Connecticut Trial Court Official Decisions
Unpublished
WHITING MILLS, LLC v. VAN INWAGEN, CV 18 10669 (11-21-2006)
Whiting Mills, LLC v. Stephanie Van Inwagen. 2006 Ct. Sup.
21417 No. CV 18 10669 Connecticut Superior Court,
Judicial District of Litchfield, Geographic Area 18 at
Bantam. November 21, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] MEMORANDUM OF DECISION
RICHARD M. MARANO, JUDGE.
FACTS
On August 3, 2006, the plaintiff, Whiting Mills, LLC
(Whiting Mills), filed an amended complaint for possession
against the defendant, Stephanie Van Inwagen.[fn1] Therein,
the plaintiff alleges the following facts. The plaintiff
owns commercial property in Winsted, Connecticut, which the
defendant occupies as a lessee. Prior to the plaintiff’s
purchase of the property, the defendant “allegedly entered
into a written lease with the prior owner . . .” Pursuant
to the defendant’s agreement with the prior owner, the
plaintiff pays a monthly rent of $360, plus $15 for
electricity usage. These amounts are payable in advance on
the fifteenth day of each month, beginning on October 1,
2002. The defendant failed to pay the rent and the
electricity usage fee on June 15, 2006. On June 27, 2006,
the plaintiff served the defendant with a notice to quit
the premises before July 6, 2006, but the defendant
continues in possession.
On August 23, 2006, the defendant filed a motion to dismiss
for lack of subject matter jurisdiction. The defendant has
submitted a memorandum of law in support of the motion. The
plaintiff did not file a memorandum of law in
opposition.[fn2] The matter was heard on October 3, 2006.
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 . . . [It]
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction.” (Internal quotation marks
omitted.) Cox v. Aiken, 278 Conn. 205, 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). A motion to dismiss
also CT Page 21418 is the appropriate motion for asserting
the prior pending action doctrine, which “permits the court
to dismiss a second case that raises issues currently
pending before the court.” Cumberland Farms, Inc. v.
Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998). Thus,
although “the prior pending action rule does not truly
implicate the subject matter jurisdiction of the court”;
Halpern v. Board of Education, 196 Conn. 647, 652 n. 4, 495
A.2d 264 (1985); “the motion to dismiss [is] the proper
device by which to request that the trial court dismiss the
second action.” (Citations omitted.) Id.
The defendant attacks the court’s subject matter
jurisdiction on two grounds. First, she argues that the
plaintiff’s notice to quit was defective. Specifically, the
defendant argues that while the plaintiff specifies
non-payment of rent as the grounds for its notice to quit,
the plaintiff simultaneously attempts to avoid alleging in
its complaint the existence of any lease agreement that
would provide the basis for the defendant’s duty to pay
rent.[fn3] According to the defendant, this constitutes a
defect in the notice to quit, which, in turn, deprives the
court of subject matter jurisdiction over the complaint.
Second, the defendant argues that a previously served
notice to quit terminated any rental agreement between the
parties, thereby eliminating any basis for the present
notice to quit for non-payment of rent. The defendant
asserts that this, too, destroys the court’s subject matter
jurisdiction. In addition, the defendant argues that the
court should dismiss the present action, because when the
plaintiff served the defendant with the present notice to
quit, there was a civil action between the parties already
pending in the Superior Court.[fn4]
The plaintiff first counters that there is no variance
between the notice to quit and the complaint. Rather, it
argues, the notice to quit complied with the statutory
requirements, and therefore, the court has subject matter
jurisdiction over the matter. In response to the
defendant’s second argument, the plaintiff asserts that
service of the prior notice to quit was improper and, thus,
the first notice to quit was ineffective to terminate the
lease agreement between the plaintiff and the defendant.
Finally, as to the defendant’s prior pending action
argument, the plaintiff argues that the first notice to quit
was statutorily deficient, and therefore, the plaintiff
started over by filing the present notice to quit and the
present complaint for possession. Accordingly, the
plaintiff suggests, the prior pending action doctrine is
inapplicable.
