Millicent Corbett v. Department of Developmental Services (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102)

PROCEDURAL HISTORY

On July 18, 2011, the plaintiff, Millicent A. Corbett, filed an administrative appeal pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166, et seq., from a decision of the defendant, the Department of Developmental Services (DDS).  The return of service indicates that service was made on DDS on July 14, 2011.   The defendant filed a motion to dismiss on July 28, 2011, accompanied by a memorandum of law in support thereof, on the ground “that the court lacks subject matter jurisdiction over the appeal as the appeal was not filed as to the agency and not served upon the agency within forty-five days of the mailing of the final decision as required by [General Statutes] § 4–183.”   The plaintiff, a self-represented party, filed what can be characterized as a memorandum in opposition to the motion to dismiss on August 11, 2011, and another such memorandum on August 15, 2011, accompanied by supporting materials.   Oral arguments were heard on the short calendar on August 15, 2011.

DISCUSSION

Practice Book § 10–30 provides, in relevant part:  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance ․” “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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).   One ground that can be asserted in a motion to dismiss is a lack of subject matter jurisdiction.  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.

The defendant argues that the appeal should be dismissed because the plaintiff failed to serve and file the appeal within forty-five days of the mailing of the administrative decision as required by General Statutes § 4–183(c).  The defendant maintains that the right to pursue an administrative appeal is derived from statute and that failure to comply with the requirements of the UAPA implicates the court's jurisdiction over the subject matter and renders an appeal that does not conform to the statutory requirements subject to dismissal.

The defendant maintains that in the present case, the defendant's decision, which was dated January 25, 2011, was mailed to the plaintiff on February 8, 2011.   Therefore, according to the defendant, in order to timely commence an appeal, the plaintiff was required to serve the appeal either directly upon the defendant or though the attorney general by March 25, 2011.   The defendant asserts that “[s]ervice of an appeal may be accomplished by either mailing the appeal by certified or registered mail or through personal service by a proper officer or indifferent person in the same manner as a civil complaint.”   According to the defendant, service of the complaint upon it was not made until on or about July 18, 2011, thus depriving the court of subject matter jurisdiction.

The defendant further argues that the plaintiff failed to file the appeal within forty-five days of the time the administrative decision was mailed, which also deprives the court of subject matter jurisdiction over this appeal.

The plaintiff, aside from citing to General Statutes § 52–592, the accidental failure of suit statute, appears to argue in her filings that she filed her appeal on March 11, 2011, but could not proceed as she was waiting to hear from the clerk's office as to whether her motion for waiver of fee would be granted.   The plaintiff asserts in her August 11, 2011 memorandum that “[t]he waiver of fee was mailed to me stating fee was denied April 26, 2011.”   In her August 15, 2011 memorandum, the plaintiff contends that “I then finally received mailed from the clerk's office, stating my waiver was denied, April 26, 2011.”   The plaintiff maintains that following the denial, she returned to the clerk's office to pay her fee.   The plaintiff appears to contend that she faxed her appeal to the department of social services, which they received on March 11, 2011.¹  The plaintiff maintains that the appeal went to the wrong department as it should have been sent to the defendant.   The plaintiff argues that she corrected the error by sending out notice via a marshal to the correct department.   According to the plaintiff, “[i]f it had not been a mistake made by denying of a waiver fee, all of this would not have happened.”   The plaintiff further contends that while she committed technical errors, her intent was to comply with the forty-five-day limit, which she did as the defendant received service on time.   The plaintiff included a copy of a March 23, 2011 letter from James P. Walsh, the director of legal and government affairs of the defendant, addressed to Henry Salton, an assistant attorney general and department head.   The letter states:  “Enclosed please find a Summons and Complaint received via facsimile from an Assistant of a State Senator on Friday, March 11, 2011, regarding the above referenced matter.”

General Statutes § 4–183 provides, in relevant part:  “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section.   The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal ․”

* * * *

“(c)(1) Within forty-five days after mailing of the final decision under section 4–180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section ․ a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court ․ Service of the appeal shall be made by United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a state marshal or other officer, or by personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.   If service of the appeal is made by mail, service shall be effective upon deposit of the appeal in the mail.”

