Gianetti v. Dunsby ( 2018 )

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CHARLES D. GIANETTI v. ADAM DUNSBY ET AL.
(AC 40419)
Keller, Elgo and Bright, Js.
Syllabus
The plaintiff brought this action against the defendant members of the
Easton Board of Selectmen for the alleged wrongful denial of certain
tax relief to which the plaintiff claimed that he was entitled for elderly
homeowners under a municipal ordinance. The ordinance provided that
the determination as to whether an applicant’s income qualified for tax
relief and whether an application was bona fide would be made by the
town tax assessor and that an applicant who was denied relief could
appeal to the board. Following the denial of his application for tax relief
pursuant to the ordinance, the plaintiff appealed to the board, which
denied the appeal. The plaintiff thereafter commenced the present
action, claiming that the tax assessor and the board wrongfully had
denied him tax relief pursuant to the ordinance. The trial court denied
the defendants’ motion to dismiss, in which they claimed that the trial
court lacked subject matter jurisdiction over the plaintiff’s action
because there was no statutory right to appeal from the board’s decision
to the Superior Court. Thereafter, following a hearing during which the
defendants again raised the issue of the court’s subject matter jurisdic-
tion, the trial court render judgment in favor of the defendants, conclud-
ing that the plaintiff’s claim failed on its merits. On appeal to this court,
the plaintiff raised various challenges to the factual findings and eviden-
tiary determinations of the trial court. Held that the trial court lacked
subject matter jurisdiction over the plaintiff’s action, as the plaintiff was
not authorized by statute to commence an administrative appeal in the
Superior Court challenging the propriety of the board’s decision on
his tax relief appeal: this court construed the plaintiff’s action as an
administrative appeal, which is permitted only under statutory authority,
and because the plaintiff failed to identify any statutory authority permit-
ting his appeal and the subject ordinance expressly was enacted pursuant
to certain enumerated statutes, none of which provided an applicant
for municipal tax relief an avenue of appeal in the Superior Court,
the trial court lacked jurisdiction to entertain the plaintiff’s appeal;
moreover, the plaintiff was not entitled to judicial review of the board’s
decision under the Uniform Administrative Procedure Act (§ 4-166 et
seq.), as that act applies only to state agencies and the plaintiff could
not satisfy the contested case requirement of the act because the board
was not statutorily obligated to determine the plaintiff’s rights and privi-
leges with respect to his tax relief appeal; accordingly, because the trial
court lacked subject matter jurisdiction over the plaintiff’s action, it
should have rendered judgment dismissing the action rather than render-
ing judgment on the merits.
Submitted on briefs March 19—officially released June 26, 2018
Procedural History
Action to recover damages for the defendants’ alleged
wrongful denial of certain tax relief, brought to the
Superior Court in the judicial district of Fairfield and
tried to the court, Hon. Edward F. Stodolink, judge
trial referee; judgment for the defendants, from which
the plaintiff appealed to this court. Improper form of
judgment; judgment directed.
Charles D. Gianetti, self-represented, the appellant
(plaintiff) filed a brief.
Peter V. Gelderman filed a brief for the appellees
(defendants).
Opinion
ELGO, J. The self-represented plaintiff, Charles D.
Gianetti, appeals from the judgment of the Superior
Court rendered in favor of the defendants, Adam Dun-
sby, Robert Lesser, and Scott Centrella, in this action
concerning the plaintiff’s eligibility for tax relief under
a municipal ordinance.1 On appeal, the plaintiff raises
a bevy of challenges to the factual findings and eviden-
tiary determinations of the court. In response, the defen-
dants contend, inter alia, that the court lacked subject
matter jurisdiction to entertain the present action. We
agree with the defendants and, accordingly, reverse
the judgment of the court and remand the case with
direction to dismiss the plaintiff’s action for lack of
subject matter jurisdiction.
This appeal concerns the ‘‘2009 Tax Relief For The
Elderly Ordinance’’ (ordinance) enacted by the town of
Easton, the stated purpose of which is to assist ‘‘elderly
homeowners with a portion of the costs of property
(real estate) taxation.’’ The ordinance specifies various
criteria for relief thereunder. The determination as to
whether an applicant’s ‘‘income qualifies for tax relief,’’
as well as whether the ‘‘application is bona fide,’’ is
made by the Easton tax assessor (assessor) pursuant
to §§ 14 and 15 of the ordinance. The ordinance also
provides a mechanism by which an applicant who is
denied relief may appeal the assessor’s determination.
