LLC v. 32 LLC (2013)

MEMORANDUM OF DECISION

Defendant has filed a motion to dismiss for lack of subject matter jurisdiction claiming an invalid notice to quit.

On March 15, 2013, the plaintiff, Mom, Jerry & Jerry, LLC, filed a three-count summary process action against the defendant, 32 West Main Street, LLC, seeking possession of real property located at 32 West Main Street, Groton (Mystic), Connecticut (“the property”).   The complaint alleges the following relevant facts on or about January 20, 2006, the defendant, as lessee, entered into a written lease for the term of twenty-five years for the use and occupancy of the property, with an agreement to pay monthly rent on the tenth of each month.   The defendant failed to pay rent due under the lease on February 10, 2013.   On February 22, 2013, the plaintiff caused a notice to quit possession to be served on the defendant, instructing the defendant to vacate the property on or before February 28, 2013.   Nonetheless, the defendant remains in possession of the property.   Count one of the complaint is based on nonpayment of rent.   Count two incorporates the allegations contained in count one and alleges, further, that the defendant originally had the right or privilege to occupy the property but such right or privilege has been terminated.   Finally, count three also incorporates the allegations of count one and alleges, further, that the defendant never had the right or privilege to occupy the property.

On March 22, 2013, the defendant filed the present motion to dismiss.   The plaintiff filed a memorandum in opposition to the motion to dismiss on April 5, 2013, to which the defendant filed a reply on April 16, 2013.   A hearing was held on this matter on April 18, 2013.

The defendant moves to dismiss the plaintiff's complaint, arguing that the court lacks subject matter jurisdiction because the notice to quit, upon which the complaint is based, is invalid.   According to the defendant, the plaintiff filed a first notice to quit on December 18, 2012, alleging nonpayment of rent.   This notice to quit terminated the lease and converted the defendant's tenancy to a tenancy at sufferance.   The plaintiff took no action on this first notice to quit, but then filed a second notice to quit on February 22, 2013, alleging that the defendant failed to pay rent, that the defendant's right and privilege to occupy the property had terminated, and that the defendant never had the right or privilege to occupy the property.   The plaintiff filed its complaint based on the second notice to quit.   The defendant argues that the first notice to quit was valid and terminated the lease, thus the second notice to quit could not be based on violations of the lease because there was no lease agreement in effect at the time of the second notice to quit.

Plaintiff argues that a tenant at sufferance can be evicted on the basis that he once had the right or privilege to occupy the property but that right terminated.   Furthermore, the plaintiff asserts that it is permitted 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 for the notice.

In reply, the defendant contends that the case relied on by the plaintiff, Barnett v. McCarthy, Superior Court, judicial district of Tolland, Docket No CV 11 401 6047 (March 16, 2012, Cobb, J.) (54 Conn. L. Rptr. 747), is factually distinguishable Furthermore, the defendant argues that, subsequent to the first notice to quit, the plaintiff wrote to the defendant, demanding payment of rent.   The defendant tendered rent and the plaintiff accepted it.   According to the defendant, this “arguably” created a new lease and the defendant now had a valid right and privilege to occupy the property.¹

“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 [General Statutes] § 47a–23 that implicates the trial court's subject matter jurisdiction over that action ․ Thus, [a] [defendant's] 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.)  Vidiaki, LLC v. Just Breakfast & Things!!!    LLC, 133 Conn.App. 1, 21, 33 A.3d 848 (2012).

Summary process actions are governed by General Statutes § 47a–23(a) which provides in relevant part that “[w]hen the owner or lessor ․ desires to obtain possession or occupancy of any land or building ․ and ․ (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons ․ (E) nonpayment of rent when due for commercial property ․ or (2) when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises, 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.”

As an initial matter, this court must determine what effect the first notice to quit had on the lease.  “[Summary process] is preceded by giving the statutorily required notice to quit possession to the tenant ․ Service of a notice to quit possession is typically 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 [leasehold] is converted to a tenancy at sufferance.”   (Internal quotation marks omitted.)  Vidiaki, LLC v. Just Breakfast & Things!!!    LLC, supra, 133 Conn.App. 22.

The first notice to quit, dated December 18, 2012, provided that the defendant was to quit possession of the property on or before December 31, 2012, for the following reason(s):  (a) nonpayment of rent when due for a commercial property;  (b) such premises are occupied by one who originally had the right or privilege to occupy such premises but such right or privilege has terminated;  and/or (c) such premises are occupied by one who never had the right or privilege to occupy such premises.

