Godbout v. Attanasio ( 2020 )

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DAVID GODBOUT v. TONY ATTANASIO ET AL.
(AC 42683)
Alvord, Prescott and Bright, Js.
Syllabus
The plaintiff sought to recover monetary relief pursuant to statute (§ 12-
170) for the alleged misconduct of the defendants, members of the town
board of assessment appeals related to his motor vehicle tax assessment
appeal. The defendants filed a motion to dismiss the plaintiff’s action
on the grounds that the trial court lacked subject matter jurisdiction
because the plaintiff failed to exhaust his administrative remedies and
had failed to allege that the defendants had engaged in some unlawful
act or the omission of a necessary act, allegations that were required
to support an action pursuant to § 12-170. The court granted the motion
to dismiss on both grounds, from which the plaintiff appealed to this
court. Held:
1. The trial court improperly held that it lacked subject matter jurisdiction
over the plaintiff’s action because the plaintiff failed to exhaust his
administrative remedies before the Freedom of Information Commission
(FOIC): there was nothing in the record before this court from which
to conclude that the legislature intended that a plaintiff seeking to
recover under § 12-170 must first exhaust any and all administrative
remedies; § 12-170 does not contain an exhaustion requirement and
nothing in the Freedom of Information Act (FOIA) statutory scheme
mandates that any and all issues involving the FOIA must always be
raised to and resolved by the FOIC before an action is brought in the
Superior Court; moreover, there is no statute that confers any authority
on the FOIC to impose monetary penalties on board members and, thus,
it would have been futile for the plaintiff to have filed an administrative
appeal because the FOIC lacked the ability to provide the plaintiff with
the relief requested.
2. This court declined to consider the plaintiff’s claim that a motion to
dismiss was not the proper procedural vehicle to challenge the legal
sufficiency of his complaint, the plaintiff having waived any objection
to the defendants’ use of a motion to dismiss by failing to raise that
issue before the trial court.
3. The trial court properly determined that the plaintiff’s complaint was
insufficiently pleaded, the complaint having failed to allege any act or
omission by an individual defendant that, if true, could satisfy the plain-
tiff’s burden of demonstrating an unlawful act or omission necessary
to prevail under § 12-170.
Argued January 16—officially released July 14, 2020
Procedural History
Action to recover damages for alleged official miscon-
duct, brought to the Superior Court in the judicial dis-
trict of New London where the court, Calmar, J.,
granted the defendants’ motion to dismiss and rendered
judgment thereon, from which the plaintiff appealed
to this court. Improper form of judgment; reversed;
judgment directed.
David Godbout, self-represented, the appellant
(plaintiff).
Mark S. Zamarka, with whom, on the brief, was
Edward B. O’Connell, for the appellees (defendants).
Opinion
PRESCOTT, J. In this statutory civil action brought
pursuant to General Statutes § 12-170,1 the plaintiff,
David Godbout, appeals from the judgment of the trial
court dismissing the action against the defendants, all
of whom are individual members of the East Lyme
Board of Assessment Appeals (board).2 In his action,
the plaintiff sought to recover monetary relief pursuant
to § 12-170 on the basis of alleged misconduct by the
defendants related to his motor vehicle tax assessment
appeal. The plaintiff claims that the court improperly
concluded that it lacked subject matter jurisdiction to
adjudicate the merits of his action because he (1) failed
to exhaust his administrative remedies with the Free-
dom of Information Commission (FOIC) before filing
his action in Superior Court and (2) failed to allege
sufficient facts in his complaint demonstrating that each
of the defendants had engaged in some unlawful act,
or had failed to perform a necessary act, related to the
tax assessment appeal. Although we agree with the
plaintiff with respect to his first claim, we disagree
with the second. We also conclude that the form of the
judgment is incorrect in that, rather than granting the
motion to dismiss on jurisdictional grounds, the court
should have rendered judgment in favor of the
defendants.3
The following facts, which either are undisputed or
are taken from the underlying complaint and viewed
in the light most favorable to the plaintiff, are relevant
to our consideration of the plaintiff’s claims on appeal.
The plaintiff is a resident of East Lyme (town). The
plaintiff has a history of disputes with the town and
the board.4 In 2012, he filed a complaint with the FOIC
against the board and the town alleging that they had
violated the state’s Freedom of Information Act (FOIA),
General Statutes § 1-200 et seq., ‘‘by not permitting [the
plaintiff] or others with assessment appeals to view,
listen, observe and attend the hearings of other persons
appealing their motor vehicle tax assessments.’’ God-
bout v. Board of Assessment Appeals, Freedom of Infor-
mation Commission, Docket No. FIC 2012–504 (August
28, 2013). The FOIC, after a hearing, concluded that the
board had violated General Statutes § 1-225 (a)—FOIA’s
open meeting provision—as alleged by the plaintiff, and
the FOIC ordered the town and board to comply strictly
with § 1-225 in the future in conducting hearings and
meetings concerning tax assessment appeals.
Following this decision by the FOIC, the plaintiff
moved the board to disqualify the defendant Michael
Foley from participating in any subsequent tax assess-
ment appeal brought by the plaintiff because Foley
allegedly had displayed bias against him, including call-
ing him by vulgar names. Thereafter, Foley elected to
recuse himself in matters involving the plaintiff. As of
May, 2017, the defendant Patrick Hughes also elected
not to participate in property assessment appeals
brought by the plaintiff due to Hughes’ own negative
interactions with the plaintiff.
On September 8, 2018, the plaintiff appeared before
the board to challenge the taxes assessed by the town
on his motor vehicles pursuant to General Statutes § 12-
71 (f).5 The board consisted of five elected members.
