239 Conn. 437 | Conn. | 1996
Lead Opinion
The dispositive issue in this appeal is whether the mailing provisions of General Statutes § 4-180 (c)
The plaintiffs, Crest Pontiac Cadillac, Inc. (Crest), and Morande Brothers, Inc. (Morande), appeal separately from the trial court’s dismissal of their joint appeal of a ruling by the defendant department of motor vehicles (department)
The following facts are undisputed. On November 14, 1991, the department issued Gorin a license to sell Mazda automobiles. On November 21, 1991, Gorin and Mazda entered into a dealership agreement under which Gorin would sell Mazda automobiles at Gorin’s established Jaguar-Alfa Romeo dealership located at 170 Weston Street in Hartford.
On November 22, 1991, the plaintiffs filed a formal protest with the department because Mazda had not notified them of the agreement and because there had been no hearing as allegedly required by General Statutes § 42-133dd (a).
Between May 12,1993, and August 4,1993, the second hearing pursuant to § 42-133dd (a) was conducted before hearing officer Brian C. Carey. On July 27, 1994, Carey rendered a decision concluding that there was no good cause to deny Gorin a license to sell Mazdas. Carey’s final decision was mailed to the parties and their attorneys via “bulk certified mail” on Wednesday, July 27, 1994.
On September 6, 1994, within forty-five days of the mailing of the decision, the plaintiffs served notice of their appeal on all parties. On September 14,1994, forty-nine days after the decision had been mailed and forty-seven days after all parties had received it, the plaintiffs filed an appeal of the decision in the Superior Court.
The plaintiffs argue that the trial court improperly concluded that the mailing provisions of § 4-180 (c) (“United States mail, certified or registered, postage prepaid, return receipt requested”) were merely directory and that the department’s failure to comply with the mailing provisions did not free the plaintiffs from the statutory requirement that they file their appeal within forty-five days of the mailing of the department’s decision. Specifically, the plaintiffs assert that: (1) the subsection’s use of the word “shall” in setting forth the mailing provisions indicates their mandatory nature; (2) the mailing provisions are related to matters of substance and not merely an attempt to secure order, system and dispatch in proceedings; and (3) the legislative history of the statute indicates a legislative intent that
The plaintiffs recognize that failure to comply with this time limitation normally would deprive the court of subject matter jurisdiction. See footnote 9. They assert, however, that the limitation period of § 4-183 (c) should not be applied to their appeal because the department did not mail the hearing officer’s final decision by “certified or registered [mail], postage prepaid, return receipt requested,” as required by § 4-180 (c).
“Well established principles of statutory construction govern our determination of whether [a statute’s provisions are] mandatory or directory. Our fundamental objective is to ascertain and give effect to the apparent: intent of the legislature. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993); Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991).” Stewart v. Tunxis Service Center, 237 Conn. 71, 76-77, 676 A.2d 819 (1996).
“While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous; Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); our past decisions have indicated that the use of the word ‘shall,’ though significant, does not invariably create a mandatory duty. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985); Tramontano v. Dilieto, 192 Conn. 426, 433-34,
The plaintiffs claim that the mailing provisions go to matters of substance because § 4-180 (c) must be read in conjunction with § 4-183 (c). We disagree. Section 4-183 (c) does not state that the mailing provisions of § 4-180 (c) must be followed strictly, nor does it contain any language that would indicate a tolling of the statutory time for appeal if those provisions are not followed. Rather, it simply makes clear that the provision in § 4-180 (c) stating that an administrative decision is effective upon mailing or personal delivery establishes the date upon which the judgment becomes final for purposes of appellate review. Aggrieved parties then have forty-five days in which to file an appeal. Practice Book § 4000. Neither § 4-180 (c) nor § 4-183 (c) contains language that would invalidate an action that failed to
All of the parties assert that the legislative history of § 4-180 (c) supports their diametrically opposed interpretations of the statute. They each rely on the legislative history of the statute as amended during the 1988 February legislative session. The plaintiffs argue that the legislature would not have changed the language of § 4-180 (c) requiring the use of certified mail unless it had intended that change to have substantive effect. The defendants respond that the legislative change was simply a matter of making the process more convenient for the parties to an administrative appeal. It is understandable how these disparate arguments maybe drawn from the legislative history, because that history is sparse at best.
