Abraham Shemesh v. Jessica Lombardi et al. (2012)

MEMORANDUM OF DECISION

This is a summary process action commenced by Abraham Shemesh against Jessica Lombardi and Ira Lacks seeking possession of the premises known as 11 Glover Place, First Floor, Middletown, Connecticut.   The plaintiff claims that the defendants breached the terms of a written rental agreement by engaging in criminal activity on the premises.¹  The defendant Jessica Lombardi denies the plaintiff's claim.   A trial was held on March 12, 2012 at which time the plaintiff and the defendant Jessica Lombardi appeared and presented evidence.   The defendant Ira Lacks did not appear in the action.

The Notice to Quit which preceded the commencement of this action is dated January 4, 2012 and gives the following reason for termination of the lease:  “Termination of Lease for Cause, Criminal Activity on the Premises.”   On January 11, 2012, the plaintiff filed a one-count complaint alleging that the defendants agreed pursuant to the terms of the lease to only use the premises for lawful purposes and that “[t]he defendants were arrested on December 28, 2011 for conducting an illegal drug business and possession of a firearm.”   The plaintiff did not provide the defendants with a Kapa notice.²  At trial, the plaintiff proceeded with its summary process action on grounds that the defendants' actions constituted a “serious nuisance” under Connecticut General Statutes § 47a–15.   The defendant challenges the plaintiff's ability to seek to evict her on grounds of “serious nuisance” where the Notice to Quit and complaint do not specify that reason as grounds for termination of her lease.

Summary process is a statutory proceeding.   Because of the summary nature of its remedy, the summary process statute has been narrowly construed and strictly followed.  Jo–Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600–01, 96 A.2d 217 (1953);  Southland Corp. v. Vernon, 1 Conn.App. 439, 452, 473 A.2d 318 (1984).   Any deviation or failure to comply with the statutory mandates will deprive a court of subject matter jurisdiction.   City of Bridgeport v. Barbour–Daniel Electronics, Inc., 16 Conn.App. 574, 582, 548 A.2d 744, 749, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).

The question of subject matter jurisdiction can be raised by any of the parties, or by the court sua sponte, at any time.  Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002).  “[W]henever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”  Practice Book § 10–33;  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

A valid notice to quit is a condition precedent and a jurisdictional necessity to instituting a summary process action.  Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 413, 885 A.2d 768 (2005).   A defective notice to quit deprives the court of subject matter jurisdiction.   Marrinan v. Hamer, 5 Conn.App. 101, 104, 497 A.2d 67 (1985).

“In order to demonstrate its compliance with the notices required for a proper termination, a landlord must show that the notices given to the tenant apprised her of the information a tenant needs to protect herself against premature, discriminatory or arbitrary eviction.”  (Citations omitted.)  Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987).   Accordingly, a notice to quit citing nuisance and/or lease violations must contain specific facts amounting to a nuisance and reference the lease clause at issue.   See Invest II v. Southern Connecticut Mental Health and Substance Abuse Treatment Center, Superior Court, judicial district of Fairfield, Docket No. SBPR951030624 (December 6, 1995, Tierney, J.), and cases cited therein.   If the reasons stated in a notice to quit are too general to serve the function of giving the tenant notice of the particular conduct the plaintiff claims gives rise to the termination of the lease, the notice to quit is deficient.   Accord, The Bank of Hartford, Inc. v. Bultron, Superior Court, judicial district of Hartford–New Britain at Hartford, Housing Session, Docket No. 9206–65684 (December 3, 1992, Holzberg, J.) (notice to quit stating that lease is terminated because of “serious nuisance is not sufficiently precise in terms of specifying the particular conduct of the defendant;  the notice to quit is therefore defective);  Housing Authority of the City of Bridgeport v. Rogers, Superior Court, judicial district of Fairfield, Housing Session, Docket No. SP BR 9109–20758 (March 2, 1992, Leheny, J.) (6 Conn. L. Rptr. 174) (notice to quit stating that the lease is terminated because of “violation of the lease and rules and regulations adopted by the plaintiff” and “due to serious nuisance as defined in 47a–15(d)” are too general to serve the function of giving notice;  the notice to quit is therefore defective).

