Opinion
HHBCV165018573S
01-29-2018
Karen ZANESKI-NETTLETON v. CONNECTICUT DEPARTMENT OF SOCIAL SERVICES
UNPUBLISHED OPINION
OPINION
Sheila A. Huddleston, Judge
This action is an administrative appeal filed by the plaintiff, Karen Zaneski-Nettleton, against the defendant, the Department of Social Services (department). The plaintiff challenges the department’s decision to terminate medical assistance benefits to her late aunt, Natalie Galway, and to place a public assistance lien on Galway’s real property. The department challenges the timeliness of the appeal and the plaintiff’s standing to bring it.
Before appealing, the plaintiff requested reconsideration of the department’s decision. As a result of the reconsideration request, the timeliness of the appeal is governed by General Statutes § § 4-181a(a) and 4-183(c). Subdivisions (1) and (3) of § 4-181a(a) prescribe time limits for agency actions on a petition for reconsideration. Subdivision (1) of § 4-181a(a) requires an agency to determine whether to reconsider a decision within twenty-five days after a petition for reconsideration is filed; subdivision (3) requires the agency to render a decision within ninety days after determining that it will reconsider a decision. If the agency acts on the petition for reconsideration within those time limits, then under § 4-183(c)(3) any appeal of the reconsidered decision must be filed within forty-five days from the date the agency rendered the reconsidered decision. On the other hand, if the agency fails to meet the time limit set in either § 4-181a(a)(1) or § 4-181(a)(3), the petition for reconsideration is treated as denied as of the expiration of the time limit. Then, pursuant to § 4-183(c)(2) or (4), any appeal must be filed within forty-five days of the expiration of the relevant time limit.
In this case, a petition for reconsideration was filed on May 3, 2012. As explained below, under any potentially applicable subdivision of § 4-183(c), the latest date for filing a timely appeal was October 18, 2012. This appeal was filed on March 23, 2016, and is therefore untimely. Because the timing requirements of § 4-183(c) are mandatory and jurisdictional, the court lacks subject matter jurisdiction over the appeal, and the appeal must be dismissed.
I
FACTUAL AND PROCEDURAL BACKGROUND
Natalie Galway was an elderly woman who lived in a condominium in Milford until health issues required her to be admitted to a nursing home in Stratford in 2010. Although she had hoped to be able to return to her home, she was still living at the nursing home when she died on September 4, 2012. Before her death, she received long-term care medical assistance from the department. Through Galway’s power of attorney, the plaintiff served as Galway’s personal representative in dealings with the department.
In May 2011, the department terminated Galway’s medical assistance and placed a lien on her real property, the Milford condominium. The plaintiff requested a hearing to contest the department’s actions, asserting that the Milford condominium should not be counted as an asset because, in 2006, Galway had placed it in a trust. In November 2011, the department held an administrative hearing on the plaintiff’s appeal of the department’s decisions to discontinue Galway’s long-term care medical assistance and to place the lien on Galway’s condominium. At the hearing, the plaintiff also raised an issue regarding Galway’s applied income, which she claimed was not being paid to the nursing home. On April 9, 2012, the department issued a decision upholding its termination of medical assistance and its placement of the lien, but the decision did not address Galway’s applied income.
On May 3, 2012, the plaintiff, still acting under Galway’s power of attorney, requested that the department reconsider its decision and its failure to address the applied income issue. On June 5, 2012, the department issued a notice granting reconsideration of the applied income issue only. On July 16, 2012, the department made a decision upon reconsideration, upholding the original decision as to the termination of medical assistance benefits and the placement of the lien, but granting relief on the applied income issue.
Galway died on September 4, 2012. The plaintiff filed this appeal as Galway’s " sole heir" on March 23, 2016, in the judicial district of Ansonia-Milford. The department, which was not served until July 29, 2016, thereafter appeared and moved to dismiss the action as untimely under General Statutes § 4-183(c). The department’s motion did not cite subdivisions (2), (3), or (4) of § 4-183(c), which expressly govern the timeliness of appeals after a petition for reconsideration is filed, but instead relied on § 4-183(c)(1), which sets a forty-five-day limit for appealing after the mailing of the agency’s final decision prior to any petition for reconsideration. The plaintiff contested the motion, claiming that she never received the July 16, 2012 decision upon reconsideration.
