Lewis v. Freedom of Information Commission

L
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               KACEY LEWIS v. FREEDOM OF
                INFORMATION COMMISSION
                       (AC 42997)
                    Moll, Alexander and DiPentima, Js.

                                   Syllabus

The plaintiff appealed to this court from the judgment of the trial court
   dismissing his appeal from the final decision of the defendant Freedom
   of Information Commission for lack of subject matter jurisdiction. The
   ground for dismissal was the plaintiff’s failure to file his administrative
   appeal in the Superior Court within forty-five days of the mailing of the
   defendant’s final decision, as required by statute (§ 4-183 (c)). Held that
   the trial court properly dismissed the plaintiff’s appeal for lack of subject
   matter jurisdiction; although a court clerk improperly refused to file the
   plaintiff’s appeal because he did not effect service through a marshal,
   contrary to the express statutory language of § 4-183, this rejection
   occurred after the time limitation for filing the appeal had already
   expired and, thus, even if the clerk had accepted and filed the plaintiff’s
   appeal when the papers arrived, the plaintiff’s appeal would have still
   been untimely.
Submitted on briefs October 7, 2020—officially released February 16, 2021

                             Procedural History

  Appeal from the decision of the defendant dismissing
the plaintiff’s complaint regarding a records request he
submitted to the Department of Correction, brought to
the Superior Court in the judicial district of New Lon-
don, where the matter was transferred to the judicial
district of New Britain; thereafter, the court, Hon.
Henry S. Cohn, judge trial referee, granted the defen-
dant’s motion to dismiss and rendered judgment dis-
missing the appeal, from which the plaintiff appealed
to this court. Affirmed.
  Kacey Lewis, self-represented, filed a brief as the
appellant (plaintiff).
  Kathleen K. Ross, commission counsel, and Colleen
M. Murphy, general counsel, filed a brief for the appel-
lee (defendant).
                          Opinion

