Lyons v. Citron , 182 Conn. App. 725 ( 2018 )


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    CYNDI LYONS v. ROBERT CITRON ET AL.
    (AC 39940)
    DiPentima, C. J., and Elgo and Beach, Js.
    Syllabus
    The plaintiff landlord sought, by way of summary process, to regain posses-
    sion of certain premises leased to the defendant tenants. The plaintiff,
    which had entered into a one year residential rental agreement with
    the defendants, served them with a notice to quit based on, inter alia,
    nonpayment of rent for June, 2016. When the defendants failed to vacate
    the premises, the plaintiff initiated a summary process action in July,
    2016. Thereafter, in August, 2016, the plaintiff sent a text message to
    the defendants asking for the rent, and the defendants moved to dismiss
    the action, claiming that the text message rendered the notice to quit
    equivocal and that it did not terminate the tenancy. The plaintiff with-
    drew the initial action in September, 2016, and on the same day, served
    the defendants with a second notice to quit, again on the ground of,
    inter alia, nonpayment of rent. Subsequently, the plaintiff initiated a
    second summary process action. The trial court rendered judgment in
    favor of the plaintiff, and the defendants appealed to this court. They
    claimed that the court erroneously rendered judgment for the plaintiff
    on the ground of nonpayment of rent when the plaintiff prematurely
    served the defendants with the underlying notice to quit on the same
    day she withdrew her first summary process action, instead of waiting
    nine days after rent became due to serve the notice as required by
    statute (§ 47a-15a). Held that because the service of the second notice
    to quit failed to comply with the statutory timing requirements, the trial
    court lacked subject matter jurisdiction to consider the plaintiff’s second
    summary process action: where, as here, a landlord files a summary
    process action based on a notice to quit and subsequently withdraws
    the action, the lease is restored, its terms apply prospectively, rent
    becomes due on the day the summary process action is withdrawn, and
    the reinstatement of the lease triggers a new nine day grace period
    within which the tenant must pay rent in order to avoid a summary
    process action by the landlord, which must wait nine days after with-
    drawing a summary process action before serving the tenant with a new
    notice to quit, and although the defendants moved to dismiss the first
    action on the ground that the notice to quit had become equivocal and
    could not serve as a basis for the pending summary process action, that
    issue was not resolved until the plaintiff withdrew that action and, during
    the month between the plaintiff’s text message and her withdrawal of
    the first action, the question of whether the lease had been reinstated
    had not been decided; accordingly, rent became due as of the date of
    the plaintiff’s withdrawal of the first action, and the plaintiff’s notice to
    quit, which was served on that same day, was premature because it was
    served within the nine day grace period provided by § 47a-15a.
    Argued March 15—officially released June 19, 2018
    Procedural History
    Summary process action, brought to the Superior
    Court in the judicial district of Stamford-Norwalk,
    Housing Session, where the plaintiff filed a withdrawal
    in part; thereafter, the case was tried to the court, Rodri-
    guez, J.; judgment for the plaintiff; subsequently, the
    court denied the defendants’ motion to reargue, and
    the defendants appealed to this court. Reversed; judg-
    ment directed.
    Abram Heisler, for the appellants (defendants).
    Opinion
    BEACH, J. This is a case involving multiple notices
    to quit. The defendants in this summary process action,
    Robert Citron and Gail Citron, appeal from the trial
    court’s judgment of possession in favor of the plaintiff,
    Cyndi Lyons.1 On appeal, the defendants claim that the
    court erroneously rendered judgment for the plaintiff
    on the ground of nonpayment of rent when the plaintiff
    prematurely served the defendants with the underlying
    notice to quit on the day she withdrew her first summary
    process action, instead of waiting nine days after rent
    became due to serve the notice, as required by General
    Statutes § 47a-15a.2 We agree and, accordingly, reverse
    the judgment of the trial court.
