LP v. David W. Cummings (2010)

MEMORANDUM OF DECISION

I

On April 25, 2008, the plaintiff commenced the instant summary process action seeking to evict the defendant for nonpayment of rent for the month of April 2008 pursuant to General Statutes § 47a-23.¹  On May 8, 2008, the defendant filed a motion to dismiss based on lack of subject matter jurisdiction.   The matter was transferred to this docket on November 18, 2008.   After multiple motions and six hearing days,² this court, having heard testimony from one witness, terminated the hearing on October 28, 2010 and accepted further evidence by written proffers from the parties.³  The court has considered those proffers and the parties' written briefs submitted in lieu of additional oral argument.⁴

It is undisputed that the defendant tendered partial payment of $100.00 on April 10, 2008 together with a letter which stated that “[e]nclosed is a check for payment of Rent for the Month of April 2008 which is paid in full.”   (Emphasis added.) ⁵  The defendant labeled the check as rent and the plaintiff accepted it.   On April 11, 2008, the plaintiff wrote to the defendant indicating that his rent was past due and to contact Kathy Riding, a representative of the plaintiff, as soon as possible.   The defendant argues, but the plaintiff disputes, that the defendant responded with a request to delay payment until April 23, 2008.

On April 17, 2008, the plaintiff caused a notice to quit possession to be served on the defendant for failure to pay April's rent.   Thereafter, on April 22, 2008, he tendered $729.75, which purportedly was for rent and a “late charge.”   The plaintiff accepted the amount as use and occupancy, not as rent, as noted in the endorsement on the back of the check.   The plaintiff issued a “Corrected Late Notice,” dated April 23, 2008, indicating that the account was past due in the amount of $20.00 for the “April Use & Occupancy Balance” because the “new charge as of April 1st is $815.00.” ⁶  The defendant tendered $20.00 that same day, but indicated that it was for a rental increase while the plaintiff accepted and endorsed the same as use and occupancy.⁷  Notwithstanding the demand of the notice to quit to vacate by April 23, 2008, the defendant still occupies the premises.   As noted, the plaintiff commenced this action on April 25, 2008.

II

“The purpose of summary process proceedings is to permit the landlord to recover possession of the premises upon termination of a lease without experiencing the delay, loss, and expense to which he might be subjected under a common law cause of action.   The process is intended to be summary and is designed to provide an expeditious remedy to a landlord seeking possession.”   (Internal quotation marks omitted.)  Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 581, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).  “Summary process is a special statutory procedure designed to provide an expeditious remedy ․ It enables a landlord to obtain possession of leased premises without the delay associated with common-law actions.”  (Internal quotation marks omitted.)  Wilson v. Jefferson, 98 Conn.App. 147, 165, 908 A.2d 13 (2006).  “The purpose of the action is to enable the landlord upon such termination to recover possession from the tenant ․ Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed.”  (Citations omitted.)  Jo-mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600-01, 96 A.2d 217 (1953).

“Before the [trial] court can entertain a summary process action and evict a tenant, the owner of the land must previously have served the tenant with notice to quit ․ As a condition precedent to a summary process action, proper notice to quit [pursuant to § 47a-23] is a jurisdictional necessity.”   (Internal quotation marks omitted.)  Bayer v. Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229 (2009).

A “motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., 292 Conn. 459, 466-67, 974 A.2d 626 (2009).  “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented.”   (Internal quotation marks omitted.)  St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn.App. 728, 739 (2010).  “In determining whether [to grant a motion to dismiss], the inquiry usually does not extend to the merits of the case.” ⁸  (Internal quotation marks omitted.)  Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 16, 578 A.2d 646 (1990).

III

The defendant argues that the court is deprived of subject matter jurisdiction because the plaintiff's acceptance of his April 22, 2008 payment as well as both the demand for and his supplemental payment of $20.00 on April 23, 2008, also tendered as rent, constituted not only an accord and satisfaction, but also rendered the notice to quit void.   As a threshold issue, the court examines the status of the defendant's leasehold.

