Opinion
MMXCV196024218S
07-01-2019
Richard KELLISH v. Robert ROSENBERG
UNPUBLISHED OPINION
OPINION
Price-Boreland, J.
In the present action, the court considers the defendants’ motion to dismiss the plaintiffs’ summary process action. See Docket Entry # 115. The dispositive issue in this case is whether the defendant-tenants are tenants at sufferance despite the fact that the plaintiffs withdrew their first summary process action in Kellish v. Rosenberg, Superior Court, Docket No. MMX-CV-19-6023808-S. Upon a thorough review of the parties’ arguments and the case law, the court hereby denies the defendants’ motion to dismiss.
FACTS
On August 1, 2012, the parties entered into a month to month lease for the premises located at 58 King Road in Middlefield, Connecticut. The defendants took possession of the premises on November 23, 2012, and have remained in possession since. The issue in this matter hinges on two notices to quit, which were served on the defendants in January and February of 2019. The first notice to quit was served on January 8, 2019, for non-payment of rent and lapse of time. On January 24, 2019, the plaintiff initiated a summary process action by filing a three-count complaint with the court, but then withdrew the action a month later on February 8, 2019. On the same day, the plaintiff served a second notice to quit premised on lapse of time, accompanied by a summary process action filed with this court on March 8, 2019.
In response to the second summary process action, the defendants filed three separate motions to dismiss; the first, attacks the sufficiency of the complaint filed on March 8, 2019, and the remaining two, address a series of amended complaints filed by the plaintiff. The court heard oral argument on the defendants’ third and final motion on April 22, 2019.
STANDARD OF REVIEW
The court will begin its analysis with the applicable standard of review. Service of a notice to quit is a condition precedent to a summary process action and thus, implicates a court’s subject matter jurisdiction. See Bristol v. Ocean State Job Lot Stores of Connecticut, 284 Conn. 1, 5, 931 A.2d 837 (2007). The defendants’ motion to dismiss therefore "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." R.C. Equity Group, LLC v. Zoning Commission of Newtown, 285 Conn. 240, 248, 939 A.2d 1122 (2008); see also Mulcahy v. Mossa, 89 Conn.App. 115, 128, 872 A.2d 453, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005). "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).
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings ..." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).
DISCUSSION
Throughout the course of this summary process action, the defendants have filed three motions to dismiss in response to the defendants’ original and amended complaints. Nevertheless, the court is concerned only with the defendants’ third and final motion to dismiss. In their motion, the defendants argue that the plaintiffs’ lapse of time claim is not an appropriate cause of action against them. The defendants’ motion and corresponding argument operates under the assumption that they are tenants at sufferance because their original lease with the plaintiffs was extinguished by the January 2019 notice to quit, which commenced the plaintiffs’ first summary process action. The defendants assert that the plaintiffs cannot properly bring a summary process action based on lapse of time against them because lapse of time is not a valid cause of action against tenants at sufferance. Accordingly, the defendants argue that the plaintiffs’ current action may only move forward if the plaintiffs plead and prove that the first notice to quit was invalid. In response, the plaintiffs argue that under our Supreme Court’s ruling in Waterbury Twin, 292 Conn. 459-74, 974 A.2d 626 (2009), the withdrawal of the first summary process action reset the parties back to square one before the notice to quit was served, thus reinstating the lease. Nevertheless, the defendants argue that Waterbury Twin is inapplicable to this case, as its holding only applies to non-payment cases; instead, the defendants contest that because this summary process action is premised on lapse of time, their motion is controlled by Vidiaki v. Just Breakfast and Things!!!, 133 Conn.App. 1, 25, 33 A.3d 848 (2012).
At the outset, the court will address the defendants’ argument that our Supreme Court’s ruling in Waterbury Twin v. Renal Treatment Centers-Northeast, Inc., does not apply to the case at bar because it is only applicable to non-payment summary process actions. As the parties contest whether Waterbury Twin or Vidiaki is the controlling precedent, it is important to draw the glaring distinction between these rulings.
In Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., supra, 292 Conn. 459-74, our Supreme Court held that when a plaintiff-landlord withdraws a summary process action, the parties are reverted back to their position prior to the service of the notice to quit. In this case, the plaintiffs served a notice to quit for nonpayment on the defendant-tenants and filed a summary process action, which was withdrawn shortly thereafter. After withdrawing their first action, the plaintiffs commenced a new summary process action by issuing a new complaint, that relied upon the initial notice to quit that was served in the first summary process action. In so holding, the court stated that: "[T]he withdrawal of [a] summary process action ... effectively [erases] the court slate clean as though the eviction ... had never been commenced." (Internal quotation marks omitted.) Id., 468. The court expanded on our Appellate Court’s ruling in Housing Authority v. Hird, 13 Conn.App. 150, 157-58, 535 A.2d 377 (1988), noting that a withdrawal meant the parties were brought back to their original state prior to when the notice to quit was served.
