Opinion
No. NBSP — 051029
May 28, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This is a summary process action brought by the plaintiff Covey Meadow Common, LLC (the "Landlord") seeking to recover possession of premises known as 10 Covey Road, 4B and 4C Covey Road, Burlington, Connecticut from the defendants, The Burlington Academy of Learning, LLC and Rosemary McDonnell (the "Tenants"). The defendant Burlington Academy of Learning, LLC conducts an early childhood education center in multiple classrooms at the premises. The defendant Rosemary McDonnell is a co-tenant.
The issue before the court is the Tenants' motion to dismiss the action. The Tenants make four arguments in support of their motion challenging the court's subject matter jurisdiction. The Tenants contend that 1.) The Notice to Quit is equivocal; 2.) The Tenants tendered and the Landlord accepted rent prior to service of the Notice to Quit which precludes the Landlord from elaiming a forfeiture; 3.) The claim in the complaint for attorneys' fees incurred by the Landlord in a prior action cannot serve as the basis for a summary process action; and 4.) The Landlord failed to provide the Tenants with a "KAPA" notice as required by C.G.S. 47a-15.
Legal Standard
"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 jurisdiction of the Superior Court in summary process actions, however, is subject to a condition precedent. T]he notice requirements of the general summary process statute; General Statutes 47a-23; are jurisdictional. . . . As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity." (Citation omitted)." Lampasona v. Jacobs, 209 Conn. 724, 728-729, CT Page 7400 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 1061 L.Ed.2d 590 (1989). "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 Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it." Bridgeport v Debek, 210 Conn. 175, 180, 554 A.2d 728 (1989).
"[B]ecause a valid notice to quit is a condition precedent to instituting a summary process action [it implicates the court's] . . . subject matter jurisdiction over the plaintiffs summary process action . . . Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it." (Citations omitted; internal quotation marks omitted.) Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 413, 885 A.2d 768 (2005).
"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.). 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).
Background.
The Tenants occupy the subject premises pursuant to written leases entered into in 2003 and 2004 with the Landlord's predecessor in title which were assigned to the Landlord in 2004. The leases were amended by written agreements dated January 1, 2006. As amended, the leasehold term of each lease was extended until December 31, 2011. The amendment also deleted the fixed annual rent for the remaining years under each original lease and substituted a base rent for 2006 with annual increases in the 2006 base rent thereafter equal to a formula based on the annual increases in the consumer price index ("CPI"). The amendment states that the increase in the annual rent from the 2006 base rate is to be calculated in accordance with the following;
"(b) The rental rate for each calendar year thereafter is the rental rate in effect for the prior year increased by the increase in the consumer price index (the CPI) over the one-year period ending each October prior to the beginning of each calendar year for which the new rental rate is being calculated.
(c) CPI information. The reason for the one-year CPI periods being measured from October to October is that the CPI data for any given month is usually not published by the Bureau of Labor Statistics until the late middle part of the next month, and the two month differential between calendar years and CPI years will allow for calculation of the new rental rate in a timely manner. The CPI is the United States Department of Labor Bureau of Labor Statistics Consumer Price Index-All Urban Consumers-NY-Northern NJ, Long Island, NY-NJ-CT-PA (1982-4 = 100), or if such index is no longer published, a substitute selected by landlord which represents similar changes in consumer prices."
The Tenants paid the rent due under both leases each month by a single check. From the pleadings, it is clear that the parties have had an ongoing dispute over the amount of the additional rent payable under the CPI provision, including three prior summary process actions and multiple notices to quit.
Chronology of the Dispute
As noted, this action is the fourth summary process action brought by the Landlord against the Tenants. The parties also submitted numerous documents including additional notices to quit served but withdrawn and correspondence between the parties concerning the rent provisions under the leases.
The first summary process action was based on an August 28, 2007 notice to quit and was filed with a return date of December 19, 2007. The Tenants were later advised by letter from the Landlord's attorney dated May 2, 2008 "The summary process action has been withdrawn. The landlord is recognizing the August, 2007 notice to quit possession as having been negated, and the leases to have always been in effect."
On May 23, 2008 the Landlord served the Tenants with notices to quit the premises by May 27, 2008.