After an evidentiary hearing, the court (Stevens, J.) denied the motion to dismiss, finding that the department failed to provide sufficient proof that it had mailed the July 16, 2012 decision. The action was then transferred to the Tax and Administrative Appeals Session of the judicial district of New Britain.
After the transfer, the department again moved to dismiss, claiming that the plaintiff lacks standing to bring the action because she has not alleged that she is the personal representative of Galway’s estate. The department also renewed its claim that the appeal was untimely, again relying on § 4-183(c)(1). This court held a hearing on August 23, 2017, at which it heard argument from the parties.
While working on its decision on the motion to dismiss, the court became aware, through a review of the court’s records, that the plaintiff had filed an appeal on July 20, 2012, under the caption State of Connecticut Department of Social Services, Appellee, v. Natalie Galway, Karen Zaneski-Nettleton, POA, Appellant, Docket No. AAN-CV-12-5010873 (" 2012 appeal" ). The 2012 appeal, like the current appeal, challenged the department’s termination of medical assistance and placement of a lien on Galway’s property. The 2012 appeal was dismissed on July 9, 2015, for failure to prosecute. That dismissal was not appealed. The discovery of the 2012 appeal, which referred to a " partially favorable decision" that the plaintiff had received on June 10, 2012, on her request for reconsideration, prompted the court to consider subdivisions of § 4-183(c) that the department had not cited in its motion or brief.
On December 18, 2017, this court ordered a further hearing to address issues raised by its discovery of the 2012 appeal. On December 21, 2017, the department filed an affidavit by Dulce Frazao, the social services operations manager in the department’s Office of Legal Counsel, Regulations and Administrative Hearings. A copy of a notice issued by the department on June 5, 2012, was attached to Frazao’s affidavit. On January 10, 2018, the court heard further evidence and argument. The plaintiff confirmed that she had filed the 2012 appeal after receiving the June 5, 2012 notice from the department. The parties were afforded an opportunity to present additional legal argument regarding the timing provisions of § 4-183(c).
II
APPLICABLE LEGAL STANDARD
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
The plaintiff’s appeal is governed by General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA). The timing requirements for a UAPA appeal are governed by § 4-183(c), which generally requires that an appeal be filed within forty-five days after an agency decision. Section 4-183(c) " lists four alternative time frames during which an appeal of an agency final decision may be brought, and ... in any given circumstance, only one such time frame will apply." Citizens Against Overhead Power Line Construction v. Connecticut Siting Council, 139 Conn.App. 565, 575, 57 A.3d 765 (2012), affirmed, 311 Conn.App. 259, 86 A.3d 463 (2014). The time limits set forth in § 4-183(c) are mandatory and jurisdictional. Failure to file and to serve the appeal within the applicable statutory time limit deprives the court of subject matter jurisdiction over the appeal. See Glastonbury Volunteer Ambulance Association, Inc. v. Freedom of Information Commission, 227 Conn. 848, 854-57, 633 A.2d 305 (1993).
In deciding whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, and construe them in the manner most favorable to the pleader. The interpretation of pleadings is always a question of law for the court. See Harborside Connecticut Ltd. Partnership v. Witte, 170 Conn.App. 26, 34, 154 A.3d 1082 (2016).
A motion to dismiss may be decided on the basis of the complaint alone, the allegations in the complaint supplemented by undisputed facts evidenced in the record, or by the complaint supplemented by undisputed facts and the court’s resolution of disputed facts after an evidentiary hearing. See Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). In this case, the court has considered the allegations set forth in the plaintiff’s pleadings in the present appeal, the allegations in the 2012 appeal filed by the plaintiff, and the plaintiff’s testimony at the January 10, 2018 hearing. The court has also considered the background facts asserted in affidavits submitted by the department, but only to the extent that such facts are undisputed.
III
DISCUSSION
An administrative appeal must be filed and served in accordance with the time provisions set out in General Statutes § 4-183(c), which generally allows a party generally forty-five days from the date of an agency’s final decision to file and serve an appeal. The action that constitutes the final decision, however, depends on whether a petition for reconsideration is filed and whether the agency acts on the petition. " Section 4-183(c)(1) provides that, if there is no petition for reconsideration, an appeal shall be brought within forty-five days after the mailing of the final decision. Subdivisions (2) through (4) of § 4-183(c) lay out the applicable times during which an appeal of a decision that was the subject of a petition for reconsideration may be brought." Citizens Against Overhead Power Line Construction v. Connecticut Siting Council, supra, 139 Conn.App. 574. If the final decision is the subject of a petition for reconsideration, " the plaintiff shall bring an appeal within the time frame dictated by § 4-183(c)(2), (3), or (4), depending on whether the agency denied, granted or failed to act on the petition for reconsideration." Id., 575.
