Opinion
No. SPNH 9701-49721 B.R.
May 9, 1997
Memorandum Filed May 9, 1997
In this summary process action, the plaintiffs, John and Anna Sullo, seek to evict the defendant, Main Stop Automotive, Inc., from leased premises for nonpayment of rent. In their complaint, the plaintiffs allege the following. The plaintiffs entered into a lease with the defendant on December 13, 1993, for premises located at 544 West Main Street, Branford, Connecticut, for a five-year term beginning January 1, 1994, and ending December 31, 1998. Rent was payable on the first day of each month. The defendant failed to pay the rent on November 1, 1996. The plaintiffs gave written notice of default on January 3, 1997, and on January 10 issued a notice to quit to the defendant, requiring it to vacate the premises by January 17. The defendant did not quit the premises, and on January 24, the plaintiff had the complaint served on the defendant.
The defendant has filed a motion to dismiss claiming lack of subject matter jurisdiction, lack of personal jurisdiction, and insufficient service of process. "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." (Emphasis in the original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 1991 (1983).
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143. "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." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989); Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988).
"[T]he court, in deciding a motion to dismiss, must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Savage v. Aronson, 214 Conn. 256, 264, 571 A.2d 696 (1990). The motion to dismiss "admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . Where . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citations omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).
I. A.
The defendant argues that the court lacks subject matter jurisdiction over this summary process action because the notice to quit was invalid due to untimeliness and insufficient service.
"Summary process is a statutory remedy that enables a landlord to recover possession from a tenant upon the termination of a lease." Sullivan v. Nameaug Walk-in Medical Center, P.C., 35 Conn. App. 185, 188, 644 A.2d 398 (1994), appeal dismissed, 233 Conn. 213, 657 A.2d 639 (1995). The Superior Court has subject matter jurisdiction over summary process actions. See General Statutes § 47a-23a. "The jurisdiction of the Superior Court in summary process actions, however, is subject to a condition precedent." Lampasona v. Jacobs, 209 Conn. 724, 728-729, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 1061 L.Ed.2d 590 (1989). "As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity." Id.
General Statutes § 47a-23 sets forth the requirements of a notice to quit. The language of the statute "requires that the lease agreement first terminate according to its terms before the remedy of summary process is available to the lessor." Sullivan v. Nameaug Walk-in Medical Center, P.C., supra, 35 Conn. App. 188. In Sullivan, the lease did not contain a provision stating that the lease could be terminated upon nonpayment of rent when due, and thus it could not provide a basis for termination that would allow the invocation of § 47a-23. Id., 189. In this case, however, the plaintiffs' complaint alleges that the lease listed specific defaults upon which the lease would terminate, one of which was nonpayment of rent. The plaintiffs allegedly notified the defendant upon nonpayment of rent that it was in default and gave it five days in which to cure the default. Receiving no response within the five days, the plaintiffs issued the notice to quit. The notice to quit serves the purpose of an "unequivocal manifestation by the lessor that he terminates the rental agreement." Messinger v. Laudano, 4 Conn. App. 162, 163, 493 A.2d 255, cert. denied, 196 Conn. 812, 495 A.2d 279 (1985).
General Statutes § 47a-23 reads in pertinent part:
(a) When the owner or lessor . . . desires to obtain possession or occupancy of any land or building . . . and (1) when a rental agreement or lease of such property . . . terminates for any of the following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein . . . (E) nonpayment of rent when due for commercial property. . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such land, . . . at least five 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."
In Sullivan, the Supreme Court granted certification to consider whether "General Statutes § 47a-23 (a) permits a commercial lessor to bring a summary process action to obtain possession of the property because of the lessee's nonpayment of rent when due, even if the lease does not provide expressly for its termination on that ground." Sullivan v. Nameaug Walk-in Medical Center, P.C., 233 Conn. 213, 213-14, 657 A.2d 639 (1995). The court dismissed the appeal as improvidently granted after being persuaded that it did not have "an appropriate opportunity for a searching analysis of the relationship between the terms of a commercial lease and the requirements of a statutory action for summary process under § 47a-23 (a)." Id., 214-15.