I
DEFENDANT’S SUBJECT MATTER JURISDICTION ARGUMENTS CT Page
21419
“Summary process is a statutory remedy that enables a
landlord to recover possession from a tenant upon the
termination of the lease . . .[fn5] The 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 process is intended to be summary and is designed to
provide an expeditious remedy to a landlord seeking
possession.” (Citations omitted; internal quotation marks
omitted.) Federal Home Loan Mortgage Corp. v. Van Sickle,
52 Conn.App. 37, 43, 726 A.2d 600 (1999). See also Young v.
Young, 249 Conn. 482, 487-88, 733 A.2d 835 (1999).
A valid notice to quit is a condition precedent to a viable
summary process action. Lampasona v. Jacobs, 209 Conn. 724,
728, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S.Ct.
3244, 106 L.Ed.2d 590 (1989). See also Silvermine
Investors, LLC v. Call Center Technologies, Inc., 81
Conn.App. 701, 703-04, 841 A.2d 695 (2004). As such, the
notice to quit “[implicates the court’s] . . . subject
matter jurisdiction over the plaintiff’s summary process
action.” (Internal quotation marks omitted.) Rock Rimmon
Grange #142, Inc. v. The Bible Speaks Ministeries, Inc., 92
Conn.App. 410, 413, 885 A.2d 768 (2005). See also Lampasona
v. Jacobs, supra, 729 (stating that a “proper notice to
quit is a jurisdictional necessity”). The Appellate Court
consistently has required strict compliance with the
summary process statute; see Tehrani v. Century Medical
Center, 7 Conn.App. 301, 307-08, 508 A.2d 814 (1986); which
the courts have “narrowly construed and strictly followed.”
Young v. Young, supra, 249 Conn. 488. Thus, because “[t]he
plaintiff bears the burden of proving subject matter
jurisdiction”; Fort Trumbull Conservancy, LLC v. New
London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003); the
summary process plaintiff must “allege that [it] complied
with the notice requirement of § 47a-23 . . .”
Tehrani v. Century Medical Center, supra, 308.
The defendant, therefore, first argues that the plaintiff
failed to comply strictly with the statutory notice
requirement, because the amended complaint does not
specifically allege the existence of a valid, written
lease. According to the defendant, a fatal variance exists
between the amended complaint and the notice to quit, the
stated grounds for which is nonpayment of rent. The case
law supports the general proposition that a summary process
complaint must conform to the notice to quit served upon
the defendant. “Judges of the Superior Court have examined
the effect of an alleged variance between the notice to
quit and the complaint. Most judges have held that the
complaint may not substantially vary from the notice to
quit.” Housing Authority of CT Page 21420 Danbury v.
Curtis, Superior Court, judicial district of Danbury,
Docket No. SP 05 12308 (March 27, 2006, Marano, J.) (41
Conn. L. Rptr. 129, 132). In Curtis, the court explained
that this rule stems from the function of the notice to
quit, which is to “[enable] a defendant to prepare a
defense, to determine what stay may be available, and to
ascertain what appeal procedure is appropriate.” (Internal
quotation marks omitted.) Id. See also Gazzillo v. Roane,
Superior Court, judicial district of Middlesex, Docket No.
CV 9 13214 (December 27, 2002, Dyer, J.) (“Connecticut case
law is clear that the notice to quit must inform the tenant
of the information needed to defend against premature,
discriminatory or arbitrary eviction”); Housing Authority of
Bridgeport v. Rogers, Superior Court, judicial district of
Fairfield, Docket No. SP BR 9109 20758 (March 2, 1992,
Leheny, J.) (6 Conn. L. Rptr. 174) (“The complaint and the
notice ought not to be at substantial variance with the
summary process complaints”).
