Opinion
HFHCV166001476
07-22-2016
Aldeth Higgins v. Bridgette Flemming et al
UNPUBLISHED OPINION
RULING RE MOTION TO DISMISS AND OBJECTION
John F. Mulcahy, Judge
On October 1, 2015, plaintiff/Aldeth Higgins, as lessor, and defendant/Bridgette Flemming, as lessee, entered into a written lease covering the tenancy of premises at 157-159 Magnolia Street, Second Floor, Hartford. The lease provided for monthly rental of $1597.00, payable on the first day of each month, with a grace period of no later than the tenth day. The tenancy was for a term of one year, continuing thereafter on a month-to-month basis. Defendant/Flemming took possession of the premises and continues in occupancy.
Paragraph 5 of the lease states: " Lessee agrees that the demised premises shall be occupied by no more than persons, consisting of 1 adults (sic) and 3 children under the age of 18 years, without the written consent of Lessor." Paragraph 19 of the lease provides: " . . . if any default is made in the performance of or compliance with any . . . term or condition hereof, the lease, at the option of the lessor, shall terminate and be forfeited . . . Lessee shall be given written notice of any default or breach, and termination and forfeiture of the lease shall not result if, within 7 days of receipt of such notice, Lessee has corrected the default or breach or has taken action reasonably likely to affect such correction within a reasonable time."
The instant summary process proceeding was initiated by service on April 4, 2016 of plaintiff's notice to quit. It lists as reasons for the eviction: breach of lease agreement; illegal conduct on the demised premises; serious nuisance; previous right or privilege to occupy, and such right or privilege has terminated; and never had the right or privilege to occupy.
The illegal conduct ground has been withdrawn through an amended complaint. Plaintiff's objection to this motion to dismiss, and the memorandum in support of the objection, does not address the illegal conduct reason. The second count of the amendment simply recites " WITHDRAWN."
The defendant has moved to dismiss this summary process action for lack of subject matter jurisdiction. Plaintiff has filed an objection.
The documentation furnished this court for purposes of this ruling includes the motion to dismiss, objection, and supporting memoranda of law.
I
A motion to dismiss " properly attacks the jurisdiction of the court . . . asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . [the motion] tests . . . whether on the face of the record, the court is without jurisdiction . . ." Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); Housing Authority v. DeRoche, 112 Conn.App. 355, 362, 962 A.2d 904 (2009).
II
The defendant first contends the notice to quit is premature in that, with respect to a breach of Paragraph 5 of the lease, plaintiff has not complied with General Statutes Sec. 47a-15.
Sec. 47a-15 reads, in pertinent part: " Prior to the commencement of a summary process action if there is a material noncompliance with the rental agreement . . . the landlord shall deliver written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice." The statute continues: " If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within such fifteen-day period, the rental agreement shall terminate except that . . . if the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach within such fifteen-day period, the rental agreement shall not terminate . . ."
A purported pretermination (Kapa) notice was delivered to the defendant/lessee on or about March 8, 2016. The Kapa substantially mirrored Paragraph 19 of the lease, reading: " This letter serves as your seven-day warning to adhere to the lease in that only the people who are stated on it should be living in the apartment. There are other adults and children who have been living there longer than the law allows. Not only have we noticed this but we also have the water bills to prove that when it was solely occupied by the other tenant and her family that the bill has more than tripled since you moved in. We are not compensated for this. They have a week to make other living arrangements if you still would like to continue your tenancy, otherwise we will have to take further actions . . ."
In her objection to this motion, plaintiff states that she was not aware of the statutory fifteen-day cure period until she later conferred with an attorney. Also, that she was informing the defendant/lessee that several other adults and children coming to reside on the premises was a violation of both the rental agreement and the Section 8 Housing Agreement.
The plain language of Sec. 47a-15 affords a tenant fifteen days to remedy (cure) the breach. The salutary purpose of the statute is to furnish the tenant with sufficient information to protect against a premature, discriminatory, or arbitrary eviction. " To further this salutary purpose, the notice requirements of Section 47a-15 must be construed strictly." Housing Authority v. Harris, 225 Conn. 600, 606, 625 A.2d 816 (1993).