Present at the hearing were the four defendants and a
town clerk, Brooke Stevens, who acted as the recording
secretary.6 When it was time for the plaintiff to present
his appeal to the board, the defendants Foley, Hughes,
and William W. Mather III ‘‘indicated that they were
disqualif[ying] themselves . . . by getting up and leav-
ing the room.’’ Although Hughes and Foley provided no
explanation for their decisions on the record, Mather
indicated that he worked for the law firm that repre-
sents the town in many legal matters.7
The plaintiff indicated to the defendant Tony Atta-
nasio, the sole remaining board member present at the
hearing, that the board appeared no longer to have a
quorum present, and he assumed that, without a quo-
rum, the proceedings automatically would be
adjourned. The plaintiff also indicated to Attanasio that
he was prepared to proceed with his argument but
warned that any further proceedings might be void and
also might violate the FOIC’s prior orders directing the
board to comply strictly with the FOIA requirements.
Attanasio adjourned the proceedings, and the plaintiff
indicated to Attanasio that he would await further
instructions regarding a hearing on his appeal.8 Shortly
thereafter, on or about September 11, 2018, the board
mailed the plaintiff a copy of the minutes of the Septem-
ber 8, 2018 hearing and a copy of his appeal application,
both of which indicated that the board had taken no
action on the plaintiff’s appeal.
On October 1, 2018, the plaintiff, in response to the
board’s September 11, 2018 mailings, commenced the
underlying action as a self-represented party. Although
the plaintiff initiated his action as a small claims matter,
the court, on motion by the defendants, subsequently
transferred it to the regular civil docket of the Superior
Court. See Practice Book § 24-21. The plaintiff filed the
operative amended complaint on October 3, 2018. In
that complaint, the plaintiff alleged that the defendants
had engaged in official misconduct in violation of § 12-
170 because they failed to comply with certain provi-
sions of the FOIA.
The defendants filed a motion to dismiss the plain-
tiff’s action on October 25, 2018, claiming that the court
lacked subject matter jurisdiction over it. In their mem-
orandum in support of the motion to dismiss, the defen-
dants argued that because the plaintiff’s complaint was
premised on alleged noncompliance with the FOIA, he
was required, pursuant to General Statutes § 1-206 (b)
(1),9 to seek relief by way of an appeal to the FOIC, and
that his failure to exhaust this administrative remedy
deprived the trial court of subject matter jurisdiction
over this statutory action. According to the defendants,
the plaintiff did not file an appeal with the FOIC because
he knew that the FOIC would not schedule a hearing
‘‘due to his abusive history.’’ The defendants also argued
that the plaintiff sought to avoid the administrative
appeal requirement by framing his action as one seeking
relief pursuant to § 12-170, but that such an action
required allegations that the individual board members
had engaged in some unlawful act or the omission of
a necessary act, and, even construing the allegations
in the complaint in the light most favorable to the plain-
tiff, the complaint failed to contain any such allegations.
The plaintiff filed a memorandum in opposition to
the motion to dismiss. In it, he argued that a civil action
commenced in Superior Court, and not an administra-
tive appeal to the FOIC, was the proper vehicle to obtain
the monetary relief provided by § 12-170, and that he
was not seeking an adjudication of whether a FOIA
violation had occurred but instead was asserting that
the board members’ actions amounted to a criminal
violation of an existing FOIC order, a remedy for which
was beyond the authority of the FOIC.
The court, Calmar, J., heard argument on the motion
to dismiss on December 17, 2018. The court rendered
a judgment of dismissal on February 4, 2019, agreeing
with the arguments of the defendants. The court rea-
soned as follows: ‘‘In paragraph 46 of the plaintiff’s
amended complaint, the plaintiff pleaded that his motor
vehicle property assessment appeal was not heard by
the [board] due to a lack of quorum, and [that] the
[board] did not produce accurate minutes of the failed
hearing. The plaintiff, however, did not appeal to the
FOIC to reschedule a hearing. . . . [G]rievances
against quorum and accurate minutes should be heard
before the FOIC. Because the plaintiff did not have a
hearing and did not receive a final decision from the
FOIC, he has not exhausted all of his administrative
remedies with the FOIC, and therefore, cannot appeal
a decision through the Superior Court because the court
lacks jurisdiction.
‘‘In paragraph 62 of the plaintiff’s amended complaint,
the plaintiff pleaded that the defendants have commit-
ted ‘criminal acts’ and ‘multiple violations’ of General
Statutes § 1-240. In paragraph 63 of the plaintiff’s
amended complaint, the plaintiff pleaded that the defen-
dants have created a cause of action due to ‘official
misconduct’ under § 12-170. . . . Here, an order has
not been given by the FOIC, therefore, no member of
the [board] has failed to comply with the FOIC and
cannot be found guilty of criminal acts or multiple viola-
tions under § 1-240. . . . [With respect to the alleged
violation of § 12-170], the plaintiff has alleged the defen-
dants ‘demonstrated official misconduct’; however, the
plaintiff fails to allege any specific incidents of miscon-
duct. Even viewing the amended complaint in the light
most favorable to the plaintiff, the plaintiff has failed
to show that the [board] or any individual member of
the [board] has committed an unlawful act or omission
of a necessary act.’’
The court concluded: ‘‘Because the plaintiff has not
exhausted all of his administrative remedies with the
FOIC, and because no criminal or unlawful act, or omis-
sion of a necessary act performed by the [board] has
been alleged in the amended complaint, this court lacks
subject matter jurisdiction and the motion to dismiss
is granted.’’ This appeal followed.
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.’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.) Bailey v.
Medical Examining Board for State Employee Disabil-
ity Retirement, 75 Conn. App. 215, 219, 815 A.2d 281(2003).
‘‘Trial courts addressing motions to dismiss for lack
of subject matter jurisdiction pursuant to [Practice
Book § 10–30] may encounter different situations,
depending on the status of the record in the case. . . .
[If] a trial court decides a jurisdictional question raised
by a pretrial motion to dismiss on the basis of the
complaint alone, it must consider the allegations of the
complaint in their most favorable light. . . . In this
regard, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . .
‘‘In contrast, if the complaint is supplemented by
undisputed facts established by affidavits submitted in
support of the motion to dismiss . . . other types of
undisputed evidence . . . and/or public records of
which judicial notice may be taken . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not
conclusively presume the validity of the allegations of
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evi-
dence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings. . . . If, however, the defendant submits either no
proof to rebut the plaintiff’s jurisdictional allegations
. . . or only evidence that fails to call those allegations
into question . . . the plaintiff need not supply count-
eraffidavits or other evidence to support the complaint,
but may rest on the jurisdictional allegations therein.
. . .
‘‘Finally, where a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. . . . In that situation, [a]n evidentiary
hearing is necessary because a court cannot make a
critical factual [jurisdictional] finding based on memo-
randa and documents submitted by the parties.’’ (Cita-
tions omitted; emphasis omitted; internal quotation
marks omitted.) Cuozzo v. Orange, 315 Conn. 606, 615–
17, 109 A.3d 903 (2015).
In the present case, the parties supplemented the
factual allegations as set forth in the complaint by
attaching affidavits and public records to the motion to
dismiss and to the opposition. Because no jurisdictional
facts were disputed, however, no evidentiary hearing
was required.
I
The plaintiff first claims that the court improperly
concluded that it lacked subject matter jurisdiction to
adjudicate the merits of his action because he had failed
to exhaust his administrative remedies with the FOIC.
We agree.
‘‘Because the exhaustion [of administrative remedies]
doctrine implicates subject matter jurisdiction, [the
court] must decide as a threshold matter whether that
doctrine requires dismissal of the [plaintiff’s] claim.
. . . [B]ecause [a] determination regarding a trial
court’s subject matter jurisdiction is a question of law,
our review is plenary. . . .
‘‘Under our exhaustion of administrative remedies
doctrine, a trial court lacks subject matter jurisdiction
over an action that seeks a remedy that could be pro-
vided through an administrative proceeding, unless
and until that remedy has been sought in the administra-
tive forum. . . . In the absence of exhaustion of that
remedy, the action must be dismissed.’’ (Citation omit-
ted; emphasis added; internal quotation marks omitted.)
Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664(2011). ‘‘[If] a statutory requirement of exhaustion is
not explicit, courts are guided by [legislative] intent in
determining whether application of the doctrine would
be consistent with the statutory scheme. . . . Conse-
quently, [t]he requirement of exhaustion may arise from
explicit statutory language or from an administrative
scheme providing for agency relief. . . .
‘‘A primary purpose of the [exhaustion of administra-
tive remedies] doctrine is to foster an orderly process
of administrative adjudication and judicial review,
offering a reviewing court the benefit of the agency’s
findings and conclusions. It relieves courts of the bur-
den of prematurely deciding questions that, entrusted
to an agency, may receive a satisfactory administrative
disposition and avoid the need for judicial review. . . .
Moreover, the exhaustion doctrine recognizes the
notion, grounded in deference to [the legislature’s] dele-
gation of authority to coordinate branches of [g]overn-
ment, that agencies, not the courts, ought to have pri-
mary responsibility for the programs that [the
legislature] has charged them to administer. . . .
Therefore, exhaustion of remedies serves dual func-
tions: it protects the courts from becoming unnecessar-
ily burdened with administrative appeals and it ensures
the integrity of the agency’s role in administering its
statutory responsibilities.’’ (Citations omitted; internal
quotation marks omitted.) Stepney, LLC v. Fairfield,
263 Conn. 558, 564–65, 821 A.2d 725 (2003).
‘‘Despite the important public policy considerations
underlying the exhaustion requirement’’; Hunt v. Prior,
236 Conn. 421, 432, 673 A.2d 514 (1996); appellate courts
in this state have recognized several exceptions to the
requirement, albeit ‘‘infrequently and only for narrowly
defined purposes. . . . One of the limited exceptions
to the exhaustion rule arises when recourse to the
administrative remedy would be demonstrably futile
or inadequate.’’ (Citations omitted; internal quotation
marks omitted.) Id. ‘‘[A]n administrative remedy is futile
or inadequate if the agency is without authority to grant
the requested relief. . . . It is futile to seek a remedy
[if] such action could not result in a favorable decision
and invariably would result in further judicial proceed-
ings.’’ (Citation omitted; emphasis in original; internal
quotation marks omitted.) Neiman v. Yale University,
270 Conn. 244, 259, 851 A.2d 1165 (2004).10 Thus, a party
is not required to exhaust administrative remedies if it
is seeking a particular form of relief that the agency is
unable or lacks authority to provide. See, e.g., Fairchild
Heights Residents Assn., Inc. v. Fairchild Heights,
Inc., 310 Conn. 797, 816–17, 82 A.3d 602 (2014) (holding
mobile home residents were not required to exhaust
administrative remedies before Department of Con-
sumer Protection before asserting Connecticut Unfair
Trade Practices Act (CUTPA) claim against mobile
home park owner-operator because CUTPA contained
no express or implicit exhaustion requirement and
department lacked ability to provided injunctive and
other relief available under CUTPA); see also Stepney,
LLC v. Fairfield, supra, 263 Conn. 570 (noting that,
although mere allegation of constitutional violation
premised on action of board or agency was insufficient
to excuse party’s failure to exhaust available adminis-
trative remedies, exhaustion doctrine is inapplicable if
party challenges constitutionality of statute or regula-
tion under which agency operates because administra-
tive agency lacks authority to grant adequate relief in
such instances).
