Opinion
HDSP181088
03-21-2016
Steele Casa Neuva, LLC v. Maria Ortiz et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS SUMMARY PROCESS ACTION
Nicola E. Rubinow, J.
This memorandum of decision addresses the issues raised by the defendant-tenant Maria Ortiz through her January 29, 2016 Motion to Dismiss the summary process action that had been brought by the plaintiff-landlord Steele Casa Nueva, LLC (Casa Nueva) against her and two other defendant-tenants. This memorandum of decision also addresses the issues raised by Casa Nueva through its February 5, 2016 Objection to Defendant's Motion to Dismiss and through its February 2016 Supplement to Plaintiff's Objection to Defendant's Motion to Dismiss.
The issues were presented to the court on February 8, 2016. Both parties are represented by skilled and experienced counsel.
The parties dispute the import of communications sent by Casa Nueva to Ortiz following the September 18, 2015 service upon Ortiz of a notice to quit possession of the premises known as 635 Broad Street, Apt. 8-D, Hartford, CT, the dwelling unit occupied by Ortiz whose possession is sought by Casa Nueva. The notice to quit, contained in the court file, presented three alternative grounds: " 1. NON-PAYMENT OF RENT in the amount of $1, 298.00. 2. EXPIRATION OF LEASE BY LAPSE OF TIME. 3. NO RIGHT OR PRIVILEGE TO OCCUPY by one who had a right or privilege to occupy which has terminated." The notice to quite further informed Ortiz that the landlord's agent had " terminated [her] lease" and gave notice that Ortiz had to " quit possession of the premises . . . on or before OCTOBER 1, 2015 . . ." (Emphasis in the original.) The court file further reflects that Ortiz was served with the summary process complaint and attendant documents on October 9, 2015.
It is uncontested that after the notice to quit and summary process complaint were served, Casa Nueva sent, and Ortiz received, two separate letters relating to the status of Ortiz's tenancy/occupancy of the dwelling unit and presenting new dates before which Ortiz was to leave the premises. Under date of October 12, 2015, Casa Nueva sent Ortiz a first letter with the heading " 10 DAY NOTICE OF PROPOSED EVICTION NONPAYMENT OF RENT." (Italics added; other emphasis in the original.) This letter stated, among other things: " In accordance with paragraphs 5 and 23 of your lease agreement, please consider this a formal notice of proposed eviction . . . and termination of tenancy . You are hereby notified that pursuant to the rental agreement dated 09/01/2006, by which you hold possession of the . . . (dwelling unit), you are in default under the rental agreement in the aggregate amount of $2, 586.00 . SHOULD YOU FAIL, REFUSE OR NEGLECT TO CURE THE BREACH (TEN DAYS FROM RECEIPT OF THIS NOTICE), Casa Nueva Apartments WILL SEEK TO ENFORCE THE TERMINATION THROUGH A JUDICIAL ACTION (LAWSUIT) IN COURT TO (1) RECOVER POSSESSION OF SAID APARTMENT . . . SHOULD YOU FAIL OR NEGLECT TO CURE THE BREACH YOU MUST VACATE YOUR UNIT NO LATER THAN MIDNIGHT ON THE DATE OF 10/22/15 ." (Italics added; other emphasis in the original.) (Ex. A.)
