Opinion
No. TTD CV-11-4014781S
April 15, 2011
MEMORANDUM OF DECISION ON PLANTIFF'S MOTION FOR DEFAULT
This is a summary process action in which the plaintiffs, Robert P. Buettner and Sandra J. Buettner (hereinafter "plaintiffs"), seek to evict the defendant, Lisa Bifolck d/b/a Hair and Body Sensations, from the premises located at 47 West Street in Ellington, Connecticut ("Premises").
I. FACTS AND PROCEDURAL HISTORY
The record reveals the following relevant facts and procedural history. The plaintiffs commenced this summary process action by way of a complaint dated February 22, 2011. In their complaint, the plaintiff's allege that on or about October 1, 2009, they entered into a written lease agreement with the defendant for the rental of the Premises at a monthly rental fee of $1,300 payable on or before the first day of each month. According to the plaintiff, the defendant took possession of the Premises and still remains in possession of the Premises. The plaintiffs allege that the defendant failed to pay the rent due on February 1, 2011.
On February 11, 2011, the plaintiffs served the defendant with a notice to quit possession of the Premises. The notice to quit called for the defendants to vacate the Premises on or before February 18, 2010 for the following reasons: "Non-payment of rent for February 2011 or 2. No right or privilege to occupy." The plaintiffs allege that although the time given in the notice to quit has passed, the defendant still continues in possession of the Premises.
On March 4, 2011, the defendant appeared in this action as a self-represented party. On March 22, 2011, the plaintiffs filed a Motion for Default for Failure to Plead and Judgment of Possession after the defendant failed to file a responsive pleading.
CT Page 9603
II. LEGAL DISCUSSION
Before the court can rule on the plaintiffs' motion, it must have jurisdiction to do so. Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments 11. Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987). Practice Book § 10-33 provides: "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after the suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." A court may raise and review the issue of subject matter jurisdiction at any time. Douglas v. Planning and Zoning Commission, 127 Conn.App. 87, 92 (2011); Lewis v. Gaming Policy Board, 224 Conn. 693, 698 (1993); Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985). A court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-86, 815 A.2d 1188 (2003); Neyland v. Board of Education, 195 Conn. 174, 181, 487 A.2d 181 (1985), quoting Firestone Tire Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).Upon review of the pleadings, it is apparent that this court lacks subject matter jurisdiction over this matter. The summary process procedure is a creature of statute requiring that it be narrowly construed and strictly followed. Jefferson Garden Associates v. Greene, 202 Conn. 128, 143 (1987); Jo-Mark Sand Gravel Co. v. Pantanella, 139 Conn. 598, 600-01, 96 A.2d 217 (1953); see also Marrinan v. Hamer, 5 Conn.App. 101, 103, 497 A.2d 67 (1985); Southland Corp. v. Vernon, 1 Conn.App. 439, 452 (1984). Before a landlord may pursue its statutory remedy of summary process under Conn. Gen. Stat. § 47a-23, the landlord must prove its compliance with all the applicable preconditions set by state and federal law for the termination of a lease. A notice to quit is a condition precedent and a jurisdictional necessity to a summary process action and a defective notice to quit deprives the court of subject matter jurisdiction. Bayer v. Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229 (2009); Lampasona v. Jacobs, 209 Conn. 724, 730 (1989); Windsor Properties, Inc. v. The Great Atlantic and Pacific Tea Company, Inc., 35 Conn.Sup. 297, 301 (1979); Marrinan, supra, 5 Conn.App. at 104; Sandrew v. Pequot Drug, Inc., 4 Conn.App. 627, 631 (1985). A notice to quit must be unequivocal for it to be sufficient to terminate a tenancy. Borst v. Ruff, 137 Conn. 359, 361 (1950).
Conn. Gen. Stat. § 47a-23(a) contains the reasons to be used in a notice to quit and Conn. Gen. Stat. § 47a-23(b) sets forth the required form of a notice to quit. 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." Conn. Gen. Stat. § 47a-23(b). Here, the plaintiff did not use the exact statutory language, but the court finds that the reasons stated in the notice to quit substantially comply with the statutory language of § 47a-23(a).
Connecticut General Statutes § 47a-23(a) provides: "When the owner or lessor, or the owner's or lessor's legal representative, or the owner's or lessor's attorney-at-law, or in-fact, desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, any trailer, or any land upon which a trailer is used or stands, 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 subsection (b) of section 21-82; (G) nuisance, as defined in section 47a-32, or serious nuisance, as defined in section 47a-15 or 21-80; 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; or (4) when an action of summary process or other action to dispossess a tenant is authorized under subsection (b) of section 47a-23c for any of the following reasons: (A) Refusal to agree to a fair and equitable rent increase, as defined in subsection (c) of section 47a-23c, (B) permanent removal by the landlord of the dwelling unit of such tenant from the housing market, or (C) bona fide intention by the landlord to use such dwelling unit as such landlord's principal residence; or (5) when a farm employee, as described in section 47a-30, or a domestic servant, caretaker, manager or other employee, as described in subsection (b) of section 47a-36, occupies such premises furnished by the employer and fails to vacate such premises after employment is terminated by such employee or the employer or after such employee fails to report for employment, such owner or lessor, or such owner's or lessor's legal representative, or such owner's or lessor's attorney-at-law, or in-fact, 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."