Here, the Notice to Quit gives the following reason for termination of the lease:  “Termination of Lease for Cause, Criminal Activity on the Premises.”   The lease provision allegedly violated is not referenced.   The alleged criminal activity is not described.   The person or persons allegedly involved in the criminal activity are not identified.   The court finds that the Notice to Quit is not sufficiently precise in terms of specifying the particular conduct which allegedly gave rise to the termination of the lease.   Consequently, the Notice to Quit is defective.

Moreover, there is a variance between the reasons for termination alleged in the Notice to Quit and the Complaint and the reasons for the termination advanced by the plaintiff at trial.   The Notice to Quit indicates that the basis of the lease termination was “for Cause, Criminal Activity on the Premises.”   The Complaint alleges that the defendants' arrest on December 28, 2011 violated the terms of the lease providing that the premises would only be used for lawful purposes.   At trial, the plaintiff proceeded on the theory that the lease was terminated due to serious nuisance.   The term “serious nuisance is not used in either the Notice to Quit or the complaint.  “Meaningful notice is a prerequisite for due process.”  Housing Authority of the City of Bridgeport v. Rogers, supra.   Neither the Notice to Quit nor the complaint provided meaningful notice to the defendant Jessica Lombardi that the plaintiff sought to evict her on the basis of serious nuisance.

For these reasons, the court finds that the Notice to Quit is defective and that the court lacks subject matter jurisdiction.   In light of this finding the court will not address the remaining issues raised by the parties at trial and in their post-trial briefs.   In addition, the court's order at the commencement of trial granting the plaintiff's Motion for Default for Failure to Appear and Judgment for Possession against the defendant Ira Lacks is vacated and the motion is denied as moot.   The plaintiff's summary process action is dismissed.

SO ORDERED.

Lisa Kelly Morgan, Judge

FOOTNOTES

FN1. The Rental Agreement attached to the Complaint and introduced into evidence at trial reflects that the agreement was solely between the plaintiff and the defendant Jessica Lombardi.   The defendant Ira Lacks was neither a named tenant in nor a signatory to the agreement..  FN1. The Rental Agreement attached to the Complaint and introduced into evidence at trial reflects that the agreement was solely between the plaintiff and the defendant Jessica Lombardi.   The defendant Ira Lacks was neither a named tenant in nor a signatory to the agreement.

FN2. Kapa Associates v. Flores, 35 Conn.Sup. 274, 408 A.2d 22 (1979).   If a tenant fails to comply with his statutory responsibilities under Gen.Stat. § 47a–11, and if such material noncompliance is not based on nonpayment of rent or serious nuisance by the tenant or a member of his household, then prior to the commencement of a summary process action, the landlord “shall deliver a written notice to the tenant specifying the acts of omissions constituting the breach and the rental agreement shall terminate upon a date not less than 15 days after receipt of the notice.”   Gen.Stat. § 47a–15.   A landlord is expressly relieved from any obligation to provide the tenant with a Kapa notice if the tenant's violation is deemed to constitute a “serious nuisance.”   If the plaintiff pursued this action on grounds other than non-payment of rent or serious nuisance, the action would be subject to dismissal due to the plaintiff's failure to satisfy the notice requirement of Gen.Stat. § 47a–15.   Kapa Associates, supra..  FN2. Kapa Associates v. Flores, 35 Conn.Sup. 274, 408 A.2d 22 (1979).   If a tenant fails to comply with his statutory responsibilities under Gen.Stat. § 47a–11, and if such material noncompliance is not based on nonpayment of rent or serious nuisance by the tenant or a member of his household, then prior to the commencement of a summary process action, the landlord “shall deliver a written notice to the tenant specifying the acts of omissions constituting the breach and the rental agreement shall terminate upon a date not less than 15 days after receipt of the notice.”   Gen.Stat. § 47a–15.   A landlord is expressly relieved from any obligation to provide the tenant with a Kapa notice if the tenant's violation is deemed to constitute a “serious nuisance.”   If the plaintiff pursued this action on grounds other than non-payment of rent or serious nuisance, the action would be subject to dismissal due to the plaintiff's failure to satisfy the notice requirement of Gen.Stat. § 47a–15.   Kapa Associates, supra.

Morgan, Lisa K., J.