Steven Barnett v. Dorothy McCarthy et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 101)

The issue in this summary process action is whether service of multiple notices to quit subjects this case to dismissal for lack of subject matter jurisdiction.

The plaintiff, Steven Barnett, alleges the following in his three-count summary process complaint, filed on October 19, 2011.   The plaintiff owns the premises at 664 Route 6 in Andover, Connecticut, which has been occupied continuously by the defendants, Dorothy McCarthy and Dorothy McCarthy d/b/a Totally Clips, since prior to January 2011.   The parties entered into an oral agreement permitting the defendants to occupy the premises on a month-to-month basis for the sum of $800 per month as rent.   On September 21, 2011, the plaintiff served a notice on the defendants to quit possession of the premises.   Despite the notice to quit, the plaintiff refused to quit possession and occupancy of the premises.   In the first count of the complaint, the plaintiff alleges that the defendants' right or privilege to occupy has terminated.   The second count alleges that the defendants failed to pay rent due for the months of August or September 2011.   The third count alleges that the rental agreement of the parties has terminated by lapse of time.   The plaintiff seeks judgment for immediate possession of the premises.

On October 27, 2011, the defendants moved to dismiss the action on the ground that the court lacks subject matter jurisdiction due to the plaintiff's failure to comply with General Statutes § 47a–23.   Specifically, the defendants argue that on August 1, 2011, the plaintiff served on the defendants a notice to quit with a date to quit occupancy of the premises by August 31, 2011.   Despite the defendants' refusal to quit the premises on that date, the plaintiff did not proceed with a summary process action following the first notice to quit.   Instead, the plaintiff served the second notice to quit on September 21, 2011, with a date to quit occupancy of September 30, 2011.   The plaintiff then filed this summary process complaint with the court on October 19, 2011.   The defendants assert that the service of multiple notices to quit by the plaintiff constituted equivocation, and the issuance of the second notice to quit without a disclaimer that any payments after its service would be considered as use and occupancy payment, as well as the inclusion of inapplicable reasons for eviction, further renders the notice to quit equivocal.

On November 17, 2011, the plaintiff filed an objection to the motion to dismiss.   The plaintiff argues that:  “(1) the notice to quit filed in this case is unequivocal;  (2) there is no legal requirement to include ‘use and occupancy disclaimer’ on a notice to quit;  and (3) a notice to quit ․ that states multiple reasons for terminating the defendant's occupancy is unequivocal.”

The court heard argument on the motion to dismiss on January 6, 2012.   On January 19, 2012, the plaintiff filed a supplemental brief in opposition to the defendants' motion to dismiss.   In the brief, the plaintiff claims that the first notice to quit was revoked on September 21, 2011 by way of a letter to opposing counsel, which it includes as an exhibit to the memorandum.   On January 23, 2012, the defendants filed a reply to the plaintiff's supplemental brief stating that the plaintiff is mischaracterizing the letter as revoking the first notice to quit, when in fact the letter did not contain any language of revocation and is simply a belated attempt to remedy the problem of equivocation by his service of multiple notices to quit.

DISCUSSION

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)   Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.”  (Internal quotation marks omitted.)  Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002).

“Summary process is a statutory remedy that enables a landlord to recover possession from a tenant upon the termination of the lease.”  (Internal quotation marks omitted.)  Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn.App. 37, 43, 726 A.2d 600 (1999).   A summary process action is “designed to provide an expeditious remedy ․ It enable[s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms ․ Summary process statutes secure a prompt hearing and final determination ․ Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.”  (Citations omitted;  internal quotation marks omitted.)  Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 5–6, 931 A.2d 837 (2007).

Summary process actions are governed by General Statutes § 47a–23(a), which provides in relevant part:  “When the owner or lessor ․ desires to obtain possession or occupancy of any land or building, any apartment in any building, [or] any dwelling unit ․ and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons:  (A) By lapse of time;  (B) by reason of any expressed stipulation therein;  (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a–9 or 21–70;  (D) nonpayment of rent within the grace period provided for residential property in section 47a–15a or 21–83;  (E) nonpayment of rent when due for commercial property;  (F) violation of section 47a–11 ․ or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated ․ such owner or lessor ․ 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.”

Service of a notice to quit possession is “a landlord's unequivocal act notifying the tenant of the termination of the lease.   The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a tenancy at will is converted to a tenancy at sufferance.” ¹  Housing Authority v. Hird, 13 Conn.App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988).

