Sokolovsky v. Mulholland

• Decision Date: 07 June 2022
• Docket Number: AC 43937
• Parties: Matvey SOKOLOVSKY v. William MULHOLLAND et al.
• Court: Connecticut Court of Appeals

213 Conn.App. 128

277 A.3d 138

Matvey SOKOLOVSKY

v.William MULHOLLAND et al.

AC 43937

Appellate Court of Connecticut.

Argued October 13, 2021

Officially released June 7, 2022

Matvey Sokolovsky, self-represented, the appellant (plaintiff).

Ryan J. McKone, North Haven, for the appellees (defendants).

Michael E. Roberts and Kimberly A. Jacobsen, Middletown, human rights attorneys, filed a brief on behalf of the Commission on Human Rights and Opportunities as amicus curiae.

Moll, Clark and Sheldon, Js.

CLARK, J.

The self-represented plaintiff, Matvey Sokolovsky, appeals from the judgment of the trial court granting a motion to dismiss filed by the defendants, the town of East Lyme; William Mulholland, zoning official; and Mark C. Nickerson, first selectman. Although the plaintiff's claims on appeal are not a model of clarity, he appears to argue that the court erred by concluding that (1) the ninety day time limitation set forth in General Statutes § 46a-101 (e)¹ for commencing an action in Superior Court pursuant to General Statutes § 46a-100² is subject matter jurisdictional, (2) his application for a waiver of fees did not commence the action, and (3) he was required to specially plead the continuing course of conduct doctrine in his complaint in order for the court to consider its effect on the limitation period. We conclude that the time limitation in § 46a-101 (e) is not subject matter jurisdictional but, rather, is mandatory and subject to consent, waiver, and equitable tolling. As a result, we reverse the judgment of the court and remand the case for further proceedings consistent with this opinion.

We begin by setting forth the relevant facts, as found by the trial court, in addition to the procedural history in this case. On September 20, 2017, the plaintiff filed a discrimination complaint with the Commission on Human Rights and Opportunities (commission) alleging that the town of East Lyme had discriminated against him on the basis of national origin by denying him equal services. On November 6, 2018, the commission issued a release of jurisdiction to the plaintiff, concluding that the evidence presented to it was insufficient to warrant further investigation. The release of jurisdiction stated: "The [c]omplainant must bring an action in Superior Court within [ninety] days of receipt of this release and within two years of the date of filing the complaint with the [c]ommission unless circumstances tolling the statute of limitations are present."

On January 31, 2019, the plaintiff filed an application for a waiver of fees with the Superior Court, which was granted on February 4, 2019. The defendants subsequently were served with a writ of summons and complaint on February 22, 2019, which was returned to the court on February 26, 2019.

On July 10, 2019, the defendants filed a motion to dismiss arguing that the court lacked subject matter jurisdiction pursuant to § 46a-101 (e) because the plaintiff had commenced the action more than ninety days after he had received the release of jurisdiction, also commonly known as a right to sue letter, from the commission. Before the court had rendered a decision, the commission filed an application requesting permission to file an amicus curiae brief addressing the question of whether the ninety day filing requirement in § 46a-101 (e) is subject matter jurisdictional. The court granted the application on November 7, 2019. In its brief, the commission argued that the ninety day time limitation should be interpreted as a mandatory, rather than a jurisdictional, time limitation.³ The defendants filed a reply brief arguing that the court need not address the jurisdictional issue because there was no dispute as to the mandatory nature of § 46a-101 (e). The court heard oral argument on the motion to dismiss on December 16, 2019, and issued its decision on January 15, 2020.

In its memorandum of decision, the court noted that the complaint was written in narrative form and that it had considered carefully the statements contained therein. The court observed that the plaintiff was claiming that the defendants were treating him in a discriminatory manner by treating him differently than his neighbors. The court explained: "First, the plaintiff alleges that, in 2017, the defendants failed to investigate the plaintiff's complaint against his neighbors for moving their shed closer to his property, which he believes does not comply with the town of East Lyme's zoning ordinances. Second, the plaintiff alleges that in May of 2017, Zoning Official William Mulholland, sent him a letter regarding a complaint made by the plaintiff's neighbors about multiple unregistered vehicles on his property in violation of the town of East Lyme's zoning ordinances. ... Specifically, the plaintiff alleges that he believes he was ‘held to a higher standard than [his] neighbors’ and that the ‘neighbors [were] allowed to violate zoning rules despite clear evidence of their violation.’ " (Footnote omitted.)

