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*********************************************** 
GEORGE BERKA v. CITY OF MIDDLETOWN

(AC 39579)

Lavine, Sheldon and Harper, Js.

Syllabus

The plaintiff appealed to this court from the judgment of the trial court

dismissing his administrative appeal from the decision by the state

Department of Health (department) finding in favor of the defendant

city of Middletown concerning two municipal health orders that had

been issued against the plaintiff, which related to violations of various

statutes and city ordinances at the plaintiff’s property. In his administrative citation, the plaintiff had named only the city as the sole defendant

and the state marshal’s return of service indicated that he served the

city only. The city filed a motion to dismiss the plaintiff’s administrative

appeal for the plaintiff’s failure to name the department as a party. In

response, the plaintiff filed an opposition and a motion to cite in the

department as a party to his administrative appeal. The trial court, in

granting the city’s motion to dismiss, concluded that it lacked subject

matter jurisdiction solely due to the plaintiff’s failure to name the department as a party, noting that it was required to rule on the jurisdictional

issue raised by the city’s motion to dismiss before allowing the plaintiff

to amend his complaint. On appeal, the plaintiff claimed that the department acted improperly by not informing him that it needed to be named

as a party and that the trial court’s dismissal of his administrative action

deprived him of due process. Held that the trial court properly granted

the city’s motion to dismiss the plaintiff’s administrative appeal due to

the plaintiff’s failure to timely serve the department pursuant to statute

(§ 4-183 [d]); although it was improper for the trial court to dismiss the

plaintiff’s appeal simply because he failed to name the department in

his citation, as an arguable defect in process no longer implicates the

trial court’s subject matter jurisdiction, because the department was

the agency that rendered the final decision challenged by the plaintiff,

the plaintiff was required pursuant to § 4-183 (d) to timely serve his

administrative appeal on the department and his failure to do so deprived

the trial court of subject matter jurisdiction.

Argued November 13, 2017—officially released April 17, 2018

Procedural History

Appeal from a decision issued by the Department of

Public Health, brought to the Superior Court in the

judicial district of Middlesex, where the court, Vitale, J.,

granted the defendant’s motion to dismiss and rendered

judgment dismissing the appeal, from which the plaintiff appealed to this court. Affirmed.

George Berka, self-represented, the appellant

(plaintiff).

Brig Smith, for the appellee (defendant).
Opinion

PER CURIAM. The principal issue in this appeal is

whether the trial court properly dismissed the self-represented plaintiff’s administrative appeal on the ground

that it lacked subject matter jurisdiction due to the

plaintiff’s failure to name the state of Connecticut

Department of Public Health (department) as a party

in his administrative citation. On appeal, the self-represented plaintiff, George Berka, claims first that the

department acted improperly by not informing him that

it needed to be named as a party and, second, that the

trial court’s dismissal of his appeal deprived him of due

process. We disagree with the trial court’s conclusion

that the plaintiff’s failure to name the department

deprived it of subject matter jurisdiction. We conclude,

however, that the trial court lacked subject matter jurisdiction due to the plaintiff’s failure to serve his administrative appeal on the department. Accordingly, we

affirm the judgment of the trial court.1

The record reveals the following facts and procedural

history that are relevant. This appeal stems from two

municipal health orders—one dated October 30, 2014,

and the other dated November 21, 2014—issued by the

defendant, the city of Middletown, acting through its

municipal department of public health, regarding violations of various statutes and city ordinances at the

plaintiff’s property. The plaintiff challenged the orders

by filing an appeal with the department. See General

Statutes § 19a-229. A consolidated administrative

appeal hearing relating to both orders took place on

February 20, 2015.

The department issued a final memorandum of decision finding in favor of the defendant on January 26,

2016. See General Statutes §§ 4-179 and 4-180. The plaintiff subsequently appealed from that decision to the

Superior Court. In his administrative citation, the plaintiff indicated that there was only one defendant and

named the ‘‘city of Middletown’’ as that defendant.2

The state marshal’s return of service indicated that, on

February 4, 2016, he served only the ‘‘city of Middletown.’’3

On May 26, 2016, the defendant filed a motion to

dismiss the plaintiff’s administrative appeal due, in part,

to the plaintiff’s failure to name the department as a

party. The plaintiff filed his opposition on May 27, 2016,

noting that ‘‘the department of public health shall be

added as a party to this action, as requested.’’ He then

filed a motion to cite in the department as a party to

his administrative appeal in the Superior Court on June

24, 2016, which the defendant opposed.

In its July 15, 2016 memorandum of decision, the

court concluded that it lacked subject matter jurisdiction solely due to the plaintiff’s failure to name the

department as a party and, therefore, granted the defen-
dant’s motion to dismiss. The court also noted that it

was required to rule on the jurisdictional issue raised

by the defendant’s motion to dismiss before allowing

the plaintiff to amend his complaint. The plaintiff now

appeals. Additional facts will be set forth as necessary.