The variance cases on which the defendant relies are
distinguishable from the present case, however. In Curtis,
for example, the court deemed it defective that the notice
to quit referred to the tenant’s arrest as the basis for
the eviction, whereas the complaint alleged a serious
nuisance. The court reasoned that “[w]ithout a more definite
reference to serious nuisance . . . the notice [to quit]
does not adequately enable the defendant to prepare a
defense against an allegation of serious nuisance.” Housing
Authority v. Curtis, supra, Superior Court, Docket No. SP
05 12308. Similarly, in both Rogers and Gazilla, the courts
faced situations in which the notice to quit and the
complaint specified disparate statutory grounds for
eviction. Although the defendant in the present case
suggests that she was left wondering on what basis the
plaintiff served the notice to quit and now seeks
possession, the plaintiff did allege in the complaint that
the parties were operating under some type of rental
agreement, even if a seemingly ambiguous one. Thus, the
reference to “nonpayment of rent” in the notice to quit
should have apprised the defendant of the plaintiff’s
intention to rely on a rental agreement in the forthcoming
complaint. Because the defendant’s variance argument must
fail, the court denies the motion to dismiss for lack of
subject matter jurisdiction on these grounds.
In addition, contrary to the defendant’s insistence that
the plaintiff must specifically allege the existence and
precise nature of a valid lease, § 47a-23(a) allows
a plaintiff to seek relief “when a rental agreement or
lease . . . terminates for . . . nonpayment of rent . . .”
(Emphasis added.) Phrased disjunctively, the plain language
of the statute permits the plaintiff to base its claim
either on a rental agreement, as in the present case, or on
a valid lease. As discussed above, the plaintiff
sufficiently pleaded the existence of a rental CT Page
21421 agreement between the parties, under which the
defendant had been making monthly rental and electricity
usage payments to the plaintiff. Moreover, the Appellate
Court has stated that “one seeking summary process need
only allege and prove ownership of the subject property and
assert a demand for possession.” Trinity United Methodist
Church of Springfield, Massachusetts v. Levesque, 88
Conn.App. 661, 666, 870 A.2d 1116, cert. denied, 274 Conn.
907, 876 A.2d 1200; 274 Conn. 908, 876 A.2d 1200
(2005).[fn6] Having alleged as much, the plaintiff,
therefore, has satisfied its burden to invoke the subject
matter jurisdiction of the court. For this additional
reason, the court denies the defendant’s motion to dismiss.
See South Sea Co. v. Global Turbine Component Technologies,
LLC, 95 Conn.App. 742, 745, 899 A.2d 642 (2006) (“[a]
motion to dismiss, claiming lack of jurisdiction because of
a defective notice, must be denied if there has been
compliance with the statute”).
The defendant next argues that the court lacks subject
matter jurisdiction, because a prior, valid notice to quit
terminated any rental agreement between the parties.
Therefore, the defendant argues, the subsequent notice to
quit, which provides the basis for the plaintiff’s present
action, is a legal nullity. If the first notice to quit
were statutorily valid, then the case law would support the
defendant’s position. Because a notice to quit terminates an
existing lease agreement; O’Brien Properties, Inc. v.
Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990); which,
in turn, terminates the defendant’s duty to pay rent; id.;
there would be no basis for any subsequent notice to quit
based on nonpayment of rent. Therefore, the subsequent
notice itself would be a nullity, and could not satisfy the
notice requirement necessary to support a summary process
action under § 47a-23. Faced with precisely this
scenario, the Superior Court has explained: “It is clear
that if the first notice to quit was a nullity, then it is
of no effect and the second notice to quit is effective.
If, on the other hand, the first notice to quit was
effective at least for the purpose of terminating the
rental agreement, then the second notice to quit cannot
effectively be based on nonpayment of rent, as there would
have been no contractual rental agreement in effect at the
time. Sammy Redd & Associates v. May, Superior Court,
judicial district of Hartford-New Britain at Hartford,
Docket No. SPH 95376 (January 21, 1998, Beach, J.) (22
Conn. L. Rptr. 107). The court went on to say that “[w]hile
the rule is easy to state, it is most difficult to apply in
many instances.” Id.