The March 8, 2016 letter (purported Kapa), informed the defendant of the acts and/or omissions constituting the breach; however, it did not inform defendant that she had fifteen days (not seven as per the lease) to cure under Connecticut statutory law. Although not specifically expressed in the language of the statute, courts have interpreted Sec. 47a-15 as requiring that the pretermination notice contain a statement of the right to cure. BCJ Management, LP v. Boles, 2007 507733 [45 Conn.L.Rptr. 219, ]; Nathan Hale Apartments v. Mortenson, 1996 WL 727330 [18 Conn.L.Rptr. 330, ]. See also, Hous. Auth. v. Deroche, 112 Conn.App. 355, 962 A.2d 904 (2008) (" . . . the pretermination notice complied with the statutory mandate and advised the defendant of her right to cure the lease violations . . . within the applicable time period"). Tenants have a statutory right to remedy the breach; but, as Judge Beach observed in Nathan Hale, " there is not a specific statutory requirement mandating that the right to notice of the period of time in which problems can be effectively remedied be mentioned in the notice." As Judge Beach also noted, " . . . the right to remedy problems would be meaningless without notice of the right." Consistent with that reasoning, where the cure period included in a Kapa is inaccurate, i.e., where the duration of the statutory period to cure is misstated, conceivably having potential to mislead the tenant regarding the exercise of her statutory right to effectuate a timely remedy, it is my view that the Sec. 47a-15 notice is deficient.
In addition to the Boles, Nathan Hale, and DeRoche cases cited herein, a number of Superior Court decisions have considered whether a pretermination notice must include notice of a right to cure: See e.g., Housing Authority v. Curtis, Superior Court, judicial district of Danbury, Docket No. SP 05 12308 (March 27, 2006) [41 Conn.L.Rptr. 129, ]; Rae Family, LLC v. Wallace, Superior Court, judicial district of Middlesex, Docket No. CV 91 2569 (December 14, 2002); Housing Authority v. Young, Superior Court, judicial district of New Haven, Docket No. SPNH 94 0940795 (April 28, 1995) [14 Conn.L.Rptr. 447, ]; Secretary of Housing and Urban Development v. McGowan, Superior Court, judicial district of New Haven, Docket No. SPNH 8110017, (November 16, 1981).
It is perfectly conceivable that a given violation could not be cured within seven days, but could be remedied within the statutory fifteen-day period.
The plaintiff's primary objection to this motion, however, places considerable reliance on General Statutes Sec. 52-123, arguing that the Kapa's erroneous seven-day cure period was merely a " circumstantial error." The statute provides: No writ, pleading, judgment or any kind of proceeding in court . . . shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person or the cause may be rightly understood and intended by the court. The statute is applicable to summary process actions; it is a remedial statute and is to be liberally construed. Bayer v. Showmotion, 292 Conn. 381, 389-90, 973 A.2d 1229 (2009).
In her objection, the plaintiff argues that " [t]his defect, of innocuously providing Defendant with written notice of SEVEN (7) days to remedy but functionally providing TWENTY-SEVEN (27) days is the type of circumstantial error that the legislature intended to address with [Sec. 52-123] . . . This minor circumstantial defect, especially in light of the fact that action was not taken until TWENTY-SEVEN days after the notice, is the type of circumstantial defect the legislature and the courts were attempting to protect." The cases of Bayer v. Showmotion, supra, and Caruso v. Bridgeport, supra, both discuss at some length " circumstantial errors." In the circumstances of the Bayer case, an obvious scrivener's error regarding a quit date on the notice to quit qualified as a mere circumstantial error. In the circumstances of Caruso, an initial mistaken statute citation pertaining to the basis for the action (alleged election law violations) was considered a circumstantial error. " In determining whether a defect is merely circumstantial and not substantive, courts have considered whether the defendant had actual notice of the institution of the action and whether the defendant was in any way misled to its prejudice." Bayer, at 391.
As stated, the Kapa was delivered on or about March 8, 2016. The notice to quit was served on April 4, with a quit date of April 12. The Complaint was served on April 18.