The defendant has continuously occupied the premises since at least November 1995.   The evidence indicates that the defendant entered into a lease with the plaintiff on November 22, 1995 for a one-year period until November 30, 1996.   In paragraph two, the lease stated, “In the event you want to continue to live in the Apartment after the end of the Lease, the Lease will be extended for additional periods of one (1) year with all the same terms and conditions.   Subject to Paragraph Three (3) below.”   Paragraph three provided, “You may renew this Lease by giving notice to us sixty (60) [days] before the Lease expires.   If you renew, you will sign a new Lease with similar terms.   If the rent payable by you changes during any extension term, you will be given at least thirty (30) days written notice telling you what the new account will be and when the change will be effective.   This thirty (30) day period may run during your initial lease term.”

More than ten years later, on January 4, 2006, the defendant signed a one year lease renewal addendum for the period of January 1, 2006 to December 31, 2006.   The lease addendum provided that the terms and conditions of the original lease still applied and raised the rent to $755.00 per month.   It also stated that if the tenant wanted to continue living in the apartment at the end of the lease a new lease renewal addendum would need to be executed.

In January 2007, a notice to quit was served on the defendant to vacate the premises on or before January 31, 2007 because of a “lapse of time.”   At that time, the defendant's tenancy was converted to a tenancy at sufferance and he had a duty to pay use and occupancy.   See Bridgeport v. Barbour-Daniel Electronics, Inc., supra, 16 Conn.App. 593 (“[U]pon service of a notice to quit possession, a tenancy at will is converted to a tenancy at sufferance ․ [A]fter a notice to quit has been served ․ a tenant at sufferance no longer has a duty to pay rent.   He still, however, is obliged to pay a fair rental value in the form of use and occupancy for the dwelling unit.”  [Citations omitted;  internal quotations omitted.] ).   The parties provided no evidence that the plaintiff filed a summary process action against the defendant in 2007.⁹  Therefore, the parties returned “back to square one.”   See Housing Authority v. Hird, 13 Conn.App. 150, 157, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988).

Notwithstanding the 2007 notice to quit, the plaintiff offered another one-year lease renewal addendum to the defendant on March 9, 2007 for the period of April 1, 2007 to March 31, 2008 at a rate of $795.00 per month.   While the defendant did not sign the addendum, he paid the new rent in April 2007 and continued to pay this amount throughout the one-year period thereby impliedly assenting to the new $795.00 rental rate.   See Molaver v. Thomas, 125 Conn.App. 88, 96-97 (2010).   Thus, his tenancy was, as the defendant asserts, month to month.   See General Statutes § 47a-3b;  see also FJK Associates v. Karkoski, 52 Conn.App. 66, 68, 725 A.2d 991 (1999) (“[a]fter the written lease expired by its terms, the plaintiff continued to accept the defendant's monthly rent payment, creating a month-to-month tenancy”).

Riding testified that she sent another offer, dated January 16, 2008, to the defendant for a lease renewal for the period of April 1, 2008 to March 31, 2009 with a rental increase to $815.00 a month and a request that the defendant respond by January 30, 2008.   Although received by the defendant, he did not respond.   Consequently, his tenancy continued to be month to month.

“In a month-to-month tenancy, an acceptance by the landlord of a tender of rent after the service of a notice to quit renders the notice void and creates a new tenancy.”  O & P Realty v. Santana, 17 Conn.App. 314, 317, 551 A.2d 1287, cert. denied, 210 Conn. 812, 556 A.2d 610 (1989).   However, “[i]f ․ the lease had already been terminated, [the landlord] had a right to refuse a belated tender of rent, and to notify the tenant that it would be accepted only as compensation for use and occupation.   If the tenant paid the money after that notification, the status quo was preserved.   Housing court decisions in this state ․ have repeatedly held that a landlord may accept a tender of rent after the service of a notice to quit and characterize it as payment for use and occupancy if the landlord has, prior to the offer of rent, notified the tenant that the tender will be accepted only as use and occupancy payments.   In fact, the use of such disclaimers was praised in Zitomer v. Palmer, 38 Conn.Sup. 341, 343-44, 446 A.2d 1084 (App.Sess.1982), in which the court concluded that [t]he added statement clearly admonishes that any sums offered after receipt of the notice [to quit] will be retained for purposes other than rent.   The admonition serves two useful purposes.   It avoids misleading tenants who tender late payments and it insulates the summary process action from being flawed by the acceptance of rent after commencement of the summary process.”   (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 317-18.