The defendant, however, cannot prevail under the Sammy Redd
rule, because the first notice to quit was statutorily
deficient. In particular, § 47a-23(c) requires the
plaintiff to serve the notice to quit at the commercial
premises.[fn7] The plaintiff, however, maintains CT Page
21422 that it served the first notice to quit at the
defendant’s residence, rather than at the commercial
property. Taking this allegation as true for purposes of
the motion to dismiss; see Cox v. Aiken, supra, 278 Conn.
211; the plaintiff’s failure to comply with §
47a-23(c) rendered the first notice to quit ineffective to
terminate the rental agreement between the parties. The
present case, therefore, is similar to Bridgeport v.
Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 548
A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988),
wherein the plaintiff served two notices to quit, the first
of which was untimely. There, the Appellate Court
concluded: “[B]ecause the first notice to quit possession
was a nullity, it did not have the effect of terminating
the lease, and, therefore, the second notice to quit was
properly based upon the defendant tenant’s failure to pay
rent for which a summary process action may be maintained
pursuant to General Statutes § 47a-23.” Id., 575-76.
The defendant in this case, therefore, cannot prevail on
her second basis for arguing lack of subject matter
jurisdiction. Accordingly, the court denies the defendant’s
motion to dismiss on the grounds that the plaintiff’s first
notice to quit was a legal nullity, such that the second
notice to quit provides a valid basis for the plaintiff’s
present amended complaint for possession.
II
DEFENDANT’S PRIOR PENDING ACTION ARGUMENT
The third ground on which the defendant moves to dismiss
invokes the prior pending action doctrine. The Supreme
Court has explained this doctrine to mean that “[w]hen two
separate lawsuits are virtually alike the second action is
amenable to dismissal by the court.” (Internal quotation
marks omitted.) Halpern v. Board of Education, supra, 196
Conn. 652. The court then stated the rationale behind the
doctrine: “[T]here cannot be any reason or necessity for
bringing the second [action], and, therefore, it must be
oppressive and vexatious. This is a rule of justice and
equity, generally applicable, and always, where the two
suits are virtually alike, and in the same jurisdiction.”
(Internal quotation marks omitted.) Id., 652-53. Although
the doctrine “does not truly implicate the subject matter
jurisdiction of the court”; id., 652 n. 4; it is a valid
basis on which a defendant may move to dismiss a subsequent
action. Id. Nevertheless, the court also indicated that
courts should not apply the doctrine in a mechanical
fashion: “The rule forbidding the second action is not,
however, one of unbending rigor, nor of universal
application, nor a principle of absolute law . . . We must
examine the pleadings to ascertain whether the actions are
virtually alike.” (Citations omitted; internal quotation
marks omitted.) Id., 653. CT Page 21423
The defendant argues that when the plaintiff served the
notice to quit in the present case, there was a civil
action already pending between the parties. The plaintiff
filed that action, Whiting Mills, LLC v. Van Inwagen,
Docket No. CV18-10601, on June 7, 2006, based on the first
notice to quit, discussed above. On June 29, 2006, the
plaintiff withdrew that action and commenced the present
lawsuit by service of process on July 7, 2006. Although the
plaintiff served the defendant with the second notice to
quit on June 27, 2006, prior to withdrawing the prior
action, the notice to quit does not itself commence an
action. See O’Keefe v. Atlantic Refining Co., 132 Conn.
613, 622, 46 A.2d 343 (1946) (“The notice to quit under the
statute is the basis for the inauguration of an action at
law. There is nothing in the statute or the purpose of the
notice which makes it a part of any particular action of
summary process.” (Internal quotation marks omitted.)). See
also Peter-Michael, Inc. v. Sea Shell Associates, Superior
Court, judicial district of New Haven, Docket No. CV 96
0392382 (January 14, 1997, Silbert, J.) (18 Conn. L. Rptr.