Section 14 (g) states in relevant part that ‘‘[a]ny person
refused relief for any reason may appeal to the Board
of Selectmen whose decision shall be final.’’
On April 23, 2009, the plaintiff filed an application
for tax relief pursuant to the ordinance. After receiving
notice that his application had been denied, the plaintiff
appealed to the Easton Board of Selectmen (board), on
which the defendants served, in accordance with § 14
(g) of the ordinance. Following a hearing, the board
sent a letter to the plaintiff, in which the board indicated
that it was prepared to deny the plaintiff’s appeal. That
letter further advised the plaintiff that, if he had any
additional information or documentation regarding his
eligibility for tax relief under the ordinance, the board
would reconsider its determination. When the plaintiff
did not respond in any manner, the board sent him
another letter informing him that his appeal was denied.
By complaint dated August 31, 2011, the plaintiff com-
menced a mandamus action against the members of
the board stemming from their denial of his appeal.
Following a hearing, the court, Hon. Michael Hartmere,
judge trial referee, rendered a judgment of dismissal in
favor of the defendants, concluding that the plaintiff
had ‘‘failed to establish the essential elements of [his]
mandamus action.’’ Gianetti v. Herrmann, Superior
Court, judicial district of Fairfield, Docket No. CV-11-
5029623-S (October 30, 2014). The plaintiff did not
appeal from that judgment.
The plaintiff commenced the present action against
the defendants on June 22, 2015, approximately six
years after the denial of his tax relief appeal by the
board. The operative complaint, the plaintiff’s August
3, 2015 amended complaint, contains one count titled
‘‘Wrongful Denial of Relief Pursuant to the Senior Tax
Relief Program Ordinance.’’ In that count, the plaintiff
alleged that although he had applied for tax relief pursu-
ant to the ordinance and satisfied the requirements
thereof, the assessor ‘‘refused the tax relief.’’ The plain-
tiff further alleged that the board, in denying his appeal,
‘‘erroneously and wrongfully denied the relief provided
by the [ordinance], and the plaintiff has been harmed
thereby.’’2
After filing their answer and special defenses,3 the
defendants filed a motion to dismiss, claiming that the
court ‘‘does not have subject matter jurisdiction in this
matter because there is no statutory right or authoriza-
tion to appeal the [board’s] decision to the Superior
Court.’’ The court, Radcliffe, J., heard argument on the
motion on August 22, 2016, and thereafter denied the
motion to dismiss. The defendants filed a motion for
reargument or reconsideration of that determination,
which the court denied. In addition, the defendants filed
a motion for summary judgment, claiming that ‘‘there
are no genuine issues of material fact to be tried with
respect to the [plaintiff’s] complaint.’’ In denying that
motion, the court in its order clarified that ‘‘relief in
this case is not sought nor can it be awarded based
upon a claim of mandamus. The only issue here is the
action of the [board] in denying the [plaintiff’s request
for] senior citizen tax relief for the year 2009.’’
A one day hearing on that issue was held before the
court, Hon. Edward F. Stodolink, judge trial referee, on
January 5, 2017. At that hearing, the plaintiff introduced
certain documents into evidence, including copies of
the ordinance, his April 23, 2009 application for tax
relief, and his 2008 federal income tax return. The plain-
tiff also testified briefly at that hearing. During his testi-
mony, a colloquy ensued as to the precise nature of the
plaintiff’s action. The court at that time observed that,
‘‘[a]s I understand it, we’re testing the propriety of an
administrative procedure of the town of Easton for
the year 2009; correct?’’ In response, the defendants’
attorney stated: ‘‘Testing the propriety? I guess that’s
correct, Your Honor.’’ The plaintiff then informed the
court that his action pertained to ‘‘the erroneousness
of’’ the board’s decision to deny his appeal. Later in the
hearing, the defendants again raised the issue of the
court’s subject matter jurisdiction over the plaintiff’s
action.4 The defendants also advanced that claim in
their posttrial brief.
In its memorandum of decision, the court did not
resolve the question of subject matter jurisdiction.