It is also uncontested that under date of January 12, 2016, three months after this first letter was sent, and approximately four months after the notice to quit was served, Casa Nueva sent and Ortiz received a second letter regarding her occupancy/tenancy of the dwelling unit. The letter dated January 12, 2016 also had the heading " 10 DAY NOTICE OF PROPOSED EVICTION NONPAYMENT OF RENT." (Italics added; other emphasis in the original.) This second letter also stated, among other things: " In accordance with paragraphs 5 and 23 of your lease agreement, please consider this a formal notice of proposed eviction . . . and termination of tenancy ." (Emphasis added.) Using language in most ways identical to the first letter, the second letter informed Ortiz: " You are hereby notified that pursuant to the rental agreement dated 09/01/2006, by which you hold possession of the . . . (dwelling unit), you are in default under the rental agreement in the aggregate amount of $6, 480.00 . SHOULD YOU FAIL, REFUSE OR NEGLECT TO CURE THE BREACH (TEN DAYS FROM RECEIPT OF THIS NOTICE), Casa Nueva Apartments WILL SEEK TO ENFORCE THE TERMINATION THROUGH A JUDICIAL ACTION (LAWSUIT) IN COURT TO (1) RECOVER POSSESSION OF SAID APARTMENT . . . SHOULD YOU FAIL OR NEGLECT TO CURE THE BREACH YOU MUST VACATE YOUR UNIT NO LATER THAN MIDNIGHT ON THE DATE OF 1/22/16 ." (Italics added; other emphasis in the original.) (Ex. B.)
In her motion to dismiss, Ortiz contends that the notice to quit served on September 18, 2015 was rendered equivocal due to Casa Nueva's conduct in delivering to Ortiz the two separate " 10 DAY NOTICE OF PROPOSED EVICTION NONPAYMENT OF RENT" letters referenced above, each specifying a new date for her to leave the dwelling unit, so that the court lacks subject matter jurisdiction over the pending summary process action. In opposition to Ortiz's claim, Casa Nueva argues that because the tenant's lease was never reinstated after service of the notice to quit, and because neither Casa Nueva nor Ortiz took any action to reinstate the lease, the original notice to quit was unequivocal and remained in effect. In addressing these issues, the court acknowledges that " '[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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . .' (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); see also South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn.App. 742, 744, 899 A.2d 642 (2006)." (Emphasis added.) Housing Authority v. DeRoche, 112 Conn.App. 355, 362, 962 A.2d 904 (2009). See also St. Paul's Flax Hill Cooperative v. Johnson, 124 Conn.App. 728, 734, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011).
" Summary process is a statutory remedy which enables a landlord to recover possession of rental premises from the tenant upon termination of a lease . . . It is preceded by giving the statutorily required notice to quit possession to the tenant . . . Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease . . . [S]tatutes relating to summary process must be narrowly construed and strictly followed . . . As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity." (Citations omitted; emphasis added; internal quotation marks omitted.) Centrix Management Co., LLC v. Valencia, 132 Conn.App. 582, 587, 33 A.3d 802 (2011).
To resolve the parties' jurisdictional conflict, the court has utilized the lessons of Centrix Management Co., LLC v. Valencia, supra . Through that case, the Appellate Court affirmed that the actions taken by a landlord after service of a notice to quit may be found sufficient to render the notice to quit equivocal and inadequate to support a summary process action. The Appellate Court's reasoning in Centrix makes it clear that where a landlord's actions, following service of the notice to quit, invite the tenant to cure an alleged breach and indicate or imply that thereby the tenant can maintain the right to occupy the premises, the landlord's actions invalidate the effect of the notice to quit. Id., 590. The plaintiff-landlord in Centrix neither initiated a new lease with the defendant tenant nor did he invite the defendant-tenant to pay rent after serving the notice to quit. However, the Centrix notice to quit was made statutorily insufficient because after its service, through communications with the defendant-tenant, the landlord-plaintiff took " actions that were not consistent with a 'clear intention to terminate the lease and to proceed with judicial process to secure possession.' (Internal quotation marks omitted.) Bristol Residential Properties v. Van Kirk, [Superior Court, judicial district of New Britain, Housing Session, Docket No. NBSP-46757 (January 10, 2007, Bentivegna, J.)] , quoting Zitomer v. Palmer, 38 Conn.Supp. 341, 343, 446 A.2d 1084 (1982) (Appellate Session)." Id., 589. The Appellate Court reasoned that although no new rental agreement was proffered by the landlord, he took " actions . . . that were not consistent with a clear intention to terminate the lease and to proceed with judicial process to secure possession . . . The combination of [the] written and spoken statements could create reasonable doubt in the mind of a reasonable tenant as to whether the lease, in fact, remained terminated ." (Emphasis added.) Id. Because of those actions and their potentially doubt-creating impact on the tenant, the Appellate Court found the Centrix notice to quit equivocal and, accordingly, affirmed the trial court's dismissal of the summary process action. Id., 589-90.