On May 30, 2008, the Landlord issued new notices to quit possession and commenced two separate summary process actions dated June 5, 2008 to terminate both leases. The May 30, 2008 notices to quit stated: "A prior notice to quit possession for your tenancy had been left in the hands of a Matthew Stockwell on May 23, 2008. Said prior notice is hereby withdrawn and this new notice is issued." The notices to quit continued "The charges that have not been paid are set forth in a May 2, 2008 letter to you, a copy of which is attached hereto as Exhibit 1. Payment for said charges was also requested in a May 7, 2008 letter, a copy of which is attached hereto as Exhibit 2."
On June 10, 2008, the Tenants sent a letter to the Landlord in which the defendant McDonnell stated: "I calculated what I believe should be our monthly rent payment on the remainder of 2008. The basis I used for calculation was the 2007 monthly rent payment amount's outlined in your letter dated January 6, 2007 (attached)." The letter referenced the enclosure of a check for $6,025.02 for the June, 2008 rent.
The Tenants were subsequently advised by letter from the Landlord's attorney dated June 16, 2008 that: "I have withdrawn the two summary process (eviction) actions that were filed with complaints dated June 5, 2008, and your leases are reinstated."
Next, the Landlord's attorney sent a letter to the Tenants dated July 7, 2008 which stated: "I wrote to you by letter of June 16 itemizing the various amounts payable under your leases. In the interim a court decision was announced that may affect a portion of what is claimed due under the leases, sums due between the time when the notice to quit possession was served last August and the withdrawal of the action based on it on May 2 and the period between the notice to quit issued on May 30, 2008 and the withdrawal of action filed on June 16, 2008. The name and citation of the case are Sproviero v. J. M. Scott Associates and, 108 Conn. App. 454 (2008). I understand that the landlord there is seeking further review of the decision, and Covey Meadow Common, LLC reserves all rights it has a to claim these amounts on your leases and/or as use and occupancy."
On August 5, 2008, the Landlord's attorney sent another letter to the Tenants. The August 5, 2008 letter consists of three pages of single-spaced text with two additional pages of data from a publication of the United States Department of Labor, Bureau of Labor Statistics attached.
The Landlord's attorney begins the letter by informing the Tenants that: "I reviewed your July 10 letter to Carl Coppola [a principal in Covey Meadow Common, LLC] and remarked to Paul Zagorsky [the Tenants' attorney] after receiving it that I would issue another letter that would hopefully clear up the confusion over the consumer price index."
"As it turns out, the figures for the CPI increase I used in my May 2 letter were correct. Unfortunately, although the 2.4% increase effective January 1, 2007 and that 3.4% increase effective January 1, 2008 were correctly stated, I mistakenly attached a copy of the different CPI printout to my May 2 letter. . . . . and looking at the erroneous wage earner printout that I had attached to the May 2 letter, I attempted to correct what I thought was a discrepancy between the 2.4% and 3.1% figures listed in the body of the letter and the index attached to the letter."
The Landlord's attorney then calculated what was described as a "shortfall" in the monthly rent for the year 2007 of $81 per month for a total of $972. The letter also included the Landlord's calculation of the monthly rental shortfall for the year 2008 and also advised the Tenants that the sum of $933.16 was also due to reimburse the Landlord for legal expenses incurred by the Landlord.
The letter continued:
"As you know, one thing the landlord desired to change in your lease during the renegotiations that broke down last fall is the requirement for written notice of failure to pay rent when due. Carl would like to avoid the expense of having to do this and the possibility of lost rent by so much time passing if notice is not given. I've previously advised that the rent is due on the first of the month, not the tenth. Carl Coppola may request that I send a delinquency letter on the second of the month if the rent is not paid by then, to avoid waiting until sometime after the 25th for the next step in the process if the rent is not paid. In the future, or if the rent is not paid on or before the first and a delinquency letter is sent any time on or after the second, you may be charged for the legal expense in connection with that as well."
