Opinion
WWMCV176012240S
11-28-2017
James FADDEN v. Tina FADDEN et al.
UNPUBLISHED OPINION
OPINION
Angelo L. dos Santos, Senior Judge
The plaintiff, Fadden commenced this summary process case against the defendant, Fadden. The issue presented is whether the court should grant the defendant’s motion to dismiss the plaintiff’s complaint on the ground that the court is without subject matter jurisdiction because the plaintiff attached an invalid notice to quit possession to the complaint. After consideration of the issue, the court denies the defendant’s motion to dismiss.
FINDINGS OF FACT
On September 14, 2017, the plaintiff, James Fadden, filed a summary process summons with a return date of September 22, 2017, a complaint, a marshal’s return of service, and a notice to quit possession with a service date of August 25, 2017. In the complaint, he alleges the following facts. The plaintiff entered into a verbal month-to-month lease agreement (lease) for the use and occupancy of the property located at 67 Shepard Hill Road, Central Village, Connecticut (property) with the defendants Tina Fadden, Joshua Pohronezny a.k.a. John Doe, and Rebecca Parrot a.k.a. Jane Doe. On August 25, 2017, the plaintiff served on the defendants a notice to quit possession of the property on or before September 1, 2017. Although the lease expired on August 31, 2017, the defendants remain in possession of the property.
Fadden, Pohronezny, and Parrot are hereafter collectively referred to as the defendants. The present motion, however, is brought only by Fadden. Therefore, for ease of reference, Fadden is hereafter referred to individually as the defendant.
On September 25, 2017, the defendant filed an amended motion to dismiss the plaintiff’s complaint on the ground that the court lacks subject matter jurisdiction because the notice to quit possession filed with the complaint is invalid, as the lease was already terminated by a prior notice to quit possession. The defendant’s motion to dismiss is accompanied by a memorandum of law that includes, as an exhibit, a notice to quit possession that is dated August 9, 2017. On September 29, 2017, the plaintiff filed an amended complaint that sets forth the same allegations as the original complaint, except that the plaintiff alleges that the defendants were served with a notice to quit possession on August 10, 2017, not August 25, 2017. With his amended complaint, the plaintiff submits a notice to quit possession with a service date of August 10, 2017. On October 10, 2017, the defendant filed an addendum to her memorandum in support of her motion to dismiss. On October 11, 2017, the plaintiff filed an objection to the defendant’s motion to dismiss, which is accompanied by a supporting memorandum of law. The court heard oral argument on the matter on October 11, 2017.
An earlier motion to dismiss was filed on that same day. The amended motion adds language indicating that the motion is challenging subject matter jurisdiction.
The plaintiff’s notice to quit possession is the same as the notice to quit possession that the defendant attached to her motion to dismiss, except that, in the plaintiff’s copy, the bottom section of the form is completed and signed by the marshal that served notice on the defendants.
DISCUSSION
" [A] 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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).
The defendant argues that the court lacks subject matter jurisdiction over this case because the plaintiff attached an invalid notice to quit possession to his original complaint, and the court must decide this motion to dismiss based on the plaintiff’s original complaint. More specifically, the defendant argues that the plaintiff caused two notices to quit possession to be served on the defendants, and because the first one was effective and terminated the lease, the second one, which the plaintiff attached to his original complaint, is invalid. As the plaintiff attached the second, invalid, notice to quit possession to his original complaint, the court lacks subject matter jurisdiction over this case. Although the plaintiff attached the first, valid, notice to quit possession to his amended complaint, the defendant argues that the amended complaint cannot be considered by the court because questions of subject matter jurisdiction must be decided before taking any further steps. In response, the plaintiff argues that subject matter jurisdiction is not lacking because he may amend any defect in his complaint within the first thirty days after the return date. The plaintiff argues that because he amended his complaint on September 29, 2017, and attached the original notice to quit possession to the amended complaint, which the defendant concedes is valid, the court has subject matter jurisdiction over this case.
" The jurisdiction of the Superior Court in summary process actions ... is subject to a condition precedent. Before the court can entertain a summary process action and evict a tenant, the owner of the land must previously have served the tenant with notice to quit ... As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity." (Citations omitted.) Lampasona v. Jacobs, 209 Conn. 724, 728-29, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 590 (1989).
General Statutes § 52-128 provides: " The plaintiff may amend any defect, mistake or informality in the writ, complaint, declaration or petition, and insert new counts in the complaint or declaration, which might have been originally inserted therein, without costs, within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court; but, after any such amendment, the defendant shall have a reasonable time to answer the same." See also Practice Book § 10-59.
Practice Book § 10-59 provides: " The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day."