‘‘In an appeal from the granting of a motion to dismiss

on the ground of subject matter jurisdiction, this court’s

review is plenary. 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. . . . It

is a familiar principle that a court which exercises a

limited and statutory jurisdiction is without jurisdiction

to act unless it does so under the precise circumstances

and in the manner particularly prescribed by the

enabling legislation.’’ (Citations omitted; internal quotation marks omitted.) Searles v. Dept. of Social Services,

96 Conn. App. 511, 513, 900 A.2d 598 (2006); see also

Kindl v. Dept. of Social Services, 69 Conn. App. 563,

566, 795 A.2d 622 (2002) (plenary review applies to

court’s construction of statute). ‘‘[W]e are mindful of

the well established notion that, in determining whether

a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.’’ (Footnote omitted; internal quotation marks omitted.)

Cuozzo v. Orange, 315 Conn. 606, 614, 109 A.3d 903

(2015).

We also acknowledge that the plaintiff is a self-represented litigant. ‘‘[I]t is the established policy of the Connecticut courts to be solicitous of [self-represented]

litigants and when it does not interfere with the rights

of other parties to construe the rules of practice liberally

in favor of the [self-represented] party . . . we are

also aware that [a]lthough we allow [self-represented]

litigants some latitude, the right of self-representation

provides no attendant license not to comply with relevant rules of procedural and substantive law.’’ (Internal

quotation marks omitted.) Darin v. Cais, 161 Conn.

App. 475, 481, 129 A.3d 716 (2015).

The defendant argues that we should affirm the dismissal of the plaintiff’s administrative appeal due to the

plaintiff’s failure to cite the department as a party. As

it did before the trial court, the defendant relies on this

court’s decision in Nanavati v. Dept. of Health Services,

6 Conn. App. 473, 474–76, 506 A.2d 152 (1986) (failure

to cite proper agency as defendant to administrative

appeal deprived court of subject matter jurisdiction).

Nanavati and the cases that cite it, however, either

precede or fail to consider the extensive legislative revisions and judicial gloss given to General Statutes § 4-

183 over the past thirty-two years. On the basis of those

developments, we conclude that the trial court improperly dismissed the plaintiff’s appeal simply because he
failed to name the department in his citation.

Due to the strict nature of administrative appeals,

both our Supreme Court and this court previously have

held that a court lacks subject matter jurisdiction over

an administrative appeal when a plaintiff fails properly

to name a necessary party in a citation. See Donis v.

Board of Examiners in Podiatry, 207 Conn. 674, 682–

83, 542 A.2d 726 (1988); Village Creek Homeowners

Assn. v. Public Utilities Commission, 148 Conn. 336,

338–39, 170 A.2d 732 (1961); Shapiro v. Carothers, 23

Conn. App. 188, 191, 579 A.2d 583 (1990); Nanavati v.

Dept. of Health Services, supra, 6 Conn. App. 474–76.

In Tolly v. Dept. of Human Resources, 225 Conn.

13, 621 A.2d 719 (1993), however, our Supreme Court

signaled a departure from the once ironclad rule that

any deviation from § 4-183 deprives the court of subject

matter jurisdiction.4 See, e.g., Kindl v. Dept. of Social

Services, supra, 69 Conn. App. 574. Tolly held that

untimely service of an administrative appeal on an

agency deprives the court of subject matter jurisdiction,

but ‘‘arguable defects’’ in process render the appeal

‘‘dismissable only upon a finding of prejudice to the

agency.’’5 Tolly v. Dept. of Human Resources, supra,

28–29; see also Yellow Cab Co. of New London & Groton.

Inc. v. Dept. of Transportation, 127 Conn. App. 170,

177, 13 A.3d 690 (‘‘[a]bsent a complete failure to serve

a party, defective service in an administrative appeal is

dismissable only upon a finding of prejudice to the

party’’ [emphasis altered]), cert. denied, 301 Conn. 908,

19 A.3d 178 (2011); 1 R. Bollier et al., Stephenson’s

Connecticut Civil Procedure (3d Ed. 2014 Supp.) § 62,

p. S-114 (‘‘the defect in service should be shown to

somehow prejudice that party in some way’’). In reaching this conclusion, the court in Tolly harmonized the

conflicting subsections of § 4-183 (c) and (d).6 See Bittle

v. Commissioner of Social Services, 249 Conn. 503, 522

n.14, 734 A.2d 551 (1999). As the court in Bittle noted,

‘‘[§] 4-183 (d) provides a standard for dismissing appeals

when parties other than agencies are not served, or are

served with defective papers. This statutory standard is

met upon a showing of actual prejudicial consequences

stemming from a failure of service . . . .’’ (Emphasis

added.) Id., 521–22.

The trial court concluded that the plaintiff’s failure

to name the department in his administrative citation—

an arguable defect in the process—deprived it of subject

matter jurisdiction. In light of Tolly, that conclusion

was incorrect; arguable defects in process no longer

implicate the subject matter jurisdiction of the court.

Nonetheless, Tolly also made clear that, ‘‘[i]f there is

no service at all on the agency within the forty-five day

period, the court lacks subject matter jurisdiction over

the appeal by virtue of the clear implication of the

language in § 4-183 (c), read against the background of

the preexisting law.’’ Tolly v. Dept. of Human
Resources, supra, 225 Conn. 28.