"I also wrote previously to mention that the decision of Sproviero v. J. M. Scott Associates, 108 Conn. App. 454 (2008) was announced after one of my prior letters and to remark that that Covey Meadow Common, you're landlord, nonetheless reserves its legal right to assert the contract rent due under the leases during all of 2007 and up to the present. You may wish to consult your attorney concerning the effect of the above case.
In summary, the delinquency is itemized as follows $972 for 2007 rent, $7,217.16 for 2008 rent, and $933.16 for reimbursement of legal fees."
The letter concluded by informing the Tenants that the 15 day period within which to cure the payment default had commenced.
On August 29, 2008, the Landlord served the Tenants with a notice to quit dated August 27, 2008 notifying the Tenants to quit possession of the premises on or before September 3, 2008 for the following reasons:
"1. Non-payment of rent when due on a commercial lease.
2. Violation of the lease for failure to pay sums set forth in the letter from Green and Gross, P.C., as landlord's representative, to you dated August 5, 2008."
The Landlord commenced the present summary process action by complaint dated September 9, 2008.
Discussion.
The Tenants argue that the motion to dismiss should be granted because the Notice to Quit is defective and therefore the court lacks subject matter jurisdiction.
As noted, our Supreme Court has stated that "[a]s a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity." Lampasona v. Jacobs, 209 Conn. 724, 729, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989).
In view of the multiple notices to quit served and withdrawn in the present case, the Tenants' motion to dismiss requires consideration of the current law concerning the legal effect of service and the later withdrawal of a notice to quit or summary process complaint on the landlord tenant relationship. Our law is clear that where a landlord and tenant have a lease for a term certain, the withdrawal or dismissal of a summary process action or withdrawal of a notice to quit restores the lease and put the parties "back to square one." Housing Authority v. Hird, 13 Conn. App. 150, 156-57 (1988). The rule in Hird has been clarified recently by our Appellate Court in Sproviero v. J. M. Scott Associates, 108 Conn. App. 454 (2008). In Sproviero, the landlord relied on Hird in arguing that the reinstatement of its lease with the tenant by the dismissal of its summary process action retroactively revived the tenant's obligations under the lease. In rejecting the Landlord's argument, the court stated "Although the Hird court stated that the parties go back to square one as if the summary process action had never been commenced, Hird does not stand for the proposition that a lease can be revived retroactively. The language the defendant cites ignores the court's use of phrases such as "[the tenant's judgment] `revived' the original lease arrangement"; id., 155; and "continuation of their lease . . . was restored." Id., 157. Such phrases connote the prospective application of a lease's provisions, rather than indicating retroactive revival." Sproviero, 108 Conn. App. 465. (Emphasis added).
In the present case, the two notices to quit issued by the Landlord on May 30, 2008, terminated the leases and created a tenancy at sufferance. Subsequently, the Tenants were advised by the June 16, 2008 letter from the Landlord's attorney that the two summary process actions dated June 5, 2008 were withdrawn and that the leases were "reinstated." At that point, the Tenants' obligation to pay any CPI sums claimed by the Landlord was revived, but only prospectively. In accordance with Sproviero, any "shortfall" in rent claimed by the Landlord to be due for the periods when any notice to quit or summary process action was pending would not be revived by reinstatement of the leases and could only be recovered as use and occupancy payments.
Assuming the accuracy of the calculations in the Landlord's August 5, 2008 letter, the breakdown of the sums claimed for 2007 would be approximately $648 for rent for the period during which no notice to quit was outstanding or summary process action pending and $324 for use and occupancy. The shortfall claimed for 2008, if in fact determined to be due, would be approximately $1,804 for rent and $5,413 for use and occupancy. In other words, the sums demanded by the Landlord in the August 2, 2008 letter were tainted by sums which, under Sproviero, could only be use and occupancy payments and were more than twice the amount of any rent which the Landlord could claim if the shortfall amounts were determined to be due.
