Opinion
No. 21-17468
February 4, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
FACTS:
On July 31, 2007, the plaintiff, Vidiaki, LLC and the defendant, Just Breakfast Things!!! LLC [hereinafter "JBT"] entered into a lease agreement for the use and occupancy of premises located at 13 River Road, Route 12 in Lisbon, Connecticut. The lease was to terminate on June 30, 2009. On April 8, 2009, the plaintiff served a notice to quit upon JBT, apparently through Mary Thompson as agent for service and Endless Vacations II apparently through Mary Thompson. The relevant language of the notice to quit states,
It appears that the notice to quit is directed to a trade name, "Endless Vacations II," rather than an individual. However, the return of service states it was served on "Mary Thompson, Endless Vacations II." The writ, summons and complaint states that this defendant is "Mary Thompson d/b/a Endless Vacations II." It is presumed that any personal jurisdiction defects have been waived.
I hereby give you notice that you are to quit possession or occupancy of the premises now occupied by you at 13 River Road, Route 12, Lisbon, Connecticut 06351 as of April 13, 2009 for violations of the Lease, or of rules and regulations adopted in accordance with Conn. Gen. Stat. Section 47a-11; when Endless Vacations II occupies the premises or part thereof, but it never had a right or privilege to occupy such premises; and/or as you had the right or privilege to occupy such premises, but such right or privilege has terminated. [sic].
In its complaint dated April 16, 2009, the plaintiff alleged various theories of recovery of the premises. Several have since been abandoned and one was dismissed by the Court. The defendants have filed a motion for summary judgment as to two of the surviving counts.
LEGAL STANDARD:
"Summary judgment is appropriate where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . A material fact is a fact that will make a difference in the result of the case." (Citations omitted; internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126, 968 A.2d 956 (2009). "Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . it [is nevertheless] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists." (Internal quotation marks omitted.) Levine v. Advest, Inc., 244 Conn. 732, 759, 714 A.2d 649 (1998). "[T]he existence of [a] genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met [its] burden of proof." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006). "Our review of the trial court's decision to grant [a] defendant's motion for summary judgment is plenary." (Internal quotation marks omitted.) Double G.G. Leasing, LLC v. Under-writers at Lloyd's, London, 116 Conn.App. 417, 427, 978 A.2d 83, cert. denied, 294 Conn. 908 (2009).
Farrell v. Twenty-First Century Ins. Co., 118 Conn.App. 757, 759-60 (2010).
DISCUSSION: First Count:
In the first count, the plaintiff landlord claims that the defendant tenant, JBT, violated the lease in a number of ways, including removal of restaurant furnishings, using the property for purposes other than conducting a restaurant business, improper storage of materials, failure to keep the premises free of garbage and trash and failure to provide documentation of insurance coverage. Each of these allegations in the complaint contains a reference to a particular section of the lease. The notice to quit, however, was not as specific, merely citing "violations of the lease." In their motion for summary judgment, the defendants claim that the failure to specify the lease violations in the notice to quit did not give the defendants proper notice as to the specific allegations set forth in the first count. The plaintiff argues that the notice was sufficient.Although the defendants posture this as an attack on the first count, they are really attacking the sufficiency of the notice to quit as to any claims of lease violation. As summary process is a statutory creation, this court's jurisdiction is predicated upon compliance with such statutes. Any deviation or failure to comply with the statutory requirements will deprive the court of jurisdiction to hear the summary process action as to those claims. City of Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582 (1988); Housing Authority v. Martin, 95 Conn.App. 802, 808, 898 A.2d 245, cert. denied, 280 Conn. 904, 907 A.2d 90 (2006).
If the notice to quit is defective, this court has no subject matter jurisdiction as to those claims. "[T]he notice requirements of the general summary process statute, General Statutes 47a-23, are jurisdictional." Lampasona v. Jacobs, 209 Conn. 724, 729, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 590 (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); see also Lampasona v. Jacobs, supra, 209 Conn. at 729. "The failure to comply with the statutory requirements deprives a court of jurisdiction to hear the summary process action." Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).
Sufficiency of a notice to quit is properly raised in a motion to dismiss. "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). However, pursuant to Section 10-33 of the Rules of Practice, the court will consider this claim of lack of subject matter jurisdiction as a motion to dismiss.
Section 10-33 of the Rules of Practice states, "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action."
Both sides point to an unpublished Superior Court decision, 183 Route 81, LLC v. Erskine, No. CV-09-16316 (Jul. 25, 2008, Jongbloed, J.) in support of their respective positions. In Erskine, the defendants filed a motion to dismiss attacking the validity of the notice to quit which stated, inter alia, that the defendants were in "violation of lease, unauthorized occupancy, no right or privilege to occupy, non-payment of rent; [and] failure to obtain applicable zoning approval for use." The plaintiff claimed that the defendants were in violation of the lease agreement. The defendants claimed that none of the specified alleged lease violations were actually set forth in the lease, making the notice invalid. The Court found that the notice to quit complied with General Statutes §§ 47a-15 and 47a-23 and found the notice to be sufficient as to claims of violation of the lease agreement: "The notice is specific enough to allow the defendants to recognize their violations and either cure or defend against them."
