Opinion
Docket No. HDSP-137643
September 11, 2006
MEMORANDUM OF DECISION MOTION TO DISMISS
This is a summary process action based on nonpayment of rent. The notice to quit was served on May 8, 2006, with a termination date of May 19, 2006. The complaint was served on May 22, 2006.
The defendant moves to dismiss the case on the following grounds:
1. The summary process action is based on a Notice to Quit Possession that purported to terminate the defendant's lease and was delivered on May 8, 2006.
2. On or about March 28, 2006, the plaintiff caused a prior notice to quit to be delivered to the defendant.
3. The plaintiff never withdrew the March 28, 2006 notice to quit nor reinstated the defendant's tenancy prior to the delivery of the May 8, 2006 notice to quit.
4. The May 8, 2006 notice to quit was equivocal and therefore invalid.
5. The court lacks subject matter jurisdiction over this action.
The motion was heard on September 7, 2006.
DISCUSSION
"[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. "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 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).
In Bridgeport, the plaintiff sought to evict the defendant based on nonpayment of rent. Bridgeport v. Barbour-Daniel Electronics, Inc., supra, 16 Conn. App. 575. The defendant moved to dismiss on the ground that the obligation to pay had been terminated by a prior notice to quit. Id., 576-577. The Appellate Court reversed the trial court's decision granting the motion to dismiss. Id., 585-586. The Appellate Court held that: "Without a valid notice to quit, there can be no foundation for a summary process action. . . . Although many unequivocal acts may be sufficient to terminate all rights arising under a lease, the only foundation for a summary process action is a notice to quit. . . . This case is a summary process action. The first notice to quit was invalid as untimely served. It was ineffectual as a basis for a summary process action. It matters not that the plaintiff regarded the tenancy as terminated in the first notice to quit but whether, as a matter of law, the first notice to quit, in fact, terminated the tenancy. We conclude that it did not." (Citations omitted.) Id., 583-584
In Bargain Mart, Inc., the Supreme Court agreed with the conclusion reached in Bridgeport, holding that "[a]s the Appellate Court correctly observed in Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 582-84, 548 A.2d 744 (1988), . . ., a notice to quit will not terminate a lease if the notice itself is invalid. Indeed, it is self-evident that if the notice is invalid, then the legal consequence of `termination' arising from the service of a valid notice does not result." Bargain Mart, Inc. v. Lipkis, supra, 212 Conn. 134.
CONCLUSION AND ORDER In the present case, the first notice to quit was served on March 28, 2006, with a termination date of April 12, 2006. The first notice to quit was invalid because it was premature. The plaintiff served the first notice to quit on the same day that the pretermination letter was sent to the defendant. The plaintiff failed to comply with the pretermination process set forth in the termination provision of the lease. See Chappelle Gardens Inc. v. Lawrence Pertillar, Superior Court, judicial district of Hartford, Docket No. HDSP-133049 (March 24, 2006, Bentivegna, J.).
Plaintiff's Exhibit No. 1
CHAPPELLE GARDENS, INC. 369A BARBOUR STREET HARTFORD, CT 06120 OFFICE (860) 728-0073 FAX (860) 524-9209
3/28/06
CERTIFIED MAIL RETURN RECEIPT Lawrence Pertillar 363 Barbour Street Hartford, CT 06120
RE: PRETERMINATION NOTICE
Dear Mr. Pertillar:
You are hereby advised that effective April 7, 2006 your tenancy will be terminated due to your nonpayment of rent in the amount of $478.00 for March 1, 2006. Accordingly, you have a balance due owing Chappelle Gardens, Inc. of $1,988.00.
You are further advised that remaining in the unit on April 7, 2006 may result in Chappelle Gardens, Inc. seeking to enforce the termination in court, at which time you may present a defense.
Finally, you are advised that you have 10 days within which to discuss termination of tenancy with Chappelle Gardens, Inc. The 10-day period begins on the day this notice was mailed, the above date. Sincerely,
Chappelle Management
Cc: Resident File Accounting Records
The termination provision of the Lease, Paragraph 23C, provides in relevant part:
"If the Landlord proposes to terminate this Agreement, the Landlord agrees to give the Tenant written notice of the proposed termination. . . .