It is undisputed that the department was the ‘‘agency’’

that rendered the final decision challenged by the plaintiff. See General Statutes § 4-166 (1). The plaintiff was

therefore required to timely serve his administrative

appeal on the department. See, e.g., Tolly v. Dept. of

Human Resources, supra, 225 Conn. 28. There is nothing in the record to suggest that he did so. Section 4-

183 (d) requires that the plaintiff file an affidavit or a

return from the marshal ‘‘stating the date and manner

in which a copy of the appeal was served . . . on the

agency that rendered the final decision, and, if service

was not made on a party, the reason for failure to make

service.’’ (Emphasis added.) The plaintiff did not file

an affidavit indicating that he served the department,

and the marshal’s return indicates that the administrative appeal was served only on the defendant. In fact,

the plaintiff concedes in his supplemental brief; see

footnote 5 of this opinion; that he did not serve the

department at any point in time. Accordingly, the trial

court properly granted the defendant’s motion to dismiss the plaintiff’s administrative appeal due to the

plaintiff’s failure to timely serve the department. See,

e.g., Geremia v. Geremia, 159 Conn. App. 751, 779, 125

A.3d 549 (2015) (appellate court ‘‘may affirm a trial

court’s proper decision, although it may have been

founded on a wrong reason’’); see also Practice Book

§ 10-33.7

The judgment is affirmed.

1 Because we conclude that the trial court properly dismissed the plaintiff’s

appeal due to a lack of subject matter jurisdiction, we do not reach the

plaintiff’s first claim. We also decline to address the plaintiff’s second claim

because it is inadequately briefed. See, e.g., Darin v. Cais, 161 Conn. App.

475, 483, 129 A.3d 716 (2015).

2

‘‘In administrative appeals, the citation is the writ of summons that

directs the sheriff or some other proper officer to seek out the defendant

agency and to summon it to a particular sitting of a particular court on a

specified day. . . . The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the

power and authority to execute its command.’’ (Citation omitted; internal

quotation marks omitted.) Tolly v. Dept. of Human Resources, 225 Conn.

13, 18, 621 A.2d 719 (1993). ‘‘The citation that is used to commence an

administrative appeal is analogous to the writ used to commence a civil

action.’’ (Internal quotation marks omitted.) Id., 20.

3 The plaintiff filed a Form JD–CV–1 summons in the Superior Court

directing the state marshal to serve his administrative appeal. See, e.g., State

v. Dyous, 153 Conn. App. 266, 279–80, 100 A.3d 1004 (appellate court may

take judicial notice of Superior Court filings), appeal dismissed, 320 Conn.

176, 128 A.3d 505 (2016) (certification improvidently granted).

4 We note that legislative revisions to the Uniform Administrative Procedures Act (UAPA); General Statutes § 4-166 et seq.; and subsequent appellate

decisions demonstrate a trend to construe the UAPA liberally in favor of

the court’s jurisdiction. See, e.g., Bittle v. Commissioner of Social Services,

249 Conn. 503, 509–15, 734 A.2d 551 (1999); Tolly v. Dept. of Human

Resources, supra, 225 Conn. 19, 28–29; Kindl v. Dept. of Social Services,

supra, 69 Conn. App. 575.

5 After oral argument, this court, sua sponte, ordered the parties to file

simultaneous briefs analyzing Tolly v. Dept. of Human Resources, supra,

225 Conn. 13, and its progeny. Neither party discussed that decision in its

initial brief, and instead principally relied on appellate authority that predated Tolly. As we explain in this opinion, the plaintiff’s administrative

appeal was properly dismissed in accordance with Tolly. In fact, both parties
acknowledge in their supplemental briefs that Tolly requires dismissal.

6 General Statutes § 4-183 (c) provides in relevant part: ‘‘[A] person appealing as provided in this section shall serve a copy of the appeal on the agency

that rendered the final decision at its office or at the office of the Attorney

General in Hartford . . . . [T]he person appealing shall also serve a copy

of the appeal on each party listed in the final decision . . . provided failure

to make such service within forty-five days on parties other than the agency

that rendered the final decision shall not deprive the court of jurisdiction

over the appeal. Service of an appeal shall be made by United States mail,

certified or registered, postage prepaid, return receipt requested, without

the use of a state marshal or other officer, or by personal service by a

proper officer or indifferent person making service in the same manner as

complaints are served in ordinary civil actions.’’ (Emphasis added.)

General Statutes § 4-183 (d) provides in relevant part: ‘‘The person appealing . . . shall filed or cause to be filed with the clerk of the court an affidavit,

or the state marshal’s return, stating the date and manner in which a copy

of the appeal was served on each party and on the agency that rendered

the final decision, and, if service was not made on a party, the reason for

failure to make service. If the failure to make service causes prejudice to

any party to the appeal or the agency, the court, after hearing, may dismiss

the appeal.’’ (Emphasis added.)

7 The defendant asks us to ‘‘reach the question of whether [the plaintiff]

can refile an action if the dismissal of this action is affirmed.’’ We decline

to do so.