    The following undisputed facts and procedural his-
    tory are relevant to this appeal. On July 6, 2015, the
    plaintiff and the defendants entered into a one year
    residential rental agreement for occupancy of a house
    located at 9 Cannon Street in Norwalk (lease). Under
    the terms of the lease, the defendants agreed to pay
    rent on or before the first day of each month. In June,
    2016, the plaintiff served the defendants with a notice
    to quit (first notice to quit) pursuant to General Statutes
    § 47a-23,3 based, in relevant part, on nonpayment of
    rent for that month.
    The defendants failed to vacate the premises, and in
    July, 2016, the plaintiff initiated a summary process
    action (first action).4 See Lyons v. Citron, Superior
    Court, judicial district of Stamford-Norwalk, Housing
    Session at Norwalk, Docket No. CV-16-5001142-S. On
    August 4, 2016, the plaintiff sent a text message to the
    defendants, asking ‘‘[w]here’s my rent?’’ The defendants
    moved to dismiss the plaintiff’s case, arguing that the
    text message rendered the first notice to quit equivocal.5
    On September 6, 2016, the plaintiff withdrew the first
    action.
    On the same day, September 6, 2016, the plaintiff
    caused a second notice to quit to be served on the
    defendants, again on the ground of, inter alia, nonpay-
    ment of rent. Again, the defendants did not vacate the
    premises. Accordingly, on September 13, 2016, the
    plaintiff initiated a second summary process action
    (second action), which is the underlying action in this
    appeal.6 The plaintiff alleged, in count one of her com-
    plaint, that the defendants had ‘‘failed to pay any rent
    or use and occupancy to the [p]laintiff for the months
    of June, 2016, July, 2016, August, 2016 and September,
    2016 within the grace period provided by law for resi-
    dential property.’’7
    On October 13, 2016, the defendants moved to dismiss
    count one of the plaintiff’s complaint. The defendants
    argued that the ‘‘court lacks subject matter jurisdiction
    over count one which claims nonpayment of rent’’
    because the plaintiff’s withdrawal of the first ‘‘action
    had the effect of reinstating the defendants’ lease and
    creating a new grace period,’’ and ‘‘[t]he plaintiff failed
    to wait the statutory nine day grace period before serv-
    ing the notice to quit in [the second action].’’8 The plain-
    tiff argued, in her objection to the defendants’ motion
    and at the court’s hearing on the motion, that because
    the text message rendered the first notice to quit equivo-
    cal,9 the lease was never terminated and that, therefore,
    the plaintiff did not need to wait nine days after with-
    drawing the first action before serving the defendants
    with the second notice to quit. The court denied the
    defendants’ motion to dismiss, and the case proceeded
    to trial.
    On November 22, 2016, following the trial, at which
    the defendants were not present, the court rendered
    judgment in favor of the plaintiff for immediate posses-
    sion. The defendants moved to reargue, arguing that
    the court improperly rendered judgment for the plaintiff
    on the ground of nonpayment of rent because the plain-
    tiff had served the underlying notice to quit on the day
    she withdrew the first action. Following oral argument,
    the court denied that motion. The defendants brought
    the present appeal from the court’s judgment of pos-
    session.10
    On appeal, the defendants claim that the court errone-
    ously rendered judgment for the plaintiff on the ground
    of nonpayment of rent because the plaintiff caused the
    defendants to be served with the underlying notice to
    quit on the same day that she withdrew the first sum-
    mary process action.11 The defendants argue, in
    essence, that the plaintiff’s withdrawal of the first action
    reinstated the tenancy, thereby triggering a new nine
    day grace period under § 47a-15a, and that the second
    notice to quit was invalid because the plaintiff failed
    to wait nine days after her withdrawal of the first action
    before causing the notice to quit to be served. We agree.
    We begin by setting forth the standard of review and
    relevant law. ‘‘Summary process is a special statutory
    procedure designed to provide an expeditious remedy.
