Opinion
No. CV 18 10669
November 21, 2006.
MEMORANDUM OF DECISION
FACTS
On August 3, 2006, the plaintiff, Whiting Mills, LLC (Whiting Mills), filed an amended complaint for possession against the defendant, Stephanie Van Inwagen. Therein, the plaintiff alleges the following facts. The plaintiff owns commercial property in Winsted, Connecticut, which the defendant occupies as a lessee. Prior to the plaintiff's purchase of the property, the defendant "allegedly entered into a written lease with the prior owner . . ." Pursuant to the defendant's agreement with the prior owner, the plaintiff pays a monthly rent of $360, plus $15 for electricity usage. These amounts are payable in advance on the fifteenth day of each month, beginning on October 1, 2002. The defendant failed to pay the rent and the electricity usage fee on June 15, 2006. On June 27, 2006, the plaintiff served the defendant with a notice to quit the premises before July 6, 2006, but the defendant continues in possession.
Initially, the plaintiff filed a complaint for possession on July 13, 2006, on which service of process occurred on July 6, 2006. Whereas the original complaint listed the commercial property as the defendant's address, the amended complaint included the defendant's residential address, instead. This was proper pursuant to Practice Book § 10-59, which permits a plaintiff to "amend any defect, mistake or informality in the writ, complaint or petition . . . during the first thirty days after the return day." The return date on the original complaint was July 21, 2006, and therefore, the plaintiff filed the amended complaint within the time allotted under the Practice Book.
On August 23, 2006, the defendant filed a motion to dismiss for lack of subject matter jurisdiction. The defendant has submitted a memorandum of law in support of the motion. The plaintiff did not file a memorandum of law in opposition. The matter was heard on October 3, 2006.
The court could grant the defendant's motion to dismiss on procedural grounds, due to the plaintiff's failure to file a memorandum in opposition. Practice Book § 10-31(b) provides that "[a]ny adverse party who objects to [the motion to dismiss] shall, at least five days before the motion is to be considered on the short calendar, file and serve . . . a memorandum of law and, where appropriate, supporting affidavits . . ." The Supreme Court, however, has determined that "a party who files an untimely memorandum is no longer deemed to consent to the granting of a motion [to dismiss]." Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 13 n. 1, 578 A.2d 646 (1990). In most cases, the Superior Court has used its discretion to reach the merits of the motion, rather than to dismiss the case based on a party's failure to comply with § 10-31(b). See, e.g., Foley v. Scheines, Superior Court, judicial district of Litchfield, Docket No. CV 04 4000361 (December 14, 2004, Brunetti, J.) (dismissing on substantive grounds, even though noting that "[t]he plaintiff has not filed an objection to the motion or a memorandum of law in accordance with Section 10-31 of the Practice Book"); Southern New England/SBC v. Balf Co., Superior Court, judicial district of New Haven, Docket No. CV 03 0482272 (August 4, 2004, Skolnick, J.) ("[d]espite the language of Practice Book § 10-31(b), most courts have exercised discretion to address the merits of a motion to dismiss and to waive the five-day requirement when an opposing memorandum was untimely"); Murphy v. K-Mart Corp., Superior Court, judicial district of Litchfield, Docket No. CV 02 0086934 (July 20, 2004, Bryant, J.) (same). See also Martinez v. Zovich, 87 Conn.App. 766, 770 n. 3, 867 A.2d 149, cert. denied, 274 Conn. 908, 876 A.2d 1202 (2005) (affirming the denial of the defendant's motion for summary judgment, despite the plaintiff's failure to comply with filing requirement similar to that pertaining to motion to dismiss, because "[i]n the present case . . . the defendant did not demonstrate that the plaintiffs' delay in filing their memorandum of law in opposition to the motion for summary judgment was prejudicial to his defense of the matter . . .") The court shall overlook the failure to file the opposing memorandum and address the merits of the motion to dismiss.
