Opinion
No. HDSP-145890
April 25, 2008
MEMORANDUM OF DECISION
MOTION TO DISMISS I. STATEMENT OF CASE
The defendant moves to dismiss the complaint for lack of subject matter jurisdiction on the grounds that the complaint and notice to quit are legally insufficient because they do not allege any acts of nuisance between the dismissal at the prior action and the delivery of the notice to quit.
In its complaint, the plaintiff alleges the following facts. On or about December 4, 2003, the plaintiff-landlord and defendant-tenant entered into a lease agreement for the premises at #3C, Metacomet Village, 47 North Main Street, East Granby, Connecticut. The lease has terminated due to the serious nuisance created by the defendant in her unit. The alleged conduct occurred between March 29, 2006 and December 1, 2007. The tenant was issued a pretermination notice on August 13, 2007. A notice to quit was served on December 27, 2007. The instant action was served on January 24, 2008, and filed on January 30, 2008.
Previously, the plaintiff had filed an eviction action against the defendant on October 5, 2007. The complaint alleged breach of lease. On December 14, 2007, the following judgment was entered: "Judgment for defendant — after trial. The plaintiff has not alleged a serious nuisance pursuant to General Statute sec. 47a-15 in either the complaint or the notice to quit. The complaint and notice to quit do allege breach of lease terms based upon other than non-payment of rent. The complaint does not allege the giving of a General Statute sec. 47a-15 notice. Kapa v. Flores, 35 Conn.Sup. 274 (1979). This is a jurisdictional requirement. Accordingly, the motion to dismiss is granted. It is unnecessary to address the remaining issues. (s/Hon. Peter Wiese)."
The defendant argues that the dismissal of the prior action had the legal effect of reviving the lease between the parties. Since the complaint and notice to quit in this case do not allege any acts of nuisance between the dismissal of the prior action (December 14, 2007) and the delivery of the instant notice to quit (December 27, 2007), the complaint and notice to quit are legally insufficient and, therefore, the court lacks subject matter jurisdiction.
II 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever 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. "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). "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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211.
"[T]he notice requirements of the general summary process statute; General Statutes 47a-23; are jurisdictional." (Citation omitted). Lampasona v. Jacobs, 209 Conn. 724, 729, 553 A.2d 175 (1989). "The notice [to quit] is a condition precedent to the bringing of the [summary process] action . . ." O'Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946); Lampasona v. Jacobs, supra, CT Page 7047 209 Conn. 729. "The failure to comply with the statutory requirements deprives a court of jurisdiction to hear the summary process action . . ." (Citation omitted.) Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582, 548 A.2d 744 (1988).
In her motion to dismiss, the defendant raises issues regarding the legal effect of the first summary process action that was later dismissed.
In Housing Authority v. Hird, 13 Conn.App. 150, 535 A.2d 377 (1988), the plaintiff initiated three summary process actions before finally evicting the defendant. The first action began with a pretermination notice. Housing Authority v. Hird, supra, 13 Conn.App. 153. A notice to quit was served based on nonpayment of rent. Id. The first eviction action ended with judgment for the defendant. Id. A week or so after the judgment entered, the plaintiff served a second notice to quit followed by a summary process action based on nonpayment of rent. Id. The second eviction action was withdrawn by the plaintiff before judgment was rendered. Id., 154. The defendant sought to make arrangements for the reinstatement of the defendant as a tenant, but the plaintiff refused to do so because the defendant had a substantial arrearage and had stopped making payments. Id. Less than a week after the second eviction action was withdrawn, the plaintiff served a third notice to quit based on nonpayment of rent. Id., 153-54. After the third eviction action was filed, the trial court rendered judgment for the plaintiff. Id., 154. "The trial court found that . . . because the eviction action following the [second] notice to quit possession [had] been withdrawn, [it] had no legal effect or consequence on the preexisting lease between the parties." Id., 155.
In affirming the judgment, the Appellate Court held that, "Of similar import is the subsequent summary process action predicated upon the notice to quit possession . . . [T]he plaintiff . . . withdrew this summary process action pursuant to its statutory right . . . We conclude that the defendant's lease also survived this summary process action because of its withdrawal by the plaintiff before a hearing and judgment thereon. The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80, is absolute and unconditional. Under our law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of a case from the docket . . . The withdrawal of the summary process action . . . effectively erased the court slate clean as though the eviction predicated on the [second] notice to quit possession had never been commenced." (Citations omitted; internal quotation marks omitted.) CT Page 7048 Id., 156-57.
In Bargain Mart, Inc. v. Lipkis, 212 Conn. 120, 561 A.2d 1365 (1989), the Supreme Court held that "[a]s the Appellate Court correctly observed in Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582-84, 548 A.2d 744 (1988) . . . a notice to quit will not terminate a lease if the notice itself is invalid. Indeed, it is self-evident that if the notice is invalid, then the legal consequence of `termination' arising from the service of a valid notice does not result." Bargain Mart, Inc. v. Lipkis, supra, 212 Conn. 134.
In Chappelle Gardens, Inc. v. Pertillar, Superior Court, Housing Session, judicial district of Hartford at Hartford, Docket No. HDSP-137643 (September 11, 2006, Bentivegna, J.), the court denied the motion to dismiss after determining that the first notice to quit was invalid as premature. The court based its holding on Bridgeport, where the Appellate Court held: " `[B]ecause the first notice to quit possession was a nullity, it did not have the effect of terminating the lease, and, therefore, the second notice to quit was properly based upon the defendant tenant's failure to pay rent for which a summary process action may be maintained pursuant to General Statutes 47a-23.' Id., 575-76." Chappelle Gardens, Inc. v. Pertillar, supra.
In the prior summary process action, there was a rendition of a final judgment by way of dismissal on December 14, 2007. Applying the reasoning of the above-mentioned cases, the lease agreement survived the first summary process action. As in Hird, the dismissal "effectively erased the court slate clean as though the eviction predicated on the [first] notice to quit possession had never been commenced." Id., 156-57. Consequently, the defendant's obligation under the lease and the August 13, 2007 pre-termination notice also survived.
Accordingly, the complaint and notice to quit in this case alleging serious nuisance based on alleged conduct between March 29, 2006 and December 1, 2007 are legally sufficient. The court has subject matter jurisdiction to entertain this action.
III CONCLUSION AND ORDER
For the above-stated reasons, the defendant's motion to dismiss is denied.
SO ORDERED