Although the facts of Centrix differ somewhat from the present matter, the legal principles apply equally, as in both cases the landlord's post-service conduct invalidated the statutorily required and previously served notice to quit, as discussed below. Centrix Management Co., LLC v. Valencia, supra, 132 Conn.App. 590.
In reaching this conclusion Centrix cites with approval Superior Court cases, some examined herein, in which a landlord's actions were found to have invalidated the effect of a previously-served notice to quit, whether or not a new lease agreement new rental agreement was specifically tendered, . Id., 587-90. In Centrix, the Appellate Court also cited with approval rulings by " [o]ur trial courts [which] consistently have held that providing a tenant with a new lease agreement or with an invitation to enter into a new rental agreement after the notice to quit has been served is inconsistent with an unequivocal notice to quit." Id., 587-88.
See General Statutes § 47a-19, which provides: " Acceptance of rent with the knowledge that such rent is overdue constitutes a waiver of the landlord's right to terminate the rental agreement for the tenant's failure to pay such rent when it was due."
Specifically, in Centrix Management Co., LLC v. Valencia, supra, 132 Conn.App. 582, following service of a notice to quit, the landlord's property manager called one of the tenants and stated: " I don't want to evict you. We don't want to put you on the street, but let me help you. We can help you. We can make [an] agreement." (Internal quotation marks omitted.) Id., 584. The manager subsequently made similar statements at a meeting. Id. Additionally, the manager drafted a writing that stated that the landlord would forgive two months' use and occupancy payments and " would work with [the tenant] to straighten out [the] arrearage." (Internal quotation marks omitted.) Id. Significant for the application of the Centrix reasoning to the present matter, the Appellate Court, in examining these facts, specifically noted that " there was no communication by [the property manager] initiating a new lease agreement or inviting the payment of rent." (Emphasis added.) Id., 589.
Centrix court commented that the " reasonable doubt" standard it was adopting is an objective standard, and that the standard is consistent with Superior Court decisions including Bristol Residential Properties v. Van Kirk, supra, Docket No. NBSP-46757, which did not involve any attempts to initiate a new lease. Centrix Management Co. v. Valencia, supra, 132 Conn.App. at 589 n.3.
Significant to the present controversy, Centrix further held that a landlord who wishes to enter into settlement negotiations after service of a notice bears the burden of making clear to the tenant that the summary process proceeding will move forward if negotiations fail. Specifically, the court stated: " We conclude that it does not impermissibly burden a landlord to require him or her, if he or she chooses, to try to settle a case after service of a notice to quit, to inform the tenant that the summary process action is going forward and that unless a full settlement is reached between the parties, the eviction action will proceed to conclusion." Id., 590.