DISCUSSION
"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 . . . [It] tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 205, 210-11, 897 A.2d 71 (2006). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). A motion to dismiss also is the appropriate motion for asserting the prior pending action doctrine, which "permits the court to dismiss a second case that raises issues currently pending before the court." Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998). Thus, although "the prior pending action rule does not truly implicate the subject matter jurisdiction of the court"; Halpern v. Board of Education, 196 Conn. 647, 652 n. 4, 495 A.2d 264 (1985); "the motion to dismiss [is] the proper device by which to request that the trial court dismiss the second action." (Citations omitted.) Id.
The defendant attacks the court's subject matter jurisdiction on two grounds. First, she argues that the plaintiff's notice to quit was defective. Specifically, the defendant argues that while the plaintiff specifies non-payment of rent as the grounds for its notice to quit, the plaintiff simultaneously attempts to avoid alleging in its complaint the existence of any lease agreement that would provide the basis for the defendant's duty to pay rent. According to the defendant, this constitutes a defect in the notice to quit, which, in turn, deprives the court of subject matter jurisdiction over the complaint. Second, the defendant argues that a previously served notice to quit terminated any rental agreement between the parties, thereby eliminating any basis for the present notice to quit for non-payment of rent. The defendant asserts that this, too, destroys the court's subject matter jurisdiction. In addition, the defendant argues that the court should dismiss the present action, because when the plaintiff served the defendant with the present notice to quit, there was a civil action between the parties already pending in the Superior Court.
The plaintiff explained at the hearing that it was reluctant to acknowledge the existence of a valid, written lease in the present case, because the same issue is central to a separate action pending between the parties.
The defendant invokes the prior pending action doctrine as another basis on which to attack subject matter jurisdiction. As previously noted, however, this doctrine does not directly implicate subject matter jurisdiction. It nevertheless provides a valid basis for a motion to dismiss. See Halpern v. Board of Education, supra, 196 Conn. 652 n. 4.
The plaintiff first counters that there is no variance between the notice to quit and the complaint. Rather, it argues, the notice to quit complied with the statutory requirements, and therefore, the court has subject matter jurisdiction over the matter. In response to the defendant's second argument, the plaintiff asserts that service of the prior notice to quit was improper and, thus, the first notice to quit was ineffective to terminate the lease agreement between the plaintiff and the defendant. Finally, as to the defendant's prior pending action argument, the plaintiff argues that the first notice to quit was statutorily deficient, and therefore, the plaintiff started over by filing the present notice to quit and the present complaint for possession. Accordingly, the plaintiff suggests, the prior pending action doctrine is inapplicable.
I DEFENDANT'S SUBJECT MATTER JURISDICTION ARGUMENTS CT Page 21419
"Summary process is a statutory remedy that enables a landlord to recover possession from a tenant upon the termination of the lease . . . The purpose of summary process proceedings is to permit the landlord to recover possession of the premises upon termination of a lease without experiencing the delay, loss, and expense to which he might be subjected under a common-law cause of action. The process is intended to be summary and is designed to provide an expeditious remedy to a landlord seeking possession." (Citations omitted; internal quotation marks omitted.) Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn.App. 37, 43, 726 A.2d 600 (1999). See also Young v. Young, 249 Conn. 482, 487-88, 733 A.2d 835 (1999).A valid notice to quit is a condition precedent to a viable summary process action. Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 590 (1989). See also Silvermine Investors, LLC v. Call Center Technologies, Inc., 81 Conn.App. 701, 703-04, 841 A.2d 695 (2004). As such, the notice to quit "[implicates the court's] . . . subject matter jurisdiction over the plaintiff's summary process action." (Internal quotation marks omitted.) Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministeries, Inc., 92 Conn.App. 410, 413, 885 A.2d 768 (2005). See also Lampasona v. Jacobs, supra, 729 (stating that a "proper notice to quit is a jurisdictional necessity"). The Appellate Court consistently has required strict compliance with the summary process statute; see Tehrani v. Century Medical Center, 7 Conn.App. 301, 307-08, 508 A.2d 814 (1986); which the courts have "narrowly construed and strictly followed." Young v. Young, supra, 249 Conn. 488. Thus, because "[t]he plaintiff bears the burden of proving subject matter jurisdiction"; Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003); the summary process plaintiff must "allege that [it] complied with the notice requirement of § 47a-23 . . ." Tehrani v. Century Medical Center, supra, 308.