" In Sheehan v. Zoning Commission, 173 Conn. 408, 378 A.2d 519 (1977), our Supreme Court reversed the judgment of the trial court dismissing the plaintiff’s complaint on jurisdictional grounds where the plaintiff had filed an amended complaint within the prescribed statutory thirty days. The defendant had argued that once its motion to erase (now a motion to dismiss) had been filed with the trial court, the court correctly disposed of the question of jurisdiction before any motion or pleading of the plaintiffs could be entertained ... In reversing the judgment of the trial court, our Supreme Court explained, however, that there was no ‘motion or pleading’ to ‘be entertained’ by the court ... because the amendment was as of right under § 52-128 and Practice Book § 131 [now § 10-59] and took effect ab initio." (Citation omitted; internal quotation marks omitted.) Dauti v. Stop & Shop Supermarket Co., 90 Conn.App. 626, 639-40, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005). In Dauti, " [t]o support its position that the original complaint [was] the operative complaint, [the defendant relied] on Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 680 A.2d 1321 (1996), and its statement that [w]henever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause ... In Federal Deposit Ins. Corp., however, the defendant moved to dismiss the complaint for lack of subject matter jurisdiction and the plaintiff then moved to amend the complaint ... Our Supreme Court held that before the trial court could grant the plaintiff’s motion to amend, it had to consider the issue of subject matter jurisdiction." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dauti v. Stop & Shop Supermarket Co., supra, 640. In Dauti, " however, the plaintiffs did not move to amend their complaint; rather, they submitted an amended complaint as of right ... The plaintiffs filed their complaint on October 7, 2002, with a return date of October 22, 2002. On November 1, 2002, [the defendant] filed a motion to dismiss the entire complaint on the ground that the court lacked subject matter jurisdiction. On November 12, 2002, the plaintiffs filed an amended complaint captioned ‘Amended complaint as of right pursuant to Connecticut Practice Book Section 10-59.’ This amended complaint was filed well within the statutory thirty days of the return date. In accordance with General Statutes § 52-128 and Practice Book § 10-59, the amendment was ‘as of right’ and took effect ab initio ... Therefore, the operative complaint [was] the November 12, 2002 amended complaint." (Citations omitted; emphasis in original; footnote omitted.) Dauti v. Slop & Shop Supermarket Co., supra, 640-41.
The defendant argues that Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. 93, supports her position that the court may not consider the plaintiff’s amended complaint must fail. As our Appellate Court explained in Dauti v. Stop & Shop Supermarket. Co., supra, 90 Conn.App. 640-41, there is a difference between moving to amend a complaint, as in Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 96-97, and amending a complaint as of right. Where a complaint is amended as of right, the court considers the amended complaint ab initio. Dauti v. Stop & Shop Supermarket Co., supra, 640-41. Thus, the present case is distinguishable from Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 96-97, because in that case the plaintiff moved to amend the complaint, and here the plaintiff amended his complaint as of right; thus, the amended complaint in this case is considered ab initio.
The defendant further argues that New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180, 61 A.3d 505 (2013), supports her claim that the court may not consider the plaintiff’s amended complaint in deciding this motion. The defendant argues that New England Road, Inc. v. Planning & Zoning Commission, supra, 193, stands for the principle that it is improper to allow an amendment that attempts to cure a jurisdictional defect, rather than a circumstantial defect. The court in New England Road, Inc., however, considered whether a plaintiff’s complaint, which was served without a citation or summons, was the type of defect that is amendable pursuant to § 52-72. Id., 181-82. Although the court held that such a defect in service of process was not amendable pursuant to § 52-72; id., 194; the plaintiff in the present case is not seeking to correct such a defect in the service of process. Here, the plaintiff is seeking to amend his complaint as of right, pursuant to § 52-128, so as to reference and include the proper notice to quit possession. Therefore, New England Road, Inc. v. Planning & Zoning Commission, supra, 308 Conn. 180, does not affect the outcome of this motion. ---------
In the present case, the summary process summons filed by the plaintiff set a return date of September 22, 2017, and the plaintiff filed his amended complaint on September 29, 2017. As the amended complaint was filed within thirty days of the return date, his amended complaint was filed as of right, and therefore took effect ab initio. Thus, the operative complaint is the plaintiff’s amended complaint, which attached the first notice to quit possession that the defendant concedes was effective. The requirement that the plaintiff must have served his tenants with a notice to quit possession, a condition precedent to this summary process action, has been satisfied and the court therefore has subject matter jurisdiction over this case.
CONCLUSION
The plaintiff’s amended complaint was filed as of right and is therefore considered by the court ab initio. As the amended complaint attaches and references the first, valid, notice to quit, the court possesses subject matter jurisdiction over this case. Accordingly, the defendant’s motion to dismiss should be denied. The plaintiff’s objection to the motion is sustained.