Anthony C. Fonda v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

FACTS

Plaintiff landlord brought this summary process action by Complaint dated August 14, 2013, predicated upon on a Notice to Quit served on defendant tenant on August 6, 2013.   Defendant filed a Motion to Dismiss dated September 6, 2013, based on the argument that the complaint fails to state a claim upon which relief can be granted.   Paragraph 21(a)(1) of the lease, upon which the plaintiff bases the action for non-payment of rent, required the plaintiff to give written notice of an alleged default followed by allowing the defendant ten calendar days to pay the delinquent rental prior to exercising any right to terminate the lease.   Defendant maintains that plaintiff failed to give written notice required by the lease and to allow the defendants ten days to cure the default.

Plaintiff, in his objection to the Motion to Dismiss and in his amended objection argues that he did in fact provide defendant with the notice specified in the lease via certified mail on May 21, 2013, and he attached the written notice as Exhibit A to his amended objection.   The written notice was later introduced into evidence at the hearing on the motion to dismiss as Plaintiff's Exhibit 3. He further argues that well over ten days was provided to defendant to cure the default since the notice to quit was not served until August 6, 2013.

Defendant, on September 27, 2013, filed a reply to plaintiff's objection arguing that even if plaintiff did send the written notice that plaintiff's subsequent actions rendered the notice to quit equivocal and therefore defective.   Lastly, in its reply and by way of argument at the hearing, the defendant states the Notice to Quit is fatally defective, and, as a result, the court is without subject matter jurisdiction over this dispute because non-payment of the August rent was set forth in the notice to quit and August rent was not yet due on August 6, the date of service of the notice to quit.

A hearing on the motion to dismiss was held on September 30, 2013.   The court heard testimony from the plaintiff and defendant and the plaintiff introduced four exhibits, including the written notice that the defendant was in default of the lease agreement as Exhibit 3 and a copy of the certified mail receipt for the notice signed by the defendant as Exhibit 4.

The court has reviewed the memoranda of law and accompanying exhibits submitted by the parties as well as evaluated the evidence introduced and arguments set forth at the hearing.   The court denies the motion to dismiss for the reasons set forth below.

STANDARD OF REVIEW

“The standard of review for a court's decision on a motion to dismiss is well settled.   A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Citations omitted;  internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516 (2007).

DISCUSSION

Defendant first contends that the complaint should be dismissed for failing to state a claim upon which relief may be granted.   Defendant argues that paragraph 21(a)(1) of the lease upon which the eviction action is based required the plaintiff to give notice of a default for nonpayment of rent followed by a period of ten calendar days to cure the default and plaintiff failed to give the written notice and to allege in the pleadings that it complied with the notice provisions.

Plaintiff argues that it did give the required notice and attached a copy to his reply.   Plaintiff also introduced Exhibits 3 and 4 at the hearing on the motion which are a copy of the notice as well as the certified mail “green card” showing that notice was sent certified mail to the defendant and received by defendant.

The court first notes that the proper motion when any party wishes to contest the legal sufficiency of the allegations in a complaint to state a claim upon which relief can be granted is a Motion to Strike pursuant to § 10–39 of the Practice Book. A Motion to Dismiss is proper only when claiming a lack of jurisdiction over the subject matter, over the person or improper venue.  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․” Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988);  Amore v. Frankel, 228 Conn 358, 366, 636 A.2d 786;  Ferreira v. Pringle, 225 Conn. 330, 335, 766 A.2d 400 (2001).

Here, the plaintiff alleges in his complaint that the rent has not been paid as of April 1, 2013 and that he has served a notice to quit within the proper timeframe.   The allegations in the complaint, which for this purpose must be admitted as well pleaded, establish the jurisdiction of the court and thus the motion to dismiss on this basis is denied.

Further, the court finds, based on the evidence submitted and adduced at the hearing, that the plaintiff did provide the notice required by paragraph 21(a)(1) of the lease.   Exhibit 3, the notice which was sent to the defendant, advises the defendant that the rent was not paid in full and requests that the defendant cure the default.   Plaintiff's Exhibit 4 is very clear that the notice was received and signed for by the defendant on May 24, 2013.   The notice to quit was not served until August 6, 2013, seventy-four days after the notice of default and therefore well over ten days elapsed between notice of default and service of the notice to quit.   Therefore, even if the motion to dismiss is properly before the court, the defendant was provided with the requisite written notice and the motion to dismiss on this basis must be denied.