The defendant, therefore, first argues that the plaintiff failed to comply strictly with the statutory notice requirement, because the amended complaint does not specifically allege the existence of a valid, written lease. According to the defendant, a fatal variance exists between the amended complaint and the notice to quit, the stated grounds for which is nonpayment of rent. The case law supports the general proposition that a summary process complaint must conform to the notice to quit served upon the defendant. "Judges of the Superior Court have examined the effect of an alleged variance between the notice to quit and the complaint. Most judges have held that the complaint may not substantially vary from the notice to quit." Housing Authority of Danbury v. Curtis, Superior Court, judicial district of Danbury, Docket No. SP 05 12308 (March 27, 2006, Marano, J.) ( 41 Conn. L. Rptr. 129, 132). In Curtis, the court explained that this rule stems from the function of the notice to quit, which is to "[enable] a defendant to prepare a defense, to determine what stay may be available, and to ascertain what appeal procedure is appropriate." (Internal quotation marks omitted.) Id. See also Gazzillo v. Roane, Superior Court, judicial district of Middlesex, Docket No. CV 9 13214 (December 27, 2002, Dyer, J.) ("Connecticut case law is clear that the notice to quit must inform the tenant of the information needed to defend against premature, discriminatory or arbitrary eviction"); Housing Authority of Bridgeport v. Rogers, Superior Court, judicial district of Fairfield, Docket No. SP BR 9109 20758 (March 2, 1992, Leheny, J.) ( 6 Conn. L. Rptr. 174) ("The complaint and the notice ought not to be at substantial variance with the summary process complaints").
The variance cases on which the defendant relies are distinguishable from the present case, however. In Curtis, for example, the court deemed it defective that the notice to quit referred to the tenant's arrest as the basis for the eviction, whereas the complaint alleged a serious nuisance. The court reasoned that "[w]ithout a more definite reference to serious nuisance . . . the notice [to quit] does not adequately enable the defendant to prepare a defense against an allegation of serious nuisance." Housing Authority v. Curtis, supra, Superior Court, Docket No. SP 05 12308. Similarly, in both Rogers and Gazilla, the courts faced situations in which the notice to quit and the complaint specified disparate statutory grounds for eviction. Although the defendant in the present case suggests that she was left wondering on what basis the plaintiff served the notice to quit and now seeks possession, the plaintiff did allege in the complaint that the parties were operating under some type of rental agreement, even if a seemingly ambiguous one. Thus, the reference to "nonpayment of rent" in the notice to quit should have apprised the defendant of the plaintiff's intention to rely on a rental agreement in the forthcoming complaint. Because the defendant's variance argument must fail, the court denies the motion to dismiss for lack of subject matter jurisdiction on these grounds.
In addition, contrary to the defendant's insistence that the plaintiff must specifically allege the existence and precise nature of a valid lease, § 47a-23(a) allows a plaintiff to seek relief "when a rental agreement or lease . . . terminates for . . . nonpayment of rent . . ." (Emphasis added.) Phrased disjunctively, the plain language of the statute permits the plaintiff to base its claim either on a rental agreement, as in the present case, or on a valid lease. As discussed above, the plaintiff sufficiently pleaded the existence of a rental agreement between the parties, under which the defendant had been making monthly rental and electricity usage payments to the plaintiff. Moreover, the Appellate Court has stated that "one seeking summary process need only allege and prove ownership of the subject property and assert a demand for possession." Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, 88 Conn.App. 661, 666, 870 A.2d 1116, cert. denied, 274 Conn. 907, 876 A.2d 1200; 274 Conn. 908, 876 A.2d 1200 (2005). Having alleged as much, the plaintiff, therefore, has satisfied its burden to invoke the subject matter jurisdiction of the court. For this additional reason, the court denies the defendant's motion to dismiss. See South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn.App. 742, 745, 899 A.2d 642 (2006) ("[a] motion to dismiss, claiming lack of jurisdiction because of a defective notice, must be denied if there has been compliance with the statute").
