Opinion
Docket No. HDSP-127921
August 9, 2004
RULING ON THE DEFENDANT'S MOTION TO DISMISS
The defendant, Barbara Blakeney, seeks to dismiss this summary process action. As the reason for her motion, the defendant contends that the Court lacks subject matter jurisdiction. The defendant asserts that the plaintiff, SHP Management Tunxis Avenue L.P. doing business as Woodside Village Apartments, was required to issue a new notice to quit to the defendant following the dismissal of the plaintiff's previous summary process action.
FACTS
The plaintiff commenced a summary process action against the defendant on December 24, 2003 when the plaintiff's attorney issued a notice to quit alleging that that the defendant's conduct while at the demised premises constituted nuisance ( SHP Management Tunxis Avenue LP doing business as Woodside Village Apartments v. Barbara Blakeney, Docket Number HDSP-127155). The plaintiff articulated in the notice to quit the allegations of nuisance; specifically, that the defendant caused water to leak into an adjacent apartment, played loud music, and swore at the management, other tenants and the police. There, the issue before the court was whether the failure to recite the pre-termination ( KAPA notice) in the complaint or annexing a copy of the pre-termination notice to the complaint, constitutes a jurisdictional defect that requires a dismissal of the case. The court, (Satter, J.T.R.) (H-1252, March 10, 2004) held that the pre-termination notice required by C.G.S. Section 47a-15 must be recited in or attached to the complaint and the failure to do so by the plaintiff mandates dismissal of the case.
Following the dismissal of the case, the plaintiff commenced this action without the issuance of a new notice to quit. The plaintiff attached the same December 24, 2003 notice to quit to the complaint and the same notice of termination letter dated October 10, 2003 which it used in the first case. The notice of termination letter advised the defendant to abate and refrain from the alleged conduct by November 2, 2003. In the notice of termination letter, the defendant was further advised of the opportunity to meet with the property manager to discuss the matter.
DISCUSSION
The defendant contends that the Court lacks subject matter jurisdiction because the plaintiff did not cause a new notice to quit possession to be delivered to the defendant. The defendant asserts that the dismissal of the plaintiff's prior action on March 10, 2004 restored the parties to their prior status vis-à-vis each other. Therefore, a new notice to quit was required be served on the defendant prior to the commencement of the present action.
In support of her motion to dismiss, the defendant cites Housing Authority of East Hartford v. Hird, 13 Conn. App. 150, 156-157 (1988). In Hird, the court held that the dismissal of a prior action restored the parties to their prior status and the lease agreement could only be terminated by the delivery of a new notice to quit. Because a new notice to quit was not issued by the plaintiff, there was no proper jurisdiction for the action.
The plaintiff argues that the present case is distinguishable from Hird. The plaintiff reasons that in Hird, supra, the trial court determined that that the plaintiff had failed to prove the reasons for the termination of the defendant's tenancy contained in the notice to quit. In other words, the court adjudicated the merits of the eviction based on the reasons stated in the notice to quit. The plaintiff cites a portion of the Hird decision.
"The service of the notice to quit possession on July 15, 1985, did not compromise the tenant rights of the defendant because the subsequent trial and judgment on the merits in the summary process action predicated on this notice did not uphold the allegations of the complaint asserting the termination of the lease by this notice to quit possession. The trial court, therefore, correctly concluded that the defendant's lease survived the judgment of November 6, 1985, in her favor. The parties were returned to their status quo before July 15, 1985, by this judgment".
The plaintiff argues that the precedents cited by the defendant relate to specific cases where the notice to quit was either defective or the notice to quit was rendered a nullity by decision of the court addressing the merits of the notice to quit.
Other judges have considered the effect of a withdrawal or dismissal. In Cohen v. Thorpe, 3 Conn. L. Rptr. 692; SPNO9011-10511 (Superior Court, Housing Session at Norwalk, (Melville, J.) the Court examined the issue of:
"Whether a notice to quit which on its face unequivocally exercises the landlord's option to terminate a lease may serve to terminate that lease where due to procedural or statutory defects that same notice could not support a summary process proceeding."
In Cohen, supra, the first action was based upon non-payment of rent. The first action was dismissed because the complaint was not signed. While the Court relied upon the failure to sign the complaint as the reason for dismissal, the defendant had also raised the issue of improper service of the notice to quit, because the notice to quit was taped to the outside door. Cohen, supra n. 1. A second notice to quit was served based upon non-payment of rent. A motion to dismiss was filed in the second action arguing that the service of the second notice to quit was improper where the tenant had no obligation to pay rent.
Judge Melville concluded that the first notice to quit had the effect of terminating the month-to-month tenancy, thereby creating a tenancy at sufferance. Housing Authority of East Hartford v. Hird, 13 Conn. App. 150, 155 (1987). The Court, in Cohen found that the second notice to quit for non-payment of rent must fail, as "the summary process statutes recognize no cause of action for the nonpayment of `use and occupancy'." Bridgeport vs. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 581 n. 7. (1988). Judge Melville found that despite the defective reason in the notice to quit, "common law consequences "flow from the notice to quit and the resulting declaration of forfeiture resulted in a conversion to a tenancy at sufferance. Cohen, supra.