With respect to the service of multiple notices to quit, the Appellate Court has held:  “if the first notice to quit is technically valid and terminates the rental agreement, a second notice to quit based on terms in the rental agreement cannot survive a motion to dismiss for lack of subject matter jurisdiction.”  Vidiaki, LLC v. Just Breakfast and Things!!!    LLC, 133 Conn.App. 1, 18, 33 A.3d 848 (2012).

Here, the plaintiff served two notices to quit upon the defendants.   The first notice to quit was served on August 1, 2011, asserting “non-payment of rent for time period March 2010 through July 2011” and “lapse of time.”   On September 21, 2011, the plaintiff served a second notice to quit, asserting as reasons for the defendants to quit occupancy as “nonpayment of use and occupancy or rent,” “lapse of time” and “one who originally had the right or privilege to occupy such premises but such right or privilege has terminated.”

Thus, the issues for the court in resolving the defendants' motion to dismiss are:  (1) the validity of the first notice to quit and its effect on the rental agreement between the parties as of August 1, 2011 when it was served;  and (2) if the first notice is valid, whether the subsequent notice to quit and complaint was based upon terms of the rental agreement so as to deprive the court of the subject matter jurisdiction.

Validity of First Notice to Quit

“Service of a valid notice to quit, which terminates the lease and creates a tenancy at sufferance ․ is a condition precedent to a summary process action under § 47a–23 that implicates the trial court's subject matter jurisdiction over that action.”  (Citation omitted;  internal quotation marks omitted.)   Waterbury Twin, LLC v. Renal Treatment Centers–Northeast, Inc., 292 Conn. 459, 466, 974 A.2d 626 (2009).  “Without a valid notice to quit, there can be no foundation for a summary process action.”  Bridgeport v. Barbour–Daniel Electronics, 16 Conn.App. 574, 583, 548 A.2d 744 (1988), cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).

Section 47a–23(b) directs that a valid notice to quit shall include reasons for the occupant to quit possession or occupancy of the premises “using the statutory language or words of similar import ․” In general, “the notice to quit is considered adequate when the language of the notice to quit tracks the statutory language of § 47a–23(a).”  Vidiaki, LLC v. Just Breakfast and Things!!!    LLC, supra, 133 Conn.App. 1, 18.

In the present case, the language in the first notice to quit tracks the statutory language of § 47a–23(a), and is in fact nearly identical to the enumerated acceptable reasons listed in that statute.   Specifically, the first notice to quit lists as a reason to quit the premises as “nonpayment of rent for time period March 2010 through July 2011.”   Similarly, § 47a–23(a)(1)(D) and (E) lists, respectively, as valid reasons:  “nonpayment of rent within the grace period provided for residential property ․” and “nonpayment of rent when due for commercial property.”   Additionally, the first notice to quit lists as a basis for termination as “lapse of time.”   Likewise, § 47a–23(a)(1)(A) lists “By lapse of time” as a valid reason.   Thus, the first notice to quit includes reasons that the occupant must quit the premises using the statutory language or words of similar import.

However, the plaintiff now claims that it actually revoked his first notice to quit by way of a letter sent to the defendants' attorney.²  The plaintiff claims this is so because the letter, dated September 21, 2011, stated that:  “Accompanying this letter is a copy of a Notice to Quit that we gave to a State Marshal today for service on your client, Dorothy McCarthy.   The date on this notice is September 30, 2011.   My client intends to initiate a summary process action based on this notice to quit if in fact Ms. McCarthy has not vacated the premises according to the same.”

This newly declared argument of revocation by the plaintiff is without merit.   The plaintiff's letter is insufficient to revoke the properly served first notice to quit because “a landlord's unilateral action or conduct not assented to by the tenant, cannot have the effect of abrogating the legal consequences of the notice to quit ․ In order to have an effective revocation of a notice to quit, the landlord and tenant must, by mutual agreement, agree to withdraw the notice or enter a new tenancy.”  (Citations omitted;  internal quotation marks omitted.)   Barnett–Zauner v. Ahrens, Superior Court, judicial district of Litchfield, geographical area number eighteen at Bantam, Housing Session, Docket No. CV 18–3979 (June 3, 1993, Gill, J.) [9 Conn. L. Rptr. 213] (collecting cases);  see also 49 Am.Jur.2d Landlord and Tenant § 226 (2012) (“A proper notice to quit, sufficient to terminate the tenancy at the expiration of the current period, after it has been given to the tenant, may not be retracted or withdrawn by the landlord, so as to continue the tenancy as though no notice had been given, without the consent of the tenant.   The tenant is entitled to rely upon the notice as a termination of the tenancy”).   Thus, it is of no consequence that the plaintiff was under the impression that it had revoked the first notice to quit by its letter to opposing counsel, but “whether, as a matter of law, the first notice to quit, in fact, terminated the tenancy.”   Bridgeport v. Barbour–Daniel Electronics, Inc., supra, 16 Conn.App. 584.