Unlike in Waterbury Twin, Vidiaki, LLC v. Just Breakfast and Things!!!, supra, 133 Conn.App. 1-25, addressed a situation in which the plaintiff-landlord issued two notices to quit while the summary process action was pending. In Vidiaki, the plaintiff served the defendant with a notice to quit and subsequently commenced a summary process action. Shortly thereafter, the plaintiff filed a second notice to quit for lapse of time, accompanied by an amended complaint. In its ruling, the court considered two questions: (1) what the effect of the first notice to quit had on the lease agreement during the pendency of the action; and (2) whether the second notice to quit could survive, as lapse of time had not been asserted as a grounds for eviction in the first notice to quit. The court noted: "[I]f 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 violations of a lease or rental agreement], as there would have been no contractual rental agreement in effect at that time." (Internal quotation marks omitted.) Id., 23, citing, Sammy Redd & Associates v. May, Superior Court, judicial district of Hartford, Housing Session, Docket No. SPH-95376 (January 16, 1998, Beach, J.) (22 Conn.L.Rptr. 107). After considering the facts, our Appellate Court ultimately held that the first notice to quit terminated the lease agreement between the parties, rendering the defendants tenants at sufferance; and therefore the second notice to quit could not survive because no cause of action for lapse of time can be asserted against tenants at sufferance.
For the distinction drawn above, the court disagrees with the defendant and finds that Vidiaki has no bearing on the outcome in the case at bar. The ruling in Vidiaki, LLC v. Just Breakfast and Things!!!, addresses how our courts must deal with the service of multiple notices to quit during the pendency of a summary process action. While the present case deals with the service of two notices to quit, unlike in Vidiaki, the plaintiffs withdrew their first summary process action prior to serving a second notice to quit. On the other hand, like in Waterbury Twin, the plaintiffs here withdrew their initial summary process action prior to initiating the second. In this way, the dispositive issue is not the number of notices to quit that were served by the plaintiffs; instead, what determines the applicability of Waterbury Twin and Vidiaki is whether the initial summary process action was withdrawn, prior to the service of the second. For the foregoing reasons, the ruling in Waterbury Twin is the appropriate holding to apply to this case.
Contrary to the defendants’ claim that Waterbury Twin only applies to non-payment cases, our Supreme Court made clear that its holding was intended to address a Superior Court split that concerned all summary process actions. See Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., supra, 292 Conn. 460 (providing "the dispositive issue in this appeal is whether a landlord, after withdrawing its complaint in a summary process action, is required to serve a new notice to quit"). If its ruling was intended to only apply specifically to non-payment cases, the court would have made that clear. Accordingly, our precedent in Waterbury Twin applies in the case at bar.
Turning to the crux of this motion, the defendants’ primary contention is that they became tenants at sufferance when they received the plaintiffs’ first notice to quit, dated January 8, 2019. "Service of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease" and until the landlord serves such notice, the lease is neither voided nor rescinded. Housing Authority v. Hird, 13 Conn.App. 150, 155, 535 A.2d 377 (1988). "Our law makes clear that after a notice to quit possession has been served, a tenant’s fixed tenancy is converted into a tenancy at sufferance." Sproviero v. J.M. Scott Associates, Inc., 108 Conn.App. 454, 462, 948 A.2d 379 (2008); see also O’Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990) (explaining tenancy at sufferance is created after tenant remains in possession of premises wrongfully after his right has been terminated); Bargain Mart, Inc. v. Lipkis, 212 Conn. 120, 136, 561 A.2d 1365 (1989) (same); Rivera v. Santiago, 4 Conn.App. 608, 610, 495 A.2d 1122 (1985) (noting tenancy not terminated upon service of a notice to quit possession).
While service of a notice to quit possession has the effect of voiding the lease, a landlord’s absolute and unconditional right to withdraw its action before a hearing on the merits operates to reinstate the previously voided lease. See Housing Authority v. Hird, supra, 13 Conn.App. 157. There is a distinct difference, however, in the effect of a withdrawal versus a judgment in favor of a tenant. In a summary process action where judgment is rendered in favor of a tenant, the original lease is "revived, restored and returned to its original status quo" prospectively. See Sproviero v. J.M. Scott Associates, Inc., supra, 108 Conn.App. 463-64. On the other hand, "[u]nder our law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of a case from the docket." (Internal quotation marks omitted.) Housing Authority v. Hird, supra, 13 Conn.App. 157. Thus, when a plaintiff-landlord withdraws a summary process action, the parties are brought "back to square one." Id.
Our Supreme Court in Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., supra, 292 Conn. 469, addressed what "square one" means in the context of the docket being erased after a landlord withdraws their summary process action. In drawing on case law from New York, the court held that square one means the state of affairs as they existed before the filing of the notice to quit. See id., 473-74. "Not requiring the service of a new notice to quit as a per se rule could well complicate the status of the parties’ relationship after the withdrawal of the initial complaint, and would require more extensive determinations by the trial court concerning the parties’ intentions and whether postwithdrawal payments are for rent, or use and occupancy." Id., 473.
While the defendants correctly argue that lapse of time would be an inappropriate cause of action against tenants at sufferance; Solomon v. Duthrie, Superior Court, judicial district of Hartford, Docket No. HDSP-151437 (July 13, 2009, Gilligan, J.); our precedent in Waterbury Twin makes clear that the defendants in this case are not tenants at sufferance. When the plaintiffs withdrew their first summary process action, it operated to erase the docket such that both the summary process action and the notice to quit never existed. As such, when the plaintiffs served their second notice to quit, on February 8, 2019, there was an underlying lease between the parties, operating under a month-to-month tenancy, as conceded by the parties during oral argument. See Hr’g Tr. 4, April 22, 2019. Because the defendants are month-to-month tenants and have an underlying lease agreement, lapse of time is an appropriate cause of action against them. Moreover, contrary to the defendants’ argument, the plaintiff is not required to plead and prove that their first notice to quit was invalid. Accordingly, the court has subject matter jurisdiction to hear this matter.
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is hereby denied.
SO ORDERED.