Wethersfield v. Eser ( 2022 )

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TOWN OF WETHERSFIELD EX REL. DEBORAH
MONDE, ANIMAL CONTROL OFFICER
v. SUZANNE ESER
(AC 43705)
Bright, C. J., and Cradle and DiPentima, Js.
Syllabus
The plaintiff town filed a verified petition pursuant to statute (§ 22-329a)
seeking, inter alia, custody in favor of the plaintiff of twenty-four animals
that had been taken from the defendant by its animal control officer,
M, and that allegedly were neglected and/or cruelly treated. The plaintiff
also sought an order requiring the defendant to reimburse the plaintiff
for its expenses in caring for the seized animals in the amount of $15
per day per animal in accordance with § 22-329a (h), which provides a
direct remedy for a municipality seeking reimbursement for care that
it provides to animals adjudicated as abused or neglected. M took cus-
tody of the animals after the animals were found in the defendant’s van
in filthy and unhygienic conditions following a traffic stop. The defendant
moved to dismiss the plaintiff’s petition, arguing that the trial court
lacked subject matter jurisdiction because the plaintiff failed to file the
petition within ninety-six hours of the plaintiff’s having taken custody
of the animals pursuant to § 22-329a (a). The trial court denied the
defendant’s motion to dismiss, reasoning that the ninety-six hour require-
ment in § 22-329a was directory rather than mandatory. Subsequently,
the trial court held an evidentiary hearing on the verified petition and
the court’s order to show cause as to why the relief sought should not
be granted. At the evidentiary hearing, the owner of a private kennel
at which the animals were housed, testified that the defendant had paid
for the board and care of the animals at her kennel in the months
following their seizure. The trial court determined that the animals were
neglected and cruelly treated and transferred ownership of the animals
to the plaintiff and declined to award the plaintiff any monetary compen-
sation, concluding that the defendant voluntarily had paid for the care
and custody of the animals at the private kennel, which exceeded $15
per day per animal. Following the trial court’s judgment transferring
ownership of the animals to the plaintiff, the surviving animals were
placed in permanent adoptive homes. On her appeal to this court, 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. During the pendency of the present appeal, the plaintiff moved
to dismiss the defendant’s appeal as moot, arguing that there was no
practical relief that this court could grant to the defendant. Held:
1. The plaintiff could not prevail on its claim that the appeal was moot on
the ground that this court could not grant the defendant any practical
relief because, following the trial court’s judgment transferring owner-
ship of the animals to the plaintiff, the defendant’s animals either have
died or were placed in permanent adoptive homes; there was practical
relief that could have been afforded to the defendant should she have
prevailed in this appeal in the form of a remand for a hearing regarding
the amount of moneys she paid for the care and custody of the animals.
2. The trial court correctly determined that it had subject matter jurisdiction
over the plaintiff’s verified petition and properly denied the defendant’s
motion to dismiss claiming that the trial court lacked subject matter
jurisdiction because the plaintiff failed to comply with the mandatory
ninety-six hour requirement in § 22-329a (a): because of the strong pre-
sumption in favor of jurisdiction, there must be a strong showing of
legislative intent to create a time limitation that, in the event of noncom-
pliance, would act as a subject matter jurisdictional bar; an examination
of the legislative history of § 22-329a (a) evidenced that the primary
purpose of the statute was to protect animals from imminent harm and,
therefore, if the failure to file a verified petition within the ninety-six
hour time frame deprived the trial court of subject matter jurisdiction,
animals would be returned to the environment in which they were in
imminent harm, thwarting the very purpose of § 22-329a (a); moreover,
although the statute’s requirement to file a verified petition is stated
solely in affirmative words, there is no language that expressly prohibited
the plaintiff from filing a verified petition after ninety-six hours have
passed; accordingly, the failure to comply with the ninety-six hour period
for filing a verified petition in § 22-329a (a) did not divest the trial court
of subject matter jurisdiction.