Turning to the present case, the plaintiff commenced
the underlying civil action pursuant to § 12-170, seeking
monetary relief against individual members of the
board. Section 12-170, titled ‘‘Penalty for Official Mis-
conduct,’’ provides in relevant part: ‘‘Each . . . mem-
ber of the board of assessment appeals . . . who does
any unlawful act or omits to do any necessary act con-
nected with the levy, assessment or collection of any
tax, shall forfeit fifty dollars to the person aggrieved
thereby, to be collected by such person in an action on
this statute . . . .’’ The plaintiff’s complaint does not
invoke General Statutes § 4-183 (a), which governs the
filing of administrative appeals,11 nor does he ask by
way of relief for the Superior Court to adjudicate
whether the board should have sustained his tax assess-
ment appeal. ‘‘[In] construing a statute, [o]ur fundamen-
tal objective is to ascertain and give effect to the appar-
ent intent of the legislature. . . . In other words, we
seek to determine, in a reasoned manner, the meaning
of the statutory language as applied to the facts of [the]
case, including the question of whether the language
actually does apply. . . . In seeking to determine that
meaning . . . [General Statutes] § 1-2z directs us first
to consider the text of the statute itself and its relation-
ship to other statutes. If, after examining such text and
considering such relationship, the meaning of such text
is plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered.’’ (Internal
quotation marks omitted.) Rivers v. New Britain, 288
Conn. 1, 10–11, 950 A.2d 1247 (2008). Accordingly, in
determining whether the plaintiff was required to
exhaust any administrative remedy prior to pursuing
his civil action, we begin with the text of § 12-170.
Section 12-170, which was first enacted in 1887,12
contains no explicit requirement of exhaustion. There is
no language in the statute mandating that an aggrieved
person first seek any form of administrative review
or other agency action. Rather, the statute expressly
authorizes a party aggrieved by an individual board
member’s undefined unlawful act or omission to bring
‘‘an action on [the] statute . . . .’’ The fact that the
statute contains no express exhaustion language,
although significant, does not, however, end the inquiry.
We must look for any other indication that application
of the doctrine would be consistent with legislative
intent as reflected in the overall statutory scheme. See
Stepney, LLC v. Fairfield, supra, 263 Conn. 564–65.
No court in this state has had the opportunity to
discuss the legislative history of § 12-170, or how the
statutory remedy provided therein fits within the exten-
sive statutory framework governing personal property
tax assessments. We need not do so in the present case
to resolve whether the statute provides an independent
basis for commencing an action in Superior Court that
does not require a plaintiff first to seek review by the
FOIC or other administrative remedy.
By its plain language, the statute does not limit a
board member’s liability to violations of FOIA or other
administrative law statutes. Rather, it broadly provides
for recovery on the basis of any unlawful act or omis-
sion. The legislature’s use of such broad language coun-
sels against a construction that would only permit a
party seeking to recover under the statute if it first
obtained agency input because not every instance of
an unlawful act or omission necessarily would involve
an administrative body. For example, if a board member
were found criminally liable for taking a bribe to affect
the outcome of a tax appeal, an aggrieved plaintiff argu-
ably would have no conceivable administrative impedi-
ment to bringing an action under § 12-170.
The lack of any exhaustion requirement also is appar-
ent from the fact that the statutory remedy provided
for in § 12-170 long predates both the Uniform Adminis-
trative Procedures Act, General Statutes § 4-183 et seq.,
which was enacted in Connecticut in 1972, and the
FOIA, which was enacted in 1975. In other words, at
the time § 12-170 was enacted, the legislature could not
have contemplated a need to protect the integrity of
the FOIC or any other agency’s role in administering
its statutory responsibilities. See Stepney, LLC v. Fair-
field, supra, 263 Conn. 565.
Nothing in the FOIA’s statutory scheme mandates
that any and all issues involving the FOIA always must
be raised to and resolved by the FOIC before any type
of action may be brought in Superior Court. In fact,
General Statutes § 1-242 suggests that the opposite is
true. Section 1-242 (a) provides in relevant part: ‘‘In any
action involving the assertion that a provision of the
[FOIA] has been violated or constitutes a defense, the
court to which such action is brought shall make an
order requiring the party asserting such violation or
defense, as applicable, to provide the [FOIC] with notice
of the action and a copy of the complaint and all plead-
ings in the action . . . .’’ Upon such notice, the FOIC
is authorized to seek to intervene in the action. In other
words, the legislature contemplated that actions might
be brought in court involving issues related to the appli-
cability and compliance with provisions of the FOIA,
and rather than imposing any blanket exhaustion
requirement, provided a means for the FOIC to inter-
vene in such action to protect its interests.13
Furthermore, we are not aware of any statute that
would confer any authority on the FOIC to impose
monetary penalties on board members, and the defen-
dants have cited to no such authority. In fact, they
conceded at oral argument before this court that the
FOIC could not grant the plaintiff the relief provided
for under the statute. Accordingly, even if it is within
the FOIC’s administrative expertise to determine
whether the board or any member had complied with
particular FOIA requirements, it would have been futile
for the plaintiff to have filed an administrative appeal
in this matter because the FOIC lacked the ability to
provide the plaintiff with the relief he requested,
namely, the imposition of the relief provided for in § 12-
170. See Cummings v. Tripp, 204 Conn. 67, 80, 527
A.2d 230 (1987) (noting ‘‘administrative relief cannot
encompass a monetary award’’ and, if ‘‘administrative
relief is inadequate, we do not require a party to exhaust
administrative remedies’’). In order to obtain the statu-
tory relief he sought, a civil action in Superior Court
was inevitable. Although the plaintiff ultimately might
be unable to prove the existence of the type of unlawful
act or omission contemplated to sustain a cause of
action under § 12-170, such consideration is immaterial
to the question of whether the court lacked jurisdiction
to consider the plaintiff’s action because of the doctrine
of exhaustion of administrative remedies.
There is nothing in the record before us from which
to conclude that the legislature intended that a plaintiff
seeking to recover under § 12-170 first must exhaust
any and all administrative remedies. If the legislature
believed that the remedy it had provided in § 12-170
required reformation in light of its adoption of adminis-
trative law procedures, it could have amended the stat-
ute. For example, it could have defined or limited the
types of unlawful acts or omissions that the statute was
intended to remedy, or included language that would
require a plaintiff to exhaust any available administra-
tive remedies if the allegations of unlawfulness con-
cerned violations of agency rules or regulations. We do
not need to resolve whether § 12-170 is outmoded or
anachronistic, or whether the legislature’s failure to
amend or repeal it reflects an oversight or a conscious
intention to retain an existing, independent cause of
action.14 It suffices that there is nothing in § 12-170’s
unambiguous language or its relationship to the admin-
istrative scheme that suggests any intent on the part of
the legislature to incorporate an exhaustion
requirement.
