Opinion
No. CV-11-6005236-S
November 17, 2011
RULING ON THE DEFENDANT'S MOTION TO DISMISS (#102)
The defendant, Regional School District No. 14 Board of Education, moves to dismiss the complaint brought by the plaintiff, Jennifer Grace, as parent and next friend of G.G., a minor student. The defendant asserts that the plaintiff did not bring her appeal in a timely manner, thus depriving this court of jurisdiction in this case. The plaintiff objects to the motion, claiming that the appeal was filed in accordance with the requirements of General Statutes § 4-183.
This matter came before the court and was heard on October 17, 2011. The motion to dismiss is granted.
I FACTS
According to the complaint, the plaintiff is the parent of a minor child who is a student in the Town of Woodbury school system. The plaintiff claims that G.G. is a student in need of special services from the Woodbury school system. She alleges that a dispute regarding a neuropsychological test of the minor child became the subject of a due process claim. The due process claim went before a hearing officer on June 1, 2011. According to the complaint, the hearing officer rendered a decision on the issue on June 29, 2011.
This action is brought by "Jennifer Grace, as parent and next friend of G.G., a minor student." The complaint is improper in that an action brought on behalf of a minor child (p.p.a. or "per proxima amici," which may be translated as "next of kin" or "next friend") must be brought in the name of the minor child by the guardian or next friend. "The next friend of an infant plaintiff cannot maintain a suit in [her] own name, but the suit must be brought in the name of the infant. The process must run in the name of the infant by his next friend, and not in the name of the next friend acting for the infant . . . Where the summons names as plaintiff the [parent] ppa the minor child, the infant child is not a party to the action." (Citation omitted; internal quotation marks omitted.) Seabrook v. Greater Bridgeport Transit, Superior Court, judicial district of Fairfield, Docket No: CV 95 0328366 (April 9, 1998, Skolnick, J.) ( 21 Conn. L. Rptr. 657). The court is raising this issue sua sponte and finds that, since the body of the complaint places the defendant on notice that a minor child has brought this action by the child's next friend, the transposition of names in the caption did not in any way confuse or prejudice the rights of others. Indeed, the defendant, in its motion to dismiss, captioned this case as "G.G. ppa Jennifer Grace." The transposition of parties in the plaintiff's caption does not deprive the court of subject matter jurisdiction because it is an error that is curable pursuant to General Statutes § 52-109. See Aglan v. Matos-Martorelli, Superior Court, judicial district of New Haven, Docket No. CV 04 0491437 (December 21, 2004, Zoarski, J.T.R.).
The marshal filed his return of service with this court on August 25, 2011. The return of service asserts that the plaintiff's counsel provided the marshal with the appeal and citation on August 11, 2011. The return further indicates that, on August 22, 2011, the marshal made service "upon the within-named defendant, Regional School District #14, by leaving with and in the hands of its agent for service . . . true and attested copies of the citation, and appeal . . ."
II DISCUSSION A Standard of Review
A motion to dismiss "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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). When a motion to dismiss raises a jurisdictional question, and "the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
"[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . 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 . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Richardson v. Commissioner of Correction, 298 Conn. 690, 696, 6 A.3d 52 (2010).
"[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citation omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009).
B Analysis
The parties agree that this administrative appeal is governed by General Statutes § 4-183(c), which provides in relevant part that "[w]ithin forty-five days after mailing of the final decision under section 4-180 . . . 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 . . ." The section further provides that "[w]ithin 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."
The defendant attached to its memorandum, as Exhibit A, a letter from the plaintiff's counsel to Ms. Gail Mangs at the due process unit of the Connecticut State Board of Education, advising her that "the parent intends to appeal [the hearing officer's decision]." The latter notice of intent to appeal is dated July 28, 2011, it is stamped as having been received by the due process unit on August 1, 2011, and it states in the body of the notice that the appeal period of forty-five days ends on August 13, 2011. The notice also states that the plaintiff intended to appeal the hearing officer's decision to the "Federal District Court." Exhibit B to the defendant's memorandum is a letter to the plaintiff's counsel from Ms. Mangs, dated August 1, 2011, in which Ms. Mangs acknowledged receipt of the notice of intent to appeal and asked the plaintiff's counsel to provide her with a copy of the appeal. Exhibit C to that memorandum is a copy of an email from the plaintiff's counsel to Ms. Mangs, dated August 16, 2011, representing that a copy of the appeal was attached to the email.
General Statutes § 51-347c provides that "[i]f the last day for filing of any matter in the clerk's office of the Superior Court falls on a day on which such office is closed, the last day for such filing shall be the next business day." Similarly, Practice Book § 7-17 provides in relevant part that: "[i]f the last day for filing any matter in the clerk's office fails on a day on which such office is not open . . . then the last day for filing shall be the next business day upon which such office is open." The court takes judicial notice of the fact that August 13, 2011, was a Saturday. See Beardsley v. Irving, 81 Conn. 489, 71 A. 580 (1909). Therefore, the last day on which to file the appeal in this case was Monday, August 15, 2011.