In the present case, it is undisputed that the April 17, 2008 notice to quit included the following disclaimer:  “ANY PAYMENTS TENDERED AFTER SERVICE OF THE NOTICE TO QUIT WILL BE ACCEPTED FOR REIMBURSEMENT OF COSTS AND FOR USE AND OCCUPANCY ONLY, WITH FULL RESERVATION OF RIGHTS TO CONTINUE WITH THE EVICTION ACTION.”   Despite the notice to quit, the defendant attempted to tender payment on April 22, 2010 and after.¹⁰  The defendant's payments were accepted and endorsed by the plaintiff as use and occupancy.   Moreover, no later than May 8, 2008, the defendant was aware that the plaintiff was accepting payments as use and occupancy.¹¹

“[C]harging the plaintiff with acceptance does not make it an acceptance ․ The assent requisite to the creation of a contract is an objective thing, manifested by intelligible conduct, act, or sign;  it is not determined by secret intentions but by expressed or manifested intentions.”  Alteri v. Layton, 35 Conn.Sup. 258, 259, 408 A.2d 18 (1979).   The plaintiff manifested its intentions by marking the payments as use and occupancy.   Additionally, plaintiff's counsel, in a letter, dated April 22, 2008, attached to the defendant's supplemental offer of proof, dated November 22, 2010, wrote to the defendant reiterating that it accepted payment as use and occupancy and that it would be pursuing legal action.¹²  Finally, the plaintiff served the defendant with process.   Hence, the plaintiff's acceptance of the payments for use and occupancy did not constitute waiver by the plaintiff or create a new tenancy and render the notice to quit void.   See O & P Realty v. Santana, supra, 17 Conn.App. 319-20 (holding that trial court did not err in determining that plaintiff's disclaimer in notice to quit, served prior to tender of money order marked as “rent,” prevented creation of new tenancy;  see also Fellows v. Martin, 217 Conn. 57, 69 n.13, 584 A.2d 458 (1991) (“[t]he payments were tendered as rent, but accepted by the landlord as ‘use and occupancy,’ thus eliminating any potential claim by the tenant that the landlord had waived the default and renewed the tenancy”);  Alteri v. Layton, supra, 258 (disagreeing with tenant's contention that “summary process can be successfully thwarted by a self-serving, unilateral, unsolicited mailing of rental money by a tenant to a landlord after the issuance of a notice to quit”).

Furthermore, the defendant's $20.00 payment was not a rental increase requested after the service of the notice to quit.   Indeed, the plaintiff's notice of the deficiency stated that the $20.00 was for use and occupancy.   The notice simply corrected an error in the amount previously stated in the plaintiff's April 11, 2008 letter and was consistent with the plaintiff's January 2008 notification to the defendant of an increase in rent.   It is, therefore, not an act that rendered the notice to quit void thereby depriving this court of subject matter jurisdiction.   See O & P Realty v. Santana, supra, 17 Conn.App. 318-19.

Moreover, “a holding that disclaimers such as the one at issue here are ineffective would force landlords to file a motion for use and occupancy payments pursuant to General Statutes § 47a-26b in every case and would require them to return any tendered offers of rent or run the risk of subjecting their summary process actions to dismissal ․ This is not a desirable policy and does not comport with the objectives of the summary process statute.”  (Citation omitted.)  Id., 319.   Accordingly, the defendant's motion to dismiss is denied.¹³

Berger, J.