The mailing provisions at issue were added to § 4-180 (c) in 1988, as part of an overall restructuring of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. Public Acts 1988, No. 88-317, § 17. The sole evidence of any possible legislative intent behind the amendment of § 4-180 (c) is in a report presented to the joint committee on the judiciary by the law revision commission (commission). Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1988 Sess., pp. 377, 382-83. In 1985, the commission had begun a review of amendments to the UAPA that had been proposed by the Administrative Law Section of the Connecticut Bar Association. Id., p. 377. The commission report was the result of that review, and in the report the commission recommended a number of changes to the UAPA, some of which set new standards or procedures, others of which merely clarified previously established procedures. The amendments to the
In the absence of any language or history of § 4-180 (c) to indicate a legislative intent that the mailing provisions be mandatory, we conclude that those provisions are designed to promote order, system and dispatch in the proceedings, and as such are purely directory.
The judgment is affirmed.
In this opinion BORDEN, PALMER and PETERS, Js., concurred.
General Statutes § 4-180 (c) provides: “A final decision in a contested case shall be in writing or orally stated on the record and, if adverse to a party, shall include the agency’s findings of fact and conclusions of law necessary to its decision. Findings of fact shall be based exclusively on the evidence in the record and on matters noticed. The agency shall state in the final decision the name of each party and the most recent mailing address, provided to the agency, of the party or his authorized representative. The final decision shall be delivered promptly to each party or his authorized representative, personally or by United States mail, certified or registered,
The commissioner of motor vehicles was also named as a defendant in the trial court.
Gorin is no longer in business at this location. At oral argument the question was raised, sua sponte, as to whether this fact made the appeal moot. “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires . . . that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies, mid under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law. . . . [WJhere the question presented is purely academic, we must refuse to entertain the appeal.” (Citations omitted; internal quotation marks omitted.) Hallas v. Windsor, 212 Conn. 338, 347, 562 A.2d 499 (1989). “A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.” (Internal quotation marks omitted.) Id., 347-48.
We may retain jurisdiction, however, where the matter being appealed creates collateral consequences prejudicial to the interests of the appellant, even though developments during the pendency of the appeal would otherwise render it moot. Housing Authority v. Lamothe, 225 Conn. 757, 765,
General Statutes § 4-183 (c) provides: “Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, 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 and file the appeal with the clerk of the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of Hartford-New Britain. Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the 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 the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.”
The Weston Street location is approximately eight miles from Crest’s dealership in Newington and approximately seven miles from Morande’s dealership in Manchester. This location is thus within the plaintiffs’ “relevant market area” as defined by General Statutes § 42-133r (14) (relevant market
General Statutes § 42-133dd (a) provides: “In the event that a manufacturer or distributor seeks to enter into a franchise establishing a new dealer or relocating an existing dealer within or into a relevant market area where the same line make is then represented, the manufacturer or distributor shall in writing, by certified mail, first notify the commissioner and each dealer in such line make in the relevant market area of its intention to establish a new dealer or to relocate an existing dealer within or into that market area. Within twenty days of receiving such notice or within twenty days alter the end of any appeal procedure provided by the manufacturer or distributor, any such dealer may file with the commissioner a protest concerning the establishing or relocating of such new or existing dealer. When such a protest is filed, the commissioner shall inform the manufacturer or distributor that a timely protest has been filed, and that the manufacturer or distributor shall not establish or relocate the proposed dealer until the commissioner has held a hearing, nor thereafter, if the commissioner determines that, there is good cause for denying the establishment or relocation of such dealer. This section shall not apply to the sale, lease or transfer of ownership of an active, exist ing dealer, nor shall any provision of this section prohibit a manufacturer from entering into a franchise arrangement with a successor dealer at the same location."