"[T]he specificity of the notice goes directly to the purpose of the notice. The purpose of [General Statutes §] 47a-15 is to allow the tenant an opportunity to correct alleged violations of the lease agreement . . . Similarly, [General Statutes §] 47a-23 requires notice detailed enough to provide the tenant with information to prepare a defense to a summary process action. Accordingly, the notice must be specific enough to allow a tenant to recognize his violations and either cure or defend against them." (Citations omitted, internal quotation marks omitted.) Housing Authority of the Town of West Hartford, v. Spencer, HDSP-135899 (May 11, 2006, Bentivegna, J.) [ 42 Conn. L. Rptr. 713]; see also Jefferson Garden Associates v. Greene, 202 Conn. 143, 520 A.2d 173 (1987); Kapa Associates v. Flores, 35 Conn.Sup. 274, 278, 408 A.2d 22 (1979); Barkan Management Co., Inc. v. Artis, SPNH 951145269 (Feb. 16, 1996, Jones, J.) [ 16 Conn. L. Rptr. 357]. In the present action, the subject lease is a commercial lease, thirteen pages in length, consisting of twenty-six sections. While it is possible that the defendants could have known the nature of the "violations of the lease," it is certainly also plausible that the defendants did not know all of the "violations of the lease" that the plaintiff would ultimately claim in its complaint. Unlike the factual situation in Erskine, supra, here the plaintiff did not set forth, even in general terms, the alleged lease violations, only claiming "violations of the lease." The court finds the notice to quit to be invalid as to claims of lease violation. The first and fourth counts, both of which are based upon the "violations of lease" portion of the notice to quit, are hereby dismissed, sua sponte.
The notice to quit did contain the following language, "when Endless Vacations II occupies the premises or part thereof, but it never had a right or privilege to occupy such premises . . ." which might be considered to be a reference to a lease violation. However, this language does not come immediately after the assertion of "violations of the lease." Rather, the plaintiff asserted unspecified violations of the lease, violation of General Statutes § 47a-11 and then added the occupation language. See completely quoted language of the notice to quit, above.
Third Count:
The second and fifth counts have been abandoned by the plaintiff. The sixth count was previously dismissed by the court on November 23, 2009 (#33). The sole remaining count is the third count, which alleges violation of General Statutes § 47a-11. The defendants have moved for summary judgment as to this count, claiming this statute does not apply to commercial leases. The plaintiff has objected to the claim, stating that commercial leases are subject to the statute, noting that the legislature added two statutory provisions into Chapter 830 which expressly refer to commercial tenancies.
General Statutes § 47a-4b, formerly § 53-303g and § 47a-11c.
Chapter 830 of the General Statutes, "Rights and Responsibilities of Landlord and Tenant," General Statutes §§ 47a-1 through 47a-20a, generally applies only to residential tenancies. A M Towing and Recovery, Inc. v. Guay et al., 282 Conn. 434, 442-44, 923 A.2d 628 (2007). The question of whether General Statutes § 47a-11 applies to commercial leases does not appear to have been directly addressed by the courts. Neither side has provided any direct legal authority.
"[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature." Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). "In construing [a statute], we are mindful of General Statutes § 1-2z, which instructs us that [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to determine that [intent and the meaning of a statute] . . . § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . ." State v. Rupar, 293 Conn. 489, 505-06, 978 A.2d 502 (2009). There is nothing within General Statutes § 47a-11 itself which indicates that it applies to commercial leases. A review of the appellate decisions since A M Towing and Recovery, Inc. v. Guay, supra, reveals only one case concerning General Statutes § 47a-11 and a commercial lease. In Spoviero v. J.M Scott Associates, Inc., 108 Conn.App. 454, 948 A.2d 379 (2008), cert. denied, 289 Conn. 906, 957 A.2d 873 (2008), the appellate court noted, indirectly, that commercial tenants were statutorily obligated not to conduct themselves in such a manner as to constitute a nuisance pursuant to General Statutes § 47a-11. Id. at 466-67.
General Statutes § 47a-11 states, "A tenant shall: (a) Comply with all obligations primarily imposed upon tenants by applicable provisions of any building, housing or fire code materially affecting health and safety; (b) keep such part of the premises that he occupies and uses as clean and safe as the condition of the premises permit; (c) remove from his dwelling unit all ashes, garbage, rubbish and other waste in a clean and safe manner to the place provided by the landlord pursuant to subdivision (5) of subsection (a) of section 47a-7; (d) keep all plumbing fixtures and appliances in the dwelling unit or used by the tenant as clean as the condition of each such fixture or appliance permits; (e) use all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators, in the premises in a reasonable manner; (f) not wilfully or negligently destroy, deface, damage, impair or remove any part of the premises or permit any other person to do so; (g) conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors' peaceful enjoyment of the premises or constitute a nuisance, as defined in section 47a-32, or a serious nuisance, as defined in section 47a-15; and (h) if judgment has entered against a member of the tenant's household pursuant to subsection (c) of section 47a-26h for serious nuisance by using the premises for the illegal sale of drugs, not permit such person to resume occupancy of the dwelling unit, except with the consent of the landlord."
As there is no direct appellate holding or legislative guidance to the contrary on this issue, this court finds that commercial tenants are subject to the provisions of General Statutes § 47a-11. The defendants' motion for summary judgment as to the third count is denied.
ORDER:
The first and fourth counts of the plaintiff's complaint are dismissed for lack of subject matter jurisdiction. The defendant's motion for summary judgment as to the third count is denied.