3. The defendant could not prevail on her unpreserved claim that her right
to procedural due process under the fourteenth amendment to the United
States constitution was violated because the plaintiff failed to file the
verified petition within ninety-six hours and a hearing was not held
within fourteen days as required by § 22-329a (d), which deprived the
defendant of funds that she was required to pay according to § 22-329a
(h); although the defendant claimed that she suffered deprivation due
to the procedures, namely, the increased cost of housing the animals
at the private kennel, the defendant’s claim failed under the third prong
of State v. Golding (213 Conn. 233) because the defendant voluntarily
paid for the care, custody, and other expenses of the seized animals,
and, therefore, the defendant could not be constitutionally deprived of
funds that she voluntarily paid.
Argued January 11—officially released April 5, 2022
Procedural History
Verified petition seeking, inter alia, custody in favor
of the plaintiff of certain animals taken from the defen-
dant’s possession that were allegedly neglected and/
or cruelly treated, and for other relief, brought to the
Superior Court in the judicial district of New Britain,
where the court, Aurigemma, J., denied the defendant’s
motion to dismiss; thereafter, the court, Aurigemma,
J., rendered judgment in part for the plaintiff, from
which the defendant appealed to this court. Affirmed.
David V. DeRosa, for the appellant (defendant).
John W. Bradley, Jr., with whom, on the brief, were
A. Ryan McGuigan and Thomas A. Plotkin, for the
appellee (plaintiff).
Opinion
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 defen-
dant claims that (1) the trial court incorrectly deter-
mined 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 his-
tory 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 sub-
ject matter jurisdiction because the petition had not
been filed within ninety-six hours of the plaintiff’s hav-
ing 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 owner-
ship 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, accord-
ingly, declined to award the plaintiff any monetary com-
pensation. 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.) Woz-
niak 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 juris-
diction 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 pre-
sents a question of law over which our review is ple-
nary.’’ (Citation omitted; internal quotation marks omit-
ted.) 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 pro-
ceedings, 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-XX-XXXXXXX-S (December 3, 2021). The
defendant argues that, nonetheless, the animals some-
how 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 manda-
tory, 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 gra-
vamen of the defendant’s argument is that the statutory
time limitation is subject matter jurisdictional, we do
not examine the factors in Electrical Contractors, Inc.,
in order to address the defendant’s argument. Rather,
our analysis is guided by the standards articulated in
Williams v. Commission on Human Rights & Opportu-
nities, 257 Conn. 258, 777 A.2d 645 (2001). In that case,
our Supreme Court ‘‘clarified the analysis for deciding
whether a time limit is subject matter jurisdictional.’’
Commission on Human Rights & Opportunities v.
Savin Rock Condominium Assn., Inc., 273 Conn. 373,
379, 870 A.2d 457 (2005). The court stated that some
prior cases incorrectly ‘‘confused the concepts of man-
datory language and subject matter jurisdiction’’ and
‘‘at times [have] equated the intent of the legislature to
create a mandatory limitation with the intent to create
a subject matter jurisdictional limit.’’ (Emphasis in origi-
nal.) Williams v. Commission on Human Rights &
Opportunities, supra, 268.
In Williams, the court held that the proper analysis
for determining whether a statutory time limitation is
a subject matter jurisdictional bar is as follows. ‘‘The
question of whether a statutory time limitation is sub-
ject matter jurisdictional is a question of statutory inter-
pretation. . . . Thus, we look to whether the legisla-
ture intended the time limitation to be jurisdictional.
The legislative intent is to be discerned by reference
to the language of the statute, its legislative history and
surrounding circumstances, the policy the limitation
was designed to implement, and the statute’s relation-
ship to the existing legislation and common law princi-
ples governing the same subject matter. . . . In light
of the strong presumption in favor of jurisdiction, we
require a strong showing of a legislative intent to create
a time limitation that, in the event of noncompliance,
acts as a subject matter jurisdictional bar.’’ (Internal
quotation marks omitted.) Id., 267.
‘‘Although . . . mandatory language may be an indi-
cation that the legislature intended a time requirement
to be jurisdictional, such language alone does not over-
come the strong presumption of jurisdiction, nor does
such language alone prove strong legislative intent to
create a jurisdictional bar. In the absence of such a
showing, mandatory time limitations must be complied
with absent an equitable reason for excusing compli-
ance, including waiver or consent by the parties. Such
time limitations do not, however, implicate the subject
matter jurisdiction of the agency or the court.’’ Id., 269–
70.
