Opinion
No. X08 CV 02 0189286
December 17, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS (115.00)
This summary process action was one of numerous such actions filed by the Town of Stratford (Stratford) seeking possession of certain lots of land leased by Stratford to individuals many of whom subsequently built cottages on the property. The large majority of these actions were decided by the court's March 26, 2004 memorandum of decision under the caption Town of Stratford v. Doolon, Superior Court, judicial district of Stamford-Norwalk, complex litigation docket, X08 CV02 01289249 ( 36 Conn. L. Rptr. 856).
This particular case, against the defendant Robert Sullivan was not decided by the earlier decision because he and certain other defendants disputed whether there had been proper service of a notice to quit.
Sullivan now moves to dismiss the action against him on the ground that a proper notice to quit possession of the premises was not served on him, thereby depriving this court of subject matter jurisdiction over his case.
The relevant facts are not in dispute. On July 2, 1997 Stratford served a Notice to Quit on Sullivan, pursuant to General Statutes § 47a-23(a). Later that month, Stratford commenced a civil action in Superior Court to obtain possession of the premises. Sullivan moved to dismiss the lawsuit on the ground that service of the writ summons and complaint was insufficient and the Superior Court (Cocco, J.) granted the motion on September 24, 1997.
Stratford commenced the present action against Sullivan in 1998 seeking to obtain possession of the premises. In this action Stratford alleged that the notice to quit was served on July 2, 1997.
Discussion
A motion to dismiss may be employed to assert that the court lacks jurisdiction over the subject matter of the case. Practice Book § 10-31; Upson v. State, 190 Conn. 622, 624 (1983). In ruling on a motion to dismiss the court must take the facts to be as alleged in the complaint, including any facts necessarily implied from the complaint's allegations and construe them in a manner most favorable to the pleader. Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11 (1999). The court may also refer to undisputed facts in the record before it. Barde v. Board of Trustees, 207 Conn. 59, 62 (1988).
The jurisdiction of the Superior Court in summary process actions . . . is subject to a condition precedent. Before the court can entertain a summary process action . . . the owner of the land must previously have served the tenant with notice to quit.
Lampasona v. Jacobs, 209 Conn. 724, 728 (1989) (Citations omitted.)
Sullivan contends that the dismissal of Stratford's first summary process action against him in September 1997 "nullified" the notice to quit served on July 2, 1997. Therefore, Sullivan argues that Stratford was obliged to serve another notice to quit as the necessary condition precedent for the present action.
The court disagrees with the above argument. The dismissal of the first action against Sullivan was based on insufficient service of process. It was not an adjudication on the merits of Stratford's notice to quit or its summary process action, both of which were based on lapse of time, since Sullivan's lease expired, by its terms, on June 30, 1997. The lease remained expired when Stratford served the second and presently existing summary process action in 1998. Therefore, the notice to quit was valid in 1997 when served and valid in 1998 in stating precisely what the grounds for eviction were.
Sullivan's only cited authority for his position is Housing Authority v. Hird, 13 Conn.App. 150 (1988) a case very distinguishable legally and factually from this case. In Hird the landlord served a notice to quit alleging the tenant had violated the terms of a written lease. The subsequent summary process action ended with a judgment in favor of the tenant. The landlord then served a second notice to quit; however, the summary process action based on this notice was withdrawn. In the third summary process action, the trial court found that the judgment for the tenant in the first summary process action had "revived" the original written lease. Id. 155. The Appellate Court agreed and held that the net effect of the first summary process action and the withdrawal of the second summary process action put the landlord and tenant "back to square one" and the written lease continued to be in effect. Id. 157.
The difference between Hird and this case is the parties' status at "square one." In Hird the trial court found the allegations of the first notice to quit and in the first summary process action not proven, i.e. the terms of the written lease had not been violated. In this case, the dismissal of the first summary process action did not result from any determination that Stratford's notice to quit was incorrect or that Sullivan's lease had not expired. Therefore, the lease remains expired, and, as noted, the notice to quit remains accurate.
Hird does not hold that the dismissal of a summary process action requires the filing of a new notice to quit. The most one can glean from Hird and the summary process statute on this point is the requirement that the grounds for the summary process action must be set forth in the notice to quit filed prior to the commencement of the suit in Superior Court. In this case, the ground for eviction of Mr. Sullivan is the lapse of his lease at the end of June 1997 and that ground was properly set forth in the notice to quit served in July 1997.
The motion to dismiss is denied.
TAGGART D. ADAMS SUPERIOR COURT JUDGE