General Statutes § 4-183(c) provides in relevant part as follows: " (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 ..."
The time frames in § 4-183(c)(2), (3), and (4) must be read in conjunction with the requirements in § 4-181a(a) for agency action on a petition for reconsideration. If a petition for reconsideration is filed, the forty-five-day appeal period is measured from one of the following events: (1) the agency’s failure to determine, within twenty-five days, whether it will consider the petition, as provided in General Statutes § 4-181a(a)(1); or (2) the rendering of the final decision upon reconsideration, as provided in § 4-181a(a)(3); or (3) the expiration of ninety days after an agency agreed to reconsider its decision, if the agency fails to render a decision upon reconsideration within those ninety days, as also provided in § 4-181a(a)(3). In this case, it is undisputed that the plaintiff received the original final decision, which was rendered on April 9, 2012. The plaintiff submitted a request for reconsideration on May 3, 2012. The timeliness of the appeal must therefore be measured under § 4-183(c)(2), (3), or (4).
Section 4-181a(a)(1) provides: " Unless otherwise provided by law, a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the ground that: (A) An error of fact or law should be corrected; (B) new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or (C) other good cause for reconsideration has been shown. Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition."
General Statutes § 4-181a(a)(3) provides: " If the agency decides to reconsider a final decision, pursuant to subdivision (1) or (2) of this subsection, the agency shall proceed in a reasonable time to conduct such additional proceedings as may be necessary to render a decision modifying, affirming or reversing the final decision, provided such decision made after reconsideration shall be rendered not later than ninety days following the date on which the agency decides to reconsider the final decision. If the agency fails to render such decision made after reconsideration within such ninety-day period, the original final decision shall remain the final decision in the contested case for purposes of any appeal under the provisions of section 4-183."
Under § 4-183(c)(2), any appeal must be taken " 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 ..." An agency " denies" a petition for reconsideration under § 4-181a(a)(1) if it fails to determine whether to reconsider its original final decision within twenty-five days after the filing of a petition for reconsideration. More specifically, § 4-181a(a)(1) provides in relevant part: " Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition." Under § 4-183(c)(2) and § 4-181a(a)(1), accordingly, a petition for reconsideration is denied after twenty-five days of inaction by the agency, and the party has forty-five days after that denial to file an appeal.
The plaintiff submitted her request for reconsideration to the department on May 3, 2012. Under the terms of § 4-181a(a)(1), the department had twenty-five days, to May 28, 2012, to determine whether to reconsider its final decision. It did not determine whether it would reconsider its decision within those twenty-five days. By operation of § 4-181a(a)(1), the department’s failure to make that determination within twenty-five days constituted a denial of the petition. Under § 4-183(c)(2), the plaintiff was required to file an appeal " 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." By that provision, she was required to file and serve an appeal by July 12, 2012.
The plaintiff in fact filed an appeal- the 2012 appeal- that was timely pursuant to § § 4-181a(a)(1), 4-183(c)(2), and 4-183(m). The plaintiff filed an application for a fee waiver for the appeal on June 29, 2012, which tolled her time to appeal, pursuant to General Statutes § 4-183(m), until her fee waiver application was granted. Her fee waiver application was granted on July 20, 2012, and her appeal was filed on the same day. The 2012 appeal was a timely appeal- but it was dismissed for failure to prosecute on July 9, 2015.
General Statutes § 4-183(m) provides in relevant part: " The filing of the application for the waiver shall toll the time limits for the filing of an appeal until such time as a judgment on such application is rendered."
At the January 10, 2018, hearing, the plaintiff testified that the dismissal of the 2012 appeal was erroneous because, contrary to the court’s ruling, she did appear for a status conference on July 9, 2015. However, she did not move to open the judgment of dismissal in 2015. Nor did she appeal the dismissal to the Appellate Court.
This appeal was filed on March 23, 2016, more than eight months after the dismissal of the 2012 appeal. It is plainly untimely under § 4-183(c)(2) because it was filed more than forty-five days after the expiration of the twenty-five-day period for determining whether to reconsider the decision under § 4-181a(a)(1). Because the time limits of § 4-183(c) are jurisdictional requirements that have not been met, the appeal must be dismissed.