All termination notices must:
1. Specify the date this Agreement will be terminated;
2. State the grounds for termination with enough detail for tenant to prepare a defense;
3. Advise the Tenant that he/she has ten (10) days within which to discuss the proposed termination of tenancy with the Landlord. The ten (10) day period will begin on the earlier of the date the notice was hand-delivered to the unit or the day after the date the notice is mailed. If the Tenant request the meeting, the Landlord agrees to discuss the proposed termination with the Tenant; and
4. Advise the Tenant of his/her right to defend the action in court."
(Emphasis added.)
Well before the second notice to quit was served, the defendant's attorney recognized that there was a problem with the first notice to quit. At the motion hearing, however, the defendant argued that the first notice to quit was valid. "It matters not that the . . . [defendant] regarded the tenancy as terminated in the first notice to quit but whether, as a matter of law, the first notice to quit, in fact, terminated the tenancy." Bridgeport v. Barbour-Daniel Electronics, Inc., supra, 16 Conn. App. 583-584. Clearly, the plaintiff recognized that the first notice to quit was invalid and had not pursued it.
Plaintiff's Exhibit No. 2
Greater Hartford Legal Aid, Inc. April 13, 2006 BY MAIL AND FAX
Chapelle Gardens, Inc. 369A Barbour Street Hartford, CT 06120
Re: Lawrence S. Pertillar 363 Barbour Street Hartford, CT 06120
Dear Chapelle Gardens, Inc.:
On behalf of Mr. Pertillar, I request that a meeting be scheduled to discuss the proposed termination of his lease.
Although I am confident that any case filed in court would be dismissed due to the premature notice to quit and the insufficient letter of March 28, 2006, I think both parties would benefit if the matter can be resolved on an amicable basis.
Call me (541-5013) if you have any questions.
Sincerely,
David A. Pels Attorney at Law
Plaintiff's Exhibit No. 3.
CHAPPELLE GARDENS, INC. 369A BARBOUR STREET HARTFORD, CT 06120 OFFICE (860) 728-0073 FAX (860) 524-9209
4/27/06
Attorney David A. Pels Greater Hartford Legal Aid, Inc. 999 Asylum Avenue, 3rd Floor Hartford, CT 06105-2465
RE: Your client: Lawrence S. Pertillar, 363 Barbour St., Hartford
Dear Attorney Pels:
Further to your April 26, 2006 telephone call with our attorney Gerald B. Gore, the ten days within which to discuss termination of your client's lease pursuant to our March 28, 2006 pretermination notice will begin running April 12, 2006, the date of the certified mail return receipt.
Accordingly, further to your April 13, 2006 letter requesting a meeting to discuss the proposed termination of your client's lease, the following meeting dates are available:
Monday, May 8, 2006: 1:30 p.m. or 2:00 p.m.
Friday, May 5, 2006: 2:00 p.m. or 2:30 p.m.
Wednesday, May 10, 2006: 9:00 a.m. or 9:30 a.m.
Please contact our attorney or this office to inform us of the date and time you and your client have chosen as soon as possible.
Sincerely,
Chappelle Management
Cc: Resident File Accounting Records Attorney Gerald B. Gore
In support of his motion to dismiss, the defendant cites W.H.C. Realty Corp. v. LaBella, Superior Court, judicial district of Hartford, Docket No. SPH 9103-59616 (May 7, 1995, Berger, J.). In W.H.C. Realty Corp., the court held that "[t]his case, however, differs from Bridgeport because in that case no action was commenced on the first notice to quit." The instant case is distinguishable from W.H.C. Realty Corp. on the same basis that no summary process action was commenced on the first notice to quit served on March 28, 2006.
Under the particular circumstances of this case, the court finds that the first notice to quit was invalid as premature. See Bridgeport v. Barbour-Daniel Electronics, Inc., supra, 16 Conn. App. 584. "[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., 575-576. Accordingly, the defendant's motion to dismiss is denied.
The defendant has requested costs relating to the requests for admission. Practice Book Sec. 13-25 provides: "If a party fails to admit the genuineness of any document or the truth of any matter as requested herein, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, such party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The judicial authority shall make the order unless it finds that such failure to admit was reasonable." After due consideration, the Court denies the request for costs.