Mohamud v. State of Maine

• Court: Superior Court of Maine
• Decided: March 8, 2012
• Docket: CUMap-11-041
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUtvffiERLAND, ss. CIVIL ACTION DOCKET NO: AP-11;4~ 'KAG - cutY) .. 2> 8; I 2o1 z..

MUSE wl. WIOHAwiUD,

Petitioner,

V. ORDER STATE Curnberl OF MAINE and ss c·· STATE OF wiAINE, wiAINE ' ' ·lerk's Offlce REVENUE SERVICES, MAR 0 8 2012 Respondent. RECEIVED Before the court is the Respondent's motion to dismiss Petitioner's SOC appeal pursuant

to M.R. Civ. P. 12(b)(l). The motion asserts that this court lacks jurisdiction to hear the

appeal because the notice of appeal was filed late.

BACKGROUND On December 7, 2010, Muse Mohamud (Mohamud) was issued an assessment by

the Maine Revenue Services (MRS). Mohamud requested reconsideration on January 6,

2011. The assessor declin~d the reconsideration on August 5, 2011. In the notice from

MRS, Mohamud was told that he had 30 days to file an appeal with the Superior Court.

On September 6, 2011, Mohamud submitted a notice of appeal and an

application to proceed without payment pursuant to M.R. Civ. P. 91(£) and 91(b).

September 6 was stamped on the filings, but the date was later crossed out because the

notice of appeal was incomplete. The court issued a "Notice of Incomplete Filing" on

September 15, 2011. This notice indicates that as of September 12, 2011, the clerk's office

had received a filing that did not include the summary sheet as required by M. R. Civ.

P. 5(h). Additionally, this notice states, "[t]he attempted filing has not been docketed

1 and the filing is not effective until complete .... I£ there was a deadline for filing, that

deadline has NOT changed."

Mohamud filed a complete notice of appeal, accompanied with an application to

proceed without payment, on September 14, 2011. The application was granted on

Septernber 19, 2011 and the appeal was docketed on September 16, 2011. MSR now

moves to dismiss the appeal because the notice of appeal was filed late.

DISCUSSION

The court's authority to review the tax assessor's decision is granted through 36

M.R.S. § 151 (2011).1 Under the Maine Administrative Procedure Act the petitioner has

30 days to appeal the tax assessor's decision. 5 :tvl.R.S. § 11002 (2011) ("The petition for

review shall be filed within 30 days after receipt of notice if taken by a party to the

proceeding of which review is sought.") Therefore, Mohamud had 30 days to file his

notice of appeal, as calculated by :tvl.R. Civ. P. 6(a).

:tviRS asserts that the 30-day requirement is jurisdictional and mandatory. See

Brown v. State, 426 A.2d 880, 888 (:tvle. 1981) (stating "expressly that the [:tvlaine

Administrative Procedure] Act's time limitations are jurisdictional"); see also City of

Lewiston v. Me. State Employees Ass'n, 638 A.2d 739, 741 (Me. 1994) ("If a party does not

file an appeal within the statutory period, the Superior Court has no legal power to

entertain the appeal."). Mohamud does not dispute the filing deadline, but claims that

the complaint was filed within the deadline on September 6, 2011.

"Filing occurs when the appeal is delivered 'to the court clerk or record

custodian for placement into the official record .... " Persson v. Dep't of Human Servs.,

2001 :tviE 124, 9I 12, 775 A.2d 363 (quoting Black's Law Dictionary 642 (7th ed. 1999)).

t "The assessor's decision on reconsideration constih1tes final agency action that is subject to

review by the Superior Court in accordance with the Maine Adncinistrative Procedure Act, except that Title 5, section 11006 and 11007 do not apply." 36 M.R.S. § 151 (2011).

2 Rule S(h) requires that' any pleading which sets forth a claim for relief ... shall be

accompanied by a properly completed and executed Summary Sheet .... " M.R. Civ. P.

S(h). Since the summary sheet was not included with the September 6, 201t filing the

notice of appeal was late. 2 As Ivlohamud points out it would be "a gross miscarriage of

justice" to dismiss a case because the individual was unable to pay the filing fee. (Br. of

Pet. 3.) Here, however, the court must dismiss the case because the Plaintiff failed to

file all of the appropriate paperwork prior to the deadline, not because of his failure to

pay the filing fee.

The entry is:

The Motion to Dismiss the Plaintiff's SOC Appeal is

ST~~.TE <::~-~~ \;t~. ~~~J~~ r:~~_:rr:b~~:·:~:\;~,~. :.::? ~:;~~n·

2 Mohamud was acting prose while these filings took place. His attorney entered an appearance on September 26, 2011. The court n

3 Date Filed __0:...::9~---=1:.::::5_--=.1.=..1_ _ Cumberland Docket No. AP-11-4i County

Action ----'8~0"-'C"'---'A~pt::-.Jp"-'e""a""l=--------------

MUSE M. MOHAMUD STATE OF MAINE MAINE REVENUE SERVICE 1390 FOREST AVENUE, #7M PORTLAND, ME 04103 vs. Plaintiff's Attorney Defendant's Attorney

:IDOOOOO{ William H Laubenstein III AAG J n Languet Esq Office of the Attorney General BOX 249 6 State House Station psharn ME 04086 837-6155 Augusta, ME 04333-0006

Date of Entry 2011 Sept 16 Received September 15, 2011. II " Complaint for 80C Appeal with Attachments filP.d.