Neither party asserts that the first notice to quit was defective in any way.   This court finds that the first notice to quit is valid and created a tenancy at sufferance.

The second notice to quit, dated February 16, 2013, is, in all ways, identical to the first notice to quit, with the exception that the second notice provided that the defendant was to quit possession on or before February 28, 2013.   As such, the second notice lists the same three reasons for seeking possession of the property:  (a) nonpayment of rent when due for a commercial property;  (b) such premises are occupied by one who originally had the right or privilege to occupy such premises but such right or privilege has terminated;  and/or (c) such premises are occupied by one who never had the right or privilege to occupy such premises.   The summary process complaint enumerates all three grounds.

A plaintiff may plead in the alternative but “cannot hinge the second notice to quit on a term of the rental agreement when the lease [has] been terminated by the first notice to quit and thus [is] no longer in effect.”  Vidiaki, LLC v. Just Breakfast & Things!!!    LLC, supra, 133 Conn.App. 25 “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.”  Barnett v. McCarthy, supra, 53 Conn. L. Rptr. 750.   These courts have followed the reasoning that “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.   Common sense dictates that when a contractual rental agreement is no longer in place, such an agreement can no longer be violated.”  Vidiaki, LLC v. Just Breakfast & Things!!!    LLC, supra, 24.

Plaintiff's first reason for seeking possession of the property, i.e., nonpayment of rent, is ineffective because the lease was terminated by the first notice to quit and a tenant at sufferance has no obligation to pay rent.   See id.;   see also Welk v. Bidwell, 136 Conn. 603, 608–09, 73 A.2d 295 (1950).   As nonpayment of rent is alleged in count one of the plaintiff's summary process complaint, the motion to dismiss count one is granted.

The plaintiff's second stated reason for eviction, and the basis for the second count of the summary process complaint, addresses the defendant's status as a tenant at sufferance.   See General Statutes 47a–23(a)(3).  “A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his [or her] right thereto has terminated.”  (Internal quotation marks omitted.)  Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn.App. 37, 42, 726 A.2d 600 (1999).   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 terminated.   See id.   In the present case, the first notice to quit was effective and valid to terminate the lease and served to convert the lease to a tenancy at sufferance.   The defendant does not argue that the second notice to quit was procedurally defective in any way.   The second count of the summary process complaint asserts that the defendant's right or privilege to occupy the premises had terminated.   Therefore, this ground may serve as a valid basis for terminating the defendant's tenancy at sufferance.   See Barnett v. McCarthy, supra, 53 Conn. L. Rptr. 750–51 (holding that tenancy at sufferance ground was effective under second notice to quit).   The motion to dismiss count two of the summary process complaint is denied.

Plaintiff's third stated reason for eviction, and the basis for the third count of the summary process complaint, is that the defendant never had the right or privilege to occupy the property.   See General Statutes § 47a–23(a)(2).   This reason “specifically contemplates summary process against a squatter and/or trespasser ․” Southern Connecticut Gas Co. v. Higgens, Superior Court, judicial district of Fairfield, Housing Session, Docket No CV BR–9406 02400 (March 27, 1995, Tierney, J.).   This ground does not implicate violation of a rental agreement and, in the present case, remains a valid basis for evicting the defendant.   The motion to dismiss count three of the summary process action is denied.

The motion to dismiss count one of the plaintiff's summary process complaint is granted, but the motion to dismiss counts two and three of the summary process complaint are denied.

Stuart M. Schimelman, J.T.R.

FOOTNOTES

FN1. The defendant provided no analysis on its contention that a new lease was formed, rendering the second notice to quit invalid.   As such, this court will not consider this argument.   See Carrillo v. Goldberg, 141 Conn.App. 299, 307 n.7, 61 A.3d 1164 (2013) (courts “are not required to review claims that are inadequately briefed ․ [A]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly” (internal quotation marks omitted))..  FN1. The defendant provided no analysis on its contention that a new lease was formed, rendering the second notice to quit invalid.   As such, this court will not consider this argument.   See Carrillo v. Goldberg, 141 Conn.App. 299, 307 n.7, 61 A.3d 1164 (2013) (courts “are not required to review claims that are inadequately briefed ․ [A]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly” (internal quotation marks omitted)).

Schimelman, Stuart M., J.