The defendant claims that the appeal was not served on the agency that rendered the final decision within forty-five days after mailing of the final decision. Indeed, the affidavit by Ms. Mangs, attached to the defendant's memorandum, states that she did not receive a copy of the appeal by any method other than by email. The defendant also argues that the appeal was not filed with the court within the same forty-five day period. The defendant argues that either of these shortcomings serves to deprive this court of jurisdiction to hear the appeal.
The defendant relies on Glastonbury Volunteer Ambulance Ass'n., Inc. v. Freedom of Information Commission, 227 Conn. 848, 850-53, 633 A.2d 305 (1993), for its claim that the appeal must be filed within forty-five days, and also for its claim that the appeal must be served on the agency that rendered the final decision within the same forty-five day period. Further, the defendant argues, the plaintiff failed to meet the statutory requirement that service on the agency must be made by a marshal, officer or other indifferent person or, alternatively, by a specific type of United States mail. Finally, the defendant argues that the return is defective because it does not reflect service on the agency as is required by General Statutes § 4-183(d).
General Statutes § 4-183(d) requires that, within fifteen days of filing the appeal, the plaintiff must file a return that states "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 . . ." (Emphasis added.)
The plaintiff argues, however, that our Supreme Court and our Appellate Court have "backed away from the strict compliance with Conn. Gen. Stat. § 4-183 called for in Glastonbury Volunteer Ambulance Ass'n., Inc. v. Freedom of Information Commission . . ." and argues "it is evident" that the latter case would be decided differently if decided today. The plaintiff relies substantially on Bittle v. Commissioner of Social Services, 249 Conn. 503, 734 A.2d 551 (1999), for the proposition that a failure to effect service within the forty-five day requirement of General Statutes § 4-183 "does not implicate this court's subject matter jurisdiction." The plaintiff also argues that, despite the plain language of General Statutes § 4-183(c), timely service of a notice of appeal, "coupled with an e-mailed copy of the full appeal was sufficient to satisfy the statute."
The plaintiff's arguments are demonstrably incorrect. In Bittle, our Supreme Court concluded that service of process pursuant to General Statutes § 4-183(c) was perfected when the appellant deposited in the mail, return receipt requested, a copy of the appeal addressed to the proper agency or the attorney general and did so within forty-five days of the mailing of the agency's decision. Bittle v. Commissioner of Social Services, supra, 249 Conn. 503. The holding in Bittle was supported by Public Act 99-39, which amended General Statutes § 4-183(c) to clarify that service of appeal by mail is effective "upon deposit of the appeal in the mail." The holding in Bittle is very specific, narrow, and in no way serves to overrule Glastonbury Volunteer Ambulance Ass'n., Inc. In fact, our Supreme Court has, more than once, cited with approval the interpretation of the Uniform Administrative Procedures Act ("UAPA") as set forth in Glastonbury Volunteer Ambulance Ass'n., Inc. See, e.g., Commission on Human Rights Opportunities v. Board of Education, CT Page 23872 270 Conn. 665, 679-80, 855 A.2d 212 (2004). Similarly, our Appellate Court continues to follow Glastonbury Volunteer Ambulance Ass'n., Inc. See In re Patricia I., 110 Conn.App. 901 (2008).
The plaintiff would have this court disregard the clear language of the applicable statute and treat a mailing of a "notice of appeal" as having met the requirement that "the appeal" be served on the agency that rendered the final decision. The plaintiff would further have this court disregard the methods of service specifically prescribed in General Statutes § 4-183(c) and, instead, allow a different method, i.e., service by email. This court has no authority to rewrite a statute. A court "must construe a statute as written . . . [and we] cannot rewrite a statute to accomplish a particular result . . . If the legislature desires a different result, it is a legislative function to rewrite the statute to achieve that result." (Citation omitted; internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 215-16, 901 A.2d 673 (2006).
Finally, the plaintiff would have this court disregard the clear holding of our Supreme Court in Glastonbury Volunteer Ambulance Ass'n., Inc. The plaintiff concludes that neither the filing nor the service of the appeal must be accomplished with the forty-five day period. Our Supreme Court has held that the exact opposite is true. Glastonbury Volunteer Ambulance Ass'n., Inc. v. Freedom of Information Commission, supra, 227 Conn. 852. This court has no authority to ignore binding precedent. "A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent . . . [I]t is manifest to our hierarchical judicial system that [our Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by our precedent . . . It is axiomatic that a trial court is bound by Supreme Court precedent . . . [R]evision of Supreme Court precedent is not the trial court's function." (Citations omitted; internal quotation marks omitted.) Potvin v. Lincoln Service Equipment Co., 298 Conn. 620, 650, 6 A.3d 60 (2010).
III CONCLUSION
The plaintiff failed to comply with the mandatory procedures of General Statutes § 4-183. The appeal was not filed with the court in a timely manner, and the appeal was never properly served upon the agency that rendered the final decision. Therefore, this court lacks jurisdiction over this appeal. The motion to dismiss is granted.
In view of this ruling, the court need not and does not address the defendant's claim that an allegedly defective return of service deprives this court of subject matter jurisdiction.