Instead, it stated in relevant part: ‘‘The court has exam-
ined the evidence submitted in this case and the argu-
ments raised by the briefs of the parties. It is the court’s
determination that the plaintiff’s claim fails on its mer-
its.’’ Following a discussion of the merits of the plain-
tiff’s claim of entitlement to tax relief under the
ordinance, the court rendered judgment in favor of the
defendants, and this appeal followed.
Although the plaintiff raises various challenges to the
factual findings and evidentiary determinations of the
trial court, ‘‘[i]t is axiomatic that once the issue of sub-
ject matter jurisdiction is raised, it must be immediately
acted upon by the court.’’ (Internal quotation marks
omitted.) Ajadi v. Commissioner of Correction, 280
Conn. 514, 533, 911 A.2d 712 (2006). As our Supreme
Court observed more than a century ago, ‘‘[w]henever
the absence of jurisdiction is brought to the notice of
the court . . . cognizance of it must be taken and the
matter passed upon before it can move one further
step in the cause; as any movement is necessarily the
exercise of jurisdiction.’’ (Internal quotation marks
omitted.) Woodmont Assn. v. Milford, 85 Conn. 517,
524, 84 A. 307 (1912). Indeed, ‘‘[o]nce it becomes clear
that the trial court lacked subject matter jurisdiction
to hear the plaintiffs’ complaint, any further discussion
of the merits is pure dicta. Lacking jurisdiction, neither
the trial court nor this court should deliver an advisory
opinion on matters entirely beyond our power to adjudi-
cate.’’ (Internal quotation marks omitted.) Statewide
Grievance Committee v. Rozbicki, 211 Conn. 232, 246,
558 A.2d 986 (1989). For that reason, ‘‘as soon as the
jurisdiction of the court to decide an issue is called into
question, all other action in the case must come to a
halt until such a determination is made.’’ Gurliacci v.
Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991). In the
present case, the court did not comply with that well
established precept but, rather, issued a memorandum
of decision in which it concluded that the plaintiff’s
claim failed on its merits.
On appeal, the defendants renew their claim that
the court lacked subject matter jurisdiction over the
plaintiff’s complaint. ‘‘A determination regarding a trial
court’s subject matter jurisdiction is a question of law
over which we exercise plenary review. . . . 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 con-
sider the merits of a case over which it is without
jurisdiction . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) Reinke v. Sing, 328 Conn. 376,
382, 179 A.3d 769 (2018).
As a preliminary matter, the defendants submit that
the present action can be construed only as an adminis-
trative appeal from the decision of the board denying
the appeal, brought by the plaintiff pursuant to § 14 (g)
of the ordinance, from the tax relief determination of
the assessor. They argue that the operative complaint
does not allege any cognizable cause of action and
emphasize that the plaintiff’s prior mandamus action
against the board was dismissed years ago. See Gianetti
v. Herrmann, supra, Superior Court, Docket No. CV-
11-5029623-S. Furthermore, in denying the defendants’
motion for summary judgment, the court in the present
case specifically found that ‘‘relief in this case is not
sought nor can it be awarded based upon a claim of
mandamus. The only issue here is the action of the
[board] in denying the [plaintiff’s request for] senior
citizen tax relief for the year 2009.’’ Because the opera-
tive complaint names the board’s members as defen-
dants and alleges that the board ‘‘erroneously and
wrongly’’ denied the plaintiff’s appeal, the defendants
maintain that the present action may ‘‘only be character-
ized as an administrative appeal.’’ We agree with that
assessment. Our task, therefore, is to determine
whether the plaintiff was authorized under Connecticut
law to commence an administrative appeal in the Supe-
rior Court from the decision of the board on this munici-
pal tax relief matter.
We begin by noting that, ‘‘with respect to administra-
tive appeals generally, there is no absolute right of
appeal to the courts from a decision of an administrative
[body]. . . . Appeals to the courts from administrative
[bodies] exist only under statutory authority . . . .
Appellate jurisdiction is derived from the . . . statu-
tory provisions by which it is created . . . and can be
acquired and exercised only in the manner prescribed.
. . . In the absence of statutory authority, therefore,
there is no right of appeal from [an administrative
body’s] decision.’’5 (Internal quotation marks omitted.)