   ALEXANDER, J. The self-represented plaintiff, Kacey
Lewis, appeals from the judgment of the trial court
dismissing his administrative appeal from the final deci-
sion of the defendant, the Freedom of Information Com-
mission, for lack of subject matter jurisdiction on the
ground that he failed to file his administrative appeal
with the Superior Court within the time requirement of
General Statutes § 4-183 (c). On appeal, the plaintiff
claims that the trial court erred by (1) dismissing his
appeal because the clerk of the court, either negligently
or intentionally, gave him incorrect instructions regard-
ing the service of the appeal and did not file his appeal
in July, 2018, thereby wrongfully making his filing
untimely, and (2) denying his application for the issu-
ance of subpoenas by finding that any additional testi-
mony would be irrelevant. We disagree and, accord-
ingly, affirm the judgment of the trial court.
  The following facts and procedural history are rele-
vant to our resolution of this appeal. On or about July
12, 2017, the plaintiff, who is incarcerated, submitted
a written request to the Department of Correction
(department) to review and inspect certain documents.
On or about July 21, 2017, the Freedom of Information
Administrator for the department acknowledged the
plaintiff’s request. On July 27, 2017,1 the plaintiff filed
an appeal with the defendant alleging that the depart-
ment had violated the Freedom of Information Act,
General Statutes § 1-200 et seq., by failing to promptly
provide the requested records. A hearing was held on
January 19, 2018, and on May 25, 2018, the defendant
mailed to the plaintiff notice of its final decision to
dismiss his complaint.2
   On June 14, 2018, the plaintiff signed his fee waiver
application and subsequently mailed the application, an
appeal of the defendant’s final decision, and a civil
summons to the Superior Court in the judicial district
of New London. The plaintiff’s fee waiver was granted
on June 28, 2018. In an undated letter, a temporary
assistant clerk at the court informed the plaintiff that
his fee waiver had been granted, his civil summons had
been signed, and he was responsible for serving the
appeal on the defendant using the services of a state
marshal. The clerk further instructed the plaintiff that
‘‘[o]nce the [s]tate [marshal] has given you the return
of service that the defendant has been served, please
send all originals [to the court] including the [f]ee
[w]aiver so that the case [may] be initiated.’’
   On July 6, 2018, the plaintiff mailed his approved
application for fee waiver, civil summons, and notice
of appeal (collectively, appeal papers) to a state marshal
in Hartford and requested that she serve the appeal
papers on the defendant at its Hartford office. On or
about July 24, 2018, the appeal papers were returned
to the plaintiff with an attached note that the marshal
‘‘is unavailable.’’ On July 24, 2018, the plaintiff served
the defendant by certified mail. On that same day, the
plaintiff mailed his appeal papers to the court along
with a signed affidavit attesting that he had served the
defendant by certified mail. On or about July 26, 2018,
the clerk’s office sent the plaintiff a notice by mail
indicating that his papers were being returned, and
included the message that ‘‘[a]ffidavit of service is pro-
vided by the [marshal]. Please contact the [marshal]
[who] served the summons and complaint and return
all paper work to court.’’
   On August 24, 2018, the plaintiff sent his appeal
papers by certified mail to the court with a note
informing the clerk’s office that he had served the defen-
dant by certified mail and, therefore, a state marshal
was not required to serve the defendant with the appeal
papers. On September 10, 2018, the plaintiff received a
letter from the clerk’s office indicating that his appeal
papers again were being returned and informing him
that his affidavit constituted insufficient proof of ser-
vice because ‘‘[t]he [c]ourt requires that a ‘Green Card’
from the post office be submitted to prove that service
was made on the [d]efendant.’’ On September 14, 2018,
the plaintiff mailed the appeal papers along with the
‘‘Green Card’’ from the post office to the court. On
October 10, 2018, the plaintiff’s appeal papers were
accepted for filing in the court.3
   On November 26, 2018, the defendant filed a motion
to dismiss the appeal, with an accompanying memoran-
dum of law, arguing that the court lacked subject matter
jurisdiction over the plaintiff’s appeal because he had
failed to serve and file his appeal within forty-five days
of the mailing of the final decision of the defendant, as
required by § 4-183 (c), excluding any proper tolling.4
On March 11, 2019, the plaintiff filed his objection to
the defendant’s motion and an accompanying memoran-
dum, arguing, inter alia, that his service was proper and
that the filing of his appeal was timely ‘‘notwithstanding
the clerk’s office at New London JD returning his appeal
unfiled multiple times for specious reasons.’’ On April
3, 2019, the plaintiff applied for an issuance of subpoe-
nas for the clerk and the marshal seeking their testi-
mony and any documents concerning the filing of his
appeal. The defendant filed a reply to the plaintiff’s
objection to its motion to dismiss on April 22, 2019, in
which it conceded that it had been timely served pursu-
ant to § 4-183 (c) and (m),5 but maintained the argument
that the plaintiff had failed to file his administrative
appeal timely with the court because the appeal was
filed on October 10, 2018, beyond the forty-five day
limitation of § 4-183 (c).
   A hearing was held on May 1, 2019, and, on May
6, 2019, the court issued its memorandum of decision
dismissing the plaintiff’s appeal for lack of subject mat-
ter jurisdiction. The court determined that the plaintiff’s
appeal had not been filed until October 10, 2018, beyond
the forty-five day statutory time period of § 4-183 (c).
It also denied the plaintiff’s application for the issuance
of subpoenas. This appeal followed.
  The plaintiff contends that his appeal was timely filed
on July 24, 2018, and that, but for impropriety by the
court clerk, he met the time limitation under § 4-183
(c) for filing an administrative appeal. The defendant
argues that the plaintiff’s appeal was not filed until
October 10, 2018, outside the time limitation of § 4-183
(c). We conclude that the plaintiff’s appeal was not filed
within the time limitation of § 4-183 (c) and, accord-
ingly, affirm the judgment of the trial court.
   ‘‘We begin our discussion by setting forth the well
settled standard of review that governs an appeal from
a judgment granting a motion to dismiss on the ground
of a lack of subject matter jurisdiction. 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 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.
. . . [B]ecause [a] determination regarding a trial
court’s subject matter jurisdiction is a question of law,
our review is plenary.’’ (Emphasis omitted; internal quo-
tation marks omitted.) Godbout v. Attanasio, 199 Conn.
App. 88, 95, 