The defendant argues that the notice to quit was defective because it was issued in January for an alleged failure to pay rent in November. Citing Goldberg v. Rodriquez, 40 Conn. Sup. 4, 5, 478 A.2d 628 (1982), the defendant argues that a notice must require the tenant to vacate the premises in the same month in which the alleged nonpayment of rent occurred. That rule, what was always limited to month-to-month tenancies, was legislatively overruled in what has now been codified as General Statutes § 47a-23 (d). The lease in the present case was for an initial period of five years, and would not lapse until Dec. 31, 1998. According to the terms of the lease, it could be terminated for nonpayment at any time.
The rule has now been altered by statute. General Statutes § 47a-23 (d) now provides: "With respect to a month-to-month tenancy of a dwelling unit, a notice to quit possession based on nonpayment of rent shall, upon delivery, terminate the rental agreement for the month in which the notice is delivered, convert the month-to-month tenancy to a tenancy at sufferance and provide proper basis for a summary process action notwithstanding that such notice was delivered in the month after the month in which the rent is alleged to be unpaid." (Emphasis added.)
The plaintiff is incorrect that termination could take place anytime after the expiration of the grace period for an installment. The statutory grace period of nine days, provided by § 47a-15a, is part of the landlord and tenant statutes, §§ 47a-1 through 47a-22a, that apply only to residential properties. Hoban v. Masters, 36 Conn. Sup. 611, 613, 421 A.2d 1318 (1980); S.H.V.C. Inc. v. Roay, 37 Conn. Sup. 579, 585, 428 A.2d 806 (1981), affirmed, 188 Conn. 503, 452 A.2d 638 (1982). There is no statutory grace period for commercial tenancies. See Karwosky v. Christofakis, Superior Court, judicial district of Stamford-Norwalk at Norwalk, Docket No. SPNO-9506 17561 (Aug. 10, 1995) (Tierney, J.).
Because the lease specified that nonpayment of rent could serve as a basis for termination of the lease, and there is no requirement that when a commercial lease gives rise to the tenancy the notice to quit be served within the month of nonpayment, the notice to quit at issue is facially valid.
B.
The defendant argues next that the notice to quit was not properly served on the defendant because the business was closed, and that to serve the notice at the "usual place of business" is nonsensical because there is no "usual place of business" of a corporation that is no longer in operation. The plaintiff argues that the plain language of the statute only requires service "at the place of the commercial establishment" and does not make a distinction between an operating business and a defunct one.
General Statutes § 47a-23 (c) allows for service of process of the notice to quit to be made to each lessee, either personally or at his abode, or "at the place of the commercial establishment." "[T]he general rule is well established that where a specified mode of giving notice is prescribed by statute, that method is exclusive." Windsor Properties, Inc. v. Great Atlantic Pacific Tea Co., 35 Conn. Sup. 297, 301, 408 A.2d 936 (1979). Section 47a-23 (c) makes a distinction only between residential and commercial property, and has no special provisions for corporate defendants or the status of the business located at the property. "Nothing in General Statutes [§ ] 47a-23 requires service of a Notice to Quit on the specific individuals listed in General Statutes § 52-57." Scerrato v. Shoshie Baking Co., Superior Court, judicial district of Hartford-New Britain at New Britain, No. SPN-9102-15498-NB (March 22, 1991) (Berger, J.). The unambiguous language of the statute mandates that "abode" service at the place of the commercial establishment is proper. See GGG v. Nathan's Famous, Inc. Superior Court, judicial district of New Haven, Docket No. SPNH 9403-38416, 11 CONN. L. RPTR. 495 (April 27, 1994) (Mintz, J.) (service "at the place of occupancy of a business is proper"); Scerrato v. Shoshie Baking Co., supra, (notice to quit was left with an employee of the company who was not a corporate officer); Karathanasopoulos v. Omni Building, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. SPH 9006-55957, 3 CONN. L. RPTR. 665 (December 17, 1990) (Berger, J.) (when the property at issue was a parking lot, leaving notice at the lessee's neighboring building complies with § 47a-23 (c)); McIntyre v. TLC Oil Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. SPH-8308-20082 (December 5, 1983) (Maloney, J.) (leaving notice in the hand of the person in charge of premises complies with statute).