We observe that the present case does not fall neatly
into the category of cases in which the exhaustion doc-
trine commonly arises. This case is not one in which
a litigant has merely skipped over a step in the ordinary
administrative appeal process by, for example, appeal-
ing directly to the Superior Court from the decision of
an agency or hearing officer without first engaging the
agency’s own appellate body. See State ex rel. Golembe-
ske v. White, 168 Conn. 278, 282, 362 A.2d 1354 (1975).
Here, the plaintiff followed the administrative path set
forth by the legislature for appealing his tax assessment
to the board. Further, review of the board’s decision
ordinarily would have been by appeal to the Superior
Court. See General Statutes § 12-117a. The board, how-
ever, took no final action on the plaintiff’s tax appeal
prior to his filing this civil action. Instead, the scenario
at issue in the present case is much more akin to cases
in which the Superior Court has jurisdiction over a
matter but that matter involves issues implicating the
expertise and decision-making authority of an adminis-
trative agency—in this case, the FOIC. Any abstention
by the court in resolving the present matter thus falls
closer to the doctrine of primary jurisdiction than impli-
cating the exhaustion doctrine. See footnote 10 of this
opinion. In other words, if the trial court believed that
the FOIC should be asked to resolve in the first instance
whether board members had violated substantive provi-
sions of the FOIA, the court could have stayed the
matter and referred the case to the FOIC for consider-
ation, rather than dismissing the action for lack of sub-
ject matter jurisdiction.
Having determined that no express or implied legisla-
tive intent existed to impose an exhaustion require-
ment, we examine the trial court’s rationale for reaching
a contrary conclusion. In granting the defendant’s
motion to dismiss, the trial court appears to have
focused too narrowly on the plaintiff’s allegations of
FOIA violations. A complaint, like any pleading, prop-
erly must be viewed in its entirety and with an eye
toward finding jurisdiction over the claims asserted,
not the opposite. See Parsons v. United Technologies
Corp., 243 Conn. 66, 83, 700 A.2d 655 (1997) (noting
Connecticut follows modern trend of construing plead-
ings broadly and that any complaint ‘‘must be read in
its entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded’’ (internal quotation marks omitted)); see also
Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009)
(noting ‘‘well established notion that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged’’
(internal quotation marks omitted)).
Here, the court construed the complaint principally
as one seeking administrative review of the underlying
property assessment appeal procedures and deter-
mined that the plaintiff first was required to file an
administrative action with the FOIC. The court refers
to § 4-183 despite the fact that the complaint contains
no specific claim of error directed at any particular
administrative ruling. The court further failed properly
to account for express allegations in the complaint that
directly contradict the court’s construction.
In determining the cause of action alleged in the
complaint and whether the plaintiff was required to
exhaust any available administrative remedies, the
court should have focused on the relief that the plaintiff
sought. In the section of the complaint captioned ‘‘Relief
Sought,’’ the plaintiff expressly states: ‘‘This complaint
is not about an assessment appeal; it’s squarely focused
on official misconduct.’’ Although such a statement is
not binding on the court’s interpretation of the pleading
as a whole, when viewed in the light most favorable to
the plaintiff and to upholding the court’s jurisdiction,
it nonetheless supports a conclusion that the plaintiff’s
intent was not to file an administrative appeal but a
civil action seeking statutory civil penalties for official
misconduct as authorized by our legislature.
Moreover, in analyzing whether the plaintiff failed to
exhaust administrative remedies, the court appears to
have failed to consider whether the FOIC had any
authority to provide the plaintiff with adequate relief.
Although we have concluded that § 12-170 does not
require the exhaustion of administrative remedies prior
to filing an action with Superior Court, even if we con-
cluded to the contrary that the exhaustion doctrine
applied to § 12-170, an exception would exist because,
as we already have concluded, the FOIC lacked any
authority to grant the specific relief contemplated under
the statute, and, therefore, any administrative appeal
would have been futile and not a jurisdictional prerequi-
site to filing an action in Superior Court.
We conclude that the court improperly granted the
motion to dismiss on the ground that it lacked subject
matter jurisdiction because the plaintiff failed to
exhaust administrative remedies. That conclusion, how-
ever, is not fully dispositive of the present appeal
because the court also concluded as an independent
basis for granting the defendants’ motion that, even if
the plaintiff could bring a statutory cause of action
pursuant to § 12-170 directly to Superior Court, the fac-
tual allegations in his complaint were legally insufficient
to maintain such an action. We now turn to that issue.
II
Having concluded that the plaintiff did not fail to
exhaust his administrative remedies, we turn to the
plaintiff’s claim that the court also improperly granted
the motion to dismiss on the ground that he failed to
include sufficient factual allegations in the complaint
demonstrating that each individual defendant had
engaged in some unlawful act, or had failed to perform
some mandatory act, connected to his tax assessment.
We conclude that the plaintiff’s complaint failed, as a
matter of law, to sufficiently allege a cause of action
pursuant to § 12-170.
Before addressing the merits of this claim, we first
turn to the plaintiff’s argument, raised for the first time
on appeal, that the motion to dismiss was not the proper
procedural means for the defendants to challenge the
legal sufficiency of the complaint. Because we conclude
that the plaintiff waived any procedural irregularity by
failing to raise that issue to the trial court, it cannot
provide a sound basis for reversing the substance of
the court’s ruling on the motion to dismiss.
A
In addition to concluding that the plaintiff had failed
to exhaust his administrative remedies, the court also
granted the motion to dismiss on the basis of the legal
insufficiency of the complaint’s factual allegations.
