Ertel v. Carothers

• Citation: 34 Conn.App. 18,639 A.2d 1055
• Decision Date: 05 April 1994
• Docket Number: No. 11351,11351
• Parties: Peter H. ERTEL v. Leslie CAROTHERS, Commissioner of Environmental Protection, et al.
• Court: Appellate Court of Connecticut

Page 1055

639 A.2d 1055

34 Conn.App. 18

Peter H. ERTEL v. Leslie CAROTHERS, Commissioner of Environmental Protection, et al.

No. 11351.

Appellate Court of Connecticut.

Argued Feb. 24, 1994.

Decided April 5, 1994.

Peter H. Ertel, pro se, the appellant (plaintiff).

David H. Wrinn, Assistant Attorney General, with whom, on the brief, was Richard Blumenthal, Attorney General, and Joseph Rubin, Assistant Attorney General, for the appellee (named defendant).

Before DUPONT, C.J., and LANDAU and HEIMAN, JJ.

PER CURIAM.

The plaintiff appeals from the judgment of the trial court dismissing the plaintiff's administrative appeal from the decision of the department of environmental protection. On appeal to the trial court, the plaintiff was obligated, by the provisions of General Statutes (Rev. to 1989 as in effect until July 1, 1989) § 4-183(b), ¹ to serve the appeal petition on the agency and all parties of record. The record discloses that the agency permitted Oak Leaf Marina, Inc., Scott Masse and Sherry Masse to become parties to these proceedings as intervenors, and, as parties, were entities that the plaintiff was required to serve pursuant to the statute.

Our review of the record reveals that the deputy sheriff, in attempting to serve Oak Leaf Marina, Inc., made service, according to his return, as follows: "Also on the 2nd day of June, 1989, I left a true and attested copy of the within original writ, summons and complaint/petition/appeal, motion for stay and unsigned order with and in the hands of Stephen Richard, Esquire, of the law firm of Robinson & Cole, who is authorized to accept service for the within named defendant, Oak Leaf Marina, Inc., in the Town of Hartford." The sheriff's return also indicates that service of the appeal documents was purportedly made on Scott Masse and Sherry Masse by service on attorney Stephen Richard of the law firm of Robinson & Cole, "who is authorized to accept service for the within named defendant[s] Scott Masse ... [and Sherry Masse] in the Town of Hartford."

General Statutes § 52-57(c) provides the method for service of process on private corporations, ² while subsection (a) ³ of that statute provides the method of making service of process on individual defendants in civil cases. The trial court found that no effective service was made on the corporate defendant nor was any proper in hand or abode service made on either Scott Masse or Sherry Masse. Because of the deficiency in the service of process on both the corporate party and the named individual parties, the trial court found that it lacked subject matter jurisdiction and dismissed the plaintiff's appeal. ⁴ We agree.

Appeals from administrative agencies exist only under statutory authority; Rose v. Freedom of Information Commission, 221 Conn. 217, 223, 602 A.2d 1019 (1992); and, to exercise the statutorily granted right of appeal, the appellant must strictly comply with the statutory authority by which the right of appeal is created. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163-64, 561 A.2d 931 (1989). Only the agency qualified for service by certified mail, and it was therefore incumbent on the plaintiff to make in hand or abode service on the individual parties pursuant to § 52-57(a) and by serving a proper corporate officer or listed employee as mandated by § 52-57(c). The plaintiff failed to do so. Rather, he served the attorney for the parties. Thus, the service failed to comply with the statutes.

"The appeal provisions of the statute are jurisdictional in nature"; Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985); thus, the failure of the plaintiff to comply strictly with the mandates of General Statutes (Rev. to 1989 as in effect until July 1, 1989) § 4-183(b) and General Statutes § 52-57(a) and (c) renders the appeal subject to dismissal for lack of subject matter jurisdiction in the trial court. Tarnopol v. Connecticut Siting Council, supra, 212 Conn. at 163, 561 A.2d 931; Once the matter of lack of subject matter jurisdiction comes to the attention of the trial court, even if it results from a suggestion of the trial court suo motu, the trial court can proceed no further until the issue is resolved. Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81 (1946); see also Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 851, 633 A.2d 305 (1993), (setting forth the right of the trial court to raise an issue of lack of subject matter jurisdiction sua sponte). "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found ... that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Practice Book § 145; see Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 557, 630 A.2d 1304 (1993).

We conclude that the trial court properly found a lack of subject matter jurisdiction...