We first turn to the statutory language. ‘‘As with any
issue of statutory interpretation, our initial guide is the
language of the statute itself.’’ Id., 270; see also General
Statutes § 1-2z. General Statutes (Supp. 2022) § 22-329a
(a) provides in relevant part: ‘‘Any animal control officer
or regional animal control officer . . . may take physi-
cal custody of any animal when such animal control
officer has reasonable cause to believe that such animal
is in imminent harm and is neglected or is cruelly treated
. . . and, not later than ninety-six hours after taking
physical custody, shall proceed as provided in subsec-
tion (c) of this section . . . .’’ Subsection (c) pertains
to the filing of a verified petition alleging the neglect
or cruel treatment of the animal. See General Statutes
(Supp. 2022) § 22-329a (c).9
The use of the word ‘‘shall’’ in the statute is not
dispositive. See Doe v. West Hartford, 328 Conn. 172,
184, 177 A.3d 1128 (2018). Although the statute provides
that an animal control officer ‘‘not later than ninety-
six hours after taking physical custody, shall proceed
as provided in subsection (c) of this section’’; (emphasis
added) General Statutes (Supp. 2022) § 22-329a (a); the
requirement to file a verified petition is otherwise stated
solely in affirmative terms with no language expressly
prohibiting an animal control officer from filing a veri-
fied petition after ninety-six hours have passed. Signifi-
cantly, the statute does not invalidate or otherwise
impose penalties in the event that a plaintiff fails to
satisfy the ninety-six hour time frame for filing a verified
petition. See, e.g., United Illuminating Co. v. New
Haven, 240 Conn. 422, 465–66, 692 A.2d 742 (1997) (‘‘if
there is no language that expressly invalidates any
action taken after noncompliance with the statutory
provisions, the statute should be construed as direc-
tory’’ (internal quotation marks omitted)). ‘‘Tradition-
ally, it is strong mandatory language . . . [that] is con-
sistent with the notion of a subject matter jurisdictional
limit.’’ (Internal quotation marks omitted.) Commis-
sioner of Mental Health & Addiction Services v. Saeedi,
143 Conn. App. 839, 850, 71 A.3d 619 (2013). We con-
clude that § 22-329a (a) does not contain strong manda-
tory language. See id.
We next turn to the legislative history of § 22-329a
(a). ‘‘In light of the strong presumption in favor of juris-
diction, we require a strong showing of a legislative
intent to create a time limitation that, in the event of
noncompliance, acts as a subject matter jurisdictional
bar.’’ (Internal quotation marks omitted.) Williams v.
Commission on Human Rights & Opportunities,
supra, 257 Conn. 267. We find no such strong showing
of legislative intent.
The legislative history of § 22-329a reveals that the
2007 amendment to that statute; see Public Acts 2007,
No. 07-230, § 1; substantially revised it in response to
Judge Berger’s criticism of the prior version of the stat-
ute in State ex rel. Griffin v. Thirteen Horses, Docket
No. CV-XX-XXXXXXX-S, 2006 WL 1828459 (Conn. Super.
June 16, 2006).10 In that decision, Judge Berger noted
that portions of the statute were ‘‘difficult to understand
because if the court has found probable cause to believe
that an animal is neglected or cruelly treated, then leav-
ing the animal in the owner’s custody pending a hearing
would only perpetuate its suffering. . . . One could
argue that . . . the legislature did not intend to require
a judicial finding in advance of the seizure . . . . If the
legislature does intend to vest the seizure decision in
the animal control officer, rather than in the court, the
statute should be redrafted accordingly, with provisions
for immediate filing of the petition and a speedy hear-
ing.’’ (Citations omitted.) Id., *4-5. Judge Berger con-
cluded with respect to the prior revision of the statute
that, ‘‘despite the deficiencies of the statute, the state
successfully complied with its twofold obligation of
obtaining a judicial determination of reasonable cause
prior to seizure . . . and following the filing process
. . . the state obtained the search and seizure warrant
from the court . . . and filed its petition with the court
. . . .’’ Id., *5.
