Better Quality Management, Inc. v. Willie Woodson et al. (2010)

MEMORANDUM OF DECISION

The defendant, Willie D. Woodson, has moved to dismiss this summary process action on the ground that the court lacks subject matter jurisdiction.   The defendant alleges that the plaintiff, Better Quality Management, Inc., has improperly brought this action in reliance on a notice to quit previously served on the defendant in a prior summary process action which was withdrawn.

Service of a valid notice to quit is a condition precedent to a summary process action under § 47a-23 which implicates the trial court's subject matter jurisdiction.  Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 5, 931 A.2d 837 (2007).   Although the defendant does not claim that the subject notice to quit is defective, the defendant argues that because the notice to quit in this action is the same notice to quit served in the prior withdrawn summary process action, the plaintiff was required to serve a new notice to quit as a prerequisite to commencing this action.   It is not disputed that the same notice to quit is the predicate notice for both summary process actions.

The parties agree on the factual background.   The plaintiff served the defendant with a notice to quit on March 23, 2010, and commenced a summary process action with a return date of April 21, 2010.   After judgment entered in favor of the plaintiff and execution issued, the defendant moved to open the judgment and quash the execution on the ground that the complaint was not returned to court at least three days before the return date.   The plaintiff withdrew the action on June 8, 2010.   The plaintiff then commenced this summary process action which alleges in paragraph 5 of count one of the complaint “On March 23, 2010, the Plaintiff terminated the Tenancy of the Defendant and gave due notice to the Defendant in the manner prescribed by statute to quit possession of the Premises on or before March 31, 2010.   An endorsed copy of the original Notice is attached hereto as Exhibit A.”

In addition to the stipulated facts, the court also takes judicial notice of the initial summary process action, Hartford Housing Session, HDSP 156253.   A court may take judicial notice of the court file in another suit between the parties, especially when the relevance of that action is expressly made an issue during the instant trial.  State v. Fagan, 280 Conn. 69, 101, 905 A.2d 1101 (2006).

The defendant cites Amresco Residential Corp. v. Jones, SPH 96230, March 25, 1998 (Beach, J.) in which Judge Beach granted the defendant's motion to dismiss a second summary process action brought pursuant to the same notice to quit served in a prior action which was withdrawn by the plaintiff landlord.   The plaintiff, however, relies on Judge Beach's comment in a footnote in Amresco “I will leave until another day the issue of the effect of a withdrawal which specifically withdraws only the complaint where the notice to quit is valid on its face.”  (Emphasis in the original.)   The plaintiff argues in its memorandum of law in opposition to the motion to dismiss that since under the withdrawal filed in HDSP 156253, “The complaint only was withdrawn, and the notice to quit served in conjunction with the initial summary process action is valid on its face” the court has subject matter jurisdiction.

“The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80, is absolute and unconditional.   Under our law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of a case from the docket ․ The withdrawal of the summary process action ․ effectively erased the court slate clean as though the eviction predicated on the [second] notice to quit possession had never been commenced.”  (Citations omitted;  internal quotation marks omitted.)   Housing Authority v. Hird, 13 Conn.App. 150, 156-57, 535 A.2d 377 (1988).

Neither party has cited Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., 292 Conn. 459, 974 A.2d 626 (2009), in their memoranda of law.   Under the reported facts in Waterbury Twin, LLC, after the withdrawal of a summary process action, the defendant tenant wrote to the plaintiffs that the defendant “assumed” that the notice to quit was also withdrawn.   Following the plaintiffs' response in the negative, the defendant moved to dismiss the second summary process action.

The majority opinion in Waterbury Twin, LLC acknowledged a split of authority among trial courts on the issue of whether the effect of a withdrawal of a summary process action restored the parties to “square one” before service of the complaint or before service of the notice to quit.   In footnote 14, the majority noted “We acknowledge that then Judge Borden, in his dissenting opinion in Bridgeport v. Barbour-Daniel Electronics, Inc., supra, 16 Conn.App. 587, appears to view ‘square one’ under Housing Authority v. Hird, supra, 13 Conn.App. 157, as the status quo preceding the filing of the summary process complaint, rather than the service of the notice to quit.   Although Judge Borden appeared to contemplate the withdrawal of the complaint and the withdrawal of the notice to quit as two different acts, we do not view his comments in Barbour-Daniel Electronics, Inc., as dispositive of the present appeal because this precise issue was not before the court in that case, and the basic premise of his dissent, namely, that an invalid notice to quit nevertheless may operate to terminate a lease, is inconsistent with this court's subsequent decision in Bargain Mart, Inc. v. Lipkis, supra, 212 Conn. 134,” Id. n.14. By a 3 to 2 decision the Court concluded that if a landlord has withdrawn a summary process action filed against a tenant, the landlord is required to serve a new notice to quit prior to commencing a new summary process action.  Id. 465.

In the present case, the outcome is clear.   Despite the plaintiff's argument that only the complaint was withdrawn, on the JD-CV-41 Withdrawal form filed with the clerk in HDSP 156253, under the section of the form titled “Dispositive,” the plaintiff checked the box indicating withdrawal of the “action.”   The optional box in the section of the form titled “Partial” withdrawal which permits withdrawal of a “Complaint” is blank.

After withdrawal of the initial summary process action, the plaintiff landlord, was required by Waterbury Twin, LLC to serve a new notice to quit prior to commencing a new summary process action.   Inasmuch as the plaintiff has failed to do so in this action, the court lacks subject matter jurisdiction.   The defendant's motion is granted and this summary process action is dismissed.

SO ORDERED.

BY THE COURT,

Gilligan, J.

Gilligan, Robert G., J.