Town of Wethersfield ex rel. Monde v. Eser

211 Conn.App. 537

274 A.3d 203

TOWN OF WETHERSFIELD EX REL. Deborah MONDE, Animal Control Officer

v.Suzanne ESER

AC 43705

Appellate Court of Connecticut.

Argued January 11, 2022

Officially released April 5, 2022

David V. DeRosa, Naugatuck, for the appellant (defendant).

John W. Bradley, Jr., Hartford, with whom, on the brief, were A. Ryan McGuigan and Thomas A. Plotkin, Hartford, for the appellee (plaintiff).

Bright, C. J., and Cradle and DiPentima, Js.

DiPENTIMA, J.

In this animal welfare action, the defendant, Suzanne Eser, appeals from the judgment of the trial court rendered in favor of the plaintiff, the town of Wethersfield, following the court's denial of her motion to dismiss the plaintiff's verified petition for lack of subject matter jurisdiction. On appeal, the plaintiff argues that the appeal is moot, and the defendant claims that (1) the trial court incorrectly determined that the plaintiff's failure to file a verified petition within ninety-six hours of taking custody of the animals, as required by General Statutes (Supp. 2022) § 22-329a (a),¹ did not deprive it of subject matter jurisdiction and, alternatively, (2) she was deprived of procedural due process. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant. On May 27, 2019, the plaintiff's animal control officer, Deborah Monde, took custody of twenty-four animals, including twenty-one dogs, two cats and one parrot, which were found, as a result of a traffic stop, to have been housed in the defendant's van in filthy and unhygienic conditions.² Upon the belief that the animals were in imminent harm and were neglected and/or cruelly treated, Monde took custody of them pursuant to § 22-329a (a). In a parallel criminal proceeding, the defendant was arrested and charged with eighteen counts of cruelty to animals in violation of General Statutes § 53-247 (a).

On July 18, 2019, the plaintiff filed a verified petition pursuant to § 22-329a (c),³ seeking an order vesting in the plaintiff or the Department of Agriculture's animal control division (state animal control) the temporary and permanent custody of the seized animals and an order that the defendant pay monetary compensation to the plaintiff or the state animal control in the amount of $15 per animal per day from the date that the animals were seized until the date that permanent ownership vests in the plaintiff or the state animal control. On July 19, 2019, the court issued an order to show cause why the relief sought in the verified petition should not be granted, commanding the defendant to appear before the court on August 19, 2019. By consent of both parties, the plaintiff filed on August 6, 2019, a motion for a continuance, which motion the court granted.

On August 30, 2019, the defendant filed a motion to dismiss the petition arguing that the court lacked subject matter jurisdiction because the petition had not been filed within ninety-six hours of the plaintiff's having taken custody of the animals as required by § 22-329a (a). The court denied the motion to dismiss for lack of subject matter jurisdiction, reasoning that the ninety-six hour requirement in § 22-329a was directory rather than mandatory.

Beginning on December 10, 2019, after the plaintiff filed a motion for an expedited hearing on the petition, the parties engaged in a two day evidentiary hearing before the court on the plaintiff's petition and the court's order to show cause. On December 11, 2019, the court issued its findings of fact and conclusions of law from the bench, finding that the animals were neglected and cruelly treated and transferring ownership of them to the plaintiff.⁴ The court concluded that there was evidence that the amount that the defendant voluntarily had paid for the care and custody of the animals exceeded $15 per day per animal and, accordingly, declined to award the plaintiff any monetary compensation. This appeal followed. Additional facts will be set forth as necessary.

I

As a preliminary matter, we address the issue of mootness. During the pendency of the present appeal, the plaintiff filed a motion to dismiss the appeal as moot. In that motion, the plaintiff argued that there is no practical relief that this court can grant to the defendant because, following the court's judgment transferring ownership of the animals to the plaintiff, the animals were transferred from the private kennel in which they were housed to the Connecticut Humane Society and subsequently were placed in permanent adoptive homes. This court denied the motion. At oral argument before this court, the plaintiff's counsel argued that this court should have granted the motion to dismiss the appeal as moot, arguing that there is no practical relief that we can afford to the defendant. We are not persuaded.

"The question of mootness ... may be raised at any time ...." (Internal quotation marks omitted.)

Wozniak v. Colchester , 193 Conn. App. 842, 852, 220 A.3d 132, cert. denied, 334 Conn. 906, 220 A.3d 37 (2019). "Mootness implicates [the] court's subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. ... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. ... Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary." (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority , 291 Conn. 502, 506–507, 970 A.2d 578 (2009). "It is well established that an appeal is considered moot if there is no possible relief that the appeals court can grant to the appealing party, even if the court were to be persuaded that the appellant's arguments are correct." Wallingford Center Associates v. Board of Tax Review , 68 Conn. App. 803, 807, 793 A.2d 260 (2002).

On appeal, the defendant seeks the relief of both having the animals returned to her and a hearing requesting compensation for the moneys that she had spent on the care of the animals following the plaintiff's taking custody of them.⁵ The requested relief of the return of the animals to the defendant raises multiple questions. First, because all of the animals either are deceased or have been placed in permanent adoptive homes,⁶ the plaintiff no longer has an ownership interest in them. Additionally, the court file in the criminal proceedings, of which we take judicial notice,⁷ reveals that on December 3, 2021, the criminal trial court sentenced the defendant to a total effective sentence of six years’ incarceration, execution suspended, and three years’ probation, including a special condition of probation that the defendant not possess any animals.⁸ See State v. Eser , Superior Court, judicial district of New Britain, Docket No. CR-19-0321325-S (December 3, 2021). The defendant argues that, nonetheless, the animals somehow can be removed from their permanent homes and a constructive trust can be established wherein a third party would care for the animals until the defendant's probationary term ends, and she legally is permitted to care for them. We need not decide whether we are able to afford the defendant this relief because there is practical relief that can be afforded to her should she prevail in this appeal in the form of a remand for a hearing regarding the amount of moneys paid by the defendant for the care and custody of the animals. Accordingly, because there is some practical relief that we could afford to the defendant, the present appeal is not moot. In light of this, we turn our attention to the merits of the defendant's claims.

II

The defendant first claims that the trial court erred in denying her motion to dismiss the verified petition for lack of subject matter jurisdiction. She contends that the statutory time requirement in § 22-329a (a), which provides that a verified petition be filed within ninety-six hours after the animals are seized, is mandatory, rather than directory as the court determined, and, therefore, the plaintiff's failure to comply with that requirement deprived the trial court of subject matter jurisdiction over the petition. We conclude that the trial court was not deprived of subject matter jurisdiction.

We first note our standard of review regarding motions to dismiss. "A motion to dismiss ... properly attacks the jurisdiction of the court, 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. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. ... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) Filippi v. Sullivan , 273 Conn. 1, 8, 866 A.2d 599 (2005).

The defendant argues that the proper legal analysis for determining whether the statutory time limitation at issue serves as a subject matter jurisdictional bar involves the question, as analyzed under the factors in Electrical Contractors, Inc. v. Ins. Co. of the State of Pennsylvania , 314 Conn. 749, 757–58, 104 A.3d 713 (2014), of whether the relevant statutory provision is mandatory or directory. We disagree. Because the gravamen of the defendant's argument is that the statutory time limitation is subject matter jurisdictional, we do not examine the factors in ...