When discussing the 2007 amendment on the floor
of the House of Representatives, Representative Gerry
Fox explained the origins of the amendment: ‘‘This bill
came to us from the Commissioner of Agriculture and
requested a change to the way that animal control offi-
cers currently handle situations where animals are
treated cruelly or neglected. Presently, when an animal
control officer sees a situation that may appear to be
dangerous to an animal, they’re required to go to court
and get a warrant. What this would allow is if there’s
reasonable cause to believe that an animal [is] in immi-
nent harm of being cruelly or negligently treated, the
animal control officer may, at that time, seize the ani-
mal.’’ 50 H.R. Proc., Pt. 25, 2007 Sess., p. 8077, remarks of
Representative Gerry Fox. In support of the legislation,
Representative Urban stated: ‘‘This bill makes it much
easier when there is an animal that is being subjected
to cruel treatment or a cruel situation to get in and to
mitigate that situation and be able to move the horse,
the dog, the cat, the puppy, whatever it happens to be,
out of that situation and into a place where they will
be able to receive the treatment they need.’’ Id., pp.
8078–79, remarks of Representative Diana Urban. In
the judiciary committee, the then Commissioner of Agri-
culture, F. Philip Prelli, explained that ‘‘the Department
of Agriculture is the lead agency in investigation of
animal cruelty and negligence. . . . Even if it’s done
on a local level, the department is involved with those.
The primary purpose of [this] legislative proposal is to
better define and clarify the section to enable animal
control officers to take physical custody of animals
that animal control officers have a reasonable cause to
believe are in imminent harm and are neglected and/
or being cruelly treated. One of the things that we’ve
noticed about the law that’s there, it’s been a while
since it’s been modified, and the language tends to be
language that was written a number of years ago. . . .
Usually, the animal control officers will go in there and
try to work with the people to either get the animals
fed, get the treatment up right, so they’re treated cor-
rectly, and then go to the steps. And if they still feel
they need to take those steps, they will get a warrant
first. So the steps we’re defining here are never going
to be the norm. But there are times when our animal
control officers will see an animal that is truly in jeop-
ardy of dying, and we’ve seen that. We’ve seen horses
down, and we’ve seen cows down, where we’ve had to
try to seize those animals and then go and get the court
order. So what this does is then sets up the procedure
that will give us the opportunity to seize the animals.
Then within [ninety-six] hours, we will have to get a
court order . . . .’’ Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 14, 2007 Sess., pp. 4422–23,
remarks of Commissioner of Agriculture F. Philip Prelli.
According to the legislative history, the process in
§ 22-329a (a) for taking physical custody of animals in
imminent harm is not the norm. Rather, the usual pro-
cess is codified in § 22-329a (b), which provides in rele-
vant part that ‘‘[a]ny animal control officer or regional
animal control officer . . . may take physical custody
of any animal upon issuance of a warrant finding proba-
ble cause that such animal is neglected or is cruelly
treated . . . and shall thereupon proceed as provided
in subsection (c) of this section . . . .’’ General Stat-
utes (Supp. 2022) § 22-329a (b). Accordingly, when,
prior to taking physical custody of an animal, a warrant
is issued finding probable cause that such animal is
neglected or cruelly treated, there is no statutory time
frame for the filing of a verified petition.
It is evident that the ninety-six hour time frame in
§ 22-329a (a) serves to expedite the process of filing a
verified petition in situations where, without first
obtaining a warrant, an animal control officer takes
physical custody of an animal that is reasonably
believed to be in imminent harm. Although the ninety-
six hour time frame serves to protect the interest of
the owner in situations involving imminent harm where
a warrant is not first obtained, it is clear from the legisla-
tive history that the primary purpose of § 22-329a (a)
is not the protection of the owner, but rather the protec-
tion of animals from imminent harm. There is no indica-
tion from the legislative history that the legislature
intended in such circumstances for the petition to be
filed within the ninety-six hour time frame or not at all.
If the failure to file a verified petition within the ninety-
six hour time frame deprived the trial court of subject
matter jurisdiction, then animals would be returned to
the environment in which they were in imminent harm.
This would thwart the very purpose of § 22-329a (a) by
returning animals to the imminently harmful situation
from which the statute sought to protect them.
The defendant argues, however, that the legislature
intended the ninety-six hour time frame in § 22-329a
(a) to be subject matter jurisdictional in order to reduce
the costs incurred by an owner and to ensure that the
animals are not kept in kennels for long periods of time.