“(d) The person appealing, not later than fifteen days after filing the appeal, shall file or cause to be filed with the clerk of the court an affidavit, or the state marshal's return, stating the date and manner in which a copy of the appeal was served on each party and on the agency that rendered the final decision, and, if service was not made on a party, the reason for failure to make service.   If the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal.” ²

“The principles that govern the validity of an administrative appeal are undisputed.   Because the right to take an administrative appeal depends upon statutory authority, this court has regularly held that noncompliance with the statutory requirements of the Uniform Administrative Procedure Act implicates subject matter jurisdiction and renders a nonconforming appeal subject to dismissal.”  McQuillan v. Dept. of Liquor Control, 216 Conn. 667, 670, 583 A.2d 633 (1990).

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․” (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).  “The determination of whether a statutory requirement implicates the subject matter jurisdiction of the court ‘must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction.’  “ Tolly v. Dept. of Human Resources, 225 Conn. 13, 29, 621 A.2d 719 (1993).

The court in Tolly v. Dept. of Human Resources, supra, 225 Conn. 26–27, noted that General Statutes § 4–183(c) provided in relevant part:  “provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal,” thus implying that failure to make timely service on the agency itself would deprive the court of subject matter jurisdiction over the appeal, while General Statutes § 4–183(d) provided in relevant part:  “[i]f the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal.”   The court in Tolly stated that although the language of § 4–183(d) implied that because the court would only dismiss the appeal if prejudice resulted from the failure of service, such a failure of service would not implicate subject matter jurisdiction;  Tolly v. Dept. of Human Resources, supra, 27–28;  the court ultimately rejected that implication.   The court harmonized § 4–183(c) and § 4–183(d) by stating that it read the language in § 4–183(c) “as imposing a time limitation with respect to subject matter jurisdiction.   If there is no service at all on the agency within the forty-five day period, the court lacks subject matter jurisdiction over the appeal by virtue of the clear implication of the language in § 4–183(c), read against the background of the preexisting law.”  Tolly v. Dept. of Human Resources, supra, 28.

In Tolly, the plaintiff filed an administrative appeal in the trial court, appealing a final decision of the defendant.  Id., 15.   The appeal lacked a citation and the trial court granted the defendant's motion to dismiss on the ground of lack of subject matter jurisdiction.  Id., 16–17.   On appeal, the Supreme Court concluded that service of process under § 4–183(c)(1) did not require a citation.  Tolly v. Dept. of Human Resources, supra, 225 Conn. 19.

The court in Tolly stated:  “This reading of § 4–183(c) [finding no subject matter jurisdiction if no service was made at all upon the agency within the forty-five day period] is consistent with the recognition that [t]ime limitations for taking appeals do not exist merely for the convenience of the parties but involve a strong public interest in the finality of legal proceedings.   For this reason they have generally been regarded as jurisdictional ․”

“If, however, as in this case, there is an arguable defect in the process that was timely served on the agency—namely, a lack of specific language in the appeal directing the defendant to file an appearance on or before the second day after the return day—rather than a failure to make service at all within the applicable time period, the court does not lack subject matter jurisdiction over the appeal.   Under those circumstances, § 4–183(d) applies, and the appeal is dismissable only upon a finding of prejudice to the agency.   In this case, the defendant does not claim any prejudice, and it would be difficult to perceive any, because presumably the attorney general knew the significance of a return day stated on an administrative appeal.”

“The conclusion that the subject matter jurisdiction of the court is implicated only if there is a total failure to serve the agency within the statutory forty-five day period, and not if there is merely a defect in the document timely served on the agency, is also consistent with our established jurisprudence regarding subject matter jurisdiction.”  Tolly v. Dept. of Human Resources, supra, 225 Conn. 28–29.

