183 ROUTE 81, LLC v. HELENA ERSKINE ET AL.

2008 Ct. Sup. 12310
No. CV-09-16316Connecticut Superior Court Judicial District of Middlesex at Middletown
July 25, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

RULING ON MOTION TO DISMISS
JONGBLOED, J.

On March 28, 2008, the defendants filed a motion to dismiss the plaintiff’s summary process action together with a memorandum of law claiming a lack of subject matter jurisdiction. On May 8, 2008, the plaintiff filed a memorandum in opposition. The plaintiff requested that the motion be taken on the papers and the defendants had no objection.

FACTS
On May 15, 2007, the plaintiff, 183 Route 81, LLC, entered into a commercial lease with the defendants, Helena Erskine, Kristie Rohlfs and KCH Fitness, LLC, by which the defendants would occupy property located at 183 Route 81, Unit 7, Killingworth, Connecticut. Pursuant to the terms of the lease, the property was to be used as a Jazzercise exercise facility. The lease also required that the defendant comply with zoning regulations. On February 15, 2008, the plaintiff served a notice to quit possession on the defendants stating the reasons as: “[v]iolation of lease; Unauthorized Occupancy; No Right or Privilege to Occupy; Non-payment of Rent; Failure to obtain applicable zoning approval for use.” Although the notice to quit provided that the defendants were to quit possession on or before February 25, 2008, the defendants remained in possession. Plaintiff filed a summary process action against the defendants on March 3, 2008, alleging that the defendants agreed to pay rent on the first of each month and that the lease terminated when the defendants failed to comply with the terms and conditions of the lease, including failing to obtain zoning approval for the use of the premises.

DISCUSSION
“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 CT Page 12311 omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71
(2006). “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).

The defendants argue that the court does not have subject matter jurisdiction for three reasons: 1) the plaintiff’s notice to quit possession is invalid; 2) the complaint does not conform to the notice to quit; and 3) the lease has not been terminated.

A. Validity of the Notice to Quit
The defendants argue that the notice to quit is invalid because it fails to provide specific acts or omissions constituting a breach of the lease agreement as required by General Statutes §§ 47a-15 and 47a-23.[1]
“The applicable principles of Connecticut law are codified in General Statutes 47a-23, and the procedures that are required for a valid eviction are set forth in General Statutes 47a-15.” Jefferson Garden Associates v. Greene, 202 Conn. 128, 132, 520 A.2d 173 (1987). “[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. 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).

“In order to demonstrate its compliance with the notices required for a proper 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.” (Citations omitted; internal quotation marks omitted) Jefferson Garden Associates v. Greene, supra, 202 Conn. 143-44. “[N]ot 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 CT Page 12312 not be precluded from pursuing summary eviction proceedings

because of hypertechnical dissection of the wording of the notices that he has sent.” Id. at 145.

In the present case, the plaintiff stated, in the notice to quit, 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 defendants argue that the phrase “violation of lease” does not sufficiently meet the notice requirements of § 47a-15 or § 47a-23, because such language fails to provide any indication of what lease violation the defendants have committed. The defendants further argue that the language regarding the failure to obtain applicable zoning approval for use of the property is also insufficient since the lease agreement itself does not require that the defendants obtain such approval, but merely requires that the tenant “comply [with] all applicable zoning ordinances.”

“[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, Superior Court, judicial district of Hartford, Docket No. HDSP-135899 (May 11, 2006, Bentivegna, J.) [42 Conn. L. Rptr. 713]; see also Jefferson Garden Associates v. Greene, supra, 202 Conn. 143; Kapa Associates v. Flores, 35 Conn.Sup. 274, 278, 408 A.2d 22 (1979); Barkan Management Co., Inc. v. Artis, Superior Court, judicial district of New Haven, Docket No. SPNH 951145269 (Feb. 16, 1996, Jones, J.) [16 Conn. L. Rptr. 357].

In this case, the plaintiff claims that the defendants did not comply with the lease agreement. The language in the notice to quit states that the defendants do not have authorization to occupy the premises, that they have failed to pay rent and lastly, that they have failed to obtain applicable zoning approval for the use. The defendants do not dispute the language regarding the failure to pay rent or the unauthorized occupancy of the premises, but they argue that the lease agreement itself does not state that the defendants are required to obtain applicable zoning approval, and therefore, the notice to quit is invalid. The lease agreement states that the “tenant will comply [with] all applicable zoning ordinances, local and state laws and regulations.” The plaintiff CT Page 12313 claims that the defendants are not in compliance with the local zoning regulations, (Pl. Brief, Ex. A, B, C, D), and are

therefore, in violation of the lease agreement.