Although animals may need to be in permanent homes
in order to thrive and, although an owner is responsible,
pursuant to § 22-329a (h),11 for expenses incurred by
the state or municipality for the care and custody of
animals if the court finds that the seized animals have
been neglected or cruelly treated, the defendant’s argu-
ment is weakened by the fact that there is no such time
requirement in § 22-329a (b) for the filing of a petition
in situations in which an animal is seized pursuant to
a warrant.
In light of the statute’s text, its relationship to other
statutes, its legislative history and purpose, we deter-
mine that a failure to comply with the ninety-six hour
period for filing a verified petition in § 22-329a (a) does
not divest the trial court of subject matter jurisdiction.
Accordingly, we conclude, albeit for different reasons,
that the trial court correctly concluded that it had sub-
ject matter jurisdiction over the verified petition and
correctly denied the defendant’s motion to dismiss.
III
The defendant next claims in the alternative that her
right to procedural due process under the fourteenth
amendment to the United States constitution was vio-
lated. Specifically, she argues that she ‘‘paid a shocking
amount of money in this case because the [plaintiff]
. . . ignored the 96 hour provision to initiate an action
to seize these animals and waited 52 days, and then a
hearing was not held within 14 days as required by . . .
§ 22-329a (d) but 198 days after the [plaintiff] seized
the animals.’’12 We reject this unpreserved claim.
Pursuant to State v. Golding, 213 Conn. 233, 567 A.2d
823 (1989),13 as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015), ‘‘a defendant can prevail
on a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists . . . and (4) if sub-
ject to harmless error analysis, the [plaintiff] has failed
to demonstrate harmlessness of the alleged constitu-
tional violation beyond a reasonable doubt.’’ (Emphasis
omitted; footnote omitted.) State v. Golding, supra,
239–40. ‘‘The first two [Golding] requirements involve
a determination of whether the claim is reviewable; the
second two requirements involve a determination of
whether the defendant may prevail.’’ State v. George B.,
258 Conn. 779, 784, 785 A.2d 573 (2001).
The record is adequate for review and the defendant
alleges a violation of a constitutional right. Thus, we
turn to the third prong in Golding, and focus on whether
the alleged constitutional violation exists. The defen-
dant’s constitutional argument is based on the premise
that § 22-329a fails to provide a meaningful postdepriva-
tion remedy for the loss of her property. Postdepriva-
tion remedies generally occur as a way of providing
an owner with due process after property has been
permanently disposed of out of necessity due to the
lack of time to conduct a predeprivation hearing. See,
e.g., Gilbert v. Homar, 520 U.S. 924, 930, 117 S. Ct. 1807,
138 L. Ed. 2d 120 (1997) (United States Supreme Court
has ‘‘recognized, on many occasions, that where a
[s]tate must act quickly, or where it would be impracti-
cal to provide predeprivation process, postdeprivation
process satisfies the requirements of the [d]ue [p]rocess
[c]lause’’); Brown v. Hartford, 160 Conn. App. 677, 687–
88, 127 A.3d 278 (city code that allowed for demolition
of building that posed immediate danger to life or prop-
erty did not violate due process where property owner
afforded postdeprivation process), cert. denied, 320
Conn. 911, 128 A.3d 954 (2015). An owner may have
seized animals returned pursuant to § 22-329a (g) (3),
if, after a hearing, the court finds that the animals were
not cruelly treated or neglected. Thomas Richard
Cherry, an attorney whose practice was limited to pro
bono animal advocacy, stated in his affidavit, which
was attached to the plaintiff’s motion for an expedited
hearing on the petition, that the seized animals had
been held in kennels following the defendant’s arrest
and that they could not be placed in permanent homes
without a determination of ownership. Because a possi-
ble outcome of the procedures in § 22-329a is the return
to the owner of the animals, the hearing at issue is
not a postdeprivation remedy, which remedy typically
follows a permanent deprivation. Nevertheless, our
review of the defendant’s procedural due process claim
is guided by the following well established test.
‘‘In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct.
893, 47 L. Ed. 2d 18 (1976), the Supreme Court indicated
that to determine the level of procedural due process
necessary, we must consider three factors: (1) the pri-
vate interest that will be affected by the official action,
(2) the risk of an erroneous deprivation of such interest
through the procedure used and the probable value, if
any, of additional substitute procedural safeguards and
(3) the state’s interest, including the function involved
and the fiscal and administrative burdens that the addi-
tional or substitute procedural requirements would
entail.’’ Kostrzewski v. Commissioner of Motor Vehi-
cles, 52 Conn. App. 326, 336–37, 727 A.2d 233, cert.
denied, 249 Conn. 910, 733 A.2d 227 (1999).