    . . . It enable[s] landlords to obtain possession of
    leased premises without suffering the delay, loss and
    expense to which, under the common-law actions, they
    might be subjected by tenants wrongfully holding over
    their terms. . . . Service of a valid notice to quit, which
    terminates the lease and creates a tenancy at sufferance
    . . . is a condition precedent to a summary process
    action under § 47a-23 that implicates the trial court’s
    subject matter jurisdiction over that action.’’ (Citations
    omitted; footnote omitted; internal quotation marks
    omitted.) Waterbury Twin, LLC v. Renal Treatment
    Centers-Northeast, Inc., 
    292 Conn. 459
    , 466, 
    974 A.2d 626
    (2009).
    Our Supreme Court has ‘‘articulated [the] standard of
    reviewing challenges to the trial court’s subject matter
    jurisdiction in a summary process action on the basis
    of a defect in the notice to quit. Before the [trial] court
    can entertain a summary process action and evict a
    tenant, the owner of the land must previously have
    served the tenant with notice to quit.’’ (Internal quota-
    tion marks omitted.) Bayer v. Showmotion, Inc., 
    292 Conn. 381
    , 388, 
    973 A.2d 1229
    (2009). ‘‘[T]he summary
    process statute must be narrowly construed and strictly
    followed. . . . The failure to comply with the statutory
    requirements deprives the court of jurisdiction to hear
    the summary process action.’’ (Citations omitted; inter-
    nal quotation marks omitted.) 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). ‘‘This court’s review of the trial court’s determi-
    nation as to whether the notice to quit served by the
    plaintiff effectively conferred subject matter jurisdic-
    tion is plenary.’’ Bayer v. Showmotion, 
    Inc., supra
    , 388.
    Under the summary process statute, one of the
    grounds for terminating a lease and obtaining occu-
    pancy or possession of the premises is ‘‘nonpayment
    of rent within the grace period provided for residential
    property in [§] 47a-15a . . . .’’ General Statutes § 47a-
    23 (a) (1) (D). Under § 47a-15a, ‘‘[i]f rent is unpaid when
    due and the tenant fails to pay rent within nine days
    thereafter . . . the landlord may terminate the rental
    agreement’’ by serving the tenant with a notice to quit
    in accordance with § 47a-23. If the landlord does not
    wait until the expiration of this statutory nine day grace
    period before serving the notice to quit, the notice to
    quit is defective and the court does not have jurisdiction
    to hear a summary process action based on that notice
    to quit. See Bridgeport v. Barbour-Daniel Electronics,
    
    Inc., supra
    , 
    16 Conn. App. 582
    .
    ‘‘A breach of a covenant to pay rent does not automat-
    ically result in the termination of a lease. . . . The fail-
    ure to pay rent gives the landlord a right to terminate
    the lease. . . . In order to terminate a lease, a landlord
    must perform some unequivocal act which clearly dem-
    onstrates his intent to terminate the lease.’’ (Citations
    omitted.) 
    Id., 583 n.8.
    ‘‘Service of a notice to quit posses-
    sion is typically a landlord’s unequivocal act notifying
    the tenant of the termination of the lease.’’ (Internal
    quotation marks omitted.) Centrix Management Co.,
    LLC v. Valencia, 
    132 Conn. App. 582
    , 587, 
    33 A.3d 802
    (2011). ‘‘The lease is neither voided nor rescinded until
    the landlord performs this act and, upon service of a
    notice to quit possession, a tenancy at will is converted
    to a tenancy at sufferance. . . . It is necessary to prove
    the allegations of the notice to quit possession in order
    to obtain a judgment for possession.’’ (Citations omit-
    ted.) Housing Authority v. Hird, 
    13 Conn. App. 150
    ,
    155, 
    535 A.2d 377
    , cert. denied, 
    209 Conn. 825
    , 
    552 A.2d 433
    (1988).