Furthermore, the Tenants submitted copies of checks for May, 2008 rent in the amount of $6,108.52 (the amount of the "new" rent as calculated to be due in the Landlord's May 2, 2008 letter), $6,025.02 for June, 2008 rent (the amount of the "new" rent as calculated by the Tenants in their June 10, 2008 letter based on the Landlord's January 6, 2008 letter), $6,025.02 for July rent and $6,055.02 for August, 2008 rent. The August check was marked "August Rent and Trash." The Tenants claim that all the checks were paid, accepted and negotiated by the Landlord prior to the August 27, 2008 notice to quit, which was not disputed in the Landlord's memorandum in opposition to the Tenants' motion to dismiss. The tender and acceptance of rent prior to termination of a lease precludes a landlord from terminating a lease for nonpayment. Since there is no default, there can be no grounds for the eviction of the tenant. Saimond v. Nixon, No. SP 88012 996 Ct. Sup. 5316, 18 CLR 76 (Sep. 13, 1996, Beach, J.).
Meaningful notice is a prerequisite for due process. In passing on the sufficiency of leasehold termination notices, our Supreme Court, has held "In order to demonstrate its compliance with the notices required for a proper termination, a landlord must show that the notices given to the tenant apprised her of the information a tenant needs to protect herself against premature, discriminatory or arbitrary eviction." Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987).
Although Jefferson Garden Associates involved a residential summary process action, the same concern for meaningful notice has been applied to commercial leases. "The failure of a commercial landlord to comply with the default notice terms and conditions of the written lease between the parties deprives the court of subject matter jurisdiction since there was no preexisting default in the terms of the lease. Thomas E. Golden Realty v. Society for Savings, 31 Conn. App. 575, 580 (1993). The failure of a lessor to properly comply with a contractual cure period in a commercial lease by not granting a tenant the opportunity to comply with a claimed default renders a subsequent summary process proceeding defective. Windsor Properties Inc. v. The Great Atlantic and Pacific Tea Company, 35 Conn. Supp. 297 (1979, Spada J.). "Notices setting forth grounds for eviction whether they be statutory notices to quit, statutory Kapa notices under Connecticut General Statutes § 47a-15, federal required notices under a federal subsidy program or notices of default under a commercial lease require specificity to comply and be effective for eviction. (Citations omitted. Emphasis added). 111 Century Plaza Limited Partnership v. Video Plaza II, 1995 Ct. Sup., No. SPBR 9508-30307, Housing Session at Bridgeport (Oct. 27, 1995, Tierney, J.). Notice which lends itself to multiple interpretations, is defective for lack of specificity. The Bank of Hartford Inc. v. Bultron, SPH 9206-65684 H-997 (December 3, 1992, Holzberg, J.).
Conclusion
"[T]he reasons for issuing a notice to quit set forth in § 47a-23 (a) are exclusive. They are the only reasons that an owner may rely on for issuing a valid notice to quit." HUD/Willow Street Apartments v. Gonzalez, 68 Conn. App. 638, 646,792 A.2d 165 (2002).
In the present case, it is not that the Landlord's notice to quit suffers from a lack of specificity. By attaching the August 5, 2008 letter to the notice to quit, however, the Landlord has revived and continued the seemingly endless confusion over the amount that the Tenant is required to pay in order to avoid default. Moreover, the August 5, 2008 refers to the May 2, 2008 letter which also directs the Tenants' attention to the Sproviero decision and injected further uncertainty as to what specifically was expected of the Tenants. "[T]he statutes relating to summary process must be narrowly construed and strictly followed." (Citations omitted; internal quotation marks omitted.) Housing Authority v. DeRoche, 112 Conn. App. 355, 361, 962 A.2d 904 (2009). A landlord who departs from the statutory language provided for in § 47a-23(a) in a notice to quit, or words of similar import or inserts more information than is required by § 47a-23(b) does so at his or her peril.
In sum, the August 5, 2008 letter demanded that the Tenants pay sums which could not serve as grounds for the commencement of a summary process action. As a result, the letter was not a valid pre-termination letter. By issuing the August 27, 2008 notice to quit with the August 5, 2008 letter attached, the notice to quit failed to comply with the provisions of § 47a-23 (a) and § 47a-23 (b).
The crux of this matter is that a valid notice to quit is a necessary foundation for a summary process action. The Landlord failed to serve the Tenants with a valid notice to quit the premises, thus depriving the court of subject matter jurisdiction.
For the foregoing reasons, the motion to dismiss is granted.