Opinion
No. CV 04 091992
June 15, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#105)
The plaintiff, Catryna Seymour, brought this action pursuant to Connecticut General Statutes §§ 12-119 and 52-485, seeking relief from a wrongful tax assessment on her 1999 Honda. Specifically, the plaintiff's complaint requests an order of judgment that the tax assessment was unlawful, costs, and the issuance of a writ of mandamus directing the town of Canaan to transfer the tax assessment on her Honda to the town of Salisbury. The defendants, the tax assessor and three members of the board of selectmen of the town of Canaan, move to dismiss the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction because the plaintiff's claims are moot. In her response to the defendants' motion to dismiss, the plaintiff withdrew count two of her complaint and conceded that the petition for a writ of mandamus is moot. Thus, the only issue before this court is whether count one of the plaintiff's complaint, which requests relief from a wrongful tax assessment, is moot.
Section 12-119 sets forth the remedy when property is wrongfully assessed. The statute provides in pertinent part: "When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set . . . the owner thereof . . . may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated . . . In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court."
Section 52-485 authorizes the Superior Court to issue a writ of mandamus.
Karen Elliott is Canaan's tax assessor and the three board of selectmen members are Louis Timolat, Patricia Mechare and Ellery Woods Sinclair.
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "[A] challenge to the jurisdiction of a court to render a judgment may be raised at any time, because the lack of subject matter jurisdiction cannot be waived." (Internal quotation marks omitted.) DiBerardino v. DiBerardino, 213 Conn. 373, 377, 568 A.2d 431 (1990); see also Practice Book § 10-33.
"Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable." (Cititions omitted; internal quotation marks omitted.) Wallingford v. Dept. of Public Health, 262 Conn. 758, 766, 817 A.2d 644 (2003). "A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Caldrello, 79 Conn. App. 384, 390, 830 A.2d 767 (2003). The defendants claim that the relief requested by the plaintiff has already been accomplished. Specifically, the defendants claim that the plaintiff has received a refund of the relevant tax bill. The court agrees with the defendants and finds that all practical relief has already been granted in this case. Previously, there was a controversy between the parties regarding the disputed tax bill. However, since then, the plaintiff has been issued a refund. Consequently, there is no longer an active controversy between the parties, nor is there any practical relief that could be granted by the court. In light of the plaintiff's refund, the case is moot.
The plaintiff argues that count one of her complaint remains an active case and controversy. The plaintiff contends that § 12-119 authorizes the court to grant relief in "justice and equity" and that the court should enter a judgment stating that Canaan's tax assessment of her Honda was illegal, null, and void, and that such a judgment is necessary to prevent the tax assessors from repeating "the same unlawful harassment." In her opposing memorandum, the plaintiff requests that the court declare the following: (1) that the notice of assessment sent to the plaintiff by the town of Canaan dated May 21, 2003, misstated and falsely described the provisions of Connecticut General Statutes § 12-71b(g); (2) that the transfer of the property tax assessment of the plaintiff's Honda from the grand list of the town of Salisbury to Canaan's grand list violated Connecticut General Statutes § 12-71b(d); and (3) that the defendants are enjoined from attempting any such unlawful transfer in the future and from otherwise misusing their offices to harass the plaintiff.
The plaintiff has, in essence, requested that the court make a declaratory judgment. Declaratory judgments are "limited to solving justiciable controversies." (Internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 625, 822 A.2d 196 (2003). "Our Supreme Court has consistently held that our courts may not render advisory opinions . . . Such an opinion is one of advice and not of judgment as there are no parties whose rights are adjudicated, and it is not binding on anyone . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable." (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514, 517, 699 A.2d 310 (1997), rev'd on other grounds, 247 Conn. 196, 719 A.2d 465 (1998). It is of no consequence that there may be a controversy between the parties at some point in the future due to a wrongful tax assessment because such a situation is not certain. See Milford Power Co., LLC v. Alstom Power, Inc., supra, 263 Conn. 629. Because the court has already determined that the plaintiff's claim is moot, and therefore nonjusticiable, the defendants' motion to dismiss for lack of subject matter jurisdiction is granted.
BY THE COURT
Hon. Vanessa L. Bryant