2003 Ct. Sup. 7547-av
No. CV03 0284146-SConnecticut Superior Court, Judicial District of New Haven at Meriden
June 27, 2003
MEMORANDUM OF DECISION
I PROCEDURAL HISTORY
This is a summary process action commenced by a complaint dated, April 17, 2003. The complaint alleges that the parties entered into a written lease with a term of one year. The term of the lease began on October 1, 2002. The leased premises is an apartment located at 105 Woodland Street, Second Floor North, Meriden, Connecticut. The lease obligated the defendant to pay $700 on the first day of each month. The defendant failed to pay rent for the month of April 2003 and subsequent months. The defendant remains in possession of the premises. On April 11, 2003, the plaintiff served upon the defendant a notice to quit possession on or before April 16, 2003. The defendant in her May 15, 2003 answer has admitted all of the aforementioned allegations. Accordingly, the court accepts these allegations as proven facts.
On April 30, 2003, the defendant filed a motion to dismiss. This motion was premised upon the claim that there was no contractual obligation to pay rent for the month of April 2003. More specifically, the defendant asserted that rental payments were no longer required as a result of the service of a notice to quit on March 31, 2003. This notice stated that rental payments tendered would be accepted solely for use and occupancy and not rent.
On May 9, 2003, the court, Fischer, J., denied the motion to dismiss and ruled that the March 31, 2003 notice to quit was a nullity. The court cited the case of Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988) in support of the ruling. On May 30, 2003, a trial was held on this matter. The court received evidence and the parties were instructed to file posttrial memoranda of law. The attorneys complied with this order. CT Page 7547-aw
The plaintiff contends that the court’s previous ruling on the motion to dismiss is the “law of the case.” It argues that the defendant is foreclosed from relitigating the issue of whether the March 2002 notice to quit, absolved her from the obligation to pay rent in the month of April.
In this regard our Appellate Court has stated: “The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Internal quotation marks omitted.) Webster Bank v. Zak, 71 Conn. App. 550, 560, cert. denied, 261 Conn. 938, 808 A.2d 1135 (2002).
The court upon review of the credible evidence presented at trial has determined that it is appropriate to revisit the issue previously addressed in connection with the motion to dismiss. This court has had the benefit of a full evidentiary hearing which has fleshed out the details concerning the events which are the subject of this summary process proceeding.
Our Appellate Court has stated that “[t]he purpose of summary process proceedings is to permit the landlord to recover possession of the premises upon termination of a lease without experiencing the delay, loss, and expense to which he might be subjected under a common law cause of action . . . The failure to comply with the statutory requirements deprives a court of jurisdiction to hear the summary process action. The statutory notice to quit possession of leased premises is a condition precedent to the bringing of a summary process action.” (Citations omitted.) Bridgeport v. Barbour-Daniel Electronics, Inc., supra, 16 Conn. App. 581-82. CT Page 7547-ax
The service of a valid notice to quit extinguishes the tenant’s obligation to pay rent. O’Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372 (1990). A tenant’s failure to pay monies for use and occupancy cannot be the basis for a summary process action. Bridgeport v. Barbour-Daniel Electronics, Inc., supra, 16 Conn. App. 581 n. 7.
In the instant matter the defendant was obligated to pay $700 per month rent. In the month of March 2003, the defendant made periodic partial payments. The last payment was in the form of a money order in the amount of $120. (Plaintiff’s Exhibit No. 1.) The check is dated March 28, 2003 Id. The defendant mailed this check to the plaintiff’s attorney. (Plaintiff’s Exhibit No. 2.) The envelope was postmarked March 31, 2003 Id. The envelope was received by the attorney on April 1, 2003. Id. There was no contact between the parties following the March 2003 notice to quit. The plaintiff did not rescind the notice to quit or otherwise give notice to the defendant that it was accepting late payment of the March rent.
The parties do not dispute the fact that both the March and April 2003 notices to quit unequivocally state that any payments tendered after service of the notice would be accepted solely for the purposes of occupancy and not rent. The initial notice to quit is dated March 31, 2003. It was served upon the defendant on that same date. This notice represents an unequivocal act which demonstrates the plaintiff’s clear intent to terminate the lease for nonpayment of rent for the month of March 2003. It was timely and therefore a valid notice to quit. Therefore, it is evident that the defendant was served with a notice to quit prior to the payment of the remaining balance of the rent for the month of March. Under these circumstances the defendant was not obligated to make rental payments in April 2003. The plaintiff does not rely upon the March 2003 notice to quit in this action. Rather, it utilizes the second notice to quit issued and served in April 2003 for nonpayment of rent in that month.
Accordingly, the court enters judgment for the defendant. The defendant is ordered reinstated under her written lease, with rental payments due from April 1, 2003. CT Page 7547-ay
BY THE COURT
Peter Emmett Wiese, Judge
CT Page 7547-bz