Fedus v. Planning & Zoning Commission, 278 Conn.
751, 756, 900 A.2d 1 (2006); accord Delagorges v. Board
of Education, 176 Conn. 630, 633, 410 A.2d 461 (1979)
(‘‘[our Supreme Court] has repeatedly held that appeals
to the courts from administrative officers or [bodies]
may be taken only when a statute provides authority
for judicial intervention’’).
The plaintiff has not identified, and we have not dis-
covered, any statutory authority permitting him to
appeal from the decision of the board on this municipal
tax relief matter to the Superior Court.6 The ordinance
in question expressly was enacted pursuant to the provi-
sions of General Statutes §§ 12-129n, 12-170aa, and 12-
129b through 12-129d.7 None of those statutes provides
an applicant for municipal tax relief an avenue of appeal
in the Superior Court.8 The Superior Court, therefore,
lacks jurisdiction to entertain an appeal commenced
pursuant thereto. See Tazza v. Planning & Zoning
Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972)
(‘‘unless a statute provides for such [administrative]
appeals courts are without jurisdiction to entertain
them’’).
Resort to the Uniform Administrative Procedure Act
(UAPA), General Statutes § 4-166 et seq., is equally
unavailing. The UAPA ‘‘applies only to state agencies
. . . .’’ Edwards v. Code Enforcement Committee, 13
Conn. App. 1, 3, 534 A.2d 617 (1987). In Maresca v.
Ridgefield, 35 Conn. App. 769, 772 n.2, 647 A.2d 751
(1994), this court held that, because a ‘‘board of select-
men . . . does not meet the statutory definition of an
agency’’ set forth in § 4-166 (1), the plaintiff could not
commence an administrative appeal against that board
pursuant to the UAPA. Furthermore, even if the plaintiff
could surmount that shortcoming, he still could not
satisfy the contested case requirement of the UAPA.
See Peters v. Dept. of Social Services, 273 Conn. 434,
442–43, 870 A.2d 448 (2005). As our Supreme Court
explained in Lewis v. Gaming Policy Board, 224 Conn.
693, 705, 620 A.2d 780 (1993), even when an administra-
tive body conducts a hearing on a given matter, ‘‘that
does not constitute a matter as a ‘contested case’ under
§ 4-166 (2) unless the plaintiff’s rights or privileges are
‘statutorily’ required to be determined by the agency.
If the plaintiff’s rights or privileges are not ‘statutorily’
required to be determined by the agency, a ‘contested
case’ does not exist and a plaintiff would have no right
to appeal pursuant to [General Statutes] § 4-183 (a).’’
Because the General Statutes contain no provision obli-
gating the board to determine the plaintiff’s rights and
privileges with respect to his municipal tax relief
appeal, a contested case does not exist pursuant to § 4-
166 (2). For those reasons, the plaintiff in the present
case is not entitled to judicial review under the UAPA.
Neither § 4-183 (a) of the UAPA nor any other provi-
sion of the General Statutes provides applicants for
municipal tax relief an avenue of appellate review in
the Superior Court. We therefore conclude that the
Superior Court lacked subject matter jurisdiction over
the plaintiff’s action challenging the propriety of the
board’s decision on his tax relief appeal.
The form of the judgment is improper, the judgment
is reversed and the case is remanded with direction to
dismiss the plaintiff’s action for lack of subject mat-
ter jurisdiction.
In this opinion the other judges concurred.
1
Oral argument on this appeal was scheduled for the morning of March
19, 2018. The plaintiff did not appear at that time and did not contact the
court or the clerk’s office regarding his failure to appear. Counsel for the
defendants did appear and indicated on the record that he had not heard
from the plaintiff. Attempts made by both the clerk of court and opposing
counsel to reach the plaintiff by telephone that morning were unsuccessful.
With the consent of the defendants’ counsel, this court, therefore, took the
matter on the record and the briefs submitted.
2
In the sole count of his complaint, the plaintiff alleged in full:
‘‘1. [The plaintiff] is a resident of Easton, Connecticut.
‘‘2. [The defendants] at all times hereinafter mentioned are the selectmen
of [Easton].
‘‘3. [Easton] has a Senior Tax Relief Program ordinance.
‘‘4. The plaintiff applied for tax relief for tax year 2009.