    Some circumstances may require a landlord to serve
    a second notice to quit prior to commencing a summary
    process action in order to create jurisdiction. For
    instance, if a landlord serves a notice to quit and com-
    mences a summary process action based on that notice
    to quit, then voluntarily withdraws the summary pro-
    cess action prior to ‘‘a hearing and judgment thereon,’’
    the original lease is reinstated. See 
    id., 156–57. When
    a landlord withdraws a summary process action that
    had been preceded by a valid notice to quit, ‘‘the land-
    lord is required to serve a new notice to quit pursuant
    to § 47a-23 prior to commencing another summary pro-
    cess action against that tenant under § 47a-23a.’’ Water-
    bury Twin, LLC v. Renal Treatment Centers-Northeast,
    
    Inc., supra
    , 
    292 Conn. 465
    , 474 (requiring new notice to
    quit prior to commencement of new summary process
    action in context of commercial lease).
    Whether the withdrawal of the prior action and subse-
    quent reinstatement of a residential lease triggers a new
    nine day grace period for payment of rent under § 47a-
    15a is an issue of first impression before this court.12
    When a notice to quit terminates the lease, the tenant
    ‘‘is excused from a duty to pay the stipulated rent under
    the lease . . . .’’ Housing Authority v. 
    Hird, supra
    , 
    13 Conn. App. 158
    . If the landlord files a summary process
    action based on that notice to quit and subsequently
    withdraws the action, the lease is restored and the
    lease’s terms apply prospectively. Sproviero v. J.M.
    Scott Associates, Inc., 
    108 Conn. App. 454
    , 464, 
    948 A.2d 379
    , cert. denied, 
    289 Conn. 906
    , 
    957 A.2d 873
    (2008).
    Because the lease’s terms do not apply retroactively,
    rent becomes due on the day the summary process
    action is withdrawn and the lease is restored. See Hous-
    ing Authority v. 
    Hird, supra
    , 156–57 (rent due for Janu-
    ary when summary process action commenced in
    November and withdrawn in January); see also Tam-
    borra v. Jordan, Superior Court, judicial district of New
    London, Docket No. CV21-10160 (December 22, 1999)
    (
    26 Conn. L. Rptr. 200
    , 202) (rent became due on day
    first action withdrawn). Accordingly, we hold that the
    reinstatement of the lease triggers a new nine day grace
    period within which the tenant must pay rent in order
    to avoid a summary process action; see General Statutes
    § 47a-15a;13 and a landlord may serve a new notice to
    quit on the ground of nonpayment of rent only if the
    tenant fails to pay rent on the day of the previous
    action’s withdrawal or within nine days thereafter.
    In this case, no one has suggested that the plaintiff’s
    first notice to quit did not comply with the statutory
    requirements and, thus, it served as the plaintiff’s
    ‘‘unequivocal act notifying the [defendants] of the termi-
    nation of the lease.’’ (Internal quotation marks omitted.)
    See Centrix Management Co., LLC v. 
    Valencia, supra
    ,
    
    132 Conn. App. 587
    . Upon receipt of the plaintiff’s
    August 4, 2016 text message inquiring about rent, the
    defendants moved to dismiss the first action, arguing
    that the text message had rendered the plaintiff’s intent
    to terminate equivocal. See, e.g., Bargain Mart, Inc. v.
    Lipkis, 
    212 Conn. 120
    , 134, 
    561 A.2d 1365
    (1989)
    (‘‘notice to quit will not terminate a lease if the notice
    itself is invalid’’). On September 6, 2016, the plaintiff
    withdrew the first action; the court did not address the
    question of whether the first notice had been valid. That
    same day, the plaintiff served the defendants with the
    second notice to quit, on the ground of nonpayment
    of rent. Whether the plaintiff prematurely served this
    notice to quit depends on whether rent became due as
    of her August 4 text message to the defendants or as
    of her September 6 withdrawal of the first action.
