ruling in Cooke to any charging lien, no matter how created; see, e.g., Twachtman v. Hastings, Superior Court, judicial district of Tolland, Docket No. CV 95 57307 (July 23, 1997, Hammer, J.T.R.) ( 20 Conn. L. Rptr. 145), aff'd on other grounds, 52 Conn.App. 661, 727 A.2d 791, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999); at least one other case limits the ruling to situations where the lien was created by "special agreement." See Butterworth Scheck, Inc. v. Cristwood Contracting, Inc., supra, 25 Conn. L. Rptr. 130 (determining that, because equitable purpose of charging lien not served by allowing it to cover fees owed from previous unrelated matters, rule allowing recovery of fees from unrelated matters should be limited to situations where liens were created by express agreement and agreement provides for recovery of such fees).
A careful reading of Cooke reveals that its ruling should be limited to liens created by agreement. In that case, the attorneys for an insolvent client attempted to enforce a charging lien against a judgment recovered in one of the suits they brought on behalf of the client. See Cooke v. Thresher, supra, CT Page 4885 51 Conn. 106. The attorneys proved that their former client had orally agreed to assign the judgments in three suits in which the attorneys represented him to cover unpaid fees in those suits and in previous unrelated representations. See id. In stating the law on charging liens, the court said that the lien covered not only "the services and expenses in the suit [but also] the previous services embraced in the agreement . . ." (Emphasis added.) See id., 107. The court in Cooke clearly indicated that, for the lien to cover fees and expenses for unrelated services, the lien must be created by agreement and the agreement must expressly permit the lien to cover debts related to those services. Accord Butterworth Scheck, Inc. v. Cristwood Contracting, Inc., supra, 25 Conn. L. Rptr. 130 (stating that Cooke fell under exception to general rule not allowing recovery of unpaid fees from unrelated matters because lien in that case was created by "special agreement").
A special agreement exists in the instant case via the partial assignment signed for Intercity by Anthony Stewart. Therefore, the lien includes all the debts incurred by Inter-city.
There is no case in Connecticut where an attorney has attempted to apply a charging lien against the client's recovery to recoup unpaid fees from unrelated matters handled for related clients. Extending the principles recited above, if the lien were allowed to reach such debts, there would at least have to be an agreement between the attorney and the client to whom the recovery belongs allowing the lien to cover the debts of related clients for unrelated matters.
There was one case in Kentucky, however, Weir v. Ashland Oil Transportation Co., 308 S.W.2d 435 (Ky. 1957), where an attorney attempted to assert a charging lien to cover services rendered to a third party. Without comment, the Court of Appeals of Kentucky, per curiam, upheld the trial court's decision to refuse to allow the lien to cover such services. Id., 435. The court did not otherwise recite the underlying facts so the relationship between the client and the third party is unknown.
Even where a related client is the individual client's limited liability company or vice versa, the above analysis does not change. Limited liability companies are creatures of statute that are governed by General Statutes § 34-100 et seq. "A limited liability company is a distinct legal entity whose existence is separate from its members . . . A limited liability company has the power to sue or be sued in its own name . . . or may be a party to an action through a suit brought in its name by a member." (Citations omitted.) Wasko v. Farley, 108 Conn.App. 156, 170, 947 A.2d 978, cert. denied, 289 Conn. 922, 958 A.2d 155 (2008). Furthermore, under General Statutes § 34-133, "a person who is a member or manager of a limited liability company is not liable [in general], solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company . . ."
In the context of attorney's charging liens, to treat a limited liability company and its member as the "same client," and automatically allow the lien on the limited liability company's judgment to reach debts owed by the member personally or vice versa, would violate both the principle that a limited liability company is a distinct entity and the principle that the member is personally shielded from liability for the debts of the limited liability company. Therefore, the debts owed to Ghent for services to Whispering Knolls or Anthony Stewart are not properly part of a charging lien on the fund resulting from the judgment for Intercity and do not have priority over liens of other creditors.