‘‘The fundamental requisite of due process of law is
the opportunity to be heard. . . . The hearing must be
at a meaningful time and in a meaningful manner. . . .
Inquiry into whether particular procedures are constitu-
tionally mandated in a given instance requires adher-
ence to the principle that due process is flexible and
calls for such procedural protections as the particular
situation demands. . . . Due process . . . is not a
technical conception with a fixed content unrelated
to time, place and circumstances.’’ (Citation omitted;
internal quotation marks omitted.) GMAC Mortgage
Corp. v. Glenn, 103 Conn. App. 264, 273–74, 931 A.2d
290 (2007).
Applying the Mathews criteria to the present case,
we conclude that although the defendant has a private
interest in the ownership of her animals, the risk of
erroneous deprivation from the application of the pro-
cedures in § 22-329a is low. The defendant’s argument
focuses on the timing of the hearing. She contends that
she was not given an opportunity to be heard at a
meaningful time and in a meaningful manner and that
the delays in the process leading up to the hearing
caused her to be ‘‘deprived . . . of $118,000 of funds,
she was required to pay according to . . . § 22-329a
(h).’’
The defendant’s argument focuses on two distinct
time frames: (1) the time from the seizure of the animals
until the filing of the verified petition and (2) the time
from the filing of the petition until the December, 2019
evidentiary hearing on the plaintiff’s petition for tempo-
rary and permanent custody of the animals and the
court’s order to show cause. It is not clear from the
record why the plaintiff did not file the verified petition
within ninety-six hours of the animal control officer
taking physical custody of them. Although we do not
countenance such delay, for the reasons that follow,
we conclude that the defendant was not deprived of
procedural due process. Regarding the second time
frame, the record reveals that the defendant’s own tac-
tics14 in the parallel criminal proceedings played a role
in the delay of the December, 2019 hearing in the present
case.15 One day after the filing of the verified petition,
the court, on July 19, 2019, ordered that a hearing be
held on August 19, 2019, to show cause why the relief in
the verified petition should not be granted. The plaintiff
filed a motion for a continuance of that hearing by
consent of both parties and after it became clear that
a global settlement involving the defendant’s willing
surrender of the animals was not possible, the plaintiff
filed on November 15, 2019, a motion for an expedited
hearing in the present proceeding. In an affidavit
attached to the plaintiff’s motion for an expedited hear-
ing, Cherry stated that, in the criminal matter, the defen-
dant, whom Cherry described as an ‘‘animal hoarder,’’
consistently sought delay of all disposition hearings
and, as a result of such delay in the proceedings, the
animals continued to remain under the de facto care
of the defendant who was paying for private kennels
for the animals. Cherry further stated that the defendant
was able to gain access to the animals and feed them
‘‘inappropriate food’’ until the criminal court ordered
that she have no contact with the animals as a condition
of her release.
Notwithstanding the causes of the delay in the hear-
ing, whether due to the actions of the plaintiff or the
defendant, it is undisputed that the defendant volunta-
rily paid for the care, custody and other expenses of
the seized animals. At the evidentiary hearing, Helen
Larkin, the owner of Larkin’s Run kennel, at which
the animals were housed, testified as a witness for the
defendant. She stated that, starting on July 5, 2019, the
defendant paid for the board and care of the animals
at her kennel. She also testified as to the amount of
money spent by the defendant in that regard. The court
determined that ‘‘there’s been evidence that the amount
[the defendant] has paid or has obligated herself to pay
exceeds the $15 per day per animal so the court is not
going to award anything to the town on that score.’’
The deprivation that the defendant claims to have suf-
fered due to the procedures employed in the present
case, namely, the increased cost of housing the animals
at the kennel, was an obligation that the defendant
assumed when she voluntarily paid for the private ken-
neling of the animals. It is axiomatic that the defendant
cannot be unconstitutionally deprived of funds that she
voluntarily paid.
