|
COURT OF APPEALS DECISION DATED AND FILED July 8, 2014 Diane M. Fremgen Clerk of Court of Appeals |
|
NOTICE |
|
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
APPEAL from an order of the circuit court for Milwaukee County: Timothy m. witkowiak, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Nazir Al-Mujaahid, pro se,
appeals an order dismissing his petition for a writ of mandamus to compel the Secretary of the Wisconsin Department of
Revenue to disburse Al-Mujaahid’s 2011 income tax refund. We conclude that Al-Mujaahid filed the
petition prematurely, before the Secretary had an obligation to disburse the
refund. Therefore, we affirm.
BACKGROUND
¶2 Al-Mujaahid
submitted his 2011 Wisconsin state income tax return to the Department of Revenue
on January 12, 2012. The return included
a request to refund an overpayment. On
March 4, 2013, he petitioned the trial court for a writ of mandamus to compel the Secretary of the Department of Revenue to disburse
the refund. Al-Mujaahid also requested
“attorney fees, costs and expenses incurred in bringing th[e] petition,” citing
Wis. Stat. § 783.04 (2011‑12).[1] The Secretary moved to dismiss the action on
the ground that the deadline for the Department of Revenue to refund an
overpayment for the 2011 tax year had not yet passed.
¶3 On
March 26, 2013, the trial court heard the Secretary’s motion, but continued the
matter until April 23, 2013. In advance
of the April hearing, a Department of Revenue employee filed an affidavit
showing that, on April 3, 2013, she caused the Department to mail an income tax
refund check to
Al-Mujaahid. When the parties appeared
for the hearing, however, Al-Mujaahid denied receiving the check.
¶4 The
trial court continued the matter until May 14, 2013, but ordered that, if the
Secretary submitted proof of depositing the refund directly into
Al-Mujaahid’s bank account before May 7, 2013, the court would remove the case
from the calendar unless Al-Mujaahid filed an objection stating that he had not
received the money. Trial court docket
entries reflect that Al-Mujaahid confirmed on May 6, 2013, that he had received
the refund by direct deposit and that “the paper check issued and received as
damaged U.S. mail last week will be returned to [the Department] per Mr.
Mujaahid.” The Secretary thereafter filed
proof of the direct deposit, and the trial court entered an order dismissing
the action with prejudice and without costs or fees. Al-Mujaahid appeals, asserting that he is
entitled to a writ, damages, and costs.
ANALYSIS
¶5 Whether
to grant a writ of mandamus rests in
the trial court’s sound discretion. See Vretenar
v. Hebron, 144 Wis. 2d 655, 661, 424 N.W.2d 714 (1988). Our standard of review is therefore
highly deferential. See Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶25,
265 Wis. 2d 703, 666 N.W.2d 38. We
will sustain a trial court’s discretionary decision if it is “a decision which
a reasonable judge or court could arrive at by the consideration of the
relevant law, the facts, and a process of logical reasoning.” Hartung v. Hartung, 102 Wis. 2d
58, 66, 306 N.W.2d 16 (1981). We search
the record for reasons to sustain a trial court’s discretionary decision. State v. Odom, 2006 WI App 145, ¶8,
294 Wis. 2d 844, 720 N.W.2d 695.
¶6 Mandamus proceedings are governed by Wis. Stat. ch. 783. To obtain a writ of mandamus, a petitioner must establish that: (1) the petitioner has a clear legal right to
relief; (2) the entity to whom the
writ is directed has a positive and plain legal duty to act; (3) the petitioner
will be substantially damaged by nonperformance of the duty; (4) the petitioner
has no adequate remedy at law; and (5) no reason exists that granting the writ
would be inequitable under the circumstances.
