Scott Davenport et al. v. State of Connecticut Department of Emergency Services (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 116

BACKGROUND

This is an action for declaratory judgment and replevin which was filed by Scott and Leah Davenport alleging that the State of Connecticut is obligated to return possession and allow them to obtain a new vehicle identification number (VIN) number for a 1966 Chevrolet Chevelle SS they purchased in April 2011.   The Defendant State of Connecticut and its employees have filed a Motion to Dismiss the action alleging that the doctrine of sovereign immunity applies and that the action must be dismissed as to them for the exercise of discretionary duties.   The plaintiffs contend that the applicable statute C.G.S. § 14–149 is unconstitutional as applied to them and thus sovereign immunity would not be applicable.

The plaintiffs Scott and Leah Davenport purchased a 1966 Chevrolet Chevelle in Pennsylvania in April 2011.   They received a bill of sale and the title to the car.   They returned to Connecticut and soon thereafter brought the car to E–Muscle for motor vehicle work.   Upon inspection, E–Muscle informed the plaintiffs that the Vehicle Identification Number had been removed or scratched off.   The plaintiffs immediately contacted the State Police to report the problem.   In response to the call the State Police impounded and thereafter inspected the car.   The Chevelle has been in the possession of the State since July 2011.   There was no doubt that the Chevelle did not have a proper VIN number.   The plaintiffs were not arrested or charged with any violation of the law because of the purchase.   The plaintiffs did not pay any fine as a result of their possession of the motor vehicle.   In their complaint the plaintiffs allege that they have been harmed as a result of the refusal by the State Police to return the car so that they can seek a new VIN number pursuant to C.G.S § 14–149.   The defendants contend that the court lacks subject matter jurisdiction because hey have sovereign immunity.

DISCUSSION

A motion to dismiss “․ 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.”  Gurliacci v. Mayer, 218 Conn. 531, 544 (1999), Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn.App. 790, 793 (1996).   A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․” (Internal quotation marks and citation omitted.)  Filippi v. Sullivan, 273 Conn. 1, 8 (2005).   In ruling on a motion to dismiss the court must consider the allegations of the complaint in their most favorable light and must take the facts to be those alleged in the complaint, including the facts necessarily implied from those allegations, construing them in a manner most favorable to the pleader.  Id. “[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Amodio v. Amodio, 247 Conn. 724, 728 (1999).  “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding with the case.”  (Internal quotation marks omitted.)   Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552 (1997).

The defendants claim that the court lacks subject matter jurisdiction because they are immune under the doctrine of sovereign immunity.   The plaintiff contends that the immunity for discretionary acts is not applicable when:  1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity;  or 2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute.”  Miller v. Egan, 265 Conn. 301, 314 (2003).   In particular, the plaintiff alleges that the actions of the defendants are pursuant to an unconstitutional statute because as argued the defendants contend there are no set of facts which would permit the operation of the statute to return the car.

Practice Book § 17–54 provides that the Superior Court will “render declaratory judgments as to the ․ nonexistence (1) of any right power, privilege or immunity ․ whether such right, power, privilege or immunity now exists or will arise in the future.”  Practice Book § 17–55 provides the conditions for seeking declaratory judgment;  and trial courts are afforded wide discretion in rendering declaratory judgment.  Leoni v. Water Pollution Control Authority, 21 Conn.App. 77, 83, 571 A.2d 153 (1990).

The defendant seized the motor vehicle in this action when the plaintiffs made a discovery that the VIN number was mutilated and notified the state police.   The State pursuant to C.G.S. § 14–149(b) which states that “any officer attached to an organized police department, any state police officer ․ upon discovery of any motor vehicle, including construction equipment ․ the vehicle identification, engine or factory number of which has been mutilated, altered or removed, shall take such motor vehicle or major component part or agricultural tractor or farm implement into custody ․” The plaintiff contends that this statute also provides for the return and new VIN markers upon the motor vehicle.   The statute, 14–149(e) states in part:  “Any person who knowingly has in such person's possession any motor vehicle, construction equipment, agricultural tractor or farm implement from which the factory, serial or other identification number has been removed, defaced, obliterated or changed shall immediately file with the commissioner a sworn statement describing such motor vehicle, construction equipment, agricultural tractor or farm implement and showing the source of such person's title and, if known, the reason for such removal, defacement, obliteration or change together with a fee in the amount of fifty dollars.   If satisfied as to the fact, the commissioner may grant permission to cut, impress or emboss permanently into the motor of such motor vehicle, construction equipment, agricultural tractor or farm implement a special identification number or mark which shall thereafter be deemed sufficient for the purpose of registration of such vehicle ․”

The complaint alleges that the plaintiffs have made efforts to follow this provision within the statute.   They have provided the title that they received along with any information they have as to how they came into possession of the motor vehicle.   The defendant has refused to give possession to the plaintiffs and have refused to indicate what, if any, specific basis would lead to the refusal to recognize the plaintiff's position and give them possession to proceed in accordance with the statute to have a new VIN number made.   The plaintiffs were not charged or arrested with any criminal wrongdoing pursuant to § 14–149(f).  Even though there is no indication of any wrongdoing on the part of the plaintiffs, the defendants expressed the position that the plaintiffs will never be given possession.   Thus, the plaintiffs have no opportunity to recover their property and rightfully register it.   The plaintiff alleges that the position of the defendants demonstrates that they can never comply with the statute and thus the statute is unconstitutionally indefinite and vague on its face.   The defendants would not provide to the court any method, policies or practices that are utilized to apply this statute.   In fact, upon the court's inquiry, counsel for the defendants informed the court that contrary to the language in the statute the only instance of permitting a new VIN number is for “farm equipment.”   This practice and the response in the instant case demonstrates that the statute as applied in this action implicates constitutional violations for these plaintiffs and thus the defendants cannot invoke the sovereign immunity defense.

The motion to dismiss is Denied.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.