Subsection (c) reads in full: "A copy of such notice shall be delivered to each lessee or occupant or left at his place of residence or, if the rental agreement or lease concerns commercial property, at the place of the commercial establishment by a proper officer or indifferent person. Delivery of such notice may be made on any day of the week."
Nor is it necessary for a sheriff to hand the notice to a particular person "at the place of the commercial establishment". "`When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction.' Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988). Absent ambiguity, the courts cannot read into statutes, by construction, provisions that are not clearly stated. Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984)." Battersby v. Battersby, 218 Conn. 467, 470, 590 A.2d 427 (1991). Moreover, when the legislature has intended that service on a corporate entity be made by servicing a particular person or officer, it has expressly said so. See, e.g., General Statutes §§ 52-57, 33-663, 33-1053.
General Statutes Sec. 52-57. Manner of service upon individuals, municipalities, corporations, partnerships and voluntary associations. (a) Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.
(b) Process in civil actions against the following-described classes of defendants shall be served as follows: (1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen; (2) against a city, upon its clerk or assistant clerk or upon its mayor or manager; (3) against a borough, upon its manager, clerk or assistant clerk or upon the warden or one of its burgesses; (4) against a school district, upon its clerk or one of its committee; and (5) against other municipal or quasi-municipal corporations, upon its clerk or upon its chief presiding officer or managing agent.
(c) In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located. In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-400.
(d) In actions against a partnership, service of process may be made by personally serving any process within the state upon any one of the partners or, if none of the partners are residents of the state, service may be made upon the secretary of the state; provided, prior to the return date, the officer serving the writ shall mail a copy of the writ and the complaint by registered or certified mail, return receipt requested, to the last-known address of every partner named in the writ not personally served. A statement of such mailing and receipt therefor shall be included in the officer's return.
(e) In actions against a voluntary association, service of process may be made upon the presiding officer, secretary or treasurer. If all of such officers are not residents of the state and the voluntary association is doing business, acting or carrying out its operations or its functions within the state, the voluntary association shall be deemed to have appointed the secretary of the state as its attorney and to have agreed that any process in any civil action brought against it may be served upon the secretary of the state and that the process shall have the same validity as if served personally upon the presiding officer, secretary or treasurer of the voluntary association. The process shall be served by any officer to whom the process is directed upon the secretary of the state by leaving with, or at the office of, the secretary of the state, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant at its last-known address by registered or certified mail, postage prepaid, a like, true and attested copy with an endorsement thereon of the service upon the secretary of the state. The officer serving the process upon the secretary of the state shall leave with the secretary of the state, at the time of service, a fee of twenty-five dollars, which fee shall be taxed in favor of the plaintiff in his costs if he prevails in the action. The secretary of the state shall keep a record of each such process and the day and hour of service.
(f) When the other methods of service of process provided under this section or otherwise provided by law cannot be effected, in actions concerning the establishment, enforcement or modification of child support orders other than actions for dissolution of marriage, including, but not limited to, such actions under sections 17b-19, 17b-63 to 17b-65, inclusive, 17b-115 to 17b-138, inclusive, 17b-220 to 17b-250, inclusive, 17b-256, 17b-259, 17b-263, 17b-287, 17b-340 to 17b-350, inclusive, 17b-689 to 17b-693, inclusive, and 17b-743 to 17b-747, inclusive, and chapters 815, 815o, 815t, 815y and 816, and actions to implement garnishments for support under section 52-362, service of process may be made upon a party to the action by one of the following methods, provided proof of receipt of such process by such party is presented to the court in accordance with rules promulgated by the judges of the superior court:
(1) By certified mail to a party to the action addressed to the employer of such party. Any service of process so sent shall include on the outside envelope the words "To be delivered to the employee in accordance with subsection (f) of section 52-57". The employer shall accept any such service of process sent by certified mail and promptly deliver such certified mail to the employee; or
(2) When a party to an action under this subsection is employed by an employer with fifteen or more employees, by personal service upon an official of the employer designated as an agent to accept service of process in actions brought under this subsection. Every employer with fifteen or more employees doing business in this state shall designate an official to accept service of process for employees who are parties to such actions. The person so served shall promptly deliver such process to the employee. CT Page 2487
General Statutes § 33-663, which deals with business corporations generally and General Statutes § 33-1053, which applies to nonstock corporations, each provide:
(a) A corporation's registered agent is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the corporation. Service may be effected by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state.