Examples of defects found by courts to have been circumstantial are set forth in Bayer . They have included: mistaken use of Practice Book form, failure to designate apartment number in writ, erroneous reference in appeal papers to next term instead of next return day, and missing signature on an affidavit attached to writ. In such instances, courts have invoked Section 52-123 to excuse defects in pleadings even when those defects implicate subject matter jurisdiction.
Here, in my view, the defect was substantive, and not merely circumstantial. Under Sec 47a-15, a Kapa notice was required, and the defendant/lessee had the statutory right to cure the alleged lease violation within fifteen days, not seven. The defect was not an obvious one, apparent to the parties, as was the scrivener's error in Bayer and the statute section error (Sec. 9-328 instead of the correct Sec. 9-329a) in Caruso . In both of those instances, the opposing parties (defendants) were not deprived, due to the errors, of notice and a proper understanding of the proceedings. In the instant case, however, the defendant, based on the content of the purported Kapa, was deprived of notice of her right to cure as prescribed by Sec. 47a-15 and to preserve the tenancy. In the circumstances of this case, the error in the pretermination notice was a substantive one rendering that notice insufficient in that it did not provide the tenant with proper notice of the opportunity to cure the alleged lease violation. Therefore, the notice to quit was premature on plaintiff's lease violation claim. Since by statute a valid Kapa notice must precede the notice to quit, and since it is the notice to quit which confers subject matter jurisdiction, the error here is jurisdictional.
In Bayer, the defendant was served with a notice to quit on March 21, 2006, with a quit date of March 25, 200 5 . Defendant, in moving to dismiss, argued that the notice failed to comply with the Sec. 47a-23(a) timeline because Bayer had not served it at least three days prior to the date specified in the notice, thereby precluding the court from assuming jurisdiction over the complaint. It was held that the trial court properly denied the motion to dismiss since, given the circumstances (notice date 2006, with a quit date 2005), there was no confusion on the defendant's part as to when it was to vacate the premises. Specifically, it was found that " other dates in the in the notice to quit and the complaint provided actual notice of the date to vacate, and that the failure to raise the defect in the notice to quit for more than one year while answering the complaint and asserting special defenses demonstrated lack of prejudice. Also, the defendant could not claim insufficient time to quit as the complaint was not served until thirty days after service of the notice to quit.
As to potential prejudice, see fn.6, supra .
III
The defendant next contends that the third count is legally insufficient because the notice to quit states neither the factual nor the statutory basis for the allegation of serious nuisance. As stated, the notice to quit lists just " serious nuisance" as the third ground for the eviction, without any further details or explanation. It is the defendant's position that she should not have to guess as to which of the four categories of serious nuisance the plaintiff intends to pursue.
While the amended complaint alleges in detail the specifics of plaintiff's serious nuisance ground, it is, nevertheless, the notice to quit which confers jurisdiction over the subject matter. " Before the trial court can entertain a summary process action and evict a tenant, the owner of the land must previously have served the tenant with notice to quit . . . As a condition precedent to a summary process action, proper notice to quit [pursuant to General Statutes Sec. 47a-23] is a jurisdictional necessity . . ." Suburban Greater Hartford Realty Management Corp. v. Edwards, 123 Conn.App. 295, 299, 1 A.3d 1138 (2010). " Serious nuisance [under General Statutes Sec. 47a-15] can be committed in one of four ways . . . There must be sufficient information in the notice to quit to allow the defendant to defend against the action." Id., 300. The content of the notice to quit may use the statutory language, or words of similar import. See PVD, LC v. Young, H #1079 (July 25, 1996) (DiPentima, J.). However, when the ground for the eviction is " nuisance" or " serious nuisance, " " literal compliance with the statute is not sufficient." Id. Where the notice to quit, using the statutory language, simply states " nuisance, " or in the present case " serious nuisance, " the defendant is not informed of the actual reasons for the termination. Id.
It is the conclusion of the court that the notice to quit is defective as to the serious nuisance ground in that it lacks sufficient specificity. Therefore, the court is deprived of subject matter jurisdiction as to that ground.
