Opinion
No. CV 07 4013583S
August 7, 2009
MEMORANDUM OF DECISION
On February 5, 2009, the court sustained the administrative appeal of the plaintiff Yellow Cab Co. of New London and Groton, holding that the defendant department of transportation (DOT) had failed to consider non-governmental trip records in allowing Patrick Foltz, d/b/a Port City Taxi (Foltz) two additional taxis in the Groton, Montville, New London and Waterford area. The DOT did not appeal from this decision. On April 13, 2009, Foltz moved to open and set aside the judgment of the court and subsequently moved to dismiss. Foltz claimed that he was prejudiced by the result and that the court lacked subject matter jurisdiction as he was a necessary party to the administrative appeal.
A second plaintiff was the Union Lyceum Taxi Company.
The court's docket entries show as follows. On April 16, 2007, the plaintiff filed an administrative appeal, amended on April 30, 2007, of a March 2, 2007 final decision of the DOT. The allegations included a charge that DOT erred in making use of governmental trip data, instead of considering non-governmental trip information. The defendants named in the amended complaint were the DOT and two hearing officers who had jointly issued the March 2, 2007 final decision after reconsideration.
On April 20, 2007, the plaintiff filed an affidavit of service reciting that Foltz was served on April 13, 2007 by certified mail directed to him at the office of an attorney at 48 West Elderkin Avenue, Groton, Connecticut. This attorney had appeared for Foltz at DOT administrative hearings on his application. This affidavit claimed to have the certified mail receipt card attached for Foltz, but in fact no cards were attached for any party. On April 23, 2007, the plaintiff again filed an affidavit, with reply cards attached, alleging service on the DOT and its hearing officers, the named defendants; Foltz was not mentioned at all and no reply card was attached.
On August 28, 2007, the DOT moved to dismiss, alleging lack of aggrievement on the part of the plaintiff, a competitor-intervener in the DOT proceedings. At an October 2, 2007 hearing on the DOT motion, the court observed that the April 23, 2007 affidavit of service did not indicate that Foltz was served and that he had a "due process" right to receive notice. (Transcript of hearing, October 2, 2007, pp. 13-14.) The court consequently entered the following order: "The plaintiff shall serve Mr. Foldz (sic) by 10/16/07; Mr. Foldz will have an opportunity to respond by 10/30/07." The DOT was also given an opportunity to reply to the plaintiff's opposition to the motion to dismiss, and further argument on the motion was to be rescheduled.
On October 15, 2007, the plaintiff filed an affidavit of service that it had complied with the court's October 2 order. It had served by certified mail on October 4 both the original and amended administrative appeals on Foltz d/b/a Port City Taxi at addresses in New London and Groton. The reply cards attached show that Foltz signed for the served documents at both addresses on October 10, 2007. Foltz did not move to become a party based upon this service.
The court proceeded to consider the motion to dismiss. On January 11, 2008, the court denied the motion, ruling that "the plaintiff has alleged enough at this point to survive the pleading stage. These issues can be revisited on the merits." The plaintiff and the DOT filed their briefs and the court held a hearing on the merits on May 23, 2008. At the conclusion of this hearing, the court ordered that the appeal be remanded to the DOT for further articulation on what trip records were relied upon in the administrative proceedings.
On August 1, 2008, the original DOT hearing officer replied that he did not rely on trip records at all, but on other evidence in the record. This contradicted prior statements by this hearing officer as well as the reconsidered decision stating that the hearing officer appropriately relied on trip records. After a further hearing on October 27, 2008, the court on October 28 ordered the DOT to notify Foltz that he "has the opportunity to present further evidence of trip records, other than public trips, from the date of his application on November 26, 2004 to the date he rested at the administrative hearing. The DOT shall then reconsider this evidence as presented and report to the court. The hearing, if requested by Foltz, shall take place within 60 days."
On December 29, 2008, the plaintiff wrote to the court attaching a copy of a letter written to Foltz by the DOT on December 8, 2008, setting a hearing date for new evidence on December 22, 2008. The plaintiff stated that Foltz had not responded to the DOT letter. Based on this, the court proceeded to rule on the plaintiff's appeal. The court, in its memorandum of decision dated February 5, 2009, decided that the plaintiff was not aggrieved as to certain claims in the complaint and was not entitled to relief on the merits on other claims. The court, as indicated, did rule in the plaintiff's favor on the issue of non-governmental trip records.
In connection with Foltz' subsequently filed motions to open and to dismiss, the court conducted a hearing on June 10, 2009. At this hearing Foltz admitted signing for the certified mail that included the complaint and amended complaint, although he denied being familiar with the contents. (Transcript of hearing, June 10, 2009, pp. 11, 13.) At the hearing, he stated that, on reading a page of the complaint, it clearly indicated that the plaintiff was seeking to overturn the DOT decision in his favor. ( Id., p. 23.) Additionally, he stated he did receive the December 8, 2008 DOT notice, pursuant to court order, that he have the opportunity to add to the record. ( Id., p. 36.) However, he did not familiarize himself with the court proceedings, only the administrative proceedings. ( Id., p. 14.) He was not aware of the court proceedings. ( Id., p. 9.) He had no familiarity with legal documents. ( Id.) He had turned the directive of DOT, issued subsequent to the court's decision, revoking his additional licenses over to his attorney. ( Id., p. 36.) Foltz' evidence of prejudice was that the disallowance of the additional licenses would impact his business by reducing his fleet to four cabs. ( Id., p. 12.)