A review of two of the Superior Court decisions cited in Centrix supports this court's conclusion that Casa Nueva's conduct, in sending Ortiz the October 2015 and January 2016 letters, rendered the previously served notice to quit invalid, so the pending summary process must be dismissed. Id., 587-89. For instance, the Appellate Court cited Bristol Residential Properties v. Van Kirk, supra, Docket No. NBSP-46757, adopting Judge Bentivegna's reasoning to explicate the Centrix principles. Centrix Management Co, LLC v. Valencia, supra, 132 Conn.App. 587-88. In Bristol Residential Properties, after the notice to quit was served, " the plaintiff sent the defendant a payment invoice, dated August 28, 2006, requesting payment of rent for the months of July 2006, August 2006 and September 2006." Bristol Residential Properties v. Van Kirk, supra, Docket No. NBSP-46757. The trial court held that " this payment invoice might reasonably be understood as an invitation to pay the past due rent and avoid eviction . . . Based on the invoice, it was unclear whether the lease agreement was actually terminated by the notice to quit or whether the lease agreement was possibly reinstated if the requested rent payments were made." (Emphasis added.) Id. The lessons of Centrix are consistent with Judge Bentivegna's decision that the court lacked subject matter jurisdiction in Bristol Residential Properties because " [t]he plaintiff's subsequent actions negated the effect of the notice to quit as an unequivocal act terminating the lease." Bristol Residential Properties v. Van Kirk, supra, Docket No. NBSP-46757. See Centrix Management Co., LLC v. Valencia, supra, 132 Conn.App. 588, 590. The Centrix court also effectively acknowledged the valid reasoning used in the Superior Court decision in Londregan v. Freedman; Superior Court, judicial district of New London, Docket No. 17122, (June 8, 2001, Dyer, J.); Centrix Management Co., LLC v. Valencia, supra, 132 Conn.App. 588. In Londregan, the trial court ruled that two letters sent by the landlord to the tenant rendered a previously-served notice to quit equivocal, finding that the correspondence constituted an ongoing invitation for negotiations with regard to the existence of an accumulated rent arrearage the tenant could address to remain on the premises, while also presenting an invitation to enter into a new rental agreement. Id., cited in Centrix Management Co., LLC v. Valencia, supra, 132 Conn.App. 590, also citing Vesta Windham, LLC v. Burgos, Superior Court, judicial district of Windham, Docket No. CV-11-0163967-S, (June 5, 2006 [Calmar, J.]) (" [i]f there is equivocal language in the notice itself or prior or subsequent communication from the landlord, then the notice is improper" (emphasis added)).
The only Superior Court decision cited by the Appellate Court in Centrix that found that a notice to quit was not rendered equivocal by subsequent letters and/or actions of the landlord involved a post-foreclosure summary process action. EMC Mortgage Corp. v. Abdulrahim, Superior Court, judicial district of Middlesex, Docket No. CV-0916162, (June 2, 2008, Jongbloed, J.). In
In
Utilizing the legal principals referenced above, the court concludes that Casa Nueva's conduct in sending the October 12, 2015 and January 12, 2016 letters to Ortiz did, as anticipated by Centrix, render the previously served notice to quit equivocal and thus ineffective to support this summary process action. On the face of the record, the court concludes that, by their terms, each of these letters explicitly offered Ortiz the opportunity to cure the default and thereby avoid the plaintiff-landlord's " proposed" taking of action to terminate her underlying lease. (Exs. A, B.) Notwithstanding the previously served notice to quit, the text of each letter implies that the lease has not yet been terminated but instead remains in effect, thus rendering the notice to quit ambiguous and equivocal. (Exs. A, B.) Casa Nueva's conduct in sending either the October 2015 and/or the January 2012 letters is inconsistent with a " clear intention to terminate the lease and to proceed with judicial process to secure possession" and thus renders the notice to quit ineffective and insufficient to support jurisdiction over the summary process case. (Internal quotation marks omitted.) Centrix Management Co., LLC v. Valencia, supra, 132 Conn.App. 589; see id., 590.
The Appellate Court's emphasis in
Notwithstanding the vigor of Casa Nueva's argument to the contrary, Centrix does not require a new agreement, an invitation to a new agreement, or an offer or actual reinstatement of the lease as a predicate to finding that a notice to quit has been rendered equivocal by the landlord's subsequent conduct. (See Supplement to Plaintiff's Objection to Defendant's Motion to Dismiss, 02/08/16.) Centrix recognizes that the submission to a tenant of an written opportunity to cure a rent deficiency following service of the notice to quit, such as that presented to Ortiz not only once, but twice in this case, can " cause . . . confusion about whether [the] lease agreement actually terminated or possibly was reinstated." Centrix Management Co., LLC v. Valencia, supra, 132 Conn.App. 588, citing Bristol Residential Properties v. Van Kirk, supra, Docket No. NBSP-46757. Therefore, the explicit standard is not whether a new lease was proffered, but whether any aspect of the plaintiff's conduct, following service of the notice to quit, " could create reasonable doubt in the mind of a reasonable tenant as to whether the lease, in fact, remained terminated." I d., 589.