The court finds the language of the first notice to quit comports to the statutory requirements of § 47a–23(a), and the notice was not properly revoked by the plaintiff.   There is no further claim by either of the parties that the first notice was otherwise defective, untimely served, or invalid as a matter of law for any other reason.   Consequently, the first notice to quit unequivocally terminated the periodic tenancy agreement between the parties, converting it to a tenancy at sufferance.

Effect of Second Notice to Quit

Having found that the first notice to quit was valid to terminate the periodic tenancy of the defendants, the court must determine what impact, if any, the second notice to quit had on the summary process action.   Superior courts have dismissed actions for lack of subject matter jurisdiction where a second notice to quit was based upon violations of a rental agreement when a previously served notice to quit was found valid.   See, e.g., Gifford v. Fore, Superior Court, judicial district of New Britain, Docket No. 053590 (March 18, 2010, Gilligan, J.) (49 Conn. L. Rptr. 741) (granting motion to dismiss action for lack of subject matter jurisdiction because prior notice to quit was valid and terminated the rental agreement upon which subsequent notice to quit was based upon);  Blakeley v. Blakeley, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 85 4009753 (November 21, 2008, Gould, J.) (Granting motion to dismiss on summary process action based on a second notice to quit because “the plaintiff cannot prevail on his claim for lapse of time and/or for non-payment of rent since neither is available under the tenancy at sufferance, as so created by the service of the [first] notice to quit”).   These courts have followed the reasoning “that if the first notice to quit was a nullity, then it is of no effect and the second notice to quit is effective.   If, on the other hand, the first notice to quit was effective at least for the purpose of terminating the rental agreement, then the second notice to quit cannot effectively be based [on violations of a lease or rental agreement], as there would have been no contractual rental agreement in effect at the time.”   (Internal quotations marks omitted.)  Vidiaki v. Just Breakfast and Things!!!    LLC, supra, 133 Conn.App. 23, quoting Sammy Redd & Associates v. May, Superior Court, judicial district of Hartford–New Britain at Hartford, Housing Session, Docket No. SPH–95376 (January 21, 1998, Beach, J.) (22 Conn. L. Rptr. 107).

In the present action, the first notice to quit was valid and had the effect of terminating the rental agreement between the parties.   Therefore, any reasons in the second notice to quit based upon violations of the rental agreement are ineffective.   Here, the plaintiff's first two reasons in its second notice to quit are “non-payment of use and occupancy or rent” and “lapse of time.”   These are invalid grounds however, as the first notice to quit terminated the periodic tenancy of the defendants and created a tenancy at sufferance, effective as of August 1, 2011, and “a rental agreement is terminated when a valid notice to quit is served.”  Vidiaki v. Just Breakfast and Things!!!    LLC, supra, 133 Conn.App. 24.   Thus, there can be no summary process action based upon “lapse of time” or non-payment of “rent” at the time of service of the second notice to quit because there was no allotted time-frame, or rent due, per any contractual agreement in effect.   See Vidiaki v. Just Breakfast and Things!!!    LLC, supra, 133 Conn.App. 24 (“Common sense dictates that when a contractual rental agreement is no longer in place, such an agreement can no longer be violated”).   Furthermore, the inclusion of “nonpayment of use and occupancy” as a reason for eviction in the second notice to quit is an invalid ground, as the plaintiff did not actually plead that ground in its complaint, instead only asserting nonpayment of rent in count two.³  “The allegations contained within a summary process complaint may not be at variance with the reasons for eviction given in the notice to quit.”   Akhtar v. Perno, Superior Court, judicial district of Fairfield, Docket No. CV 06 4006833 (January 29, 2007, Rubinow, J.) (dismissing action because complaint and notice to quit differed);  see also Bray v. Bray, 51 Conn.Sup. 133, 147 n.3, 978 A.2d 582 (2009) (“[t]he complaint and the notice ought not to be at substantial variance with the summary process complaints”).   Thus, the first two reasons set forth in the plaintiff's second notice to quit cannot support his summary process action.

