1375 SILVER LANE ASSOCIATES, LLC v. TEAL LANDSCAPING CO., LLC.

2006 Ct. Sup. 17992, 42 CLR 180
No. HDSP-137467Connecticut Superior Court Judicial District of Hartford Housing Session at Hartford
October 3, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO DISMISS
JAMES M. BENTIVEGNA, JUDGE.

I STATEMENT OF CASE
This is a commercial summary process action. The plaintiff, hereinafter (“Landlord”), seeks to evict the defendant, hereinafter (“Tenant”), based on nonpayment of rent and lapse of time.

The Tenant moves to dismiss the case on the following grounds: (1) The court lacks subject matter jurisdiction because the Notice to Quit is defective; (2) The Court lacks personal jurisdiction due to insufficiency of process; and (3) Alternatively, the Motion to Dismiss should be treated as a Motion to Strike.

The Landlord objects to the motion to dismiss.[1] As to the first ground, the Landlord argues that the Court has subject matter jurisdiction because the Notice to Quit was in substantial compliance with the statute, the information thereon was reasonably accurate so as to avoid confusion or misunderstanding, and the Marshal changed the address to 1365 and made service at 1365.

II ISSUE
The initial issue is whether the Court lacks subject matter jurisdiction because the notice to quit possession is defective.

III
CT Page 17993 FACTS

The following facts are proved by a fair preponderance of the evidence.

On or about December 17, 2003, the parties entered into a written lease agreement, hereinafter (“Lease”). Paragraph 1 of the Lease describes the premises as “those premises known as the `Power Shop’ which are part of 1375 Silver Lane, East Hartford, Connecticut as shown on Exhibit A annexed, together with the right in common with the Landlord and Landlord’s customer’s and invitees and K.G. Keena Memorials to use the driveway and parking areas at 1375 Silver Lane.”

The Landlord served the Tenant with a Notice to Quit on March 31, 2006. In the salutation section of the notice, the Landlord stated the address as “Teal Landscaping Co., LLC, 1375 Silver Lane, East Hartford, CT. However, when the Marshal attempted to serve the notice, he crossed-out “1375” and wrote in “1365.” In the body of the notice, the Landlord described the premises as “1375 Silver Lane, in the Town of East Hartford, Connecticut . . .” The Marshal did not modify the language in the body of the Notice to Quit.

The parties disagree as to the correct address for service of a notice to quit.

The Tenant argues that the correct address is 1365 Silver Lane.[2] In support of this argument, the Tenant submitted a number of documents. Town of East Hartford tax records reflect that the Tenant pays personal property tax at 1365 Silver Lane. Exhibit 1. Furthermore, the exhibit specifies that the occupants of 1375 Silver Lane for tax purposes are Vinny’s Garden Center, Inc. and KG Keena Memorials, Inc. The Tenant also submitted information from the Secretary of State’s Office. Exhibit 3. The record cites 1365 Silver Lane as the business address of Teal Landscaping Design, LLC. On July 19, 2006, the Tenant submitted a town map. Exhibit 4. A marking on the map, dated May 26, 2004, notes that 1365 Silver Lane is the address of Teal Landscaping.

The Landlord contends that the Tenant was not confused or misled by the mistaken address. The Landlord argues that when the Marshal attempted to serve the notice to quit, he realized the scrivener’s error and changed the address to 1365 Silver Lane. CT Page 17994 The Landlord believes that the information contained in the notice to quit was reasonably accurate to avoid confusion. Furthermore, the Lease describes the premises as “a part of 1375 Silver Lane,” and there is no separate parcel on record for 1365 Silver Lane. The address 1365 Silver Lane is a mailing address only. The Landlord submitted Exhibit C in support of its position. This document lists the occupants of 1375 Silver Lane as 1375 Silver Lane Associates, LLC C/O Vinny’s Garden Center Inc. The exhibit makes no reference to Teal Landscaping.

IV PRINCIPLES OF LAW
Practice Book Sec. 10-31 provides in relevant part: “(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, . . .” Subject matter jurisdiction refers to power of court to hear and determine cases of the general class to which the proceedings in question belong Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002). “A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits Bradley’s Appeal from Probate, 19 Conn.App. 456, 563 A.2d 1358
(1989).” Herzog Foundation, Inc. v. Uni. Of Bridgeport, 41 Conn.App. 790, 793, 677 A.2d 1378 (1996).