    The defendants premise their claim that the second
    notice to quit was premature on their position that rent
    became due on the day that the plaintiff withdrew the
    first action, not on the day she sent the text message.
    Although the defendants moved to dismiss the first
    action, arguing that the notice to quit had become equiv-
    ocal and, therefore, could not serve as the basis for the
    pending summary process action, that issue was not
    resolved until the plaintiff withdrew that action.14 Dur-
    ing the month between the plaintiff’s text message and
    her withdrawal of the first action, the question of
    whether the lease had been reinstated had not been
    decided. Accordingly, we hold that rent became due as
    of the date of the plaintiff’s withdrawal of the first
    action, and the plaintiff’s notice to quit, which was
    served on that same day, was premature because it was
    served within the nine day grace period provided by
    § 47a-15a.15 Because the timing of the service of the
    notice to quit failed to comply with the statutory require-
    ments, the court did not have jurisdiction to hear the
    second summary process action. See Bridgeport v. Bar-
    bour-Daniel Electronics, 
    Inc., supra
    , 
    16 Conn. App. 582
    .
    The judgment is reversed and the case is remanded
    with direction to render judgment dismissing the action.
    In this opinion the other judges concurred.
    1
    After the defendants filed the present appeal, the plaintiff’s attorney
    moved for permission to withdraw as counsel for the plaintiff, which motion
    the trial court granted. The plaintiff did not file an appearance in this appeal.
    2
    General Statutes § 47a-15a provides in relevant part that ‘‘[i]f rent is
    unpaid when due and the tenant fails to pay rent within nine days thereafter
    . . . the landlord may terminate the rental agreement in accordance with
    the provisions of sections 47a-23 to 47a-23b, inclusive.’’
    3
    General Statutes § 47a-23 (a) provides in relevant part: ‘‘When the owner
    or lessor . . . desires to obtain possession or occupancy of any land or
    building, any apartment in any building, any dwelling unit, any trailer, or
    any land upon which a trailer is used or stands, and (1) when a rental
    agreement or lease of such property, whether in writing or by parol, termi-
    nates for any of the following reasons . . . (D) nonpayment of rent within
    the grace period provided for residential property in section 47a-15a or 21-
    83 . . . such owner or lessor . . . shall give notice to each lessee or occu-
    pant 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.’’
    4
    ‘‘We properly may take judicial notice of [pleadings in that case].’’ State
    v. Joseph, 
    174 Conn. App. 260
    , 268 n.7, 
    165 A.3d 241
    , cert. denied, 
    327 Conn. 912
    , 
    170 A.3d 680
    (2017); see also Karp v. Urban Redevelopment
    Commission, 
    162 Conn. 525
    , 527, 
    294 A.2d 633
    (1972) (‘‘[t]here is no question
    . . . concerning our power to take judicial notice of files of the Superior
    Court, whether the file is from the case at bar or otherwise’’); Folsom v.
    Zoning Board of Appeals, 
    160 Conn. App. 1
    , 3 n.3, 
    124 A.3d 928
    (2015)
    (taking ‘‘judicial notice of the plaintiff’s Superior Court filings in . . . related
    actions filed by the plaintiff’’).
    5
    An equivocal notice to quit does not effectively terminate a tenancy.
    Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., 
    292 Conn. 459
    , 473 n.18, 
    974 A.2d 626
    (2009). Conduct after service of a notice
    to quit that indicates ambivalence toward termination may render the notice
    to quit ineffective. See Centrix Management Co., LLC v. Valencia, 132 Conn.
    App. 582, 587–89, 
    33 A.3d 802
    (2011) (‘‘[o]ur trial courts consistently have
    held that providing a tenant with a new lease agreement or with an invitation
    to enter into a new rental agreement after a notice to quit has been served
    is inconsistent with an unequivocal notice to quit’’). The subsequent conduct
    does not, of course, amend the language of the notice to quit. Subsequent
    conduct may, however, be evidence of a landlord’s ambivalent intent to
    terminate the lease. See 
    id. 6 The
    plaintiff also filed a motion for use and occupancy payments, which
    the court granted. At the subsequent trial, the plaintiff testified that as of
    that time, the defendants still had not paid rent or use and occupancy to her.
