ATC Partnership v. Town of Windham, et al.

The plaintiff, ATC Partnership, appeals from
the judgment of the trial court in favor of the defendants1
in an action of replevin to regain possession of
certain machinery and equipment. The plaintiff claims
that the court improperly (1) concluded that the plaintiff's
property was not wrongfully detained because the
defendant town of Windham (town) seized that property
pursuant to an alias tax warrant, (2) concluded
that the replevin action was barred by the doctrine of
sovereign immunity and (3) concluded that because the
subject property was fixtures, the plaintiff could not maintain an action of replevin pursuant to General Statutes
§ 52-515.2 In its action of replevin, in which the
plaintiff also relied on the common-law doctrine of conversion,
the plaintiff claimed that it is the rightful owner
of the machinery, furnishings, equipment and other personal
property contained in several factory buildings
constituting the former American Thread Company
(American Thread) complex in Willimantic. The plaintiff's
claim of ownership arises from its purchase in 1987
of the forty acres on which are situated the buildings
containing the personal property claimed by the plaintiff
as the rightful owner.

The amended revised complaint alleges that the plaintiff
is a general partnership with a place of business in
New Haven and is the owner of certain personal property
located at the former American Thread Company
(American Thread) complex in Willimantic. It alleges
further that the town, acting through the defendant
Northeast CT Economic Alliance, Inc. (Northeast), condemned
the real estate owned by the plaintiff on or
about August 12, 1994, with a certificate of taking filed
on or about September 9, 1994, and that, located in the
premises taken through the condemnation proceeding,
was personal property as set forth in schedule A
attached to the complaint. The complaint alleges that
Northeast conveyed the real property to the defendant
Windham Mills Development Corporation (Windham
Mills), that one or more of the defendants are directly or
indirectly in possession of or in control of the personal
property and that there may be a claim that Windham
Mills is, in fact, in possession of the personal property
described in schedule A attached to the complaint.

The complaint further alleges that the defendants are
wrongfully detaining the plaintiff's property, and have
failed, neglected and refused to return it to the plaintiff,
all to the plaintiff's special loss and damage, and have
prevented the plaintiff from removing it from the real
estate. It is alleged further that the plaintiff is the lawful
owner of the personal property over which the defendants
have maintained possession and that the plaintiff
has the right to immediate possession of the personal
property.

The court, in its memorandum of decision filed September
29, 2000, characterized the plaintiff's revised
complaint as a replevin action. General Statutes § 52-
515 provides: ‘‘The action of replevin may be maintained
to recover any goods or chattels in which the plaintiff
has a general or special property interest with a right
to immediate possession and which are wrongfully
detained from him in any manner, together with the
damages for such wrongful detention.'' The memorandum
of decision notes that ‘‘[p]rior to the filing of the
plaintiff's complaint on December 19, 1994, the town
had commenced an action for injunctive relief against
[the plaintiff] on May 19, 1994, in which it alleged that although the parties had agreed to cooperate in order
to obtain financial assistance from the state for the
rehabilitation and redevelopment of the American
Thread mill complex, [the plaintiff] had ‘breached the
agreement by removing and continuing to remove valuable
and historic property from the complex.' '' The
court file also contains a letter from counsel for the
plaintiff dated May 19, 1994, stating that his clients
had not removed anything from the premises, have no
immediate plans to do so and that without a court order,
his clients agree not to remove any contents until there
is a hearing in regard to the matter. Although a hearing
was scheduled for October 6, 1994, the injunction action
was withdrawn by the town on September 29, 1994.
The court, consequently, had no occasion to decide the
issues raised by the town's claim that the plaintiff had
breached the agreement to cooperate and had removed
some property from the former American Thread
complex.