FOOTNOTES

FN1. Section 47a-23, in relevant part, provides:  “(a) When the owner or lessor, or the owner's or lessor's legal representative, or the owner's or lessor's attorney-at-law, or in-fact, desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, any trailer, or any land upon which a trailer is used or stands, and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons:  ․ (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a or 21-83 ․ such owner or lessor, or such owner's or lessor's legal representative, or such owner's or lessor's attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy ․”.  FN1. Section 47a-23, in relevant part, provides:  “(a) When the owner or lessor, or the owner's or lessor's legal representative, or the owner's or lessor's attorney-at-law, or in-fact, desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, any trailer, or any land upon which a trailer is used or stands, and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons:  ․ (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a or 21-83 ․ such owner or lessor, or such owner's or lessor's legal representative, or such owner's or lessor's attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy ․”

FN2. An evidentiary hearing was held on April 26, 2010, April 30, 2010, May 21, 2010, August 31, 2010, October 21, 2010 and October 28, 2010..  FN2. An evidentiary hearing was held on April 26, 2010, April 30, 2010, May 21, 2010, August 31, 2010, October 21, 2010 and October 28, 2010.

FN3. It is difficult to summarize succinctly the proceedings in this matter to date.   The defendant has filed over 100 various motions and requests, including numerous requests to transfer and recuse, among other things.   He has been discourteous, disrespectful, threatening and obstreperous to all involved in the proceeding.   On October 21, 2010, the hearing was interrupted for the state police to take action as a result of an alleged threat made by the defendant to plaintiff's counsel.   Because of the defendant's behavior, this court curtailed the proceedings on October 28, 2010 after the plaintiff concluded the cross examination of the defendant's first witness.The court is cognizant that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”  (Internal quotation marks omitted.)  Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).   Nevertheless, the defendant elicited repetitive testimony from the plaintiff's representative Kathy Riding, over several hearing days.   In light of this and the defendant's contumacious conduct, this court was compelled to limit further testimony and evidence to written proffers of proof..  FN3. It is difficult to summarize succinctly the proceedings in this matter to date.   The defendant has filed over 100 various motions and requests, including numerous requests to transfer and recuse, among other things.   He has been discourteous, disrespectful, threatening and obstreperous to all involved in the proceeding.   On October 21, 2010, the hearing was interrupted for the state police to take action as a result of an alleged threat made by the defendant to plaintiff's counsel.   Because of the defendant's behavior, this court curtailed the proceedings on October 28, 2010 after the plaintiff concluded the cross examination of the defendant's first witness.The court is cognizant that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”  (Internal quotation marks omitted.)  Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).   Nevertheless, the defendant elicited repetitive testimony from the plaintiff's representative Kathy Riding, over several hearing days.   In light of this and the defendant's contumacious conduct, this court was compelled to limit further testimony and evidence to written proffers of proof.

FN4. The defendant continually inserted oral argument during the hearing.   One such example involved his requests for admissions.   The defendant filed a notice of service of requests for admissions on December 7, 2009 and alleged at the hearing on April 26, 2010 that he wrote a letter to follow up with plaintiff's counsel in January 2010.   Plaintiff's counsel stated that he did not receive the request for admissions or the letter.   This court found that there were no implied admissions because the plaintiff did not respond to the request as counsel had not received it.   See Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7, 826 A.2d 1088 (2003) ( “the granting or denial of a discovery request rests in the sound discretion of the [trial] court” [internal quotation marks omitted] );  see also Practice Book § 13-24.   Despite this ruling and the fact that the plaintiff responded to the request for admissions that day on the record, the defendant continued to try to argue the issue over multiple hearing days..  FN4. The defendant continually inserted oral argument during the hearing.   One such example involved his requests for admissions.   The defendant filed a notice of service of requests for admissions on December 7, 2009 and alleged at the hearing on April 26, 2010 that he wrote a letter to follow up with plaintiff's counsel in January 2010.   Plaintiff's counsel stated that he did not receive the request for admissions or the letter.   This court found that there were no implied admissions because the plaintiff did not respond to the request as counsel had not received it.   See Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7, 826 A.2d 1088 (2003) ( “the granting or denial of a discovery request rests in the sound discretion of the [trial] court” [internal quotation marks omitted] );  see also Practice Book § 13-24.   Despite this ruling and the fact that the plaintiff responded to the request for admissions that day on the record, the defendant continued to try to argue the issue over multiple hearing days.

