Opinion
No. TTDCV094011935S
April 15, 2011
MEMORANDUM OF DECISION
The plaintiff, Irish Bend Farm, LLP ("Irish Bend Farm"), brought the above-captioned summary process action against the defendant, Leeland E. Pinney ("Pinney"), seeking to evict the defendant from the premises located at 330 Pinney Road in Somers, Connecticut ("Premises"). A trial was conducted in February 2011, during which time the defendant moved, for the second time, to dismiss the plaintiff's complaint for lack of subject matter jurisdiction. The following memorandum will discuss the Court's findings of fact and conclusions of law.
I. FACTS AND PROCEDURAL HISTORY
The record reveals the following relevant facts and procedural history. The plaintiff is a Connecticut limited partnership consisting of two partners, Sam and Tracey Pinney, a married couple. The defendant is the father of Sam Pinney and the father-in-law of Tracey Pinney.
In 2006, the plaintiff purchased from the defendant a parcel of land with the improvements thereon located in the towns of Somers, Enfield and Ellington, Connecticut known as Pinney Farm. The plaintiff purchased the farm from the defendant's bankruptcy estate. Prior to the sale, the defendant had lived almost his entire life at the farm. Over the years, he acquired numerous animals that he kept at the farm.
The record revealed that on May 30, 2001, the defendant filed a Chapter 12 bankruptcy petition in the United States Bankruptcy Court for the District of Connecticut.
Testimony at trial revealed that the defendant owns, or owned, various animals, including cows, goats, sheep, miniature ponies, sheep, oxen, bunnies, dogs, chickens, llamas, bison, pheasants, ducks, quail and a wallaroo.
Following the plaintiff's purchase of the farm, the defendant and his animals remained at the farm. The defendant and several of his dogs lived with the Pinneys at an address on the farm known as 328 Pinney Road in Somers, Connecticut. He lived there until February 2008 when he (and his dogs) began living in a renovated dwelling on the farm property known as 330 Pinney Road in Somers, Connecticut ("the Premises"). At all relevant times, there was no written agreement defining the terms and conditions of the defendant's occupancy of the Premises and the defendant did not pay the plaintiff any money to occupy the Premises.
On or about June 19, 2009, the plaintiff, through a state marshal, served the defendant with a notice of removal. The notice was served in hand on the defendant and advised the defendant that he was, among other things, in violation of various local ordinances and state statutes concerning his dogs. The notice advised the defendant that he needed to remove all of his dogs "within 30 days" of his receipt of the notice. The defendant, however, did not remove his dogs from the Premises.
The Notice indicated that the defendant was in violation of Conn Gen. Stats. §§ 22-342, 22-344c, 22-355, 22-357, 22-362, 22-363, 22-364, 22-364a.
On August 11, 2009, a state marshal served the defendant with a Notice to Quit Possession by leaving the notice at the Premises. The notice to quit stated, in relevant part, that the plaintiff "hereby withdraws and revokes its permission for [the defendant] to remain on [the plaintiff's] land as its guest. This notice serves as a written termination of any prior permission to occupy property and/or conduct any activities on [the plaintiff's] property." The notice to quit further stated that the date for the defendant to quit his possession or occupancy of the Premises was "30 days from time of service." The defendant, however, continued in possession of the Premises.
On or about September 17, 2009, the plaintiff filed a one-count complaint against the defendant. The plaintiff alleged that on or about December 2007, it gave oral permission to the defendant to use and occupy the Premises. According to the plaintiff, the defendant subsequently took possession of the Premises, never paid any rent for the Premises and was a guest of the plaintiff. The plaintiff alleged that it served a notice to quit on the defendant on or about August 11, 2009 and advised the defendant that it had withdrawn its permission for the defendant to occupy and use the Premises. The plaintiff claimed that the defendant still continued in possession of the Premises.
On September 22, 2009, the defendant, through his counsel, filed an appearance and on September 25, 2009, the defendant filed a motion to dismiss the summary process complaint on the grounds that the court lacked subject matter jurisdiction. The defendant claimed that the notice to quit attached to the complaint was defective. In his memorandum in support of the motion to dismiss, the defendant argued that the notice to quit was not in compliance with General Statutes § 47a-23, which requires that a notice to quit possession set forth the reasons for the notice "using the statutory language [found in § 47a-23(a)] or words of similar import." The defendant also argued that the notice to quit was defective because it did not set forth a specific date by which the defendant was to quit possession. On September 6, 2010, the Court (Santos, J.) denied the defendant's motion to dismiss. See Irish Bend Farm, LLP v. Pinney, No. TTD CV 09 4011935 S (Sep. 16, 2010) [ 50 Conn. L. Rptr. 595].