The court then addressed the defendants’ motion to dismiss. The court explained that there was a split of authority on the issue of whether the time limitation in § 46a-101 (e) is subject matter jurisdictional or mandatory and subject to equitable tolling. It noted, however, that the "majority of Superior Courts recognize that a plaintiff's failure to comply with the time limitation in § 46a-101 (e) deprives the court of subject matter jurisdiction." After discussing this apparent split of authority, the court "adopt[ed] the prevailing position among the Superior Courts and conclude[d] that the plaintiff's failure to meet the time limitation" of the statute required dismissal of the action.

The court went on to find that the plaintiff received the release of jurisdiction from the commission on November 6, 2018, but did not serve the defendants with a writ of summons and complaint until February 22, 2019. The court explained that, although the plaintiff had filed an application for a waiver of fees on January 31, 2019, it is well established that an action is commenced when the writ of summons and complaint have been served on the defendant. Accordingly, the court concluded that the plaintiff's complaint was commenced beyond the ninety day time limitation set forth in § 46a-101 (e).

Notwithstanding its determination that the time limitation in § 46a-101 (e) was subject matter jurisdictional and that the plaintiff's action had been untimely commenced, the court also addressed the plaintiff's argument that the continuing course of conduct doctrine tolled the limitation period. The court concluded that the continuing course of conduct doctrine must be pleaded in avoidance of the statute of limitations and that the plaintiff had "failed to plead the continuing course of conduct doctrine in his complaint." The court ultimately dismissed the plaintiff's complaint for lack of subject matter jurisdiction. This appeal followed.

I

We first address whether the ninety day time limitation of § 46a-101 (e) is subject matter jurisdictional. Several factors convince us that the ninety day time limitation for commencing an action in Superior Court pursuant to § 46a-100 is mandatory and not jurisdictional.

We begin by setting forth our standard of review. "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.)

Peters v. Dept. of Social Services , 273 Conn. 434, 441, 870 A.2d 448 (2005). "A determination regarding a trial court's subject matter jurisdiction is a question of law. When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. ... Our review of a trial court's ruling on a motion to dismiss is de novo and we indulge every presumption favoring jurisdiction ." (Citation omitted; emphasis added; internal quotation marks omitted.) Sempey v. Stamford Hospital , 180 Conn. App. 605, 612, 184 A.3d 761 (2018).

We next turn to the legal principles that underlie the plaintiff's claim. In Williams v. Commission on Human Rights & Opportunities , 257 Conn. 258, 259–60, 777 A.2d 645 (2001), our Supreme Court considered whether the statutory 180 day period set forth in General Statutes (Rev. to 2001) § 46a-82 (e), now codified at General Statutes § 46a-82 (f), for filing a discrimination complaint with the commission was subject matter jurisdictional. The court held that, although mandatory, "the 180 day time requirement for filing a discrimination petition pursuant to § 46a-82 (e) is not jurisdictional but, rather, is subject to waiver and equitable tolling." Id., at 264, 777 A.2d 645. In so doing, the court explained that "[a] conclusion that a time limit is subject matter jurisdictional has very serious and final consequences. It means that, except in very rare circumstances ... a subject matter jurisdictional defect may not be waived ... [and] may be raised at any time, even on appeal ... and that subject matter jurisdiction, if lacking, may not be conferred by the parties, explicitly or implicitly. ... Therefore, we have stated many times that there is a presumption in favor of subject matter jurisdiction, and we require a strong showing of legislative intent that such a time limit is jurisdictional." (Citations omitted.) Id., at 266, 777 A.2d 645.

The court also recognized that it previously had applied inconsistent approaches in determining whether a time limitation is jurisdictional. Id., at 267, 777 A.2d 645. "In [some] cases, the court, in discerning the intent of the legislature, at times [has] equated the intent of the legislature to create a mandatory limitation with the intent to create a subject matter jurisdictional limit." (Emphasis in original.) Id., at 268, 777 A.2d 645. In other cases, the court "implicitly [has held] that a conclusion that a time...