656, 660), rev’d on other grounds, 244 Conn. 269, 709 A.2d
558 (1998) (“for purposes of [the prior pending action]
doctrine, the better question is not when each case was
`commenced’ but rather when it first began to `pend,’ i.e.,
when it was actually filed in court”).
Under similar circumstances, the Appellate Court has
allowed the plaintiff to proceed with a subsequent summary
process action. Thus, where the plaintiff withdrew a prior
summary process action prior to a hearing or judgment
thereon, the Appellate Court reasoned that “[t]he
withdrawal of the [prior] summary process action . . .
effectively erased the court slate clean as though the
eviction predicated on [the earlier] notice to quit
possession had never been commenced. The plaintiff and the
defendant were `back to square one,’ and the continuation
of their lease . . . was restored.” Housing Authority v.
Hird, 13 Conn.App. 150, 157, 535 A.2d 377, cert. denied, 209
Conn. 825, 552 A.2d 433 (1988). The Superior Court also has
addressed analogous cases. In Norling v. Anthony, Superior
Court, judicial district of Stamford, Docket No. X05 CV 99
0175669 (January 2, 2001, Tierney, J.), for instance, the
plaintiff withdrew a prior summary process action on
November 26, 1999, and filed a subsequent action on December
2, 1999, based on the same notice to quit. There, the
Superior Court stated that “[t]he prior pending action
doctrine is not a defense since the prior action was
withdrawn just before the service of this current summary
process lawsuit.” The same holds true in the present case.
Moreover, in Ying Shan Corp. v. Cruz, Superior Court,
judicial district of New Haven, Docket No. SPNH 9503 42439
(April 27, 1995, Levine, J.), the court characterized the
rationale behind the Halpern rule on prior pending CT Page
21424 actions as follows: “[O]nly if the plaintiff can
achieve its desired objective though the first lawsuit does
the second lawsuit become redundant, and, therefore,
oppressive and vexatious.” As a result, the court
concluded, “the defendant must establish that the plaintiff
can achieve its desired objective through the first
complaint in order to prevail on its motion to dismiss.”
Id. In the present case, the plaintiff cannot achieve its
desired objective through the first lawsuit, because it
withdrew that complaint upon discovery that it had
improperly served the first notice to quit. Accordingly, the
court denies the defendant’s motion to dismiss on the
grounds that the prior pending action doctrine is
inapplicable under these facts.
CONCLUSION
For the foregoing reasons, the court denies the defendant’s
motion to dismiss, because the court does have subject
matter jurisdiction over the matter, and because the prior
pending action doctrine is inapplicable.
[fn1] Initially, the plaintiff filed a complaint for
possession on July 13, 2006, on which service of process
occurred on July 6, 2006. Whereas the original complaint
listed the commercial property as the defendant’s address,
the amended complaint included the defendant’s residential
address, instead. This was proper pursuant to Practice Book
§ 10-59, which permits a plaintiff to “amend any
defect, mistake or informality in the writ, complaint or
petition . . . during the first thirty days after the
return day.” The return date on the original complaint was
July 21, 2006, and therefore, the plaintiff filed the
amended complaint within the time allotted under the
Practice Book.
[fn2] The court could grant the defendant’s motion to
dismiss on procedural grounds, due to the plaintiff’s
failure to file a memorandum in opposition. Practice Book
§ 10-31(b) provides that “[a]ny adverse party who
objects to [the motion to dismiss] shall, at least five
days before the motion is to be considered on the short
calendar, file and serve . . . a memorandum of law and,
where appropriate, supporting affidavits . . .” The Supreme
Court, however, has determined that “a party who files an
untimely memorandum is no longer deemed to consent to the
granting of a motion [to dismiss].” Southport Manor
Convalescent Center, Inc. v. Foley, 216 Conn. 11, 13 n. 1,
578 A.2d 646 (1990). In most cases, the Superior Court has
used its discretion to reach the merits of the motion,
rather than to dismiss the case based on a party’s failure
to comply with § 10-31(b). See, e.g., Foley v.