As to the third stated reason for eviction in the notice to quit, and corresponding first count of the plaintiff's complaint, it has been held that a tenant at sufferance can be evicted on the basis that he once had the right or privilege to occupy the premises but that right had terminated.   See Federal Home Loan Mortgage Corp. v. Van Sickle, supra, 52 Conn.App. 42–44.   The first notice to quit was effective and valid to terminate the rental agreement between the plaintiff and defendants, and served to convert the lease to a tenancy at sufferance.   On its face, the third reason given in the notice to quit as “[o]ne who originally had the right or privilege to occupy such premises but such right or privilege has terminated” is nearly identical to the statutory language of § 47a–23(a)(3).   Further, there is no argument by the parties that the second notice to quit is invalid due to any procedural defects, and unlike his use and occupancy claim, the plaintiff has expressly set forth a count asserting the defendants' right or privilege to occupy the premises has terminated.   Thus, this third ground listed in the second notice to quit comports with the statutory language of 47a–23, and may serve as a valid basis for terminating the defendants' tenancy at sufferance.⁴

The defendants, however, argue that the issuance of multiple notices to quit by the plaintiff constitutes equivocation so as to deprive the court of jurisdiction.   There is no case law to support the holding that the mere filing of dual notices to quit automatically renders the notices equivocal.   Indeed, courts have analyzed the validity of the statutory grounds given in notices to quit even in cases where dual notices have been issued.   See e.g., Hartford Housing Authority v. Reyes, Superior Court, judicial district of Hartford, Housing Session (January 24, 1997, Beach, J.) (19 Conn. L. Rptr 381) (“the serving of a second notice to quit does not invalidate a prior notice to quit.   Rather, the first notice to quit, if it is otherwise valid, serves to terminate the lease and creates a tenancy at sufferance, and any subsequent notice to quit is evaluated in that context”);  Pastor v. Egbarin, Superior Court, judicial district of Hartford, Housing Session, Docket No. 110935 (October 31, 2000, Beach, J.) (reasoning that even if first notice to quit terminated tenancy, summary process action still valid since second notice to quit provided ‘jurisdictional basis” and listed termination of right or privilege to occupy as ground and count in complaint);  Weiss v. Gutierez, Superior Court, judicial district of Stamford–Norwalk, Housing Session (May 22, 1995, Tierney, J.) (denying motion to dismiss “as issuance of second notice to quit in a summary process action does not render the first notice to quit equivocal;  neither the notice to quit statute nor common law prohibits dual notices to quit”).

The defendants' additional arguments that the failure to include a “use and occupancy” disclaimer on the second notice, along with the inclusion of inapplicable reasons, rendered the notice equivocal are equally unavailing.   The plaintiff included in the first notice to quit a use and occupancy disclaimer providing that any monies received after the service date of the notice to quit would be for costs and use and occupancy, however the plaintiff did not include any similar disclaimer in the second.   While it “has been the custom of the practicing bar to include such reservation of use and occupancy language in the notice to quit,” First Baptist Housing of Bridgeport, Inc. v. Van Boager, Superior Court, judicial district of Fairfield, Housing Session, Docket No. 94 1128392 (February 21, 1995, Tierney, J.), there is no support to the defendants' argument that the disclaimer is statutorily required in order to grant jurisdiction to the court.   Indeed, § 47a–23(b), which provides the suggested language for a notice to quit does not include the use and occupancy language:  Further, the plain language of § 47a–23(e) states that “[a] use and occupancy disclaimer may be included in or combined with such notice.”  (Emphasis added.)

Further, the court is not without jurisdiction simply because the plaintiff has included multiple reasons, as a “plaintiff is entitled to bring a summary process action in the alternative and may initiate the action by service of a notice to quit which recites mutually exclusive reasons ․ There is no statutory nor practice book requirement that a notice to quit cannot be pled in the alternative.”   Glastonbury Housing Authority v. Ortiz, Superior Court, judicial district of Hartford, Housing Session, Docket No. 155485 (Sep. 17, 2010, Gilligan, J.) [50 Conn. L. Rptr. 803].   Moreover, § 47a–23(b) expressly states that a landlord may list the “reason or reasons” for the notice to quit possession or occupancy.   Thus, courts have allowed landlords to list alternative reasons on a notice to quit.   For example, in Seventeen High St. v. Shoff–Darby Ins., Superior Court, judicial district of Stamford–Norwalk at Stamford, Housing Session, Docket No. 950217033 (Apr. 21, 1995, Tierney, J.) (14 Conn. L. Rptr. 206), the plaintiff served upon the defendant a notice to quit listing “lapse of time” and “never had the right or privilege to occupy the subject premises” as statutory reasons for terminating the defendant's occupancy.   The defendant moved to dismiss the complaint for lack of subject matter jurisdiction, claiming that the grounds stated in the notice were mutually exclusive and rendered the notice equivocal.   The court denied the defendant's motion to dismiss, and noted that there is no limitation in the summary process statute or in the case law requiring that the reasons given in the notice be compatible.   Accordingly, the court held that a “notice to quit is not equivocal by containing what may appear to be mutually exclusive reasons.”  Id.