234 A.3d 1031

(2020). ‘‘[F]ailure to meet
the time limitation [of § 4-183 (c) is] a subject matter
jurisdictional defect.’’ Glastonbury Volunteer Ambu-
lance Assn., Inc. v. Freedom of Information Commis-
sion, 

227 Conn. 848

, 854, 

633 A.2d 305

(1993).
   It is well established that ‘‘[t]here is no absolute right
of appeal to the courts from a decision of an administra-
tive agency. . . . The [Uniform Administrative Proce-
dures Act, General Statutes § 4-166 et seq.] grants the
Superior Court jurisdiction over appeals of agency deci-
sions only in certain limited and well delineated circum-
stances. . . . It is a familiar principle that a court which
exercises a limited and statutory jurisdiction is without
jurisdiction to act unless it does so under the precise
circumstances and in the manner particularly pre-
scribed by the enabling legislation.’’ (Citation omitted;
internal quotation marks omitted.) Pine v. Dept. of Pub-
lic Health, 

100 Conn. App. 175

, 180, 

917 A.2d 590

(2007).
  Appeals to the Superior Court from a final decision
of an agency are governed by § 4-183. In Glastonbury
Volunteer Ambulance Assn., Inc. v. Freedom of Infor-
mation 

Commission, supra

, 

227 Conn. 852

–53, our
Supreme Court articulated that § 4-183 (c) requires that
the service and the filing of such an appeal must occur
within the forty-five day statutory time period of § 4-
183 (c). The court concluded that a failure to meet
either of these requirements within the forty-five day
time limitation constitutes a subject matter jurisdic-
tional defect.

Id., 854.

   The record reflects that the defendant issued its
Notice of Final Decision and mailed the same to the
plaintiff on May 25, 2018. Pursuant to § 4-183 (c), the
plaintiff was then required to file his appeal within forty-
five days after the notice was mailed. However, § 4-183
(m) provides that ‘‘[t]he filing of the application for the
[fee] waiver shall toll the time limits for the filing of
an appeal until such time as a judgment on such applica-
tion is rendered.’’ In the present case, the plaintiff
applied for a fee waiver on June 14, 2018, which was
granted on June 28, 2018. The parties agreed that the
plaintiff had until July 24, 2018, to complete the service
and filing of the appeal.6
   The defendant does not challenge that the plaintiff’s
service on it by certified mail on July 24, 2018, consti-
tuted timely service.7 The plaintiff, however, did not
file his appeal properly by that date. In an affidavit
submitted to the trial court, the plaintiff indicated that
on July 24, 2018, he mailed his appeal papers to the
Superior Court by standard mail. Although service by
certified mail is effective upon deposit in the mail under
§ 4-183 (c), there is no similar provision concerning the
filing of an appeal thereunder. Proper filing is effective
when received by the clerk’s office.8 The record reflects
that the plaintiff’s filing was placed in standard mail on
July 24, 2018, and returned to the plaintiff on July 26,
2018. Although the record does not indicate the exact
date the clerk’s office received the plaintiff’s filing,
given the plaintiff’s affidavit that he did not place his
filing into the standard mail until July 24, 2018, it would
not have been received by the clerk’s office until July
25, at the earliest. We agree, therefore, with the trial
court’s finding that the appeal was filed untimely and
required dismissal.
   The plaintiff contends that any untimeliness of his
appeal was caused by misinformation given to him by
the clerk and the clerk’s misreading of the applicable
statutes, and that his appeal was timely filed on July
24, 2018, and should proceed. We disagree. In Godaire
v. Freedom of Information Commission, 141 Conn.
App. 716, 718, 

62 A.3d 598

(2013), the plaintiff claimed
that his administrative appeal was served late because
of misinformation he had received from a court clerk
at the Superior Court in the judicial district of New
London. The defendants moved to dismiss for lack of
subject matter jurisdiction and the trial court dismissed
the appeal.

Id., 717–18.