The third issue is whether the failure to put the date on a contract for fees between an attorney and client invalidates the charging lien that would otherwise exist. As noted above, there is no specific requirement that there be a dated fee agreement in order to create a valid charging lien.
"[A]n attorney is not prohibited from contracting with his client respecting his fees . . ." DiFrancesco v. Goldman, 127 Conn. 387, 392-93, 16 A.2d 828 (1940). In general, "[t]he matter of a fee agreement between a lawyer and his or her client is a question of contract . . ." 7 Am.Jur.2d 300, Attorneys at Law § 250 (2007); see e.g., Ullman, Perlmutter Sklaver v. Byers, 96 Conn.App. 501, 504-06, 900 A.2d 602 (2006) (analyzing validity of hourly fee agreement with citations to general contract principles). There is no requirement that an ordinary written contract contain the date of its execution in order to be valid. See Appliances, Inc. v. Yost, 181 Conn. 207, 210-11, 435 A.2d 1 (1980) (holding trial court erred in not enforcing purported promissory note lacking date as simple contract for services rather than negotiable instrument).
Attorney fee agreements are subject to more regulation, however, than most contracts. First, in certain circumstances, courts will scrutinize them more heavily for the presence of fraud or undue influence. See DiFrancesco v. Goldman, supra, 127 Conn. 392-93. "[A] contract will be sustained if found to have been fairly made and no unconscionable advantage taken of the client by the attorney." Id., 393. This test, however, does not impose a per se requirement that a fee agreement be dated.
Second, ethical considerations, namely, subsections (a) through (c) of Rule 1.5 of the Rules of Professional Conduct, apply to fee agreements. In general, a violation of the Rules of Professional Conduct does not, per se, affect the legal position of an attorney, client or third party outside of the disciplinary context. Gagne v. Vaccaro, 255 Conn. 390, 403, 766 A.2d 416 (2001). Nevertheless, some courts have held that fee agreements that made in violation of Rule 1.5 are void against public policy. See, e.g., Law Offices of Norman J. Voog, LLC v. Heinecke, Superior Court, judicial district of Danbury, Docket No. CV 08 5003818 (January 28, 2009, Shaban, J.); Freccia Plotkin v. Castro, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0151637, (September 9, 1996, D'Andrea, J.) ( 17 Conn. L. Rptr. 555). Although Rule 1.5 requires, among other things, fee agreements to be in writing, it contains no requirement that the writing contain any sort of date.
Rule 1.5 of the Rules of Professional Conduct provides in relevant part: "(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses . . .
"(b) The scope of the representation, the basis or rate of the fee and expenses for which the client will be responsible, shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client in writing before the fees or expenses to be billed at higher rates are actually incurred . . .
"(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subsection (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination."
It should be noted that subsection (d) prohibits contingent fees in certain domestic relations matters and in criminal defense representations and that subsection (e) governs the division of fees among lawyers in different firms.
Third, statutory regulation of fee agreements is found, but only in the context of contingent fee agreements. For contingent fee agreements, General Statutes § 52-251c(a) operates to make compliance with Rule 1.5 mandatory. Subsection (b) of § 52-251c provides the maximum percentages, based on the amount of the recovery, at which an attorney and client may agree to set the fee. No requirement that a fee agreement be dated exists, however, in § 52-251c or in any other statute.
Statutes § 52-251c(a) provides: "(a) In any claim or civil action to recover damages resulting from personal injury, wrongful death or damage to property . . . the attorney and the claimant may provide by contract, which contract shall comply with all applicable provisions of the rules of professional conduct governing attorneys adopted by the judges of the Superior Court, that the fee for the attorney shall be paid contingent upon, and as a percentage of: (1) Damages awarded and received by the claimant; or (2) the settlement amount received pursuant to a settlement agreement."
It should be noted that subsections (c) through (g) of § 52-251c concern how a client may waive the maximum percentages and subsection (h) provides some general definitions.