Connecticut General Statutes § 47a-23(b) provides: "The notice shall be in writing substantially in the following form: "I (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit, or of any trailer or any land upon which a trailer is used or stands, as the case may be), now occupied by you at (here insert the address, including apartment number or other designation, as applicable), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice). AB. If the owner or lessor, or the owner's or lessor's legal representative, attorney-at-law or attorney-in-fact knows of the presence of an occupant but does not know the name of such occupant, the notice for such occupant may be addressed to such occupant as "John Doe," "Jane Doe" or some other alias which reasonably characterizes the person to be served."
The form of the notice to quit, however, does not comply with Conn. Gen. Stat. § 47a-23(b). Conn. Gen. Stat. § 47a-23(b) states that a landlord may list the "reason or reasons" for the notice to quit possession or occupancy. There are a number of reported cases that discuss a plaintiff's ability to list alternative reasons on a notice to quit. In Norwalk Mall Venture v. Mijo, Inc., 11 Conn.App. 360 (1987), a commercial summary process action, the notice to quit listed three reasons; "1) Unauthorized occupancy, you are occupying these premises without any right or privilege, to do so, whatever right or privilege you may have had to occupy these premises has terminated, 2) material breach of paragraph 3 of your lease continuous operation provision, and 3) non payment of rent." Although reversed for other reasons, the trial court concluded that the express terms of the notice to quit were unequivocal, absolute and final. Norwalk Mall Venture v. Mijo, supra, 11 Conn.App. at 367-68. In doing so, the court noted that while the notice to quit was "not a model of particularity" the trial court was correct in determining that the notice to quit provided sufficient notice of termination under the lease agreement. Id., at 365.
In Seventeen High St. v. Shoff-Darby Ins., No. SPNO 950217033 (Apr. 21, 1995) [ 14 Conn. L. Rptr. 206], the plaintiff served a notice to quit on the defendant citing "lapse of time and never had the right or privilege to occupy the subject premises" as reasons for terminating the defendant's occupancy of a commercial premises. The defendant moved to dismiss the complaint and argued that the reasons stated in the notice were mutually exclusive and therefore rendered the notice equivocal. The court, in denying the defendant's motion, noted that although there is no such mutually exclusive limitation in the summary process statute, a notice to quit may state more than one reason. Seventeen High St. v. Shoff-Darby Ins., No. SPNO 950217033 (Apr. 21, 1995). The court determined that it was "possible, if not likely, that both of the reasons would apply because [the] eviction [was] attempting to terminate the occupancy of a small portion of a larger premises which [was] still occupied by the defendant." Seventeen High St. v. Shoff-Darby Ins., No. SPNO 950217033 (Apr. 21, 1995).
The present case is distinguishable from the courts' holdings in CT Page 9605 Norwalk Mall Venture and Seventeen High St. in several important respects. The plaintiff listed the reasons for terminating the occupancy as follows: "Non-payment of rent for February 2011 or 2. No right or privilege to occupy." [Emphasis added.] This notice is equivocal for several reasons. First, the plaintiffs' use of "or," unlike the use of "and" (or simply listing the reasons on the notice to quit), is improper in that it fails to properly identify the reason or reasons that form the basis of the summary process action. The court is mindful that in Connecticut, a plaintiff may plead inconsistent, yet otherwise valid, causes of actions together in the same complaint to allow a plaintiff to pursue alternative remedies or theories of relief. See Practice Book § 10-25; Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985); Veits v. Hartford, 134 Conn. 428, 434-35, 58 A.2d 389 (1948). Here, the plaintiff did not list its reasons for the eviction in the alternative, but instead, listed them in the disjunctive. By doing so, the defendant is left only to guess which reason or reasons form the basis for the eviction.
Second, the strict construction of our summary process statutes precludes a landlord from availing itself of an `everything but the kitchen sink approach' to listing reasons for an eviction when those reasons are not factually supported. Our courts have held that "the inclusion of a number of reasons which are not applicable to the facts of the case can be such to render a notice to quit equivocal." Seventeen High St. v. Shoff-Darby Ins., No. SPNO 950217033 (Apr. 21, 1995) citing Connecticut Light Power Co. v. Ponus Yacht Club Inc., SNBR-385, June 30, 1992. This reasoning is consistent with other decisions concerning alternative pleadings. Those cases hold that pleadings in the alternative must be "based on genuine doubt . . ." and "uncertainty as to the true facts." John Doe v. Yale University, 252 Conn. 641, 696, 748 A.2d 834 (2000); DeJesus v. Craftsman Machinery Co., 16 Conn.App. 558, 567, 548 A.2d 736 (1988). Here, the record before the court indicates that plaintiffs had no genuine doubt or uncertainty about its reason for evicting the defendant. There is only a single claim against defendant Foster for non-payment of rent. The remaining reason ("No right or privilege to occupy") does not appear to be applicable to the facts of this case.
III. CONCLUSION
For the foregoing reasons, the court finds that the notice to quit fails to comply with Conn. Gen. Stat. § 47a-23 and that this court lacks jurisdiction over this matter. As such, the court will not consider the merits of the plaintiffs' Motion for Default for Failure to Plead and Judgment of Possession.