Scheines, Superior Court, judicial district of Litchfield,
Docket No. CV 04 4000361 (December 14, 2004, Brunetti, J.)
(dismissing on substantive CT Page 21425 grounds, even
though noting that “[t]he plaintiff has not filed an
objection to the motion or a memorandum of law in accordance
with Section 10-31 of the Practice Book”); Southern New
England/SBC v. Balf Co., Superior Court, judicial district
of New Haven, Docket No. CV 03 0482272 (August 4, 2004,
Skolnick, J.) (“[d]espite the language of Practice Book
§ 10-31(b), most courts have exercised discretion to
address the merits of a motion to dismiss and to waive the
five-day requirement when an opposing memorandum was
untimely”); Murphy v. K-Mart Corp., Superior Court,
judicial district of Litchfield, Docket No. CV 02 0086934
(July 20, 2004, Bryant, J.) (same). See also Martinez v.
Zovich, 87 Conn.App. 766, 770 n. 3, 867 A.2d 149, cert.
denied, 274 Conn. 908, 876 A.2d 1202 (2005) (affirming the
denial of the defendant’s motion for summary judgment,
despite the plaintiff’s failure to comply with filing
requirement similar to that pertaining to motion to
dismiss, because “[i]n the present case . . . the defendant
did not demonstrate that the plaintiffs’ delay in filing
their memorandum of law in opposition to the motion for
summary judgment was prejudicial to his defense of the
matter . . .”) The court shall overlook the failure to file
the opposing memorandum and address the merits of the motion
to dismiss.
[fn3] The plaintiff explained at the hearing that it was
reluctant to acknowledge the existence of a valid, written
lease in the present case, because the same issue is
central to a separate action pending between the parties.
[fn4] The defendant invokes the prior pending action
doctrine as another basis on which to attack subject matter
jurisdiction. As previously noted, however, this doctrine
does not directly implicate subject matter jurisdiction. It
nevertheless provides a valid basis for a motion to
dismiss. See Halpern v. Board of Education, supra, 196 Conn.
652 n. 4.
[fn5] General Statutes § 47a-23 sets forth the
criteria for invoking summary process, as well as the form
for seeking such relief. Section 47a-23(a) provides in
relevant part: “When the owner or lessor . . . desires to
obtain possession or occupancy of any land or building . .
. and . . . when a rental agreement or lease of such
property, whether in writing or by parol, terminates for .
. . nonpayment of rent when due for commercial property . .
. or . . . 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 . . . 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
CT Page 21426 quit possession or occupancy.”
[fn6] In Trinity United Methodist Church of Springfield,
Massachusetts, the court also discussed the expansion of
§ 47a-23 beyond the traditional landlord-tenant
context. Trinity United Methodist Church of Springfield v.
Levesque, supra, 88 Conn.App. 665-66. Thus, whereas earlier
cases regarded as prerequisites to summary process actions
the existence of a landlord-tenant relationship; Chomko v.
Patmon, 19 Conn.App. 483, 563 A.2d 311, cert. denied, 212
Conn. 819, 565 A.2d 539 (1989); and the termination of a
lease; Cohn v. Fennelly, 138 Conn. 474, 86 A.2d 183 (1952);
Trinity United Methodist Church of Springfield,
Massachusetts indicated that courts may read § 47a-23
more broadly. Trinity United Methodist Church of
Springfield, Massachusetts, supra, 665-66 (citing
Southington v. Francis, 159 Conn. 64, 69 n. 2, 266 A.2d 387
(1970)).
[fn7] Section 47a-23(c) establishes the requirements for
proper service of the notice to quit: “A copy of such
notice shall be delivered to each lessee or occupant or
left at such lessee’s or occupant’s place of residence or,
if the rental agreement or lease concerns commercial
property, at the place of the commercial establishment by a
proper officer or indifferent person.” CT Page 21427