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County seeks to have lawsuit dismissed

by Larry Chowning

Middlesex County is seeking to have a $100,000 lawsuit against the county dismissed in federal court “for mootness and failure to state a claim upon which relief can be granted.”

The lawsuit was filed by Guy Ferrante and Deborah Shay Ferrante of Springfield in U.S. District Court of the Eastern District of Virginia and involves the county’s personal property tax on Mr. Ferrante’s boat.

When the tax was not paid, the Middlesex County Treasurer’s Office issued “stops” to the Virginia Department of Motor Vehicles (DMV), which allegedly kept the Ferrantes from being able to renew registrations on three vehicles they own. 
Middlesex County sent Mr. Ferrante a bill for $584 for personal property tax on his boat.

In the Ferrantes’ complaint to the court, they claim the boat is not being moored in Middlesex County. Yet, they contend the personal property tax on the boat is not the issue. The lawsuit states that Middlesex County has declined to lift the stops on three jointly-owned cars until the personal property tax has been paid. This action, in effect, has “taken” the Ferrantes three automobiles for reasons that have nothing to do with the automobiles.

The Ferrantes are suing Middlesex County for $100,000 as the “fair market value” of the three cars they claim the county took from them due to the DMV stops.

Attorney Andrew R. McRoberts of Sands Anderson PC of Richmond is representing Middlesex County. He argued in a written statement to the court that on or before July 24, 2013 the DMV stops at issue were released, and Middlesex Treasurer Betty S. Bray informed Mr. Ferrante of the release by letter dated July 24, 2013.

“Despite of the mootness of their claims . . . they have filed the instant complaint superficially asserting that the county has taken their property . . . and deprived them of due process of the law, as well as alleging incomplete claims of bribery, extortion and that the county has stolen the value of their vehicles,” McRoberts wrote. 

He also wrote that the action needs to be dismissed because the lawsuit “fails to state a claim upon which relief can be granted.” In other words, the tax is owed and should be paid. 

McRoberts wrote that the DMV stops on the Ferrantes’ automobiles “did nothing” to affect their ownership or possession of their motor vehicles. “It only stopped the registration of their automobiles with DMV, which is required . . . before being operated on the highway. Under Virginia law, driving a motor vehicle is a privilege and not a right.”

McRoberts’ argument also states that the “complaint improperly named Middlesex County as the sole defendant. The county was not responsible for the issuance of the DMV stops . . . only the treasurer for Middlesex County, an independent elected officer . . . is responsible for the collection of local taxes.”

McRoberts wrote that Virginia law states “no suit for the purpose of restraining the assessment or collection of any local tax shall be maintained in any court of this commonwealth, except when the party has no adequate remedy at law.

“The taxpayer is required to first challenge the underlying assessment, but the Ferrantes have failed to do so. Whereas a plaintiff could have simply paid the . . . debt, challenged it and received a refund, if a decision was found in their favor,” McRoberts contended.

The matter is moot and must be dismissed due to the federal court’s lack of jurisdiction in this matter and further the complaint fails to state a cause of action against Middlesex County, wrote McRoberts.

The county has already paid $24,888 in attorney fees to defend itself in federal court. The court has heard, the case, but has not issued a verdict.

posted 12.05.2013

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