Rhodes v. Maine Revenue Svs.

• Court: Superior Court of Maine
• Decided: September 28, 2009
• Docket: KENap-09-38
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION Docket No. AP-Oi-38 o 9/,) 'l/';' "Y) (tJ-/<, EN -

JOHN D. RHODES ) ) Petitioner, ) ) v. ) DECISION AND ORDER ) MAINE REVENUE SERVICES, ) ) Respondent. )

This matter is before the Court on the Assessor's motion to dismiss the petition for

review of final agency action filed by John D. Rhodes ("Rhodes"). The Assessor moved to

dismiss Rhodes's Petition pursuant to M.R. Civ. P. 12(b)( 1) on the ground that the court lacks

subject matter jurisdiction because Rhodes failed to timely file his Petition. ?CI-h k..,o&. "... n /, J l:tl.. ",r- k'~ ,.., .bAt""""" ~ ~ Ai\IIW",- loA. tA.6 ... ~t"J.~t..(, .".\~ (tt.(l.t:tI.,-. ""h" · The facts are undisputed. On November 12,2008, the Assessor issued an assessment

against Rhodes, who timely requested administrative reconsideration. The Assessor denied

Rhodes's request for reconsideration and upheld the assessment by decision dated June 2, 2009.

Although Rhodes received the Assessor's decision on June 8, 2009, it was not until July 1i h, 39

days later, that Rhodes filed his petition for review by this Court.

The Court's authority to review the Assessor's decision on reconsideration is granted in ,

part by 36 M.R.S.A. § 151 (Supp. 2008). Section 151 provides that the Assessor's decision

constitutes final agency action that is subject to judicial review in accordance with the Maine

Administrative Procedure Act,S M.R.S.A. §§ 11001-11008 (2008). The Maine Administrative

Procedure Act, specifically 5 M.R.S.A. § 11002(3), requires a petition for review to be filed "within 30 days ajier receipt ofnotice." (Emphasis added). This 30-day time limitation is

jurisdictional and mandatory. McKenzie v. Maine Employment Sec. Comm 'n, 453 A.2d 505, 509

(Me. 1982). "If a party does not file an appeal within the statutory period, the Superior Court has

no legal power to entertain the appeal." City ofLewiston v. Maine State Employees Ass 'n, 638

A.2d 739, 741 (Me. 1994) (petition for review filed just one day late was insufficient to confer

subject matter jurisdiction upon court). Because Rhodes failed to file the Petition within 30 days

after his receipt of the Assessor's decision on reconsideration, the Court is without authority to

review the Assessor's decision and has no choice but to dismiss the Petition for lack of subject

matter jurisdiction pursuant to M.R. Civ. P. l2(b)(l). See id.

Accordingly, it is ORDERED:

1. The Assessor's motion to dismiss for lack of subject matter jurisdiction shall be, and it hereby is, GRANTED.

2. Rhodes's petition shall be, and hereby is, DISMISSED.

DATED: _ _ ---','-+/--:.~_tf_/~_,_ _

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John D. Rhode.s vs. Maine. Re.ve.nue. Se.rvice.s Plaintiff's Attorney Defendant's Attorney John D. Rhode.s, Pro Se. ~12IixRiiil»~X~, AAG PO Box 393 6 State House Station Bath Maine. 04530 Augusta Maine 04333-0006

Date of Entry

7/17 /09 Pe.tition for Re.vie.w, file.d. s/Rhode.s. Pro Se.

7/27/09 Maine Revenue Services' Motion to Dismiss with Incorporated Memorandum of Law, filed. s/Rosenberg, AAG Proposed Order, filed.

8/13/09 Letter informing the court that Mr. Rosenberg is no longer with the AAG's office, filed. s/Boak, AAG Letter entering appearance, filed. s/Boak, AAG

9/28/09 DECISION AND ORDER, Nivison, J. Accordingly, it is ORDERED: 1. The Assessor's motion to dismiss for lack of subject matter jurisdiction shall be, and it hereby is GRANTED. 2. Rhodes's petition shall be, and hereby is, DISMISSED. Copies mailed to party/atty. Copies to repositories.