    7
    In the second notice to quit, the plaintiff had also demanded that the
    defendants quit possession or occupancy of the premises because the defen-
    dants ‘‘originally had the right or privilege to occupy the premises, but
    [their] right or privilege to occupy has been terminated’’ and because the
    ‘‘[p]remises [are] occupied by one or more people who never had the right
    or privilege to occupy such premises.’’ The plaintiff incorporated these
    two additional grounds as counts two and three of her September, 2016
    complaint, respectively, but expressly did not pursue these counts at trial.
    8
    Similarly, in the defendants’ answer, filed after their motion to dismiss but
    before the court’s hearing and order regarding that motion, the defendants
    asserted as a special defense that ‘‘[t]he plaintiff withdrew an earlier sum-
    mary process case the same day that she served a notice to quit in this
    matter. The withdrawal of the earlier complaint had the effect of reinstating
    the tenants’ tenancy and triggering a new nine day grace period.’’
    9
    As noted previously; see footnote 5 of this opinion; the notice to quit is
    not changed by subsequent conduct. Rather, the landlord’s intent to termi-
    nate may be rendered ambivalent by subsequent conduct.
    10
    At oral argument before this court, the defendants’ counsel represented
    that, as of that time, the defendants remained in possession of the premises.
    11
    As noted in footnote 1 of this opinion, the plaintiff did not appear in
    this appeal.
    12
    As the defendants noted in their brief to this court, this issue has been
    directly addressed by two decisions of the housing division of the Superior
    Court, both of which concluded that the withdrawal of a summary process
    action and consequent reinstatement of the rental agreement triggers a new
    grace period pursuant to § 47a-15a. See Tamborra v. Jordan, Superior Court,
    judicial district of New London, Docket No. CV21-10160 (December 22, 1999)
    (
    26 Conn. L. Rptr. 200
    , 202); Sammy Redd & Associates v. May, Superior
    Court, judicial district of Hartford, Housing Session, Docket No. SPH 95376
    (January 21, 1998) (
    22 Conn. L. Rptr. 107
    , 108); see generally Centrix Man-
    agement Co., LLC v. 
    Valencia, supra
    , 
    132 Conn. App. 587
    n.2 (‘‘Ordinarily,
    this court does not rely on Superior Court authority. In this instance, how-
    ever, there is sparse appellate authority directly on point . . . .’’).
    13
    The grace period pursuant to § 47a-15a begins on the day rent
    becomes ‘‘due.’’
    14
    Notably, in cases where notices to quit were served and the leases in
    question were deemed to remain in effect continuously because of defects
    in the notices, the notices were defective on their face, and not rendered
    ineffective by some later event. See, e.g., Bridgeport v. Barbour-Daniel
    Electronics, 
    Inc., supra
    , 
    16 Conn. App. 582
    ; Housing Authority v. 
    Hird, supra
    , 
    13 Conn. App. 156
    –57. Thus, the unequivocal intent had never been
    expressed where the initial notice to quit was equivocal.
    15
    This court’s conclusion that a landlord must wait nine days after with-
    drawing a summary process action before serving the tenant with a new
    notice to quit is consistent with our Supreme Court’s preference for bright
    line rules in summary process actions. See Waterbury Twin, LLC v. Renal
    Treatment Centers-Northeast, 
    Inc., supra
    , 
    292 Conn. 473
    (‘‘not requiring the
    service of a new notice to quit as a per se rule could well complicate the
    status of the parties’ relationship after the withdrawal of the initial complaint,
    and would require more extensive determinations by the trial court concern-
    ing the parties’ intentions and whether postwithdrawal payments are for
    rent, or use and occupancy’’).