The Tenant argues that the Court lacks subject matter jurisdiction because the Notice to Quit is defective. “[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 notice to quit must be unequivocal for it to be sufficient to terminate the tenancy Borst v. Ruff, 137 Conn. 359, 361 (1950); Thompson v. Coe, 96 Conn. 644, 651 (1921); Park Ridge Apartments v. McGann, H-571, September 26, 1984, (Goldstein, U.).” Seventeen High St, 110 v. Shoff-Darby, Ins., Superior Court, judicial district of Stamford-Norwalk Housing Session, Docket No. SPNO 950217033 (April 21, 1995, Tierney, J.) (1995 Ct.Sup. 3428, 3429) (14 Conn. L. Rptr. 206). “The failure to describe the premises accurately deprives the court of subject matter jurisdiction. Rich-Taubman CT Page 17995 Associates v. Hermann’s Sporting Goods, Inc., SNBR-329, May 30, 1989 (Reifberg, J.), Holtz v. Zona, NH-278, October 29, 1984, (Barnett, J.), Vogel v. Bacus, 133 Conn. 95, 97 (1946).”Wilson Properties v. Pres. Int’l Food, Superior Court, judicial district of Stamford-Norwalk Housing Session, Docket No. SPNO 950917966 (October 20, 1995, Tierney, J.) (1995 Ct.Sup. 12421) (15 Conn. L. Rptr. 397). “It is necessary to prove the allegations of the notice to quit possession in order to obtain a judgment for possession.” Housing Authority v. Hird, 13 Conn.App. 150, 155, 535 A.2d 377 (1988).

General Statutes § 47a-23(a) provides in relevant part: `When the owner or lessor, or the owner’s or lessor’s legal representative, or the owner’s or lessor’s attorney-at-law, or in-fact, desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, . . . such owner or lessor, or such owner’s or lessor’s legal representative, or such owner’s or lessor’s attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.” (Emphasis added.)

“General Statutes § 47a-23(b) sets forth the form of the notice to quit with which there must be substantial compliance.”Sandrew v. Pequot Drug, Inc., 4 Conn.App. 627, 632, 495 A.2d 1127 (1985). § 47a-23(b) provides in relevant part: “The notice shall be in writing substantially in the following form: `I (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit, or of any trailer or any land upon which a trailer is used or stands, as the case may be), now occupied by you at (here insert the address, including apartment number or other designation, as applicable), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice). A.B.’ “(Emphasis added.)

In Jefferson Garden Associates v. Greene, 202 Conn. 128, 143-45, 520 A.2d 173 (1987), the Supreme Court, in determining the sufficiency of termination notices, held: “In order to demonstrate its compliance with the notices required for a proper CT Page 17996 termination, a landlord must show that the notices given to the tenant apprised her of the information a tenant needs to protect herself against premature, discriminatory or arbitrary eviction . . . To further this salutary purpose, the notice requirements of 47a-15 must be construed strictly . . . Strict construction does not, however, require ritualistic compliance with statutory or regulatory mandates . . . As we have held in other contexts, in which regulatory and constitutional rights were also implicated; . . . not every deviation from the strict requirements of either statutes or regulations warrants dismissal of an action for summary process. When good cause for termination of a lease has clearly been shown, and when notices of termination have been sent in strict compliance with statutory timetables, a landlord should not be precluded from pursuing summary eviction proceedings because of hypertechnical dissection of the wording of the notices that he has sent . . .” (Citations omitted.)Jefferson Garden Associates v. Greene, supra, 202 Conn. 143-45.

V ANALYSIS
The Notice to Quit in this case raises several issues that must be addressed to determine whether the court has subject matter jurisdiction.

The first issue is whether the address in the salutation or the body of the notice governs. The address included in the body of the notice to quit is dispositive. “It is clear from the examination of the notice to quit that the detailed description of the exact premises contained in the body of the notice to quit, not the salutation, is the section of the notice to quit that controls. Hiller v. Milan, H-738, June 2, 1991, (Holzberg, J.); Rich-Taubman Associates v. Herman’s Sporting Goods, Inc.,
SNBR-329, May 30, 1989, (Riefberg, J.); Holtz v. Zona, NH-278, October 29, 1984, (Barnett, J.); Vogel v. Bacus, supra 101.”Seventeen High St. v. Shoff-Darby, Ins., supra, 1995 Ct.Sup. 3433-34.

When the Marshal attempted to serve the notice to quit at 1375 Silver Lane, he realized the address was incorrect. In trying to rectify the problem, he changed the address in the salutation to 1365 Silver Lane but not the address in the body of the notice. “The fact that the heading was corrected cannot cure the defect in the body.” Reed v. Wilson, Superior Court, judicial district CT Page 17997 of New Haven Housing Session, Docket No. SPNH 8111-252 (December 10, 1981, Foti, J.) (NH #6).