In Trinity United Methodist Church of Springfield, Massachusetts, the court also discussed the expansion of § 47a-23 beyond the traditional landlord-tenant context. Trinity United Methodist Church of Springfield v. Levesque, supra, 88 Conn.App. 665-66. Thus, whereas earlier cases regarded as prerequisites to summary process actions the existence of a landlord-tenant relationship; Chomko v. Patmon, 19 Conn.App. 483, 563 A.2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989); and the termination of a lease; Cohn v. Fennelly, 138 Conn. 474, 86 A.2d 183 (1952); Trinity United Methodist Church of Springfield, Massachusetts indicated that courts may read § 47a-23 more broadly. Trinity United Methodist Church of Springfield, Massachusetts, supra, 665-66 (citing Southington v. Francis, 159 Conn. 64, 69 n. 2, 266 A.2d 387 (1970)).
The defendant next argues that the court lacks subject matter jurisdiction, because a prior, valid notice to quit terminated any rental agreement between the parties. Therefore, the defendant argues, the subsequent notice to quit, which provides the basis for the plaintiff's present action, is a legal nullity. If the first notice to quit were statutorily valid, then the case law would support the defendant's position. Because a notice to quit terminates an existing lease agreement; O'Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990); which, in turn, terminates the defendant's duty to pay rent; id.; there would be no basis for any subsequent notice to quit based on nonpayment of rent. Therefore, the subsequent notice itself would be a nullity, and could not satisfy the notice requirement necessary to support a summary process action under § 47a-23. Faced with precisely this scenario, the Superior Court has explained: "It is clear that if the first notice to quit was a nullity, then it is of no effect and the second notice to quit is effective. If, on the other hand, the first notice to quit was effective at least for the purpose of terminating the rental agreement, then the second notice to quit cannot effectively be based on nonpayment of rent, as there would have been no contractual rental agreement in effect at the time. Sammy Redd Associates v. May, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. SPH 95376 (January 21, 1998, Beach, J.) ( 22 Conn. L. Rptr. 107). The court went on to say that "[w]hile the rule is easy to state, it is most difficult to apply in many instances." Id.
The defendant, however, cannot prevail under the Sammy Redd rule, because the first notice to quit was statutorily deficient. In particular, § 47a-23(c) requires the plaintiff to serve the notice to quit at the commercial premises. The plaintiff, however, maintains that it served the first notice to quit at the defendant's residence, rather than at the commercial property. Taking this allegation as true for purposes of the motion to dismiss; see Cox v. Aiken, supra, 278 Conn. 211; the plaintiff's failure to comply with § 47a-23(c) rendered the first notice to quit ineffective to terminate the rental agreement between the parties. The present case, therefore, is similar to Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988), wherein the plaintiff served two notices to quit, the first of which was untimely. There, the Appellate Court concluded: "[B]ecause the first notice to quit possession was a nullity, it did not have the effect of terminating the lease, and, therefore, the second notice to quit was properly based upon the defendant tenant's failure to pay rent for which a summary process action may be maintained pursuant to General Statutes § 47a-23." Id., 575-76. The defendant in this case, therefore, cannot prevail on her second basis for arguing lack of subject matter jurisdiction. Accordingly, the court denies the defendant's motion to dismiss on the grounds that the plaintiff's first notice to quit was a legal nullity, such that the second notice to quit provides a valid basis for the plaintiff's present amended complaint for possession.
Section 47a-23(c) establishes the requirements for proper service of the notice to quit: "A copy of such notice shall be delivered to each lessee or occupant or left at such lessee's or occupant's 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."