In the present case, the defendant asserts that its decision was mailed to the plaintiff on February 8, 2011, but there is nothing in the record that supports its assertion.   The plaintiff indicates that she attempted to file her appeal on March 11, 2011.   Her appeal, which was actually filed on July 18, 2011, is dated March 11, 2011.   Therefore, at the latest, the defendant's decision had to be delivered by March 11, 2011, the date of the appeal, which would mean that the forty-five days would have run on or about April 25, 2011.   The return of service indicates that service of this appeal was made upon the defendant on July 14, 2011, well past the forty-five-day deadline.   While the plaintiff argues that she attempted service upon the defendant in a timely fashion, the record indicates that she attempted service on the wrong entity, and that the appeal was sent to the defendant via a nonparty who received the appeal via facsimile.   These actions do not constitute proper service as these actions are not in conformity with the acceptable methods of service contained in § 4–183(c).  The facts of the present case are distinguishable from the facts of Tolly because in Tolly the plaintiff merely failed to include a citation with her appeal, something the Supreme Court determined was not required under § 4–183(c)(1).  Tolly v. Dept. of Human Resources, supra, 225 Conn. 19.   In the present case, as service via any of the methods outlined in § 4–183 was not made in a timely fashion, the court lacks subject matter jurisdiction over the plaintiff's administrative appeal and the appeal should be dismissed on that ground.

In addition, the plaintiff did not file her administrative appeal with the court until July 18, 2011, which is also more than forty-five days after March 11, 2011.   In Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993), the court concluded “that § 4–183(c), as revised in 1988, requires that an appeal be filed within the forty-five day period.  ‘Section 4–183(c), as revised by [Public Acts 1988, No. 88–317] changed the time period to forty-five days for both the filing of an administrative appeal and the service of the appeal upon all parties of record.’  Raines v Freedom of Information Commission, 221 Conn. 482, 487, 604 A.2d 819 (1992).  ‘Section 4–183(c) provides, in general terms, that an administrative appeal must, within forty-five days of delivery of the final decision to the person appealing, be filed with the court and served on the agency or the attorney general and on each party listed in the decision.’  Tolly v. Department of Human Resources, [supra, 225 Conn. 19].”   The court in Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, supra, 848–50, 854, determined that failure to file an appeal within forty-five days pursuant to § 4–183 following the 1988 amendments to the UAPA deprived the Superior Court of subject matter jurisdiction over the appeal.   Further, the Supreme Court in Commission on Human Rights & Opportunities v. Windsor Hall Rest Home, 232 Conn. 181, 187, 653 A.2d 181 (1995), stated:  “The failure of a party to file an administrative appeal under the UAPA within the forty-five days required by § 4–183(c) deprives the trial court of subject matter jurisdiction over the appeal.”   As the plaintiff did not file her appeal within forty-five days of March 11, 2011, this court does not have subject matter jurisdiction over the appeal for this reason as well.

The plaintiff, in one of her filings, cites to General Statutes § 52–592,³ which provides in relevant part:  “(a) if any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated ․ for any matter of form ․ or if ․ a judgment of nonsuit has been rendered ․ the plaintiff ․ may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action ․”

Section 52–592 is not applicable to administrative appeals such as the one before this court.  Practice Book § 14–5 provides:  “For the purposes of these rules, administrative appeals are those appeals taken pursuant to statute from decisions of officers, boards, commissions or agencies of the state or of any political subdivision of the state, and include specifically appeals taken pursuant to:

(1) chapter 54 of the General Statutes;

(2) chapters 124 through 134 of the General Statutes;  or

(3) other enabling legislation.

Practice Book § 14–6 provides:  “For purposes of these rules, administrative appeals are civil actions.   Whenever these rules refer to civil actions, actions, civil causes, causes or cases, the reference shall include administrative appeals except that ․ (b) an administrative appeal shall not be deemed an action for purposes of General Statutes §§ 52–591, 52–592 or 52–593.”  (Emphasis added.)