“It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., supra, 294 Conn. 214.  “When good cause for termination of a lease has clearly been shown, and when notices of termination have been sent in strict compliance with statutory timetables, a landlord should not be precluded from pursuing summary eviction proceedings because of hypertechnical dissection of the wording of the notices that he has sent.”  Jefferson Gardens Associates v. Greene, 202 Conn. 128, 145, 520 A.2d 173 (1987).

CONCLUSION

For the foregoing reasons, the motion to dismiss as to count one is denied, and the motion is granted as to counts two and three.

Cobb, J.

FOOTNOTES

FN1. “A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has been terminated.”  (Internal quotation marks omitted.)   O'Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990)..  FN1. “A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has been terminated.”  (Internal quotation marks omitted.)   O'Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990).

FN2. It should be noted that the plaintiff did not, in its initial memorandum in opposition to the motion to dismiss nor at oral argument, put forth any argument that its first notice to quit was revoked, apparently as present counsel was unaware of the letter.   The first time this argument appears is in his supplemental memorandum on January 19, 2012, filed nearly two weeks after the action was heard by the court..  FN2. It should be noted that the plaintiff did not, in its initial memorandum in opposition to the motion to dismiss nor at oral argument, put forth any argument that its first notice to quit was revoked, apparently as present counsel was unaware of the letter.   The first time this argument appears is in his supplemental memorandum on January 19, 2012, filed nearly two weeks after the action was heard by the court.

FN3. Moreover, the Appellate Court in Bridgeport v. Barbour–Daniel Electronics, supra, 16 Conn.App. 581 n.7, has made clear in strong dicta its view that a summary process action cannot be based upon “nonpayment of use or occupancy.”   In Barbour–Daniel Electronics, the court expressly stated that had it been confronted with the issue, it would have concluded, “the nonpayment of use and occupancy is not a proper ground for eviction and, therefore, cannot sustain a summary process action.”  Id. In accord, Superior Courts have refused the right of eviction based upon nonpayment of use and occupancy because “nonpayment of use or occupancy” is not enumerated within the allowable statutory grounds for eviction pursuant to § 47a–23.   See, e.g., Commissioner of Transportation v. The Dock, Inc., Superior Court, judicial district of Fairfield, Housing Session, Docket No. 950830319 (November 20, 1995, Tierney, J.) (15 Conn. L. Rptr. 461) (dismissing action because “[t]here is no statutory right of eviction for nonpayment of use and occupancy”).   Indeed, the ordering of payments for use and occupancy is governed by a separate statutory procedure contained in § 47a–26b..  FN3. Moreover, the Appellate Court in Bridgeport v. Barbour–Daniel Electronics, supra, 16 Conn.App. 581 n.7, has made clear in strong dicta its view that a summary process action cannot be based upon “nonpayment of use or occupancy.”   In Barbour–Daniel Electronics, the court expressly stated that had it been confronted with the issue, it would have concluded, “the nonpayment of use and occupancy is not a proper ground for eviction and, therefore, cannot sustain a summary process action.”  Id. In accord, Superior Courts have refused the right of eviction based upon nonpayment of use and occupancy because “nonpayment of use or occupancy” is not enumerated within the allowable statutory grounds for eviction pursuant to § 47a–23.   See, e.g., Commissioner of Transportation v. The Dock, Inc., Superior Court, judicial district of Fairfield, Housing Session, Docket No. 950830319 (November 20, 1995, Tierney, J.) (15 Conn. L. Rptr. 461) (dismissing action because “[t]here is no statutory right of eviction for nonpayment of use and occupancy”).   Indeed, the ordering of payments for use and occupancy is governed by a separate statutory procedure contained in § 47a–26b.

FN4. There is no dispute that the present summary process action is based upon the second notice to quit.   The reasons to quit occupancy given in the second notice to quit are the same grounds as enumerated in the summary process complaint.   Further, the plaintiff refers in the complaint to, on September 21, 2011 having given “due notice to the defendants ․ to quit possession of said premises on or before September 30, 2011.”   These are the same dates of the second notice to quit..  FN4. There is no dispute that the present summary process action is based upon the second notice to quit.   The reasons to quit occupancy given in the second notice to quit are the same grounds as enumerated in the summary process complaint.   Further, the plaintiff refers in the complaint to, on September 21, 2011 having given “due notice to the defendants ․ to quit possession of said premises on or before September 30, 2011.”   These are the same dates of the second notice to quit.

Cobb, Susan Quinn, J.