Ordinarily, a motion to strike, and not a motion to
dismiss, is the proper means ‘‘to contest . . . the legal
sufficiency of the allegations of any complaint . . . .’’
Practice Book § 10-39.
In Egri v. Foisie, 83 Conn. App. 243, 247–50, 848 A.2d
1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004),
this court reversed the trial court’s judgment granting
a motion to dismiss that had challenged the legal suffi-
ciency of the plaintiff’s complaint, concluding that the
trial court should have denied the defendant’s motion
because it was improperly utilized to achieve the goal
of a motion to strike. This court considered the distinct
functions of the motion to dismiss and the motion to
strike, noting that ‘‘[t]here is a significant difference
between asserting that a plaintiff cannot state a cause
of action and asserting that a plaintiff has not stated a
cause of action, and therein lies the distinction between
the motion to dismiss and the motion to strike.’’
(Emphasis in original) Id., 247. ‘‘A motion to dismiss
does not test the sufficiency of a cause of action and
should not be granted on other than jurisdictional
grounds.’’ (Internal quotation marks omitted.) Id., 248.
It is axiomatic that a complaint that fails to allege
enough facts to state a legally sufficient cause of action
remains ‘‘within the trial court’s subject matter jurisdic-
tion, albeit subject to a motion to strike for failure to
state a legally sufficient claim . . . .’’ (Internal quota-
tion marks omitted.) Id., 249, citing Gurliacci v. Mayer,
218 Conn. 531, 545, 590 A.2d 914 (1991). Permitting a
motion to dismiss to challenge the legal sufficiency of
pleadings would be especially unfair to the plaintiff
given that ‘‘the rule of court . . . granting a right to
plead over after [the motion to strike] would not apply
to [a] motion to dismiss.’’ (Internal quotation marks
omitted.) Egri v. Foisie, supra, 83 Conn. App. 248. Thus,
the distinction between the motion to dismiss and the
motion to strike is not merely semantic. Whereas the
granting of a motion to dismiss terminates an action
save for the right to appeal the dismissal, the granting
of a motion to strike affords a party the right to amend
any deficiency by repleading. See Practice Book § 10-
44.
In Larobina v. McDonald, 274 Conn. 394, 399–403,
876 A.2d 522 (2005), the Supreme Court considered an
analogous issue, namely, whether a motion for sum-
mary judgment, rather than a motion to strike, properly
could be used to challenge the legal sufficiency of a
complaint. As is the case with a judgment granting a
motion to dismiss, a plaintiff is not entitled to replead
following the granting of a motion for summary judg-
ment. See id., 401 (‘‘use of a motion for summary judg-
ment instead of a motion to strike may be unfair to the
nonmoving party because [t]he granting of a defendant’s
motion for summary judgment puts the plaintiff out of
court . . . [while the] granting of a motion to strike
allows the plaintiff to replead his or her case’’ (internal
quotation marks omitted)). The Supreme Court none-
theless held that ‘‘we will not reverse the trial court’s
ruling on a motion for summary judgment that was used
to challenge the legal sufficiency of the complaint when
it is clear that the motion was being used for that pur-
pose and the nonmoving party, by failing to object to the
procedure before the trial court, cannot demonstrate
prejudice. A plaintiff should not be allowed to argue to
the trial court that his complaint is legally sufficient
and then argue on appeal that the trial court should
have allowed him to amend his pleading to render it
legally sufficient. Our rules of procedure do not allow
a [party] to pursue one course of action at trial and
later, on appeal, argue that a path he rejected should
now be open to him. . . . To rule otherwise would
permit trial by ambuscade.’’ (Internal quotation marks
omitted.) Id., 402.
Accordingly, as this court recently explained, ‘‘[t]o
avoid waiving a right to replead, a nonmoving party
must, before the trial court decides the summary judg-
ment motion, either object to the trial court’s deciding
the case through summary judgment and argue that it
should instead decide the motion as a motion to strike
to afford it the opportunity to replead a legally sufficient
cause of action or, in the alternative, the nonmoving
party may maintain that its pleading is legally sufficient,
but it must offer to amend the pleading if the court
concludes otherwise. See American Progressive Life &
Health Ins. Co. of New York v. Better Benefits, LLC,
292 Conn. 111, 124, 971 A.2d 17 (2009) (‘a party does not
waive its right to replead by arguing that the pleading
is legally sufficient, but offering, if the court were to
conclude otherwise, to amend the pleading’).’’ (Empha-
sis added.) Streifel v. Bulkley, 195 Conn. App. 294, 302,
224 A.3d 539, cert. denied, 335 Conn. 911, 224 A.3d 539(2020). We can discern no reason not to employ this
same analysis to claims that the trial court improperly
considered the legal sufficiency of a complaint in adjudi-
cating a motion to dismiss.
On appeal, the plaintiff argues that a motion to dis-
miss was not the proper procedural vehicle to address
alleged insufficient factual allegations in his complaint.
The plaintiff admitted at oral argument before this
court, however, that he never made this procedural
argument to the trial court in opposition to the motion
to dismiss. On appeal, although the plaintiff now argues
that the defendants should have filed a motion to strike
rather than a motion to dismiss, he does not explain
how he was prejudiced by this procedural irregularity,
i.e., he does not claim that he asked for an opportunity
to replead or that, if the court had provided him with
such an opportunity, he would have alleged additional
factual allegations in support of his action. Because the
plaintiff waived any objection to the use of the motion
to dismiss to challenge the legal sufficiency of the com-
plaint, and he does not complain that he was prejudiced,
we decline to consider this claim on appeal. We there-
fore turn to the merits of the trial court’s determination
that the complaint was legally insufficient, which pre-
sents a legal question over which we exercise plenary
review. Larobina v. McDonald, supra, 274 Conn. 403.
B
‘‘Connecticut is a fact pleading jurisdiction . . . .’’