The court has considered whether the department’s issuance of the June 5, 2012 notice agreeing to reconsider the applied income issue requires a different result. The court concludes that it does not, for two reasons. First, the June 5, 2012 notice limits the reconsideration to the applied income issue and does not address the issues raised in this appeal. Second, even if the June 5, 2012 notice should be construed as granting the plaintiff’s entire request for reconsideration, so as to avoid the possibility of piecemeal appeals, the notice would simply trigger the time limits under § 4-183(c)(3) or (4), whichever was applicable and was later. Under § 4-183(c)(3), the forty-five-day period to file an appeal begins to run on the date of the mailing or personal delivery of the decision upon reconsideration. Under § 4-183(c)(4), if the agency fails to render the decision upon reconsideration within ninety days after it agreed to reconsider its original final decision, the forty-five-day period to file an appeal begins to run upon the expiration of the ninety-day period required by § 4-181a(a)(3).
More specifically, § 4-181a(a)(3) provides in relevant part that the agency’s " decision made after reconsideration shall be rendered not later than ninety days following the date on which the agency decides to reconsider the final decision. If the agency fails to render such decision made after reconsideration within such ninety-day period, the original final decision shall remain the final decision in the contested case for purposes of any appeal under the provisions of section 4-183." Section 4-183(c)(4) requires that an appeal be filed " 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 ..."
" Render" is commonly defined as " [t]o transmit or deliver" or " to deliver formally." Black’s Law Dictionary (8th Ed. 2004), p. 1322; see also Merriam-Webster’s Collegiate Dictionary (11th Ed. 2012), p. 1054 (" to transmit to another: deliver" ). If the department failed to mail or personally deliver the decision upon reconsideration, then it failed to " render" the decision. The ninetieth day after June 5, 2012, was September 3, 2012. The department’s failure to mail or deliver the decision by September 3, 2012, would trigger the provisions of § § 4-181a(a)(3) and 4-183(c)(4), and the department’s original final decision would become the final decision for purposes of the appeal under § 4-181a(a)(3). Under § 4-183(c)(4), any appeal would have to be filed by October 18, 2012, the forty-fifth day after September 3, 2012.
Conversely, if the department did mail the decision on July 16, 2012, then the plaintiff had forty-five days, to August 30, 2012, to file an appeal. Pursuant to § 4-181a(a)(4), " an agency decision made after reconsideration pursuant to this subsection shall become the final decision in the contested case in lieu of the original final decision for purposes of any appeal under the provisions of section 4-183 ..." Under § 4-183(c)(3), any appeal of a decision mailed under § 4-181a(a)(3) must be made within forty-five days after the mailing of the decision upon reconsideration.
Under any analysis of the timing requirements related to agency decisions after a petition for reconsideration is filed, the plaintiff’s current appeal is untimely. She had forty-five days to appeal after (1) the petition for reconsideration was denied by the department’s failure to act on it within twenty-five days of its filing; or (2) if the decision after reconsideration was mailed, the date of mailing; or (3) if the decision after reconsideration was not mailed, the expiration of the ninety-day deadline for the decision. All of those possible dates would have been in 2012. The latest possible date would have been October 18, 2012, which was forty-five days after the ninety-day period that commenced on June 5, 2012, when the agency determined that it would reconsider in part the plaintiff’s request for reconsideration. The plaintiff in fact filed an appeal in 2012 but did not prosecute it. She could not revive her appellate rights by filing a new appeal in 2016.