It is evident that there is no requirement in Connecticut law that a valid fee agreement contain the date of its execution. Therefore, the failure to include a date in the fee agreement does not invalidate the charging lien that relies on that fee agreement.
The fourth issue arises because Ghent argues in his supplemental memorandum of law, filed on October 16, 2009, that the first property execution, issued to Northeast on May 17, 2007, is invalid because it was both untimely served upon Intercity and the Andrades and untimely returned to the court. Ghent is correct in stating that this execution is invalid because it was untimely served.
General Statutes § 52-356a governs the proper procedure regarding executions against non-exempt personal property to enforce judgments. That section allows a judgment creditor to apply for an execution against a judgment debtor who has not satisfied the judgment and such execution, once issued, is to be given to a levying officer. See General Statutes § 52-356a(a)(1). The levying officer is to personally serve the judgment debtor with the execution and make a demand for payment. General Statutes § 52-356a(a)(4). If the judgment debtor does not immediately make payment, the officer then may physically take the personal property of the judgment debtor, if the officer can do so without breaching the peace; General Statutes § 52-356a(a)(4)(A); or, if a third party owes a debt to the judgment debtor, the officer may serve such person and demand payment as directed by applicable law. See General Statutes § 52-356a(a)(4)(B), (C).
General Statutes § 52-356a provides in relevant part:
"(a) Procedure. Levying officer's responsibilities. (1) On application of a judgment creditor or his 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 other than debts due from a banking institution or earnings . . . The execution shall be directed to any levying officer.
"(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 and, if the judgment debtor is a natural person, shall be accompanied by a notice of judgment debtor rights as prescribed by section 52-361b and a notice to any third person of the manner, as prescribed by subdivision (4) of this subsection, for complying with the execution.
"(3) A property execution shall be returned to court within four months after issuance. The untimely return of a property execution more than four months after issuance shall not of itself invalidate any otherwise valid levy made during the four-month period.
"(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 . . ."
There is no explicit time limit provided for with regard to service of executions. The longstanding rule is, however, that "[w]hen the return day of an execution has [passed], it is of no force . . . and the officer has no power to execute it; and if he attempts to do it, he is liable to an action of trespass." (Internal quotation marks omitted.) Chasnoff v. Porto, 140 Conn. 267, 271, 99 A.2d 189 (1953). With that rule in mind, § 52-356a(a)(3) is helpful. That subdivision provides: "A property execution shall be returned to court within four months after issuance. The untimely return of a property execution more than four months after issuance shall not of itself invalidate any otherwise valid levy made during the four-month period." Reading these two rules together, it appears that an execution must be served within four months or it is invalid.
The first execution, issued to Northeast on May 17, 2007, was thus effective until September 17, 2007. Northeast did not serve Intercity until November 13, 2007, and did not serve the Andrades until December 17, 2007. Therefore, the first execution had expired before service and is consequently not valid.
In his supplemental memorandum of law, Ghent also argues that the first property execution is invalid because it was left at the Andrades' usual place of abode and not personally served on them. Furthermore, the Ghent contends that the marshal failed to state how many copies of process he left or whether he left other paperwork. Ghent claims these defects violate § 52-356a(a)(4)(C), which provides in relevant part: " With respect to a judgment debtor who is 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 two copies of the execution, required notices and claim forms." (Emphasis added.) As the emphasized portion of the quotation from subparagraph (C) indicates, this provision applies only to judgment debtors who are natural persons, i.e. individuals. Because Intercity is a limited liability company and not a natural person, subparagraph (C) is inapplicable and cannot be a basis for an argument of improper service. Instead, subparagraph (B) provides the procedure where the judgment debtor is not a natural person.
CONCLUSION
Based on the foregoing, the court grants the State's motion for summary judgment and denies Northeast Builders Supply and Home Center, LLC's motion for summary judgment. As to Intercity's and Ghent's motions for summary judgment, the court grants the motion only as to fees owed to Ghent by Intercity but not as to fees owed to it by Whispering Knolls or Stewart.