In Carbone v. Zoning Board of Appeals, 126 Conn. 602, 607–08, 13 A.2d 462 (1940), our Supreme Court stated:  “Statutes and special laws ․ fixing a rather brief time in which appeals may be taken to the courts from the orders and decisions of administrative boards are evidently designed to secure in the public interest a speedy determination of the issues involved;  and to make it possible to proceed in the matter as soon as the time to take an appeal has passed if one has not been filed ․ Certainly the Legislature could not have intended by the provisions of [the accidental failure of suit statute] thus to place it in the power of any appellant to render nugatory the limits it had carefully set for appeals of this nature.”   The Superior Court has cited to Carbone in support of the proposition that administrative appeals are not deemed to be actions for purposes of § 52–592.   For example, in Marshall v. Middlefield, Superior Court, judicial district of Middlesex, Docket No. CV 10 5007941 (August 9, 2011, Holzberg, J.), the court held that § 52–592 does not apply to save an untimely action filed pursuant to General Statutes § 12–119.   As the above authority indicates, § 52–592 therefore is not applicable to the plaintiff's administrative appeal.

CONCLUSION

The defendant's motion to dismiss is granted as the plaintiff neither served nor filed the administrative appeal in a timely fashion and § 52–592 is inapplicable to this action.

Woods, J.

FOOTNOTES

FN1. In her August 11, 2011 filing, although the plaintiff states that she “faxed to the Department of Developmental Services,” she goes on to clarify that she actually sent the appeal to the incorrect department, which was the department of social services.   Furthermore, the accompanying documents supplied by the plaintiff as well as the fact that the plaintiff, in her August 15, 2011 filing, states that she faxed the appeal to the department of social services, indicate that the plaintiff intends to argue that she faxed the appeal to the department of social services and that DDS received the appeal indirectly..  FN1. In her August 11, 2011 filing, although the plaintiff states that she “faxed to the Department of Developmental Services,” she goes on to clarify that she actually sent the appeal to the incorrect department, which was the department of social services.   Furthermore, the accompanying documents supplied by the plaintiff as well as the fact that the plaintiff, in her August 15, 2011 filing, states that she faxed the appeal to the department of social services, indicate that the plaintiff intends to argue that she faxed the appeal to the department of social services and that DDS received the appeal indirectly.

FN2. General Statutes § 4–183(c) provides in full:  “(c)(1) Within forty-five days after mailing of the final decision under section 4–180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, or (2) within forty-five days after the agency denies a petition for reconsideration of the final decision pursuant to subdivision (1) of subsection (a) of section 4–181a, or (3) within forty-five days after mailing of the final decision made after reconsideration pursuant to subdivisions (3) and (4) of subsection (a) of section 4–181a or, if there is no mailing, within forty-five days after personal delivery of the final decision made after reconsideration pursuant to said subdivisions, or (4) within forty-five days after the expiration of the ninety-day period required under subdivision (3) of subsection (a) of section 4–181a if the agency decides to reconsider the final decision and fails to render a decision made after reconsideration within such period, whichever is applicable and is later, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of New Britain.   Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal.   Service of the appeal shall be made by United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a state marshal or other officer, or by personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.   If service of the appeal is made by mail, service shall be effective upon deposit of the appeal in the mail.”.  FN2. General Statutes § 4–183(c) provides in full:  “(c)(1) Within forty-five days after mailing of the final decision under section 4–180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, or (2) within forty-five days after the agency denies a petition for reconsideration of the final decision pursuant to subdivision (1) of subsection (a) of section 4–181a, or (3) within forty-five days after mailing of the final decision made after reconsideration pursuant to subdivisions (3) and (4) of subsection (a) of section 4–181a or, if there is no mailing, within forty-five days after personal delivery of the final decision made after reconsideration pursuant to said subdivisions, or (4) within forty-five days after the expiration of the ninety-day period required under subdivision (3) of subsection (a) of section 4–181a if the agency decides to reconsider the final decision and fails to render a decision made after reconsideration within such period, whichever is applicable and is later, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of New Britain.   Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal.   Service of the appeal shall be made by United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a state marshal or other officer, or by personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.   If service of the appeal is made by mail, service shall be effective upon deposit of the appeal in the mail.”

FN3. While the plaintiff cites to § 52–592, she provides no argument related to the statute..  FN3. While the plaintiff cites to § 52–592, she provides no argument related to the statute.

Woods, Glenn A., J.