White v. Mazda Motor of America, Inc., 313 Conn. 610,
626, 99 A.3d 1079 (2014). Therefore, a pleading must
‘‘contain a plain and concise statement of the material
facts on which the pleader relies, but not of the evidence
by which they are to be proved . . . .’’ Practice Book
§ 10-1. ‘‘The purpose of fact pleading is to put the defen-
dant and the court on notice of the important and rele-
vant facts claimed and the issues to be tried.’’ A.C.
Consulting, LLC v. Alexion Pharmaceuticals, Inc., 194
Conn. App. 316, 330, 220 A.3d 890 (2019). In considering
the legal sufficiency of a complaint, a court ‘‘take[s]
the facts to be those alleged in the [pleading] . . . and
[it] construe[s] the [pleading] in the manner most favor-
able to sustaining its legal sufficiency.’’ (Internal quota-
tion marks omitted.) Fort Trumbull Conservancy, LLC
v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In
considering whether sufficient facts have been alleged
that, if provable, would support a cause of action, how-
ever, a court will not consider mere legal conclusions
or the truth or accuracy of opinions stated in the plead-
ings. See Faulkner v. United Technologies Corp., 240
Conn. 576, 588, 693 A.2d 293 (1997).
As indicated in part I of this opinion, we construe the
plaintiff’s complaint as seeking relief for the defendants’
alleged violation of § 12-170. To state a cause of action
against an official pursuant to § 12-170, a plaintiff must
allege facts that, if proven, would establish that the
official engaged in some official misconduct by commit-
ting an unlawful act or failing to perform a necessary
act pertaining to a tax assessment. Even construing the
allegations set forth in the complaint in a light most
favorable to the plaintiff, we agree with the assessment
of the trial court that the plaintiff’s complaint failed to
allege sufficient facts to state a cause of action under
§ 12-170.
Although the plaintiff alleges in his complaint that
‘‘the defendants have created a cause of action under
§ 12-170’’ and ‘‘have committed criminal acts, multiple
violations of § 1-240 in their individual capacities,’’
those allegations are mere legal conclusions. He fails to
allege the material facts on which he relied in reaching
those legal conclusions. The plaintiff does not allege
that the defendants ever were criminally charged or
prosecuted for a misdemeanor violation of a prior FOIC
order pursuant to § 1-240.15 Indeed, he merely states
his opinion that such a violation occurred. Although
the plaintiff alleges that there was a lack of a quorum
to hear his appeal, the only factual inference to draw
from the allegations in the complaint was that the lack
of quorum was due to the plaintiff’s own request that
a majority of the board members recuse themselves,
which they did. The sole remaining board member pres-
ent, Attanasio, adjourned the hearing without taking any
action on the plaintiff’s appeal, which was, as alleged
in the complaint, precisely what the plaintiff had
requested.
There are no allegations in the complaint that the
individual members acted outside their duties as board
members, for example, by conspiring to deprive the
plaintiff of a fair hearing or acting out of corruption
or undue influence. The only factual allegation in the
complaint of individual acts or omissions by the defen-
dants Foley, Hughes, and Mather directly related to
the plaintiff’s tax assessment was that they recused
themselves in the face of the plaintiff’s request for recu-
sal. An allegation that an individual board member
recused himself or herself from deliberations when
requested by a party to do so cannot, without some
additional factual allegations, which are absent in this
complaint, amount to an illegal act or omission of a
necessary act constituting official misconduct. The only
factual allegations regarding Attanasio’s action are that
he adjourned the hearing after the plaintiff raised that
the board no longer had a quorum present to hear his
appeal and that he signed the notice and hearing
minutes sent to the plaintiff indicating that the board
had taken no action on the appeal. Again, those allega-
tions, even if true, would not in and of themselves
support the plaintiff’s legal conclusion that Attanasio
engaged in official misconduct. Although the plaintiff
alleged that he construed the statement ‘‘take no
action,’’ as set forth in the hearing minutes and notice,
as being a denial of his appeal, that is an opinion or
legal conclusion that is not binding on this court in
considering whether the complaint was legally suffi-
cient regarding its assertion of official misconduct. See
Faulkner v. United Technologies Corp., supra, 240
Conn. 588.
This court asked the plaintiff at oral argument to
identify those specific allegations in the complaint that,
if true, would support his assertion that the individual
defendants, and not the board generally, engaged in
misconduct. He was unable to direct us to any such
specific factual allegations. His brief contains a chart
that he claims demonstrates that his complaint was
‘‘riddled with such allegations that would support a
finding of a violation of [§] 12-170,’’ but that chart,
which makes reference to nearly every paragraph of
the complaint, is not accompanied by any analysis of
a particular allegation or its relevance to the issue of
legal sufficiency.
Contrary to the plaintiff’s argument on appeal, and
consistent with the ruling of the trial court, we conclude
that the complaint fails to allege any act or omission
by an individual defendant, that, if established as true,
could satisfy the plaintiff’s burden of demonstrating an
unlawful act or omission necessary to prevail under
§ 12-170. Accordingly, the trial court properly deter-
mined that the complaint was insufficiently pleaded,
and, because the plaintiff never raised his inability to
replead as an issue before the trial court, the court’s
granting of the motion to dismiss was not reversible
error.
The form of the judgment is improper; the judgment
dismissing the complaint is reversed, and the case is
remanded with direction to render judgment for the
defendants.
In this opinion the other judges concurred.
1
General Statutes § 12-170 provides in relevant part: ‘‘Each . . . member
of the board of assessment appeals . . . who does any unlawful act or
omits to do any necessary act connected with the levy, assessment or
collection of any tax, shall forfeit fifty dollars to the person aggrieved
thereby, to be collected by such person in an action on this statute . . . .’’
2
The defendants are Tony Attanasio, Michael Foley, Patrick Hughes, and
William W. Mather III.
3
As we discuss in part II of this opinion, the plaintiff waived any claim
that a motion to dismiss was not the proper vehicle for challenging the legal
sufficiency of his complaint.