FN5. There is no argument that the $100.00 constituted full payment..  FN5. There is no argument that the $100.00 constituted full payment.

FN6. The plaintiff notified the defendant in January 2008 that the rent would be increasing to $815.00 beginning April 1, 2008..  FN6. The plaintiff notified the defendant in January 2008 that the rent would be increasing to $815.00 beginning April 1, 2008.

FN7. “After a notice to quit has been served ․ a tenant at sufferance no longer has a duty to pay rent.   He still, however, is obliged to pay a fair rental value in the form of use and occupancy for the dwelling unit.”   (Internal quotation marks omitted.)  O'Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990)..  FN7. “After a notice to quit has been served ․ a tenant at sufferance no longer has a duty to pay rent.   He still, however, is obliged to pay a fair rental value in the form of use and occupancy for the dwelling unit.”   (Internal quotation marks omitted.)  O'Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990).

FN8. In light of the limited focus of the defendant's motion to dismiss, the court heard only matters material to the jurisdictional issue..  FN8. In light of the limited focus of the defendant's motion to dismiss, the court heard only matters material to the jurisdictional issue.

FN9. Research does not reveal any summary process action filed by the plaintiff against the defendant in 2007..  FN9. Research does not reveal any summary process action filed by the plaintiff against the defendant in 2007.

FN10. The defendant attempted to tender checks labeled as “rent” for a few months subsequent to the notice to quit and the commencement of this action..  FN10. The defendant attempted to tender checks labeled as “rent” for a few months subsequent to the notice to quit and the commencement of this action.

FN11. The defendant in his memorandum in support of his motion to dismiss, filed May 8, 2008, stated that “it was later discovered [that the] landlord wrote on [the] back of [the] check use and occupancy.”.  FN11. The defendant in his memorandum in support of his motion to dismiss, filed May 8, 2008, stated that “it was later discovered [that the] landlord wrote on [the] back of [the] check use and occupancy.”

FN12. Plaintiff's counsel stated in the letter that the plaintiff was willing to allow the defendant to stay in his unit as long as there was a court approved, stipulated agreement ensuring that the defendant would timely pay his rent in full.   The plaintiff has not expressed any interest in such a resolution to the court.   An unsigned “stipulated agreement of the parties” was included with the defendant's supplemental offer of proof.   Regardless, the letter from plaintiff's counsel was clear that the plaintiff would be pursuing the summary process action..  FN12. Plaintiff's counsel stated in the letter that the plaintiff was willing to allow the defendant to stay in his unit as long as there was a court approved, stipulated agreement ensuring that the defendant would timely pay his rent in full.   The plaintiff has not expressed any interest in such a resolution to the court.   An unsigned “stipulated agreement of the parties” was included with the defendant's supplemental offer of proof.   Regardless, the letter from plaintiff's counsel was clear that the plaintiff would be pursuing the summary process action.

FN13. The court notes that the defendant also moved to dismiss based upon a lack of personal jurisdiction.   Nevertheless, there has been no evidence that the court lacks personal jurisdiction.   Indeed, the notice to quit was timely and abode service was made pursuant to General Statutes §§ 47a-15a and 47a-23..  FN13. The court notes that the defendant also moved to dismiss based upon a lack of personal jurisdiction.   Nevertheless, there has been no evidence that the court lacks personal jurisdiction.   Indeed, the notice to quit was timely and abode service was made pursuant to General Statutes §§ 47a-15a and 47a-23.

Berger, Marshall K., J.