The second issue is whether in a commercial eviction the lease language is controlling. “Although not required by statute, the best practice in a commercial eviction is to use the lease language describing the premises. Seventeen High Street, L.L.C. v. Shoff-Darby Insurance Company, SNBR-423, 14 Conn. L. Rptr. 206 (April 21, 1995) (Tierney, J.). `It is recommended that where there is a commercial lease the exact language used in the lease to describe the premises should be used in the notice to quit.’Seventeen High Street, LLC. v. Shoff-Darby Insurance Co., supra.Wilson Properties v. Pres. Int’l Food, supra, 1995 Ct.Sup. 12422-23.

While the Notice to Quit tracks the lease language, confusion exists as to the correct address for service of a notice to quit. An ambiguity arises given that state and local authorities actually recognize 1365 Silver Lane as the Tenant’s address.

The final issue is whether the address in the body of the notice is sufficiently precise. “A notice to quit which does not accurately and reasonably specifically describe the premises sought to be recovered by the landlord is fatally defective Vogel v. Bacus, 133 Conn. 95, 98 (1946).” Street Retail, Inc. v. Tyropolis, Superior Court, judicial district of Hartford-New Britain at Hartford Housing Session, Docket No. SPH 96244 (Apr. 27, 1998, Beach, J.) (1998 Ct.Sup. 6409). “A dismissal is required whenever an address is misdescribed in a notice to quit unless, despite the error, the tenant is served at the correct address, and the misdescription is so minor that a reasonable person would not be confused by it. What must be appreciated is that General Statutes § 47a-23(b) requires that the tenant be notified that he must vacate specific premises or face dispossession.” (Citation omitted) Holt v. Zona, Superior Court, judicial district of New Haven Housing Session, Docket No. NH840807470 (October 29, 1984, Barnett, J.), p. 5

In Street Retail, Inc., the court found that: “Case law, cited by both sides in the instant matter, is replete with examples of descriptions which have been deemed to be sufficient and those which are not. A summary of the ample case law suggests that the description must be sufficiently precise so that not only the parties to the action but also the sheriff and other third parties can be apprised as definitively as is practicable CT Page 17998 in the circumstances as to the premises in issue. Hypertechnicality, on the other hand, is not required.” Street Retail, Inc. v. Tyropolis, supra, 1998 Ct.Sup. 6410. “If there is any confusion or doubt raised by a misdescription caused by the plaintiff, then all such doubts ought to be resolved against the party giving the notice.” DiMauro v. D’Atil, Superior Court, judicial district of Hartford-New Britain at Hartford Housing Session, Docket No. 3966 (January 10, 1980, Spada, J.) (H #162).

In reviewing a number of the housing court decisions, the Court found two cases very similar to the instant matter. Reed v. Wilson, Superior Court, judicial district of New Haven Housing Session, Docket No. SPNH 8111-252 (December 10, 1981, Foti, J.) (NH #6); DiMauro v. D’Atil, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 3966 (January 10, 1980, Spada, J.) (NH #162).

In Reed, the notice to quit erroneously listed the address as 683 Winchester Avenue, 2nd floor, rather than the correct address of 685 Winchester Avenue, 2nd floor. Reed v. Wilson, supra, p. 1. The error was contained both in the heading of the notice to quit and in the body of the notice to quit. Id. When the sheriff attempted service at 683 Winchester Avenue, 2nd floor, he discovered the error. Id. “He then wrote over the address at the heading of each notice, in the form of a strike-over: the number `5′ over the number `3.'” Id. The sheriff failed “to conform the address in the body of the notice to quit which remained in error as 683 Winchester Avenue.” Id. “There was no dispute that the notice to quit was served by abode service, and that the defendant actually received notice.” Id., p. 1. In dismissing the case, the court held: “The plaintiff . . . incorrectly listed that address. He caused the notice to be defective. The fact that the heading was corrected cannot cure the defect in the body. The opposite, of course, might not be so. Where the Notice to Quit is defective, this Court is without jurisdiction . . . The correct address in the body of the Notice to Quit, if included, is a matter of substance and not of form.” (Citation omitted.) Id., pp. 2-3.