IV
The fourth ground set forth in the notice to quit, which is the basis for the fourth count of the complaint (and amended complaint), is termination of the named defendant's (Bridgette Flemming) right to occupy. The defendant maintains this ground is conflated with, and factually duplicative of, the other two grounds (breach of lease and serious nuisance).
With respect to this issue, neither party has cited, nor otherwise provided, any authority in their respective briefs.
The termination date on the one-year written lease is September 30, 2016. The defendant has the right or privilege to occupy the premises through that date (9/30/16), unless the tenancy is terminated. The notice to quit was served on April 4, 2016, with a quit date of April 12, 2016. However, the notice to quit was defective as discussed above (lease violation-deficient Kapa; serious nuisance-insufficient specificity); therefore, the court is deprived of subject matter jurisdiction regarding those grounds. But, as evidenced by the allegations in the complaint (Fourth Count), the predicates for the termination of the named defendant's right to occupy are the breach of the lease agreement and serious nuisance. Since those grounds fail jurisdictionally, the defendant occupies, and did occupy at the time of the notice to quit, of right under the contractual terms of an operative one year lease which does not terminate until September 30, 2016.
The fourth count of the complaint, captioned" Termination of Right to Occupy as to Brdigette (sic.) Flemming, " includes the following allegations:
V
For the reasons stated, the court finds with respect to each of the grounds, as follows:
1. Breach of lease agreement . The pretermination notice is insufficient because it does not provide an opportunity to cure the alleged breach in accordance with General Statutes Sec. 47a-15. Therefore, the notice to quit as it relates to an alleged breach of the lease is premature. 2. Illegal conduct . This ground was withdrawn by the plaintiff. 3. Serious nuisance . There insufficient specificity in notice to quit regarding the serious nuisance ground. The notice states neither the factual nor the statutory basis for the claimed serious nuisance. 4. One who previously had a right or privilege to occupy and such right or privilege has terminated . The one-year written lease had not terminated at the time of the notice to quit, and remains in effect due to 1. and 3. above-deficient Kapa notice with respect to breach of lease ground, and, insufficient specificity in notice to quit on serious nuisance ground.
Plaintiff's objection to the motion to dismiss is Overruled .
Defendant's motion to dismiss for lack of subject matter jurisdiction is Granted .
In Caruso, the plaintiff was a candidate who had lost the nomination for mayor in a primary election. He brought the action against the registrar alleging voting irregularities. The original complaint, filed fourteen days after the primary, stated the action was brought pursuant to General Statutes Sec. 9-328, which section pertains to general elections. In a second amended complaint, it was stated that the action was brought under General Statutes Sec. 9-329a, the exclusive remedy provision with respect to primary elections. Sec. 9-329a(a)(3), required that the complaint shall be brought within fourteen days after the primary. Notwithstanding that the original complaint cited an erroneous statutory basis for the action, and the second amended complaint with the correction was filed after the expiration fourteen-day limitation, the error was found to be circumstantial in that the defendants were clearly aware of, and on notice of, the true statutory basis for the action. Similarly, in Rocco v. Garrison, 268 Conn. 541, 558, 848 A.2d 352 (2004), discussed in Bayer, 292 Conn. at p. 391, the pleading error was clearly circumstantial where the defendant knew of the mistake when she filed an answer and special defense, informed plaintiff's counsel of it, and was not thereby deprived of the ability to participate fully in the litigation. These cases are substantially different from the present case; here, the defendant had no way of knowing from the content of the Kapa notice that she had fifteen days, not seven, to cure.
" 5. Said lease agreement has been breached by Defendant Flemming by allowing adult persons not on the lease to reside at the demised premises. Defendant Flemming has further breached the lease and law by conducting illegal activity on the premises and causing nuisance to other tenants. Said breaches of the lease serve to terminate the agreement under the law. " 6. On April 4, 2016, Plaintiff, as required by law, caused a written NOTICE TO QUIT to be duly served on the Defendant Flemming to quit possession of the leased premises on or before April 12, 2016. 7. " Although the time designated in the notice for the Defendant to quit possession has passed, Defendant Flemming still remains in possession."