This standard disposes of Casa Nueva's argument that because the letters to Ortiz were sent inadvertently, they have no impact on the notice to quit. Each of the letters sent to Ortiz after service of the notice to quit was apparently signed by Casa Nueva's property manager. (Exs. A, B.) Read from the perspective of the necessarily narrow and strictly construed statute requiring the notice to quit as a predicate to summary process,
Here, the October 2015 and January 2016 letters sent by Casa Nueva to Ortiz, after the notice to quit had been served, each referred to a " proposed eviction" and expressly invited Ortiz to " CURE THE BREACH" within ten days from receipt as a means of avoiding the " proposed eviction." (Emphasis in the originals.) (Exs. A, B.) Worded as if the notice to quit had never been served, the letters sent to Ortiz on October 12, 2015 and January 12, 2016 are each competent to create reasonable doubt in the mind of a reasonable tenant as to whether the lease had in fact been terminated by an unequivocal act undertaken by Casa Nueva. Because summary process statutes are construed strictly in order to protect tenants from uncertainty and confusion, Casa Nueva's conduct in sending the two post-notice to quit letters to Ortiz rise to a level that is inconsistent with the " clear intention to terminate the lease and to proceed with judicial process to secure possession." (Internal quotation marks and external citations omitted.) Centrix Management Company Co, LLC v. Valencia, supra, 132 Conn.App. 590.
See Centrix Management Company Co, LLC. v. Valencia, supra, 132 Conn.App. 587. ---------
Accordingly, the notice to quit in the present matter has likely been rendered equivocal under the Centrix standard, the motion to dismiss must be GRANTED, and the objection to the motion to dismiss is OVERRULED.
EMC Mortgage Corp., the tenant received three documents from the successor landlord after the notice to quit was served; the court found that this correspondence did not render the notice to quit equivocal, but rather served to reinforce the new landlord's intention to recover the premises. Id. The case involving Casa Nueva Nueva and Ortiz easily is distinguished. Here, the letters at issue were not sent by a successor landlord, but by the same landlord who sent the original notice to quit. Moreover, as discussed below, the letters did not reinforce the landlord's intention to move forward with the original eviction proceedings, but instead created doubt as to whether the landlord intended to move forward with them.
Londregan v. Freedman, the landlord sent the tenant a letter stating: " I have served a Notice to Quit Seeking possession of the property. If on the other hand you wish to remain on the property, the rent will be $6.50 per square foot based on 1, 600 square feet of occupancy, for an annual rent of $10, 400.00 and a monthly rent of $866.00 retroactive to November 2000. I will accept any reasonable terms you may offer with respect to the payment of an arrearage of $3, 464.00. It's entirely up to you as to whether or not we proceed with the eviction ." (Emphasis added.) Londregan v. Freedman, supra, Docket No. 17122. A second letter made a similar offer. Id. While the facts of Londregan differ from the present case, the landlord's post-notice to quit proposal for payment of the arrearage to maintain occupancy is fundamentally akin to the facts at bar.
Centrix upon Bristol Residential Properties is noteworthy because the letters in the present case bear a functional similarity to the landlord's post-notice to quit communications in the Bristol case. While neither the October 12, 2015 nor the January 12, 2016 letters was labeled " payment invoice" as was the landlord's correspondence in Bristol, they did, like the letter in Bristol Residential Properties, constitute " an invitation to pay the past due rent and avoid eviction." Centrix Management Co. v. Valencia, supra, 132 Conn.App at 589 n.3.
Centrix supports the conclusion that a notice to quit can be rendered equivocal and legally insufficient by a landlord's conduct whether that conduct is intentional, unintentional, or even if it is engaged in without approval by the landlord's attorney. Id., 590.