The defendant next argues that the court lacks subject matter jurisdiction based upon a defective notice to quit.   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 mandatory condition precedent to a court's exercise of subject matter jurisdiction over a summary process action.   Lampasona v. Jacobs, 209 Conn. 724, 728–29, cert. denied, 492 U.S. 919 (1989).   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).

Defendant argues that the notice to quit is defective because it is equivocal based upon the actions of the defendant in accepting plaintiff's tender of rent subsequent to giving the defendant notice of default pursuant to the lease.   Defendant states in its reply memorandum that the act of plaintiff accepting the rent tendered by defendant each month from June to August of 2013 unequivocally reinstated the tenancy which it purported to terminate by the May 21, 2013 notice of default, thereby rendering the notice to quit equivocal.

A notice to quit must be “an unequivocal manifestation by the lessor that he has terminated the rental agreement.”  Messinger v. Laudano, 4 Conn.App. 162, 163 (1985) citing Bushnell Plaza Development Corporation v. Fazzano, 38 Conn.Sup., 683, 686 (1983).  “In order to terminate the rental agreement with the defendant, plaintiff must have acted unequivocally.”  Sandrew v. Pequot Drug, Inc., 4 Conn.App. 627, 631 (1985).

Here the plaintiff did act unequivocally in terminating the rental agreement.   The notice of default did not and could not terminate the rental agreement as asserted by the defendant.   The only legal mechanism by which to terminate the rental agreement is a notice to quit.  Young v. Vlahos, 103 Conn.App. 470, 480 (2007), cert. denied 285 Conn. 913 (2008).   Thus, acceptance of rent or use and occupancy after the default letter had been sent would have no bearing on whether the notice to quit was equivocal because such acceptance occurred prior to the service of the notice to quit and the default notice did not terminate the tenancy or rental agreement.

Further, paragraph 22 of the lease states as follows:  “The receipt of all or part of any Monthly Installment or Additional Rent after an Event of Default will not operate as a waiver of Landlord's right to enforce the payment of any Monthly Installment or Additional Rent or to recover possession of the Premises as provided in this Lease.”   Thus the lease provides that the plaintiff may proceed to obtain possession after an event of default regardless of whether he accepted any monthly payments.

The form for a notice to quit requires that the party state the ‘reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import.’  General Statutes 47a–23(b).  Thomas E. Golden Realty v. Society for Savings, 31 Conn.App. 575, 579 (1993).   The plaintiff served a proper notice to quit with all of the requisite statutory language upon the defendant on August 6, 2013.   The notice stated unequivocally that it was for non-payment of rent.   Therefore, the defendant's argument that the acceptance of rental after notifying the defendant pursuant to the lease that he was in default for failure to pay rent somehow rendered the notice to quit equivocal is without merit and the motion to dismiss is denied on that basis.

Lastly, the defendant argues that the notice to quit was defective because it included the failure to pay rent “through August 2013.”   The notice to quit was served on August 6, and included non-payment of August rent as a reason for termination.   The defendant contends that he would not have been in default until August 10, after the date of service of the notice to quit, and thus the notice to quit is not valid.

First, per General Statutes § 47(a)(1)(E) a landlord may obtain possession of commercial property by service of a notice to quit for non-payment of rent when such rent is due.   The rent was due on August 1, 2013 prior to the date of service of the notice to quit.   The defendant had already been notified on May 21, 2013, prior to August, by way of the notice, plaintiff's Exhibit 3, that the sum of $6,000 per month was not the correct amount of rental and that the plaintiff claimed defendant was in default.   Thus the notice to quit for failure to pay rental due August 1, 2013 was proper and not defective.

Further, even if the August rent was deemed not to be due until August 10, the notice to quit recited failure to pay rent for the months of April, May, June and July as well as August.   The defendant had tendered the sum of $6,000 per month for those months and had been notified on May 21, 2013 that it was in default as a result.   Therefore, the notice to quit is valid for non-payment of rent for those months.   The court finds that “it would be the height of hypertechnicality to hold this notice to quit defective” based upon the inclusion of the month of August along with the other months.  Thomas E. Golden, 581, citing Southland Corporation v. Vernon, 1 Conn.App. 439, 452–53 (1984).

CONCLUSION

For all of the foregoing reasons, defendant's Motion to Dismiss is hereby denied.

Shelley A. Marcus, Judge

Marcus, Shelley A., J.