Opinion
No. TTD CV 104012731S
April 15, 2011
This is a summary process action in which the plaintiff, Colonial BT, LLC, seeks to evict the defendants, Robbin Foster, Joseph Ouellette, John Doe and Jane Doe, from the premises located at 132 Foster Drive in Mansfield, Connecticut ("Premises"). The following Memorandum of Decision addresses the Motion to Dismiss filed on behalf of defendant, Robbin Foster, and the Motion for Default filed by the plaintiff as to defendants Joseph Ouellette, John Doe and Jane Doe.
I. FACTS AND PROCEDURAL HISTORY
The record reveals the following relevant facts and procedural history. The plaintiff commenced this summary process action by way of a complaint dated February 26, 2010. In its complaint, the plaintiff alleges that on or before June 1, 2008, it entered into a renewable written lease agreement with defendants Robbin Foster and Joseph Oullette for the rental of the Premises. According to the plaintiff, Foster and Ouellette took possession of the Premises as well as John and Jane Doe who, according to the plaintiff, had no right or privilege to occupy the Premises. The plaintiff alleges that defendants Foster and Ouellette failed to pay the monthly rent that was due for the period beginning September 1, 2009 through February 1, 2010.
On February 18, 2010, the plaintiff caused a notice to quit possession to be served on the defendants. The notice to quit, which was addressed to all four defendants collectively, called for the defendants to vacate the Premises on or before February 24, 2010 for the following reasons: "1. Non-payment of Rent; or 2. Whatever right or privilege you once had to occupy the premises has terminated; or 3. Never had the right or privilege to occupy the premises."
The plaintiff alleges that although the time given in the notice to quit has passed, the defendants still continue in possession of the Premises.
On March 16, 2010, defendant Foster, through her counsel, filed a motion to dismiss the summary process complaint. The grounds for the motion were that the court lacked subject matter jurisdiction because the notice to quit attached to the complaint was defective. In her memorandum in support of the motion to dismiss, defendant Foster argued, among other reasons, that the notice to quit was not in compliance with General Statutes § 47a-23.
On or about March 22, 2010, the plaintiff filed a Motion for Default for Failure to Appear and Judgment for Possession against non-appearing parties Joseph Ouellette, John Doe and Jane Doe.
On March 11, 2011, the date of the hearing on the motion to dismiss, the plaintiff filed an Objection to the Motion to Dismiss.
II. LEGAL DISCUSSION
The Court will first address defendant Foster's Motion to Dismiss. A motion to dismiss shall be used to assert the lack of jurisdiction over the subject matter. Practice Book § 10-31(a). A motion to dismiss "admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Young v. Chase, 18 Conn.App. 85, 90 (1989). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003) citing Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
Defendant Foster has moved to dismiss the complaint on the grounds that the plaintiff's notice to quit does not comply with the statutory requirements of Conn. Gen. Stat. § 47a-23. She argues that the notice to quit is defective because it is "too general in that it lists several reasons using the conjunction "or" and does not indicate which of [the] listed reasons is the basis for termination, as required under Conn. Gen. Stat. § 47a-23." Plaintiff argues that Foster's motion should be denied and relies upon the Court's holding in Jefferson Garden Associates v. Greene, 202 Conn. 128 (1987) in support its position that it complied with the statutory requirements of Conn. Gen. Stat. § 47a-23 and that there is good cause to maintain its action.
At issue in the present case is whether a notice to quit that lists multiple defendants and multiple disjunctive reasons for eviction satisfies the statutory requirements of Conn. Gen. Stat. § 47a-23. In considering this issue, the court is mindful that 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, namely, "Non-payment of rent," "Whatever right or privilege you once had to occupy the premises has terminated" and "Never had a right or privilege to occupy the premises" substantially comply with the statutory language of § 47a-23(a)(1)(D), § 47a-23(2) and § 47a-23(3) respectively.
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). A.B. 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 court must next address the sufficiency of the form of the notice to quit under 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 Norwalk Mall Venture and Seventeen High St. in several important respects. The plaintiff listed the reasons for terminating the occupancy as follows: "1. Non-payment of Rent; or 2. Whatever right or privilege you once had to occupy the premises has terminated; or 3. Never had the right or privilege to occupy the premises." [Emphasis added.] This notice is equivocal for several reasons. First, the plaintiff's 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, each defendants 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 plaintiff had no genuine doubt or uncertainty about its reason for evicting Foster. There is only a single claim against defendant Foster for non-payment of rent. The remaining reasons ("Whatever right or privilege you once had to occupy the premises has terminated; or 3. Never had the right or privilege to occupy the premises") do not appear to be applicable to the facts of this case.
And finally, the listing of all four defendants in a single notice to quit coupled with the disjunctive listing of reasons for the eviction further render the notice equivocal. The notice to quit leaves one to question whether all, or only some, of the stated reasons for eviction apply to each defendant. Reading the notice one way, one could assume that the plaintiff intended to pursue all reasons for eviction against each defendant. A review of the notice to quit and the plaintiff's three-count complaint, however, makes it clear that the plaintiff did not intend to pursue all theories of relief against each defendant but instead chose to pursue different theories of relief against each defendant. The notice to quit therefore fails to apprise the defendants of the information needed to protect them against premature, discriminatory or arbitrary eviction. Jefferson Garden Associates, supra, 202 Conn. at 145; Joy v. Daniels, 479 F.2d 1236, 1241 (4th Cir. 1973); Anderson v. Denny, 365 F.Sup. 1254, 1260 (W.D.Va. 1973); Apartments, Inc. v. Williams, 43 N.C.App. 648, 651, 260 S.E.2d 146 (1979).
The plaintiff's complaint dated February 25, 2010 contains individual causes of action against defendants Foster and Ouellette for non-payment of rent and a collective cause of action alleging that defendants John and Jane Doe never had any right or privilege to occupy the Premises.
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. Because the plaintiff's notice to quit fails to comply with Conn. Gen. Stat. § 47a-23, the court will not consider the propriety of the plaintiff's reliance upon Jefferson Garden Associates v. Greene, 202 Conn. 128 (1987).
In Jefferson Garden Associates v. Greene, 202 Conn. 128 (1987), the Court addressed the sufficiency of pre-termination (KAPA) notices. The Court in Jefferson Garden Associates considered the sufficiency of these notices on appeal after a trial on the merits.
CT Page 9578
III. CONCLUSION
Defendant Foster's Motion to Dismiss is GRANTED. In light of the Court's ruling on Foster's Motion to Dismiss, Plaintiff's Motion for Default for Failure to Appear and Judgment for Possession against defendants Ouellette, John Doe and Jane Doe are DENIED as moot.SO ORDERED.