Turning to the final factor in Mathews v. Eldridge,
supra, 424 U.S. 335, we consider the plaintiff’s interest,
including any fiscal and administrative burdens that the
additional procedural requirements would entail. The
plaintiff has a significant interest in protecting the wel-
fare of neglected or cruelly treated animals that are in
imminent harm by allowing animal control officers to
take physical custody of such animals immediately. On
the basis of the foregoing, we conclude that the proce-
dures set forth in § 22-392a provided the defendant with
sufficient due process and consequently the defendant’s
claim fails under the third prong of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that, although the legislature has amended § 22-329a since the
events underlying this appeal; see Public Acts 2021, No. 21-90; those amend-
ments have no bearing on the merits of this appeal. All references herein
to § 22-329a are to the version of the statute codified in the 2022 supplement.
2
At the evidentiary hearing, Gail Block, a veterinarian who testified for
the plaintiff, characterized the condition of the animals as ‘‘horrific and
upsetting and unsettling’’ and described the defendant’s treatment of them
as ‘‘neglect to the point of abuse . . . .’’
3
General Statutes (Supp. 2022) § 22-329a (c) provides: ‘‘Such officer shall
file with the superior court which has venue over such matter or with the
superior court for the judicial district of Hartford at Hartford a verified
petition plainly stating such facts of neglect or cruel treatment as to bring
such animal within the jurisdiction of the court and praying for appropriate
action by the court in accordance with the provisions of this section. Upon
the filing of such petition, the court shall cause a summons to be issued
requiring the owner or owners or person having responsibility for the care
of the animal, if known, to appear in court at the time and place named.’’
4
The plaintiff, in the verified petition, and the court in its December 11,
2019 oral ruling, referred to all of the animals as ‘‘dogs,’’ even though two
cats and one parrot were also seized from the defendant’s van. General
Statutes § 22-327 (1) defines ‘‘[a]nimal’’ as ‘‘any brute creature, including,
but not limited to, dogs, cats, monkeys, guinea pigs, hamsters, rabbits, birds
and reptiles . . . .’’ It is uncontested that the court’s order encompassed
the noncanine animals that were seized from the defendant’s van.
5
The plaintiff argues that the defendant ‘‘is judicially estopped from seek-
ing [the] return of the animals, as she abandoned that claim expressly’’ in
her opposition to the plaintiff’s motion to dismiss the appeal as moot,
wherein, according to the plaintiff, the defendant claimed that the appeal
was justiciable because her sole requested remedy was the return of moneys
she had spent on the care of the animals following their seizure. ‘‘Typically,
judicial estoppel will apply if: 1) a party’s later position is clearly inconsistent
with its earlier position; 2) the party’s former position has been adopted in
some way by the court in the earlier proceeding; and 3) the party asserting
the two positions would derive an unfair advantage against the party seeking
estoppel. . . . We further limit judicial estoppel to situations where the
risk of inconsistent results with its impact on judicial integrity is certain.
. . . Thus, courts generally will not apply the doctrine if the first statement
or omission was the result of a good faith mistake . . . or an unintentional
error. . . . Because the rule is intended to prevent improper use of judicial
machinery . . . judicial estoppel is an equitable doctrine invoked by a court
at its discretion . . . .’’ (Citations omitted; internal quotation marks omit-
ted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 170–71, 2 A.3d 873 (2010).
Although the defendant highlighted in her opposition that she was seeking
the return of funds, she did not, as the plaintiff contends, abandon the ability
to argue on appeal for the return of the animals. We decline the plaintiff’s
invitation to apply judicial estoppel for a number of reasons, including that
the defendant’s positions were not clearly inconsistent.
6
Monde’s affidavit, which was attached to the plaintiff’s motion to dismiss
the appeal as moot, contains this information.
7
See, e.g., In re David M., 29 Conn. App. 499, 507, 615 A.2d 1082 (1992)
(at any stage of proceedings, including on appeal, court may take judicial
notice of file in another case whether case is between same parties).
8
The defendant entered into a plea agreement with the state, which the
court accepted, wherein she pleaded guilty pursuant to North Carolina v.
Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to nine counts
of cruelty to animals in violation of § 53-247 (a).
9
See footnote 3 of this opinion.
10
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 14, 2007
Sess., p. 4426, remarks of Senator Andrew J. McDonald.