II DEFENDANT'S PRIOR PENDING ACTION ARGUMENT
The third ground on which the defendant moves to dismiss invokes the prior pending action doctrine. The Supreme Court has explained this doctrine to mean that "[w]hen two separate lawsuits are virtually alike the second action is amenable to dismissal by the court." (Internal quotation marks omitted.) Halpern v. Board of Education, supra, 196 Conn. 652. The court then stated the rationale behind the doctrine: "[T]here cannot be any reason or necessity for bringing the second [action], and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction." (Internal quotation marks omitted.) Id., 652-53. Although the doctrine "does not truly implicate the subject matter jurisdiction of the court"; id., 652 n. 4; it is a valid basis on which a defendant may move to dismiss a subsequent action. Id. Nevertheless, the court also indicated that courts should not apply the doctrine in a mechanical fashion: "The rule forbidding the second action is not, however, one of unbending rigor, nor of universal application, nor a principle of absolute law . . . We must examine the pleadings to ascertain whether the actions are virtually alike." (Citations omitted; internal quotation marks omitted.) Id., 653.
The defendant argues that when the plaintiff served the notice to quit in the present case, there was a civil action already pending between the parties. The plaintiff filed that action, Whiting Mills, LLC v. Van Inwagen, Docket No. CV18-10601, on June 7, 2006, based on the first notice to quit, discussed above. On June 29, 2006, the plaintiff withdrew that action and commenced the present lawsuit by service of process on July 7, 2006. Although the plaintiff served the defendant with the second notice to quit on June 27, 2006, prior to withdrawing the prior action, the notice to quit does not itself commence an action. See O'Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946) ("The notice to quit under the statute is the basis for the inauguration of an action at law. There is nothing in the statute or the purpose of the notice which makes it a part of any particular action of summary process." (Internal quotation marks omitted.)). See also Peter-Michael, Inc. v. Sea Shell Associates, Superior Court, judicial district of New Haven, Docket No. CV 96 0392382 (January 14, 1997, Silbert, J.) ( 18 Conn. L. Rptr. 656, 660), rev'd on other grounds, 244 Conn. 269, 709 A.2d 558 (1998) ("for purposes of [the prior pending action] doctrine, the better question is not when each case was `commenced' but rather when it first began to `pend,' i.e., when it was actually filed in court").
Under similar circumstances, the Appellate Court has allowed the plaintiff to proceed with a subsequent summary process action. Thus, where the plaintiff withdrew a prior summary process action prior to a hearing or judgment thereon, the Appellate Court reasoned that "[t]he withdrawal of the [prior] summary process action . . . effectively erased the court slate clean as though the eviction predicated on [the earlier] notice to quit possession had never been commenced. The plaintiff and the defendant were `back to square one,' and the continuation of their lease . . . was restored." Housing Authority v. Hird, 13 Conn.App. 150, 157, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988). The Superior Court also has addressed analogous cases. In Norling v. Anthony, Superior Court, judicial district of Stamford, Docket No. X05 CV 99 0175669 (January 2, 2001, Tierney, J.), for instance, the plaintiff withdrew a prior summary process action on November 26, 1999, and filed a subsequent action on December 2, 1999, based on the same notice to quit. There, the Superior Court stated that "[t]he prior pending action doctrine is not a defense since the prior action was withdrawn just before the service of this current summary process lawsuit." The same holds true in the present case. Moreover, in Ying Shan Corp. v. Cruz, Superior Court, judicial district of New Haven, Docket No. SPNH 9503 42439 (April 27, 1995, Levine, J.), the court characterized the rationale behind the Halpern rule on prior pending actions as follows: "[O]nly if the plaintiff can achieve its desired objective though the first lawsuit does the second lawsuit become redundant, and, therefore, oppressive and vexatious." As a result, the court concluded, "the defendant must establish that the plaintiff can achieve its desired objective through the first complaint in order to prevail on its motion to dismiss." Id. In the present case, the plaintiff cannot achieve its desired objective through the first lawsuit, because it withdrew that complaint upon discovery that it had improperly served the first notice to quit. Accordingly, the court denies the defendant's motion to dismiss on the grounds that the prior pending action doctrine is inapplicable under these facts.
CONCLUSION
For the foregoing reasons, the court denies the defendant's motion to dismiss, because the court does have subject matter jurisdiction over the matter, and because the prior pending action doctrine is inapplicable.