Bristol Residental Properties v. Van Kirk

Full title: Bristol Residental Properties v. Sandra Van Kirk

Court: Connecticut Superior Court Judicial District of New Britain, Housing Session at New Britain

Date published: Jan 10, 2007

2007 Ct. Sup. 618 (Conn. Super. Ct. 2007)

Opinion

No. NBSP-46757

January 10, 2007

MEMORANDUM OF DECISION MOTION TO DISMISS

JAMES M. BENTIVEGNA, JUDGE.

I. STATEMENT OF THE CASE

This is a summary process action based on nonpayment of rent for the month of July 2006. The defendant has moved to dismiss the complaint for lack of subject matter based on an equivocal notice to quit.

The complaint alleges the following facts. The parties entered into a lease agreement for the premises at 49 Hull Street, Bristol, Connecticut. The agreed-upon rent was $500. On July 22, 2006, the plaintiff served the defendant with a notice to quit based on nonpayment of rent for July 2006. Although the time designated in the notice to quit possession of the premises has passed, the defendant still continues in possession.

At the motion hearing, the defendant presented evidence that the plaintiff sent the defendant a payment invoice, dated August 28, 2006, requesting payment of rent for the months of July 2006, August 2006 and September 2006.

II DISCUSSION A Motion to Dismiss

The defendant moves to dismiss this matter based on the lack of subject matter jurisdiction.

Practice Book Sec. 10-31(a) states in relevant part: "a motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, . . ." "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).

"Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. Each element of jurisdiction is dependent upon both law and fact. Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person. Facts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court are essential to jurisdiction over the subject-matter of the suit. Facts showing that a particular judgment is rendered in compliance with all existing mandatory law in that regard are essential to jurisdiction to render a particular judgment." Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988).

"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." Cox v. Aiken, supra, 278 Conn. 211. "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits . . . If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken." (Citations omitted.) Herzog Foundation, Inc. v. Uni. Of Bridgeport, 41 Conn.App. 790, 793, 677 A.2d 1378 (1996).

"[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, 209 Conn. 729. An improper notice to quit deprives the court of subject matter jurisdiction. Lampasona v. Jacobs, supra, 209 Conn. 730. "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); See also Bargain Mart, Inc. v. Lipkis, 212 Conn. 120, 561 A.2d 1365 (1989).

"The issuance by a landlord of a notice to quit is an unequivocal act terminating the lease agreement with the tenant." (Internal quotation marks omitted.) O'Brien Properties, Inc. v. Rodriquez, 215 Conn. 367, 372, 576 A.2d 469 (1990). "The notice to quit must be unequivocal for it to be sufficient to terminate the tenancy. Borst v. Ruff, 137 Conn. 359, 361 (1950); Thompson v. Coe, 96 Conn. 644, 651 (1921); Park Ridge Apartments v. McGann, H-571, September 26, 1984, (Goldstein, J.)." Seventeen High St, LLC v. Shoff-Darby, Ins., Superior Court, judicial district of Stamford-Norwalk at Norwalk, Housing Session, Docket No. SPNO 950217033 (April 21, 1995, Tierney, J.) [ 14 Conn. L. Rptr. 206]. A notice to quit must convey "a clear intention to terminate the lease and to proceed with judicial process to secure possession." Zitomer v. Palmer, 38 Conn.Sup. 341, 343, 446 A.2d 1084 (1982). See Danpar Associates v. Falkha, 37 Conn.Sup. 820, 438 A.2d 1209 (1981); 617 Park Street LTD. v. John Diakomanolis d/b/a Greek Cafe, Superior Court, judicial district of Hartford/New Britain at Hartford, Housing Session, Docket No. 9407-76760 (DiPentima, J., October 31, 1994) [ 12 Conn. L. Rptr. 574]. "Nonpayment of rent did not automatically destroy the lease. It merely gave the plaintiff the option of terminating it by some definite, unequivocal act clearly showing the exercise of that option." (Citations omitted.) Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720 (1954).

B Notice to Quit

The defendant has alleged that the notice to quit is equivocal because the plaintiff sent a payment invoice to the defendant requesting payment of the July 2006 rent after the notice was served.

In Danpar Associates, the day after the notice to quit was served, the plaintiff sent the defendants a letter indicating that the plaintiff was willing to have the defendants continue their occupancy at an increased rent. Danpar Associates v. Falkha, supra, 37 Conn.Sup. 823. The Appellate Court held: "This letter might reasonably be understood as an invitation to further negotiations . . . The letter from the attorney on the very next day negated the effect of the notice to quit, however, at least until the further negotiations which that letter invited had terminated." Id., 823-24.

In 617 Park Street LTD, approximately two weeks after the notice to quit was served, the plaintiff forwarded a lease agreement to the defendant for his signature. 617 Park Street LTD. v. John Diakomanolis d/b/a Greek Cafe, supra. Judge DiPentima held that: "While the language contained in the Notice to Quit was unequivocal, the actions of the plaintiff soon after service of that notice was not. The plaintiff's attorney sent a letter to the defendant's attorney the day before the termination date with a new lease proposal . . . The court finds that the subsequent acts of the plaintiff negated the effect of the Notice to Quit as an unequivocal act terminating the lease. Accordingly, the lease was not terminated by a valid notice to quit." (Citation omitted.) Id.

In this case, on July 22, 2006, the plaintiff served the defendant with a notice to quit based on nonpayment of rent for the month of July 2006. On or about August 28, 2006, the plaintiff sent the defendant a payment invoice requesting payment of rent for the months of July 2006, August 2006 and September 2006.

Applying the reasoning in Danpar Associates, this payment invoice might reasonable be understood as an invitation to pay the past due rent and avoid eviction. The defendant was invited to make rent payments for the months of July 2006, August 2006 and September 2006. In addition, the invoice indicated that: "As per your lease agreement, rent is due on the 1st of each month. You are provided with a 10 day grace period for your convenience only, not a later due date. If full rent is not paid by the 10th of each month, you will be assesses appropriate late fees." Based on the invoice, it was unclear whether the lease agreement was actually terminated by the notice to quit or whether the lease agreement was possibly reinstated if the requested rent payments were made.

As in 617 Park Street LTD, while the language in the notice to quit was unequivocal, the actions of the plaintiff after the notice to quit was served were not. By sending the payment invoice, the plaintiff failed to convey "a clear intention to terminate the lease and to proceed with judicial process to secure possession." See Zitomer v. Palmer, supra, 38 Conn.Sup. 343. The plaintiff's subsequent actions negated the effect of the notice to quit as an unequivocal act terminating the lease. The notice to quit became equivocal. An improper notice to quit deprives the court of subject matter jurisdiction.

III CONCLUSION AND ORDER

For the above-stated reasons, the motion to dismiss is granted.