Given the language contained therein, the notice to quit complies with § 47a-15 and § 47a-23. The notice states that the defendants have violated the lease by occupying the premises without authorization, failing to pay rent, and failing to comply with local zoning regulations. The notice is specific enough to allow the defendants to recognize their violations and either cure or defend against them. The notice to quit was sent within the proscribed time. The motion to dismiss is therefore denied on this ground.

B. Complaint Conforms to the Notice to Quit
The defendants next argue that the plaintiff’s complaint is defective because it does not conform to the notice to quit. They argue that the allegations contained in the notice to quit are not mentioned in the complaint itself, creating an irreconcilable variance between the notice to quit and complaint. The plaintiff, on the other hand, argues that it does not assert a claim different from that asserted in the notice to quit, and therefore, the motion to dismiss should be denied.

In support of this argument, the defendants cite First City Bank v. Scarritt, Superior Court, judicial district of Hartford, Docket No. SPN 961225541 (Feb. 7, 1997, Beach, J.), for the proposition that “[a] complaint may not proceed on a theory different from one mentioned in the Notice to Quit.” The defendants argue that since the plaintiff did not include the exact notice language in the complaint, the plaintiff created a gross inconsistency between the two pleadings which should preclude the plaintiff from proceeding. The court finds that the plaintiff has not alleged in its complaint a claim different from the notice to quit. Indeed, in the complaint, the plaintiff alleges that the defendants agreed to pay rent on the first of each month, that the defendant’s right or privilege to occupy the premises has terminated, that the defendants have failed to comply with the terms and conditions of the lease, including failing to obtain zoning approval, and that the notice to quit was properly served upon the defendants. Although the language is not identical, the allegations in the complaint do not differ from the reasons listed in the notice to quit, and the complaint does not proceed on a different theory. The motion to dismiss is also denied on this ground.

C. Termination of the Lease
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The defendants last argue that the lease has not been terminated and therefore, summary process is not available. Essentially, the

defendants argue that they are currently involved in a pending action before the Planning Zoning Commission in Killingworth to resolve a zoning issue as it relates to the subject premises. They argue that by engaging in the zoning action, they are pursuing compliance with the very terms of the lease, and therefore, the plaintiff should be estopped from pursuing his summary process action until the zoning issue is resolved.

“Service of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease . . . Upon service of a notice to quit possession, the lease is terminated and a tenancy at sufferance is created . . . Termination of a lease, while releasing a tenant from his obligations under the lease, does not leave the landlord without legal recourse to recover damages . . . A landlord’s termination of a tenant’s possessory rights, based on breach of a rental covenant, will not be construed as a waiver of the landlord’s rights under the lease . . . The measure of damages awarded should place the injured party in the same position as he would have been in had the contract been fully performed.” (Citations omitted; internal quotation marks omitted.) Young v. Vlahos, 103 Conn.App. 470, 480, 929 A.2d 362
(2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008).

On February 15, 2008, the plaintiff served upon the defendants a notice to quit unequivocally notifying the defendants of the termination of the lease. Whether or not a zoning matter is currently pending before the Killingworth Planning Zoning Commission does not change the fact that the defendants were notified of the termination of the lease. Further, as noted by the plaintiff, whether the lease has been violated by defendants goes to the merits of the action and not the jurisdiction of the court. The defendants’ argument therefore fails and the motion to dismiss is also denied on this ground.

For the reasons set forth above, the defendants’ motion to dismiss is denied.

[1] General Statutes § 47a-15 states in relevant part that “[p]rior to the commencement of a summary process action . . . the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice.”

General Statutes § 47a-23 states in relevant part that “(a) When the CT Page 12315 owner or lessor, or the owner’s or lessor’s legal representative, . . . desires to obtain possession or occupancy of any land or building, . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the

following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a-9 or 21-70; (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a or 21-83; (E) nonpayment of rent when due for commercial property; . . . or (2) when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises; or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated, . . . such owner or lessor 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.”

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