‘‘5. The plaintiff met all qualifying provisions of the ordinance.
‘‘6. The plaintiff submitted the financial information required by the
ordinance.
‘‘7. The [assessor] refused the tax relief.
‘‘8. The [board] denied the plaintiff’s appeal.
‘‘9. The plaintiff has a clear legal right to the relief provided by the
ordinance.
‘‘10. The [board] erroneously and wrongfully denied the relief provided
by the tax relief ordinance, and the plaintiff has been harmed thereby.’’
3
In their special defenses, the defendants raised the doctrines of collateral
estoppel and res judicata, alleging in relevant part that the present action
‘‘should be barred in its entirety as a matter of law because the exact same
claim for tax relief as pleaded here was fully adjudicated on the merits in
Gianetti v. Herrmann, [supra, Superior Court, Docket No. CV-11-5029623-
S].’’ The defendants also alleged that the plaintiff’s action was untimely and
subject to preclusion pursuant to the doctrine of laches.
4
When the plaintiff concluded his testimony, the defendants’ attorney
reiterated the subject matter jurisdiction claim raised by the defendants,
stating in relevant part: ‘‘[The plaintiff’s action is] an appeal from the decision
of the [board], since he names the selectmen as the defendants in this case,
[and] I don’t think the court has any jurisdiction over that, because in order
to be able to take an appeal from an administrative act . . . that right has
to be set forth in the statute. There has to be a statutory right to take an
appeal. There is none either in the ordinance or in the enabling legisla-
tion . . . .’’
5
‘‘In hearing administrative appeals . . . the Superior Court acts as an
appellate body.’’ Fagan v. Stamford, 179 Conn. App. 440, 443 n.2, 180 A.3d
1 (2018).
6
We note that although he is not a lawyer licensed to practice in this
state, the plaintiff is not an inexperienced litigant. See, e.g., Gianetti v.
Norwalk Hospital, 304 Conn. 754, 43 A.3d 567 (2012); Gianetti v. Siglinger,
279 Conn. 130, 900 A.2d 520 (2006); Gianetti v. Rutkin, 142 Conn. App. 641,
70 A.3d 104 (2013); Gianetti v. Gombos, 142 Conn. App. 197, 64 A.3d 369,
cert. denied, 309 Conn. 918, 70 A.3d 40 (2013); Gianetti v. Riether, 139 Conn.
App. 909, 56 A.3d 474 (2012), cert. denied, 308 Conn. 921, 94 A.3d 638 (2013);
Gianetti v. Connecticut Newspapers Publishing Co., 136 Conn. App. 67, 44
A.3d 191, cert. denied, 307 Conn. 923, 55 A.3d 567 (2012); Gianetti v. Gerardi,
133 Conn. App. 858, 38 A.3d 1211 (2012); Gianetti v. Anthem Blue Cross &
Blue Shield of Connecticut, 111 Conn. App. 68, 957 A.2d 541 (2008), cert.
denied, 290 Conn. 915, 965 A.2d 553 (2009); Gianetti v. American Fabrics
Co., Superior Court, judicial district of Fairfield, Docket No. CV-02-0394671-
S (April 15, 2004).
7
Section 12-129n is titled ‘‘Optional municipal property tax relief program
for certain homeowners age sixty-five or over or permanently and totally
disabled.’’ Section 12-170aa is titled ‘‘Tax relief for certain elderly or totally
disabled homeowners. Reductions in real property taxes.’’ Section 12-129b
is titled ‘‘Real property tax relief for certain persons sixty-five years of age
or over.’’ Section 12-129c is titled ‘‘Application for real property tax relief
for certain persons sixty-five years of age or over. Biennial requirements.
Penalty for false affidavit or false statement.’’ Section 12-129d is titled ‘‘State
payment in lieu of tax revenue.’’
8
We note that our General Statutes expressly provide a right of appeal
to the Superior Court from particular decisions of a municipal board of
selectmen. For example, General Statutes § 13a-39 authorizes a board of
selectmen to define the boundaries of a highway in their municipality that
‘‘have been lost or become uncertain . . . .’’ Pursuant to General Statutes
§ 13a-40, ‘‘[a]ny person aggrieved by such decision may appeal to the superior
court for the judicial district where such highway is situated within ten days
after notice of such decision has been given . . . .’’