   This court affirmed the judgment of dismissal stating
that, ‘‘[a]lthough the plaintiff’s admittedly late service
of his administrative appeal is claimed to have resulted
from misinformation he had received from a court clerk
in the judicial district of New London as to how he was
required to serve his appeal, we conclude that his late
appeal cannot be saved from dismissal under the doc-
trine of equitable tolling because the forty-five day ser-
vice requirement established by § 4-183 (c) is jurisdic-
tional in nature, and thus cannot be waived or
circumvented for any reason.’’ (Footnote omitted.)

Id., 718–19.

The misinformation provided by the clerk to
the plaintiff was not dispositive because the plaintiff
always was within his abilities to review the statute
and serve the commission by certified mail within the
statutory time frame. He was not required to rely on the
information provided by the clerk. Because the plaintiff
relied on the information provided by the clerk and
ultimately served and filed his appeal late, the judgment
of dismissal was affirmed.
   In the present case, the plaintiff was initially informed
by the clerk of the court that service had to be com-
pleted by a marshal. This information was incorrect.
Notwithstanding this misinformation, he timely and
properly served the defendant by certified mail in accor-
dance with § 4-183 (c). On July 26, 2018, the clerk,
contrary to the express statutory language of § 4-183,
refused to file the appeal because the plaintiff did not
effect service through a marshal. The rejection, how-
ever, occurred after the time limitation for filing the
plaintiff’s appeal had already expired. Thus, even if we
were to agree with the plaintiff that the clerk should
have accepted and filed his appeal when the papers
initially arrived, these documents did not arrive at the
court within the statutory time requirement for filing,
on or before July 24, 2018. We conclude, therefore, that
the trial court properly dismissed this action for lack
of subject matter jurisdiction on the ground that the
plaintiff failed to comply with the forty-five day time
limit for filing.9
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     The complaint was dated July 25, 2017, and filed on July 27, 2017.
  2
     The final decision was dated May 23, 2018, and the Notice of Final
Decision was dated and mailed on May 25, 2018.
   3
     On November 8, 2018, the case was transferred to the judicial district
of New Britain.
   4
     General Statutes § 4-183 (c) provides in relevant part: ‘‘(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 . . . 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 . . . . Within 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.’’
   5
     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.’’
   6
     The record reflects that the plaintiff’s application for a waiver of fees
was file-stamped on June 18, 2018. The trial court acknowledged this date
and calculated the plaintiff’s filing deadline as July 9, 2018. The court noted
that ‘‘[t]he parties do not dispute that under . . . § 4-183 (c) and (m) the
appeal had to be filed in court by July 24, 2018.’’ The court further stated
that its calculation yielding a July 9, 2018 deadline ‘‘is not necessarily determi-
native as the appeal was not filed until October 10, 2018.’’
   For purposes of this appeal, even if we analyze the plaintiff’s claim that
the deadline for service and filing of his appeal in the Superior Court was
July 24, 2018, we still affirm the judgment of the trial court dismissing the
plaintiff’s appeal because the plaintiff did not file his appeal on or before
that date.
   7
     General Statutes § 4-183 (c) provides in relevant part: ‘‘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 . . . . If service of the appeal is made by mail, service shall
be effective upon deposit of the appeal in the mail.’’ The plaintiff’s service
on the defendant was, therefore, effective on July 24, 2018.
   8
     See Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Infor-
mation 

Commission, supra

, 

227 Conn. 853

(reviewing legislative history of
§ 4-183 (c) and determining that ‘‘[t]he commentary to . . . the proposal
makes clear not only that service must be made within forty-five days, but
that [t]he appeal must also be filed in the court within forty-five days’’
(internal quotation marks omitted)).
   9
     We acknowledge that our rationale slightly differs from that of the trial
court. Nevertheless, ‘‘[i]t is axiomatic that [w]e may affirm a proper result
of the trial court for a different reason.’’ (Internal quotation marks omitted.)
Rafalko v. University of New Haven, 

129 Conn. App. 44

, 51 n.3, 

19 A.3d 215

(2011).
   Because we conclude that the plaintiff’s appeal was untimely filed, thereby
depriving the trial court of subject matter jurisdiction, we need not address
whether the trial court improperly denied the plaintiff’s application for the
issuance of subpoenas.

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