" Legislative provisions ... fixing a relatively short time for instituting a review of the decision of an administrative agency by the courts, are necessarily designed to secure, in the public interest, a speedy determination." Masone v. Zoning Board, 148 Conn. 551, 555-56, 172 A.2d 891 (1961). " The legislature intended the forty-five-day time limitation for filing of an appeal under the UAPA to remain a prerequisite to subject matter jurisdiction." Glastonbury Volunteer Ambulance Association, Inc. v. Freedom of Information Commission, supra, 227 Conn. 854. The time limits in § 4-181a(a)(1) and (3) and in § 4-183(c)(2), (3), and (4) were enacted in 2006 to clarify what constitutes the final decision after a petition for reconsideration is filed and to establish deadlines by which reconsideration decisions have to be issued. See Public Acts 2006, No. 06-32, " An Act Concerning Reconsidered Agency Decisions and Appeals Under the Uniform Administrative Procedure Act." Advocates for the 2006 amendments to § § 4-181a and 4-183(c) asserted that the lack of deadlines for agency action on reconsideration imposed hardships on persons waiting for decisions on important issues such as subsistence level benefits. See Report on Bills Favorably Reported by Committee, Judiciary, House Bill No. 5738 (March 17, 2006). Without the time limits on the agency’s action, a person who had requested reconsideration could wait many months, or even years, for an agency to issue a decision on reconsideration. With the time limits, a person seeking to appeal an unfavorable agency decision is assured that a petition for reconsideration will delay the time for appealing, at most, by 115 days: the twenty-five days an agency has to determine whether to reconsider its decision plus the ninety days it has to issue a reconsidered decision. The challenge posed by the 2006 amendments to § § 4-181a and 4-183(c) is that agency inaction can trigger the time limits for appealing. A person seeking to preserve appellate rights must be vigilant with respect to the deadlines that arise from such inaction.
The committee report is available on the Connecticut General Assembly’s website at www.cga.ct.gov/2006/JFR/H/2006HB-05738-R00JUD-JFR.htm (last visited on January 29, 2018).
The plaintiff expressed frustration with the complexity of the law, which poses challenges to self-represented litigants who are not lawyers. " [I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party." (Citation omitted; internal quotation marks omitted.) Sousa v. Sousa, 322 Conn. 757, 783, 143 A.3d 578 (2016). But such solicitude does not confer an " attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Darin v. Cais, 161 Conn.App. 475, 481, 129 A.3d 716 (2015). The court has considerable sympathy for the circumstances that complicated the plaintiff’s life during the latter part of 2012, including the deaths of Galway and the plaintiff’s father. But sympathy cannot overrule the court’s obligation to exercise its jurisdiction within the limits prescribed by the legislature. The plaintiff failed to prosecute the 2012 appeal, and this appeal, filed in 2016, is well beyond all of the time limits prescribed in § 4-183(c)(2), (3), and (4), one of which necessarily applied to the plaintiff’s appeal after a request for reconsideration was filed.
The department also challenged the court’s jurisdiction on the ground of standing. The right of appeal belonged to Galway, who died on September 4, 2012. Under General Statutes § 52-599, " [a] cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person." The plaintiff admitted that she has never been appointed to serve as an executor or administrator of Galway’s estate, and, indeed, has never submitted Galway’s will to Probate Court.
Nevertheless, the plaintiff alleges that she is the sole heir of Galway’s property. It is a general rule that " [t]he proper suit, upon a cause of action arising in favor of ... the decedent during [his or her] lifetime, is in the name of the fiduciary rather than of the heirs or other beneficiaries of the estate ... Actions designed to recover personalty belonging to the estate or for its use, conversion, or injury are brought by the fiduciary rather than by the beneficiaries." (Internal quotation marks omitted.) Geremia v. Geremia, 159 Conn.App. 751, 781-82 (2015). However, the plaintiff alleges that she is heir to Galway’s real property, which is encumbered by a public assistance lien that she sought to remove by way of this appeal. " Upon death of the owner of real property, legal title to real property immediately passes to the decedent’s heirs, subject to the right of the executor to administer the estate." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002), citing O’Connor v. Chiascione, 130 Conn. 304, 306, 33 A.2d 336 (1943).
The department’s brief does not directly address the question of whether, in the absence of a fiduciary of a decedent’s estate, an alleged heir to real property has standing to prosecute an action to remove a lien from that real property. The department has merely claimed that there is no effective relief the court could award because the amount of unreimbursed assistance, secured by the lien, exceeds the value of the property. A question posed in the plaintiff’s request for reconsideration, however, was whether the department had erred in finding that Galway owned the property after 2006, when she allegedly transferred it to a trust. If the plaintiff’s claim had merit- a question that cannot be reached on a motion to dismiss- then a successful appeal could result in the removal of the lien.
If standing were the only issue affecting jurisdiction, the court would order further briefing, and if necessary an additional evidentiary hearing, to address the issue. In light of the court’s determination that it lacks subject matter jurisdiction because the appeal is untimely, however, it is unnecessary to address the issue of standing.
CONCLUSION
The appeal is dismissed for lack of subject matter jurisdiction because it was not filed within the time limits prescribed in General Statutes § 4-183(c)(2), (3), or (4).