This case was subsequently tried to this court. At the conclusion of the plaintiff's case in chief, the defendant moved again to dismiss the plaintiff's complaint and argued that the court lacked subject matter jurisdiction.
II. LEGAL DISCUSSION
The Court will first address the defendant'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). The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. Fort Trumbull Conservancy, LLC v. City of New London et al., 265 Conn. 423, 430, 829 A.2d 801 (2003). Here, the defendant has moved, for a second time, to dismiss the complaint on the grounds that this court lacks subject matter jurisdiction. The defendant argues, among other reasons, that Conn. Gen. Stat. § 47a-23(b) requires that a notice to quit contain a date certain and that "30 days from time of service" does not comply with this statute.
This court must first consider whether a trial court may entertain a motion to dismiss for lack of subject matter jurisdiction when such a motion has previously been considered and ruled upon by another trial court judge. In doing so, the court will consider the law of the case doctrine. "The law of the case [doctrine] is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). The law of the case doctrine provides that "[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case if it is of the opinion that the issue was correctly decided in the absence of some new or overriding circumstance." General Electric Capital Corporation v. Rizvi, 113 Conn.App. 673, 681 (2009); Signore v. Signore, 110 Conn.App. 126, 133, 954 A.2d 245 (2008). A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings and if the same point is again raised, he/she has the same right to reconsider the question as if he/she had him/herself made the original decision. General Electric Capital Corporation, 113 Conn.App. at 681. Simply stated, a judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law. Id.
In the present case, Judge Santos denied the defendant's prior motion seeking to dismiss this action for lack of subject matter jurisdiction and this court is not precluded from considering this motion for a second time. The court must therefore determine whether the notice to quit 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) Waterbury Twin, LLC v. Renal Treatment Centers Northeast, Inc., 292 Conn. 459, 466, 974 A.2d 626 (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 defendant argues that the form of the plaintiff's notice to quit renders it procedurally defective. Conn. Gen. Stat. § 47a-23(b) requires that a plaintiff "insert a date" by which a defendant is to quit possession or occupancy of a premises. Black's Law Dictionary (Sixth Edition) defines the word "date" as, inter alia, "The specification or mention, in a written instrument, of the time (day, month and year) when it was made (executed). In its common and statutory meaning refers simply to day, month and year . . . [`]date['] is not time in the abstract, nor time taken absolutely, but time given or specified; time in some way ascertained and fixed."
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 plaintiff relies upon case law that suggests that `talismanic' words are not required to satisfy the requirements of a notice to quit and that a landlord should not be precluded from pursuing a summary process action because of `hypertechnical dissection' of the wording of a notice to quit. See Jefferson Garden Associates v. Greene, 202 Conn. 128 (1987); Thomas E. Golden v. Society for Savings, 31 Conn.App. 575 (1993). At trial, the plaintiff argued that the notice was not equivocal despite the formulaic language of the notice because the defendant could have determined the quit date by calculating 30 days from the date that the notice to quit was served. This argument is undermined by the fact that the notice to quit was not served in hand, but was left at the Premises by the state marshal. As such, the defendant would not have known the date that the notice to quit was served unless, for example, he was served in hand with the notice to quit (which did not happen here) or he had a copy of the completed marshal's return of service indicating the abode service date. There was no evidence presented at trial that the defendant, prior to the service of the complaint, was provided with the marshal's completed return of service.
The state marshal who served the notice to quit testified that she had two copies of the notice to quit, an original that she left at the Premises on August 11, 2009 and a copy of the original which was returned to court. The State Marshal testified that she completed the return of service on the copy that was returned to court but that the original notice to quit served on the defendant did not contain a completed return of service.
Even if the defendant knew the date that the notice was served, the notice would still be equivocal because the language, "30 days from the time of service" (emphasis added), is ambiguous. A fair reading of this notice would leave one to guess whether the plaintiff intended "time of service" to mean a given day, month and year (i.e. August 11, 2009) or a more restrictive period namely, a given day, month and year and time of day (i.e. August 11, 2009 by 5:00 p.m.). A standard inquiry always is: "Does the notice reasonably protect the interests of the defendant under the particular circumstances of the case?" Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952). In the present case, the answer to this question is clearly "no."
The formulaic "30 days from time of service" on the plaintiff's notice to quit does not substantially conform to the "date" requirement of Conn. Gen. Stat. § 47a-23(b). The notice does not comply for the obvious reason that it does not provide a day, month and year — a date — when the defendant was to quit the Premises. For this reason and those stated herein, 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 jurisdiction is lacking, the court is precluded from ruling on the merits of this case.
III. CONCLUSION
Defendant's Motion to Dismiss is GRANTED.