The attorney appeared at the administrative proceedings and made the post-judgment motions (to re-open and dismiss) in this court on behalf of Foltz. While the plaintiff claimed to have served the attorney on November 27, 2007, the evidence at the June 10, 2009 hearing raised questions as to whether he received the service. His receipt of the service is not relevant to the court's ruling on the motions to reopen and dismiss in any event.
Addressing Foltz' claims under this record, the court first notes that there is no subject matter jurisdiction issue present. Under the current, as opposed to the pre-1988, version of § 4-183, an administrative appeal is not subject to dismissal when a party, including an applicant at a hearing before the agency, is initially omitted from service of the appeal. See § 4-183(e): "If service has not been made on a party, the court, on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify each party not yet served."
This rule does not apply to a plaintiff's failure to serve the agency itself within forty-five days. Here the DOT and staff were timely served.
The court concludes that it may on its own motion, as here, order the plaintiff to give notice to a non-served, non-appearing defendant so that his rights might be protected in the administrative appeal.
The appellate courts have interpreted § 4-183 so to hold. See Glastonbury Volunteer Ambulance Ass'n., Inc. v. Freedom of Information Commission, 227 Conn. 848, 856, 633 A.2d 305 (1993) ("If there is merely an arguable defect in the process timely served on the agency . . . the court does not lack subject matter jurisdiction over the appeal."); LeConche v. Elligers, 215 Conn. 701, 713, 579 A.2d 1 (1990) ("failure to make timely service on parties other than agency does not deprive court of jurisdiction"); Pine v. Dept. of Public Health, 100 Conn.App. 175, 181, n. 7, 917 A.2d 590 (2007) ("[A] failure to make timely service on parties other than the agency did not deprive the trial court of subject matter jurisdiction over the administrative appeal.").
As Foltz correctly points out, his motions do not concern jurisdiction, but are based on a claim of prejudice. See § 4-183(d); Bittle v. Commissioner of Social Services, 249 Conn. 503, 523, 734 A.2d 551 (1999) (interested parties do not have the right to have appeals dismissed for jurisdictional defects when there is an untimely service); Glastonbury Volunteer Ambulance, supra, 227 Conn. 855 (requiring a finding of prejudice to the party).
Here Foltz has not met his burden of showing prejudice in receiving copies of the complaint and the amended complaint by certified mail on October 4, 2007. Foltz acknowledged at the June 10, 2009, hearing that he signed for the documents. The complaint was filed in April 2007, but no action had been taken by the DOT on it until August 28, 2007, when it moved to dismiss. On October 2, 2007 the hearing on the motion to dismiss was postponed due to the lack of service on Foltz. Foltz was served before the court proceeded to hear arguments on the motion to dismiss in January 2008. There was certainly time for him to take part in the argument of this motion. In addition, the motion was denied and briefing on the merits was continued until May 2008.
Foltz claims that he did not understand that the documents affected him or required him to contact the court to give his views. While the captions did not mention him or his taxi firm, they clearly indicated that the plaintiff was questioning the DOT's award of additional permits to him. He admitted at the hearing on June 10, 2009, that the relief plainly stated that the plaintiff was attempting to revoke what he had been granted by DOT. Further, he stated at the June 10 hearing that he routinely forwarded documents to his attorney for review when he was unsure of their meaning. The court observes that Foltz is a businessman and should be aware that he should heed official-served documents. Foltz claims that he will be economically affected, but "prejudice" under § 4-183(d) cannot consist merely of an adverse decision on the merits.
No case has held that in addition to giving service under § 4-183(f) when a party has failed to do so, the court must also order an explanatory notice to accompany the service.
The court twice attempted to assist Foltz. First, at the October 2, 2007 hearing on the motion to dismiss, the court continued the hearing with directions to the plaintiff to provide service on him. Secondly, on October 28, 2008, the court ordered the DOT to offer Foltz a chance to supplement the agency record on trip records. The plaintiff and the DOT complied with both orders of the court, but Foltz chose not to take advantage of the court's efforts to involve him in the appeal.
Foltz finally argues that the court cannot proceed to judgment without his presence as he was an indispensable party. The Administrative Procedure Act, however, does not require an applicant, such as Foltz, to be made a party, so long as an avenue exists for him to become a party under § 4-183. Timber Trails Community Service Corp. v. State, Superior Court, judicial district of New Britain, Docket No. CV 02 0515732 (May 23, 2006, Levine, J.).
Foltz' motions to re-open and to dismiss are therefore denied.