Opinion
No. DBD CV10-6004114 S
October 7, 2010
RULING ON MOTION TO DISMISS (#101.00)
On July 23, 2010, the plaintiff, BRT Barnbeck, LLC, commenced this tax appeal, appealing from the action of the board of assessment appeals of Brookfield (board). On August 31, 2010, the defendant filed the present motion to dismiss on the ground that the court lacks subject matter jurisdiction, because this tax appeal was not commenced within two months, as required by General Statutes § 12-117, and because General Statutes § 52-592, the accidental failure of suit statute, does not apply to tax appeals.
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "Appeals to courts from administrative agencies exist only under statutory authority. A statutory right to appeal may be taken advantage of only under strict compliance with the statutory provisions by which it is created. Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal." Southern New England Telephone Co. v. Board of Tax Review, 31 Conn.App. 155, 160-61, 623 A.2d 1027 (1993).
FACTS
The plaintiff originally filed an appeal in a timely manner in a separate action, BRT Barnbeck, LLC v. Brookfield, Docket No. DBD CV 10 6003509 S, within two months of the mailing of the notice on March 23, 2010, as required by General Statutes § 12-117. However, the state marshal erroneously served the application by making service on the chairman of the board, and not upon the clerk, assistant clerk, manager or selectmen of the defendant, as required by General Statutes § 52-57(b)(1). The defendant filed a motion to dismiss that action, which the court, Marano, J., granted on July 6, 2010. Although the time frame for tax appeals has expired, the plaintiff brings the present case pursuant to General Statutes § 52-592(a), the accidental failure of suit statute, which allows plaintiffs to bring a new action for the same cause within a year of the original action being dismissed for lack of jurisdiction.
DISCUSSION
In its memorandum of law attached in support, the defendant cites to Carbone v. Zoning Board of Appeals, 126 Conn. 602, 13 A.2d 462 (1940), in which the Supreme Court dismissed a zoning appeal brought pursuant to § 52-592 and held that an administrative appeal is not an action within the meaning of the statute. The defendant also cites to Practice Book § 14-6, which provides that an administrative appeal is not an action for the purposes of § 52-592, and Loomis Institute v. Windsor, 234 Conn. 169, 180-81, 661 A.2d 1001 (1995), which held that tax appeals fall within the Practice Book's definition of administrative appeals. The defendant also cites to a number of Superior Court decisions.
In response the plaintiff argues that § 52-592 does not define the term "action," nor does it expressly exclude tax assessment appeals or any other administrative action from the term action and that in Loomis Institute, supra, 234 Conn. 180-81, the Supreme Court held that a tax appeal is, in fact, a civil action. Moreover, Practice Book § 14-7(d), according to the plaintiff, provides that tax assessment appeals brought pursuant to § 12-117 "follow the same course of pleadings as that followed in ordinary civil actions." The plaintiff argues that Carbone, which involved a municipal zoning board appeal does not stand for the proposition that tax appeals are administrative appeals and, therefore, not actions under § 52-592. In fact, the Supreme Court in Carbone did not adopt a rule of general application to administrative appeals, but only dealt with whether zoning board appeal was an action under § 52-592. The plaintiff contends that a tax assessment appeal is different from a municipal zoning board appeal or other appeals brought pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-183 et seq. According to the plaintiff, tax assessment appeals are not confined to the administrative record, as are appeals brought pursuant to § 4-183. The plaintiff also argues that the Superior Court cases the defendant attached to its motion to dismiss all cite to Carbone and that their reliance on that decision is misplaced.
Section 52-592 provides in relevant part: "(a) If any action, commenced within the time limited by law has failed one or more times . . . because of insufficient service or return of the writ due to . . . default or neglect of the officer to whom it was committed . . . the plaintiff . . . may commence a new action . . . within one year after the determination of the original action or after the reversal of the judgment." At least three Superior Court decisions rely on Carbone for the proposition that tax appeals do not fall within the definition of "action" for purposes of § 52-592. Carbone was cited as controlling in Wlodkowski v. Durham, Superior Court, judicial district of Middletown, Docket No. CV 03 100869 (December 2, 2003, Aurigemma, J.) ( 36 Conn. L. Rptr. 107), where the plaintiff filed his initial tax appeal in the small claims session of Superior Court within the statutory time limitations and his second action purportedly under the auspices of § 52-592 in the correct court but outside the sixty-day limitation of § 12-117. Likewise in Rafferty v. Woodbridge, Superior Court, judicial district of New Haven, Docket No. CV 95 0372895 (November 9, 1995, Zoarski, J.) ( 15 Conn. L. Rptr. 552), where the plaintiff's initial appeal, timely filed, was dismissed because of lack of subject matter jurisdiction after the plaintiff failed to name the municipality as a party, his second suit commenced outside of the sixty-day limitation but under the auspices of § 52-592 was dismissed in reliance on the rule set forth in Carbone. Finally, in Tolhurst v. East Hampton, Superior Court, judicial district of Middlesex, Docket No. 66003 (June 23, 1993, Arena, J.) ( 9 Conn. L. Rptr. 321) ( 8 C.S.C.R. 861), the original tax appeal, again timely filed, was stricken for improper joinder of causes of action and the subsequent suit brought under § 52-592 and outside the sixty-day limitation of § 12-117 was dismissed, again in reliance on Carbone. The plaintiff argues that his case is different because, unlike the three cases cited above, his initial suit failed through no fault of his own but rather as the result of the negligence of the marshal and to deny the plaintiff the relief afforded by the accidental failure of suit statute would work a harsh result. The plaintiff offers, and this court can find, no authority upon which it can rely to so discriminate in favor of the plaintiff.
In its analysis the Carbone court noted that the word "action" has no precise meaning and the scope of proceedings which will be included within the term as used in the statutes depends upon the nature and purpose of the particular statute in question. Carbone, supra, 126 Conn. 605. The court's rationale in finding that the zoning appeal before it was not an action for purposes of Section 6024, now § 52-592, was as follows: "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 [now 52-592], 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 [now 52-592] thus to place it in the power of any appellant to render nugatory the limits it had carefully set for appeals of this nature. Section 6024 [now 52-592] does not apply to the proceeding before us and the trial court was in error in ruling that it did. It may be that there are cases where upon the failure of an appeal taken within the time allowed, an appellant should be given the opportunity to bring another appeal after that time, but whether that should be allowed and under what restrictions are matters for the consideration of the Legislature." Carbone, supra, 607-08. If the application of the Carbone court's reasoning seems to produce a harsh result under the facts of the instant case from the plaintiff's point of view, to allow litigants in administrative appeals recourse to the accidental failure of suit statute might produce an absurd result, delaying the original appeal months or even years beyond the sixty-day limitation imposed by the legislature. Further, this court can find no basis, in Carbone or elsewhere, to treat tax appeals differently from zoning appeals for purposes of § 52-592.
The defendant's motion to dismiss is therefore granted.