In DiMauro, the premises in question were “a second floor apartment situated in a six-family three-story apartment house known as 52-54 Bond Street, Hartford.” DiMauro v. D’Atil, supra, p. 1. The three apartments on the easterly side were designated as No. 52 Bond Street, and the three apartments on the CT Page 17999 westerly side were known as No. 54 Bond Street. Id., p. 2. The subject premises were on the west side and were designated as No. 54 Bond Street. Id. However, the notice to quit demanded that the defendant vacate No. 52 Bond Street, second floor. Id. In the return of service, the sheriff manually altered the return by writing in No. “54” Bond Street over No. “52.” Id. The defendant did not contest that proper service of the notice to quit was made, but rather argued that the misdescription of the premises voided the notice. Id. In granting the motion to dismiss, the court held that: “The plaintiff landlord served a notice to quit with an inaccurate street address. If we excuse this inaccuracy, then where do we place the jurisdictional demarcation. We foresee an eventual erosion of our principle that the summary process statute is to be strictly followed and narrowly construed, if the instant notice is approved.” Id., p. 5.

When “[t]he giving of a sufficient notice is a condition precedent to bringing action . . . The inquiry always is: Does the notice reasonably protect the interests of the defendant under the particular circumstances of the case?” (Citations omitted.) Schapp v. Meriden, 139 Conn. 254, 256, 93 A.2d 152
(1952).

In this case, different businesses operate in several buildings/structures at the location in question. When the Marshal went to serve the notice to quit, he realized that the Tenant’s address was in fact 1365 Silver Lane, and he attempted to correct the error by changing the address in the salutation section of the notice. However, the body of the notice to quit still contains the address of 1375 Silver Lane.

Here, a “realistic chance for confusion or ambiguity exists.”Harvey R. Ofshay, Et al. v. Christy’s Market, Inc., Superior Court, judicial district of Hartford-New Britain Housing Session, Docket No SPH 90676 (March 26, 1997, Beach, J.) (1997 Ct.Sup. 1892) (19 Conn. L. Rptr. 525). The notice to quit possession does not describe the premises with the specificity required. The ambiguity is evident given that state and local authorities recognize 1365 Silver Lane as the Tenant’s address. The misdescription in the body of the notice is such that a reasonable person would be confused by it. Under the circumstances, there can be a misunderstanding of the exact premises that are subject of this Notice to Quit. The Landlord failed to serve a notice to quit that protects against CT Page 18000 “premature, discriminatory or arbitrary eviction.” Jefferson Garden Associates v. Greene, supra, 202 Conn. 143-45. “Any confusion or doubt raised by the misdescription must be resolved against the plaintiff in order for the defendant, the marshal, and any third parties to be properly apprised as to the premises in question.” Condon v. Viera, Superior Court, judicial district of New Britain Housing Session, Docket No. NBSP 043993 (September 23, 2005, Bentivegna, J.) (40 Conn. L. Rptr. 31).

VI CONCLUSIONS OF LAW
The Court finds the Notice to Quit in this case fails to meet the standards of the summary process statute. Because a valid notice to quit is a condition precedent to instituting an eviction, this Court lacks subject matter jurisdiction. Se HUD/Willow Street Apartments v. Gonzalez, 68 Conn.App 638, 654
(2002).

VII DECISION/ORDER
For the above-stated reason, the Motion to Dismiss is granted. Since the case is dismissed on the basis of a defective notice to quit, the Court does not need to consider the remaining grounds for the motion.[3]

[1] On July 17, 2006, at the motion hearing, the Landlord did not contest the motion to strike as to the lapse of time count. The motion was thereby granted.
[2] In the Tenant’s pleading, dated July 19, 2006, he submitted that “the description in the notice to quit must also include the 1365 Silver Lane address as the premises to quit or at a minimum to also refer to the “power shop” wording as referred to in the lease.”
[3] See Fisher Skylights, Inc. v. Mashantucket Pequot Indian Tribe, Superior Court, judicial district of New London at Norwich, Docket No. CV 104741 (July 11, 1994, Leuba, J.) (1994 Ct.Sup. 7252) (“Furthermore, because the motion to dismiss must be granted on this ground, it is unnecessary to consider the remaining grounds for the motion.”); Owens, Renz Lee Company CT Page 18001 v. Carbone, Superior Court, judicial district of New Haven Housing Session, Docket No. SPNH 40966 (November 25, 1994, Jones, J.) (“The dismissal renders a ruling on the remaining [grounds] unnecessary”). Chayoon v. Sherlock, Superior Court, judicial district of New London at Norwich, Docket No. CV 128101 (April 23, 2004, Martin, J.), aff’d, 89 Conn.App. 821, 877 A.2d 4, cert. denied, 276 Conn. 913, 886 A.2d 83 (2005) (“Accordingly, the [defendant’s] motion to dismiss is granted and the court need not address the [defendant’s] alternate arguments”).

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