Opinion
No. CV03 010 08 69
December 2, 2003
MEMORANDUM OF DECISION
The defendants, Town of Durham and Kristan Higgins, have moved to dismiss this property tax appeal for lack of subject matter jurisdiction on the grounds that the plaintiff failed to serve the appeal within the sixty-day appeal period allowed under Connecticut General Statutes § 12-117a and because § 12-117a does not permit property tax appeals against defendants other than the town in which the property is located.
Facts
The plaintiff has submitted an affidavit in which he states that he received the defendant's denial of his tax appeal on November 18, 2002 and commenced an action appealing the defendant's decision in Superior Court Small Claims Court Session on December 4, 2002. That action was dismissed for lack of subject matter jurisdiction on February 24, 2003.
The Complaint in the present action is dated March 4, 2003 and was served on the Town Clerk of the Town of Durham on March 5, 2003.
Discussion of the Law and Ruling
A claim of lack of subject matter jurisdiction may not be waived. Whenever the court finds that it lacks jurisdiction over the subject matter, it must dismiss the action. Practice Book § 10-33. Appeals to courts from administrative agencies exist only under statutory authority . . . a statutory right to appeal may be taken advantage of only by strict compliance with the statutory provision by which it is created . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. Raines v. Freedom of Information Commission, 221 Conn. 482, 604 A.2d 519 (1992); see also Southern New England Telephone Co. v. Board of Tax Review, 31 Conn. App. 155, 160-61, 623 A.2d 1027 (1993).
While the plaintiff brought this action for a violation of Connecticut General Statutes § 12-71d, that statute contains no appeal procedure. Instead, it states: "Any appeal from the findings of assessors concerning motor vehicle values shall be made in accordance with provision related to such appeals under this chapter." Section 12-17d is part of Chapter 203 of the General Statutes. That chapter allows for an appeal from the decision of the board of assessment appeals under § 12-117a. An appeal under § 12-117a must be made within two months from the date the board of assessment appeals mails notice of its action to the taxpayer. Mary Catherine Development Company v. Town of Glastonbury, 42 Conn. App. 318, 679 A.2d 52 (1996).
The Complaint and the plaintiff's affidavit indicate that the defendant "remanded a decision to the plaintiff" on November 18, 2002. Therefore, this appeal should have been served on the defendant Town of Durham no later than January 18, 2003.
In defense of the Motion to Dismiss the plaintiff argues that he brought his appeal to the small claims session of Superior Court on December 4, 2002, it was dismissed for want of subject matter jurisdiction on February 25, 2003 and, therefore, Connecticut General Statutes § 52-592, the so-called accidental failure of suit statute, applies. Section 52-592 provides, in relevant part:
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, . . . the plaintiff, . . . may commence a new action, . . . for the same cause at any time within one year after the determination of the original action . . .
The plaintiff argues that this tax appeal falls within the definition of "action" for purposes of § 52-592. It does not. In Carbone v. Zoning Board of Appeals of Hartford, 126 Conn. 602, 13 A.2d 460 (1940), the Court distinguished administrative appeals from "actions" within the meaning of § 6024, the forerunner of § 52-592. The Carbone Court emphasized that the brief statutory period allowed for administrative appeals is designed to secure the public interest in a speedy determination of the issues involved:
Statutes and special laws such as the one before us 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. To hold that an appeal in such a proceeding as the one before us is an "action" within the meaning of 6024, would have the practical effect of eliminating the time factor in taking such appeals. If such an appeal were taken after the time allowed, the appellee would have the choice either of failing to object to the proceeding and thus disregarding the limitations fixed by the Legislature, or of pleading in abatement, with the result that, the plea having been sustained, the appellant might bring another appeal at any time within the year; and as there is no Statute of Limitations applicable to such appeals, this result would follow though the original appeal was delayed for months or even years. Certainly the Legislature could not have intended by the provisions of 6024 thus to place it in the power of any appellant to render nugatory the limits it had carefully set for appeals of this nature.
Practice Book § 14-7(d) places tax appeals taken under § 12-117a among the administrative appeals which follow the same course of pleading as ordinary civil actions once the appeal is filed. However, Practice Book § 14-6 excepts administrative appeals from civil actions ". . . for purposes of General Statutes §§ 52-591, 52-592 or 52-593."
In Isaac v. Mount Sinai Hospital, 210 Conn. 721, 557 A.2d 116 (1989), the only case cited by the plaintiff in which the Court applied § 52-592 to extend the time for filing the action, the issue was "whether the administratrix of a decedent's estate can bring a new action for wrongful death under our accidental failure of suit statute, General Statutes 52-592, where the original wrongful death action was dismissed for lack of subject matter jurisdiction because, at the time such original action was commenced, the individual bringing suit had not been appointed administratrix of the estate by the probate court." 210 Conn at 722-23. Emphasis added.
The Issac Court reaffirmed Carbone's distinction between a civil action for wrongful death or personal injury and an administrative appeal:
In Carbone we found . . . that the fixing of brief periods for administrative appeals was evidently designed to secure a speedy determination of the issues involved. We concluded that to hold that an administrative appeal is an "action" within the meaning of 6024 would have the practical effect of eliminating the time factor in taking such appeals.
As in Carbone, the plaintiff's attempted use of § 52-592 here has the practical effect of eliminating the time factor prescribed by the Legislature in § 12-117a. The plaintiff failed to file this action timely under § 12-117a and, therefore, the Motion to Dismiss Count One is granted.
Count Two of the Complaint names Kristan Higgins, chairwoman of the Board of assessment appeals, as a defendant. The plaintiff seeks no additional relief against Higgins, but only seeks to have the court reduce the assessment of his motor vehicle. In a tax appeal under § 12-117a, the town is the proper and necessary defendant and the board of tax review is not. Southern New England Telephone Company v. Board of Tax Review of the Town of Bloomfield, 31 Conn. App. 155, 160-61, 623 A.2d 1027 (1993). If the plaintiff had served the Complaint on the Board, it would have been subject to dismissal. His service of the Complaint on a member of the Board, is, therefore, similarly improper and subject to dismissal. The Second Count of the Complaint is hereby dismissed.
By the Court,
AURIGEMMA, JUDGE.