Judge Melville noted:
In view of the result in this case, it is safe to say that the lesson taught here is that a landlord who is indecisive in taking advantage of his right to forfeit a short term lease for condition broken, may suffer even greater and costlier delays by instituting a subsequent action predicated on a second notice to quit based on the same forfeiture. To avoid this pitfall, a landlord would be well advised to carefully consider the possible adverse consequences before issuing successive notices to quit based on the same forfeiture. Cohen v. Thorpe, supra.
Judge Melville, in Cohen, raised the possibility, in other circumstances, of using a valid notice to quit, if at all possible, for non-payment of rent in lieu of issuing a second notice to quit for "once had a right or privilege." Cohen, supra n9. This obviates the need to reinstate the tenancy.
Judge Tierney examined this possibility in Lombardi v. Dunning, SPNO9506-17515, (July 31, 1995). This case was based upon a month to month tenancy with non-payment of rent being the basis for the first action. The first lawsuit was withdrawn, and no notice was sent to the defendants reinstating the tenancy or revoking the notice to quit, and the Court noted that the first notice to quit was not defective in any respect. A second action was commenced three weeks later with the service of a second notice to quit, with the reasons being "non-payment of rent" and "lapse of time." The defendant filed a motion to dismiss claiming that the "second notice to quit is a nullity and cannot serve as the jurisdictional basis" for the action.
Judge Tierney noted that the effect of the withdrawal of the action did not place the parties in a situation wherein the lease was reinstated. The court found that the "second notice to quit although valid under statutory grounds and common law grounds, had no legal effect" and was a nullity. "The parties relationship . . . was a tenancy at sufferance since the first notice to quit . . . unequivocally terminated the month-to-month tenancy at will." The court found that despite the withdrawal, the first notice to quit survived the withdrawal of the action. The court granted the plaintiff permission to amend his complaint to plead the first notice to quit.
Hill v. Purdy, CV188661, Jud., Dist. of Litchfield, G.A. #18 at Bantam (Black, J.) involved the question of whether a landlord can use an original notice to quit in a subsequent action where the previous actions were withdrawn.
In Hill, action number one for lapse of time was withdrawn for procedural reasons not involving the notice to quit. A new notice to quit was served on the same day as the withdrawal alleging lapse of time, followed up with action number two. A motion to dismiss was filed alleging lapse of time as an improper ground for termination as no lease existed, and the plaintiff filed a second withdrawal. Action number three was then commenced, using a certified copy of the original notice to quit from action number one. The defendant tenants filed a Motion to Dismiss alleging that the plaintiffs' previous withdrawals of their summary process actions reinstated the lease agreement of the parties thereby requiring the service of a new notice to quit.
Judge Black found that under Housing Authority v. Hird, supra at 155, the defendants became tenants at sufferance after the service of the first notice to quit.
"Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of termination of the lease. The lease is neither voided or rescinded until the landlord performs this act and, upon service of a notice to quit possession, a tenancy at will is converted to a tenancy at sufferance."
Judge Black noted significantly that
. . ." (I)f indeed the withdrawal of the second summary process action `effectively erased the court slate clean" . . . placing the plaintiff and defendant `back to square one,' Hird, supra at 157, square one would be no valid lease, the tenants becoming tenants at sufferance. The defendants' argument that the lease was reinstated as a matter of law by the plaintiff's withdrawal of the prior summary process action cleverly ignores that fact that at this time there was no valid lease to reinstate."
The court in Hill, denied the Motion to Dismiss, finding that there was no lease agreement between the parties requiring the service of a new notice to quit.
CONCLUSION
In this case, the plaintiff argues that when the legal sufficiency or merits of the notice to quit have not been determined by the court, the landlord can utilize the same notice to quit to commence a new action. The Court agrees. In connection with this controversy, the court dismissed the first case for failure of the plaintiff to recite the pre-termination notice in the complaint or annex the original pre-termination notice to the complaint. The court never ruled upon the validity of the notice to quit. No evidence was presented that the plaintiff withdrew the notice to quit after the court dismissed the first case.
In Amresco Residential Corporation v. Jones, No. SPH 96230, March 25, 1998 (Beach, J), the trial court left open the possibility that a disposition not involving the merits of the notice to quit, does not necessarily negate the effect of the first notice to quit. There, the trial court stated: "I will leave until another day the issue of the effect of a Withdrawal which specifically withdraws only the complaint, where the notice to quit is valid on its face."
Here, the notice to quit appears to be valid on its face and the defendant does not allege otherwise. As such, the Motion to Dismiss is hereby denied. CT Page 11232-a