See Vretenar,
144 Wis. 2d at 662.
¶7 “‘Mandamus
is the proper remedy to compel public officers to perform duties arising out of
their office and presently due to be performed.”’ Walter Laev, Inc. v. Karns, 40 Wis. 2d
114, 118, 161 N.W.2d 227 (1968) (citation omitted). As a general rule, however, the writ will not
lie to compel performance of an act by a public officer unless the act be one
that is actually due from the officer at the time of the application. State
ex rel. Racine Cnty. v. Schmidt,
7 Wis. 2d 528, 534, 97 N.W.2d 493 (1959).
¶8 Al-Mujaahid
did not establish the prerequisites for a writ of mandamus. At the time that
he filed his petition for a writ, the duties of the Secretary in regard to his
tax refund were not yet “‘due to be performed.’” See
Walter
Laev, Inc., 40 Wis. 2d at 118 (citation omitted). This is so because the Department of Revenue
is allowed one year to act on a refund claim after the taxpayer files the
claim. See Wis. Stat. § 71.75(7). Here, Al-Mujaahid submitted his refund claim
to the Department of Revenue in January 2012, but, pursuant to Wis. Stat. § 71.77(8), an
individual’s tax return received by the Department before the deadline is deemed
filed on the last day prescribed by law for filing. See id. The
record shows, and no party disputes, that the deadline for
Al-Mujaahid to file his 2011 tax return fell on Tuesday, April 17, 2012. Therefore, as Al-Mujaahid concedes, the Secretary
of the Department of Revenue was not required to act on his request for a
refund until April 17, 2013.
Al-Mujaahid thus had no clear legal right to relief when he filed his petition
for a writ of mandamus on March 4,
2013. Because Al-Mujaahid did not
establish that the prerequisites for a writ existed at the time he began his
litigation, the trial court properly exercised its discretion when it dismissed
the petition without issuing a writ. See Schmidt, 7 Wis. 2d at 534; see also 52 Am. Jur. 2d Mandamus § 371 (2014) (stating that
“a cause of action for mandamus must
exist and be complete before an action may be started”).
¶9 Al-Mujaahid
disagrees, asserting that he is entitled to a writ based on actions allegedly taken
by Department of Revenue staff that he claims improperly delayed disbursement
of his refund check before he filed his petition. These complaints do not alter our
analysis. Assuming without deciding that
Department staff took actions that delayed disbursement of the refund before
Al-Mujaahid filed his petition on March 4, 2013, nevertheless, on that date the
Secretary did not have a clear legal duty to disburse a refund to Al-Mujaahid
for the 2011 tax year, and he did not have a clear legal right to receive a
refund. See Wis. Stat.
§§ 71.75(7), 71.77(8).
Accordingly, his request for a writ of mandamus was premature, and the trial court properly dismissed his
petition.[2]
¶10 Our
analysis also disposes of Al-Mujaahid’s request for monetary relief under Wis. Stat. § 783.04. That statute provides: “[i]f judgment be for the plaintiff, the
plaintiff shall recover damages and costs.” Because we have determined that the trial
court properly exercised its discretion when it dismissed this action without
issuing a writ, Al-Mujaahid is not entitled to relief under § 783.04.
¶11 Finally,
we note that Al-Mujaahid asserts in his reply brief that he is entitled to
sanctions against the Secretary pursuant to Wis.
Stat. § 802.05. He did not
cite that statute in the opening brief that he submitted to this court. We do not address issues raised for the first
time in a reply brief. See State
v. Marquardt, 2001 WI App 219, ¶14 n.3, 247 Wis. 2d 765, 635
N.W.2d 188.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] We
further observe that this matter is moot.
“It is well settled that a case is moot when a determination is sought
on a matter which, when rendered, cannot have any practical legal effect upon
an existing controversy.” State
ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶18, 260 Wis. 2d
653, 660 N.W.2d 260. Here, the record
shows that Department of Revenue staff mailed a refund check to Al-Mujaahid
well in advance of the April 17, 2013 deadline, although delivery was evidently
delayed when the item was damaged in the postal stream.
Al-Mujaahid acknowledges that he has received the refund. This court generally does not determine moot
issues. See State ex rel. Steiger v. Circuit Court, 86 Wis. 2d 390,
391, 272 N.W.2d 380 (1978).