11
General Statutes (Supp. 2022) § 22-329a (h) provides: ‘‘If the court finds
that the animal is neglected or cruelly treated, the expenses incurred by
the state or a municipality in providing proper food, shelter and care to an
animal it has taken custody of under subsection (a) or (b) of this section
and the expenses incurred by any state, municipal or other public or private
agency or person in providing temporary care and custody pursuant to an
order vesting temporary care and custody, calculated at the rate of fifteen
dollars per day per animal or twenty-five dollars per day per animal if the
animal is a horse or other large livestock until the date ownership is vested
pursuant to subdivision (1) of subsection (g) of this section shall be paid
by the owner or owners or person having responsibility for the care of the
animal. In addition, all veterinary costs and expenses incurred for the welfare
of the animal that are not covered by the per diem rate shall be paid by the
owner or owners or person having responsibility for the animal.’’
According to § 22-329a (h), an owner is not responsible for expenses
incurred after the date that ownership vests pursuant to § 22-329a (g) (1),
which provides: ‘‘If, after hearing, the court finds that the animal is neglected
or cruelly treated, it shall vest ownership of the animal in any state, municipal
or other public or private agency which is permitted by law to care for
neglected or cruelly treated animals or with any person found to be suitable
or worthy of such responsibility by the court.’’ General Statutes (Supp. 2022)
§ 22-329a (g) (1).
12
General Statutes (Supp. 2022) § 22-329a (d) provides: ‘‘If physical cus-
tody of an animal has been taken pursuant to subsection (a) or (b) of this
section and it appears from the allegations of the petition filed pursuant to
subsection (c) of this section and other affirmations of fact accompanying
the petition, or provided subsequent thereto, that there is reasonable cause
to find that the animal’s condition or the circumstances surrounding its
care require that temporary care and custody be immediately assumed to
safeguard its welfare, the court shall either (1) issue an order to show cause
why the court should not vest in some suitable state, municipal or other
public or private agency or person the animal’s temporary care and custody
pending a hearing on the petition, or (2) issue an order vesting in some
suitable state, municipal or other public or private agency or person the
animal’s temporary care and custody pending a hearing on the petition. A
hearing on the order issued by the court pursuant to subdivision (1) or (2)
of this subsection shall be held not later than fourteen days after the issuance
of such order. The service of such order may be made by any officer author-
ized by law to serve process, state police officer or indifferent person and
shall be served not less than forty-eight hours prior to the date and time of
such hearing. If the owner or owners or person having responsibility for
the care of the animal is not known, notice of the time and place of the
hearing shall be given by publication in a newspaper having a circulation
in the town in which such officer took physical custody of such animal not
less than forty-eight hours prior to the date and time of such hearing.’’
13
Although the defendant did not affirmatively request review pursuant
to Golding of her unpreserved claim, we nonetheless examine the claim
pursuant to that doctrine because she ‘‘need only raise that claim in [her]
main brief, wherein [s]he must present a record that is [adequate] for review
and affirmatively [demonstrate] that [her] claim is indeed a violation of a
fundamental constitutional right.’’ (Internal quotation marks omitted.) State
v. Elson, 311 Conn. 726, 755, 91 A.3d 862 (2014).
14
At oral argument before this court, the defendant’s counsel stated,
regarding the delay following the filing of the verified petition until the
December, 2019 hearing, that ‘‘we don’t have complete clean hands in that
part of the process.’’
15
The plaintiff contends that the defendant waived her due process claim
by acquiescing in the delay in the proceedings, by failing to take affirmative
steps to expedite the proceedings and by pursuing strategies that further
delayed a hearing on the petition. In response to the plaintiff’s waiver argu-
ment, the defendant in her reply brief took a position contradictory to that
in her main brief and stated that she ‘‘did not challenge the delays in the
hearing, only the delay in initiating the postdeprivation process, as the
defense counsel did below. That is where this case begins and ends.’’ ‘‘Waiver
is the intentional relinquishment of a known right.’’ (Internal quotation marks
omitted.) Jacobson v. Zoning Board of Appeals, 137 Conn. App. 142, 150,
48 A.3d 125 (2012). Nothing in the record indicates that the defendant
knowingly waived her right to claim on appeal that her right to procedural
due process had been violated.