(b) If a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office. Service is perfected under this subsection at the earliest of: (1) The date the corporation receives the mail; (2) the date shown on the return receipt, if signed on behalf of the corporation; or (3) five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed.
(c) This section does not prescribe the only means, or necessarily the required means, of serving a corporation."
In conclusion, the court has subject matter personal jurisdiction over this summary process action because a valid notice to quit was properly served on the tenant.
II
The defendant finally argues that the complaint was improperly served, thus depriving the court of personal jurisdiction over the defendant. He bases his argument on the fact that § 33-663, which provides for service on a corporation when there is no statutory agent for process, did not apply because it became effective on January 1, 1997, and the corporation had been dissolved by default prior to that. Section 33-663 became effective January 1, 1997, as part of the Connecticut Business Corporation Act, Public Act No. 94-186, as amended by Public Act No. 96-271 § 30. Section 206 of Public Act No. 94-186, codified as § 33-995, provides that the Act applies to all domestic corporations in existence on January 1, 1997. See also S. Cross, Connecticut Corporation Law and Practice (1996) § NBCA, p. 3. Accordingly, the defendant could only prevail with this argument if Main Stop Automotive did not have the status of a corporation on January 1, 1997.
See note 7, supra.
DeGrasse continued to do business under the corporate name after the dissolution. Indeed, the corporation entered into the lease with the plaintiff after it had been dissolved by default. It held itself out as a corporation and the plaintiff recognized it as such. The defendant operated as a de facto corporation. "The corporation is a de facto corporation where there is a law authorizing such a corporation and where the company has made an effort to organize under the law and is transacting business in a corporate name. Cook, Corporations (8th Ed.) p. 773, § 234. A de facto corporation is an apparent corporate organization asserted to be a corporation by its members and actually existing as such, but lacking the creative fiat of the State. Elliott, Private Corporations (4th Ed.) p. 77, § 72; 1 Thompson, Corporations (3d Ed.) § 266 and cases. A de facto corporation . . . is an association which actually exists for all practical purposes as a corporate body, but which, because of failure to comply with some provision of the law, has no legal right to corporate existence as against a direct attack by the State. 14 C. J p. 204, § 215. A corporation de facto is in plain English a corporation in fact. It can incur obligations as a corporation which do not bind those who associated to constitute it, in their individual capacities. DiFrancesco v. Kennedy, 114 Conn. 681, 687-88, 160 A. 72 (1932)." Clark-Franklin-Kingston Press v. Romano, 12 Conn. App. 121, 124, 529 A.2d 240 (1987).
General Statutes § 33-387 provides for dissolution of a corporation for failure to file the required biennial report, and requires the Secretary of State to file a certificate of dissolution by forfeiture and to notify the corporation of this action. The record contains copies of the corporation papers on file with the Secretary of State regarding Main Stop Automotive, Inc. According to these documents, the corporation was formed on December 4, 1987, with two officers, John Buckley as President, and Richard DeGrasse as Vice-President and Secretary. The corporate address is listed as 544 West Main St., Branford, the same address as the premises at issue in the present case. John Buckley was listed as the corporation's statutory agent for service. The corporation was dissolved by forfeiture on October 19, 1990.
Section 33-663 provides that "[i]f a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office." The plaintiff submitted an affidavit from the sheriff, attesting that he attempted to locate John Buckley, the statutory agent for process listed in the records filed for the corporation, and was unable to do so. He then mailed the complaint, via certified mail to the Secretary of the Corporation at its principle place of business, 344 W. Main St., Branford.
According to the statute, § 33-663, "[s]ervice is perfected under this subsection at the earliest of: (1) The date the corporation receives the mail; (2) the date shown on the return receipt, if signed on behalf of the corporation; or (3) five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed." The sheriff's return includes the receipt for the certified mail, evidencing pre-payment, the correct address, and a postmark of January 24, 1997. This satisfies the requirements of subsection (3) of General Statutes § 33-663 (b) so that service was completed on January 29, 1997.
For these reasons, the defendant's motion to dismiss is denied.
LEVIN, J.