4
In their brief, the defendants label the plaintiff a ‘‘serial abuser’’ of the
Freedom of Information Act (FOIA), General Statutes § 1-200 et seq., and
describe in some detail the plaintiff’s past interactions with town officials
related to what the defendants characterize as ‘‘the plaintiff’s FOIA obses-
sion.’’ The defendants attached documents in support of these assertions
as exhibits to their motion to dismiss that are part of the record on appeal.
5
The plaintiff successfully has challenged previous assessments on the
same vehicles. The gravamen of the plaintiff’s argument is that the values
attributed to his vehicles, which are provided to the town assessor’s office
by the state, are based on data that does not properly take into account the
actual condition of his vehicles, resulting in a purported overvaluation and,
correspondingly, an unfair tax assessment.
6
According to the meeting minutes, the board’s fifth member, Susan Gra-
ham, was absent.
7
The meeting minutes indicate that Foley’s and Hughes’ recusals were
precipitated by the plaintiff having filed a motion asking that they have
nothing to do with his appeal.
8
The minutes of the hearing indicate that the plaintiff also suggested that
Foley, Hughes, and Mather resign from the board and that new members
be appointed.
9
General Statutes § 1-206 (b) (1) provides in relevant part: ‘‘Any person
. . . wrongfully denied the right to attend any meeting of a public agency
or denied any other right conferred by the Freedom of Information Act may
appeal therefrom to the Freedom of Information Commission, by filing a
notice of appeal with said commission. . . .’’
10
Many of the policy considerations underlying the exhaustion of adminis-
trative remedies doctrine are equally applicable to a related abstention
doctrine—namely, the doctrine of primary jurisdiction or prior resort. See
Sharkey v. Stamford, 196 Conn. 253, 255–56, 492 A.2d 171 (1985) (discussing
difference between doctrines of exhaustion of administrative remedies and
primary jurisdiction). It is helpful to our discussion to briefly set forth
the interplay between these two doctrines. ‘‘The doctrine of exhaustion of
administrative remedies contemplates a situation where some administrative
action has begun, but has not yet been completed; where there is no adminis-
trative proceeding under way, the exhaustion doctrine has no application.
In contrast, primary jurisdiction situations arise in cases where a plaintiff,
in the absence of pending administrative proceedings, invokes the original
jurisdiction of a court to decide the merits of a controversy.’’ Id.‘‘The doctrine of primary jurisdiction, like exhaustion, is grounded in a
policy of fostering an orderly process of administrative adjudication and
judicial review in which a reviewing court will have the benefit of the
agency’s findings and conclusions. . . . Ordinarily, a court should not act
upon subject matter that is peculiarly within the agency’s specialized field
without giving the agency an opportunity to apply its expertise, for otherwise
parties who are subject to the agency’s continuous regulation may become
the victims of uncoordinated and conflicting requirements. . . . Primary
jurisdiction is applied in order to ensure that an orderly procedure will be
followed, whereby the court will ultimately have access to all the pertinent
data, including the opinion of the agency. . . . [If] an action raises a question
concerning the validity of an agency practice, the doctrine is particularly
applicable. . . . The aim is to prevent disjointed, uncoordinated, and prema-
ture decisions affecting policy. . . .
‘‘There are instances, however, in which the application of the doctrine
[of primary jurisdiction] will not serve these interests. The controversy may
turn on a question of pure law which has not been committed to agency
discretion. . . . Further, resort to agency proceedings may be futile and
might also work severe harm on the party seeking relief.’’ (Citations omitted;
internal quotation marks omitted.) Id., 256–57. Importantly, unlike the doc-
trine of exhaustion of administrative remedies, which, as indicated, impli-
cates the subject matter jurisdiction of the court; see Stepney, LLC v. Fair-
field, supra, 263 Conn. 563; ‘‘[t]he doctrine of primary jurisdiction is a rule
of judicial administration created by court decision . . . .’’ Waterbury v.
Washington, 260 Conn. 506, 574, 800 A.2d 1102 (2002); see also State ex rel.
Golembeske v. White, 168 Conn. 278, 281, 362 A.2d 1354 (1975) (‘‘doctrine
of primary jurisdiction is invoked only to determine who will initially decide
an issue . . . it cannot operate to divest a court of its ultimate jurisdiction’’
(citation omitted)). Thus, if applicable, the court ordinarily retains jurisdic-
tion and ‘‘the judicial process is suspended pending referral of such issues
to the administrative body for its views.’’ (Internal quotation marks omitted.)
Waterbury v. Washington, supra, 574. Whether to remand to an agency in
a particular case is a discretionary matter for the trial court. Id., 575.
11
General Statutes § 4-183 (a) provides in relevant part: ‘‘A person who
has exhausted all administrative remedies available within the agency and
who is aggrieved by a final decision may appeal to the Superior Court as
provided in this section. . . .’’ (Emphasis added.)
12
See General Statutes (1887 Rev.) § 3895, which provides in relevant
part: ‘‘Any assessor, member of the board of relief, selectman, committee,
or collector, who shall do any unlawful act, or omit to do any necessary
act connected with the levy, assessment, or collection of any tax, shall
forfeit five dollars to the person aggrieved thereby, and any collector who
shall charge or receive any illegal fees shall, in addition to said sum of five
dollars, also forfeit double the amount of such illegal fees to the person
aggrieved.’’
13
There is nothing in the record indicating that § 1-242 was brought to
the attention of the trial court.
14
We note that the $50 statutory penalty has not been increased in more
than fifty years; see Kraus v. Klee, 5 Conn. Cir. 193, 194 n.1, 248 A.2d 515(1968); effectively limiting any intended deterrent effect of the statute.
15
General Statutes § 1-240 (b) provides: ‘‘Any member of any public agency
who fails to comply with an order of the [FOIC] shall be guilty of a class
B misdemeanor and each occurrence of failure to comply with such order
shall constitute a separate offense.’’