* * *

On May 18, 1994, the tax collector for the town issued
an alias tax warrant pursuant to General Statutes (Rev.
to 1993) § 12-162. Section 12-162 provides in relevant
part that ‘‘[u]pon the nonpayment of any property tax
when due, demand having been made therefor as prescribed
by law for the collection of such tax, an alias
tax warrant may be issued by the tax collector, which
may be in the following form: ‘To the Sheriff of the
County of [Tolland], his deputy or any constable of the
Town of [Windham] within said county, Greeting: By
authority of the state of Connecticut you are hereby
commanded to collect forthwith from [ATC Partnership]
of [New Haven] the sum of . . . . dollars, the same
being the amount of a tax with interest or penalty and
charges which have accumulated thereon, which tax
was levied by [the town of Windham] upon [the personal
property] of said [ATC Partnership] as of the . . . . day
of . . . . . In default of payment of said amount you are
hereby commanded to levy for said tax or taxes, including
interest, penalty and charges, hereinafter referred
to as the amount due on such execution, upon any
goods and chattels of such person and dispose of the
same as the law directs . . . and, after having satisfied
the amount due on such execution, return the surplus,
if any, to him; or you are to levy upon the real estate
of such person and sell enough thereof to pay the
amount due on such execution and give to the purchaser
a deed thereof; or you shall make demand upon the
main office of any banking institution indebted to such
person, subject to the provisions of section 52-367a, as
if judgment for the amount due on such execution had
been entered, for that portion of any type of deposit
to the credit of or property held for such person, not
exceeding in total value the amount due on such execution;
or you are to garnishee the wages due such person
from any employer, in the same manner as if a wage execution therefor had been entered, in accordance
with section 52-361a.' ''

In its memorandum of decision, the court notes that
the alias tax warrant issued by the tax collector
expressly states that its purpose was ‘‘ ‘to protect fixtures
and other material of historic value.' '' No provision
of § 12-162 or any other statute authorizes the use
of such a warrant for that purpose. At trial, David Page,
then a Windham County deputy sheriff, identified the
tax warrant that he had served at the direction of the
tax collector for the town, and testified that the tax
collector had told him that the town was concerned
about the machinery and equipment being taken out of
the mill complex, and that she had directed him to
seize the property ‘‘in lieu of taxes'' and to prevent the
property from being removed from the premises. Page
testified that he did nothing except to secure and to
protect the property, and to post a public notice of the
seizure, and that he did not make a final return of service
until March 31, 1997. The court made no finding of
whether any taxes were owed to the town by the plaintiff,
let alone the amount thereof, and also overlooked
the absence of any statutory provision allowing an alias
tax warrant to be used ‘‘ ‘to protect fixtures and other
material of historic value.' ''

The last sentence of § 12-162, authorizing a levy on
any goods and chattels of the plaintiff and disposing of
the same as the law directs, and, after satisfying the
amount due on such execution, directing that any surplus
be returned to the plaintiff, has been totally
ignored. No finding has yet been made of the amount
of delinquent taxes claimed to be owed to the town by
the plaintiff. Nevertheless, the court concluded that the
doctrine of sovereign or governmental immunity barred
the plaintiff from pursuing the statutory remedy of
replevin and that equitable relief should also be denied
‘‘based upon considerations of public policy because it
would interrupt the collection of taxes, one of the most
important attributes of the sovereign power [and] one
of its most vital functions.'' See Arnold v. Middletown,
39 Conn. 401, 406 (1872).

We conclude that the requirements of § 12-162 concerning
the procedure to be followed in collecting taxes
claimed by a town to be delinquent cannot be disregarded
so cavalierly. Sovereign immunity cannot be
invoked to justify conduct that violates a statute of this
state, such as the failure of the town to follow the
procedures prescribed by § 12-162 for collecting delinquent
taxes and its use of an alias tax warrant to seize
the plaintiff's property for purposes other than the collection
of such taxes. Accordingly, we reverse the judgment
of the trial court, which held that the plaintiff's
action was barred by the doctrine of sovereign
immunity.

II

We conclude that the judgment of the court must be
reversed. That judgment leaves the plaintiff, which is
the undisputed owner of the contents of the buildings,
without any recourse for recovering its property, which
now is held in the possession of the town, which never
in the course of this litigation has even claimed any
ownership interest in that property. Possession is not
equivalent to legal ownership. The court, apparently,
assumed that the machinery and other equipment in
the former American Thread complex were fixtures and
thus had become part of the real estate that the town
had acquired in the condemnation proceeding. That
conclusion, however, ignores the plaintiff’s interest as
owner of the contents of the buildings.

The judgment is reversed and the case is remanded
for further proceedings in accordance with law.

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