General Statutes § 42-133dd (b) provides: “This section shall not apply to (1) t he relocation of an existing dealer within that dealer’s area of responsibility under its franchise, provided that the relocation shall not be at a site within six miles of a licensed dealer for the same line make of motor vehicle or (2) the appointment of a dealer in the same relevant market area, within
“Bulk certified mail” is a method of mailing in which the post office provides the sender with an acknowledgment that on a given day a certain bulk mailing was processed. The individual pieces of mail are not marked with the certified date of mailing. Rather, a separate record of the mailing, itemizing the contents, is marked with a “round-robin” stamp indicating the date of mailing. Bulk certified mail is a less expensive method than regular certified mail.
It is settled that an appeal of an administrative decision pursuant to § 4-183 (c) must be filed with the Superior Court within forty-five days after the mailing of the hearing officer’s final decision. Failure to appeal within forty-five days deprives the court of subject matter jurisdiction; Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 219-20, 676 A.2d 844 (1996); Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 854, 633 A.2d 305 (1993); a principle not challenged by the plaintiffs.
The plaintiffs’ arguments are offered by Crest in its brief to this court. Morande adopts Crest’s arguments and adds the argument that, even if the plaintiffs had actual notice of the decision, there was insufficient evidence to prove that they had actual notice of the date on which that decision had been mailed. We are not persuaded by Morande’s subsidiary claim, which is disingenuous at best. Even if we were to decide that the decision did not become effective until received by the plaintiffs, the record is replete with evidence that the plaintiffs had notice of the decision on Friday, July 29, 1994, forty-seven days before the appeal was filed. Indeed, the plaintiffs conceded at oral argument that they had actual notice as of July 29, 1994.
In addition to its aforementioned claims, Crest argues that the department’s decision was never final because the department did not first render a proposed decision pursuant to General Statutes § 4-179 and did not render its decision within ninety days pursuant to § 4-180 (a). These are claims the trial court would have considered if it had had subject matter jurisdiction over the appeal. Because these claims were neither addressed nor decided by the court below, however, they are not properly before this court. See Connecticut Ins. Guaranty Assn. v. Union Carbide Corp., 217 Conn. 371, 385, 585 A.2d 1216 (1991); State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985).
At oral argument, the plaintiffs asserted that, because the strictures of § 4^180 (c) had not been followed, the decision was never final or effective and, thus, the statutory period in which to file an appeal never began to
The plaintiffs rely heavily on our decision last year in Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 674 A.2d 1300 (1996). Their reliance is misplaced. In that case, we determined that General Statutes (Rev. to 1993) §§ 46a-83 (b) and 46a-84 (b) should be read as mandatory, not only because of the presence of the word “shall” but also because those statutes contained penalties for noncompliance. Furthermore, the extensive legislative history of §§ 46a-83 and 46a-84 clearly indicated the intent of the legislature that the provisions be mandatory. Such is decidedly not the case with § 4-180 (c).
Concurrence Opinion
concurring. I concur in the result reached by the majority for the following reason.
The plaintiffs concede that they had actual notice of the decision of the department of motor vehicles (department) more than forty-five days before filing their appeals. See General Statutes § 4-183 (c). This
General Statutes § 4-180 (c) provides that a decision shall be delivered “personally or by United States mail, certified or registered, postage prepaid, return receipt requested.” The entire thrust of the statute is to ensure that the parties receive actual notice of the effective date of the decision, and the prescribed statutoiy requirements act to create testimonial or documentary evidence of the time of delivery. Since the plaintiffs had actual notice of the department’s decision more than forty-five days before filing their appeals, they cannot complain that the agency failed to abide by the provisions of § 4-180 (c).
