EMC MORTGAGE CORP. v. ABDULRAHIM, No. CV 09 16162 (Jun. 2, 2008)

JONGBLOED, J.

The defendant filed a motion to dismiss on February 19, 2008 for lack of subject matter jurisdiction claiming that the plaintiff's notice to quit is invalid, defective and/or insufficient because it does not contain all of the required language under subsection (a)(3) of General Statutes § 47a-23. Alternatively, defendant claims that the notice to quit is invalid, defective and/or insufficient because it was rendered equivocal by documents sent to the defendant by the plaintiff after service of its notice to quit. The plaintiff objected and filed a memorandum in opposition on March 7, 2008. The court heard argument on March 17, 2008. For the reasons set forth below, the defendant's motion to dismiss is denied.

I. FACTS

On or before November 15, 2007, the defendants, Khalilah Abdulrahim, Akali Dennie, Joy Watkins, Joey Watkins, John Doe and Jane Doe entered into possession of the subject premises located at 175 Old Farms West, Middletown, CT through a right granted by a prior owner. The plaintiff, EMC Mortgage Corporation, acquired title to the subject premises by virtue of a mortgage foreclosure on November 15, 2007. On December 17, 2007, the plaintiff served upon the defendants the summary process writ, summons, and complaint.

See Wells Fargo Bank v. Abdulrahim, Superior Court, judicial district of Middlesex, Docket No. CVO6-5001105, (Sept. 17, 2007, Jones, J.) (motion to substitute party, EMC Mortgage Corp., granted Oct. 30, 2006, Dubay, J.).

Subsequently on February 19, 2008, defendant Akali Dennie filed a motion to dismiss for lack of subject matter jurisdiction. In a memorandum of law in support of the motion to dismiss, Dennie argues that the plaintiff's notice to quit is invalid because it does not contain all of the required language provided for in General Statutes § 47a-23(a)(3). Additionally, Dennie argues that the notice to quit is invalid because the plaintiff sent documents to Dennie after the notice to quit was filed, including an "Occupant Move-Out Agreement Release," which rendered the notice to quit equivocal.

CT Page 9545 In its memorandum of law in opposition, the plaintiff argues that the notice to quit was in strict conformity with the statutory requirements of General Statutes § 47a-23. The plaintiff argues further that Dennie's motion to dismiss is an attempt to delay the summary process action. Accordingly, the plaintiff requests that this court issue sanctions against Dennie for the time and expense spent preparing for and attending the hearing on the motion to dismiss.

II. DISCUSSION

"The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

"`[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 (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. An improper notice to quit deprives the court of subject matter jurisdiction. Lampasona v. Jacobs, supra, 209 Conn. 730. `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 (1988); See also Bargain Mart, Inc. v. Lipkis, 212 Conn. 120, 561 A.2d 1365 (1989)." Bristol Residential Property v. Van Kirk, Superior Court, judicial district of New Britain, Docket No. NBSP46757 (Jan. 10, 2007, Bentivegna, J.).

Dennie argues that the notice to quit is invalid, defective and/or insufficient because it does not contain all of the statutory language under General Statutes § 47a-23(a)(3). The notice to quit, dated November 27, 2007, contained the following language: "Pursuant to C.G.S. § 47a-23(a)(3), Khalilah Abdulrahim, Akali D. Dennie, Joy Watkins, Joey CT Page 9546 N. Watkins, John Doe and Jane Doe rights or privileges to occupy the premises have terminated." The crux of Dennie's argument is that the plaintiff used only "part" of the statutory language in the notice to quit and did not invoke the entire language provided for in the applicable statute.

"General Statutes § 47a-23(a), which governs summary process actions, 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, [or] any dwelling unit . . . 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 . . . (E) nonpayment of rent when due for commercial property . . . 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 . . .' General Statutes § 47a-23(b) also directs that a notice to quit shall include the reasons that the lessee or occupant must quit the premises, using the statutory language or words of similar import." (Citation omitted; emphasis added; internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 6, 931 A.2d 837 (2007).

In Southland Corp. v. Vernon, 1 Conn.App. 439, 473 A.2d 318 (1984), the Appellate Court encountered a similar claim. In that case, the plaintiff issued a notice to quit to the defendant with the following language: "your right or privilege to occupy such premises has terminated." Id., 452. In overturning the judgment of the trial court, the Appellate Court reasoned that the notice to quit was not invalid despite the principle that the summary process statute should be "narrowly construed and strictly followed." Id. As the Appellate Court explained, "the language of the notice substantially tracks that of General Statutes 47a-23(a), which sets as one of the bases of a notice to quit `one originally had the right or privilege to occupy such premises but such right or privilege has terminated.'" Id.

The language of the notice to quit in Southland Corp. is nearly identical to that of the notice to quit in the present case. "[I]t would be the height of hypertechnicality to hold this notice to quit defective," as the language used substantially tracks that of General Statutes 47a-23(a)(3). Southland Corp. v. Vernon, supra, 1 Conn.App., 453. Accordingly, the challenge to the notice to quit based on the language used must fail.

CT Page 9547 Dennie next argues that documents sent by the plaintiff after service of the notice to quit rendered the notice to quit equivocal. "Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease." (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn.App. 470, 480, 929 A.2d 362, cert. denied, 285 Conn. 913, 943 A.2d 474 (2007). "A notice to quit must convey "a clear intention to terminate the lease and to proceed with judicial process to secure possession." Bristol Residential Properties v. Van Kirk, Superior Court, judicial district of New Britain, Docket No. NBSP-46757 (Jan. 10, 2007, Bentivegna, J.). "If there is equivocal language in the notice itself or prior or subsequent communication from the landlord, then the notice is improper." Vesta Windham, LLC v. Burgos, Superior Court, judicial district of Windham, Docket No. CV 11-06-13967 (June 5, 2007, Calmar, J.).

In support of the contention that the landlord's subsequent actions rendered the notice to quit equivocal and thus invalid, the defendant cites Church Street South Limited Partnership v. Harding, Superior Court, judicial district of New Haven, Docket No. CVNH 9310-36899 (Dec. 3, 1993, Mintz, J.). In that case, the plaintiff served a notice to quit on the defendant. Thereafter, the defendant sent the plaintiff a letter that stated in relevant part, that "(e)ffective November 1, 1993 the rent for your size apartment . . . will be $791.00 and that the defendant should come to the rental office immediately to sign your paperwork." (Internal quotation marks omitted.) Id. The court found that "the language in the . . . letter to the defendant from the plaintiff . . . render[ed] the Notice to Quit equivocal." Id.

Similarly, "[i]n Danpar Associates v. Falkha, 37 Conn.Sup. 820 (1981), the landlord's counsel wrote to the defendant on the day after defendant was served with a notice to quit for nonpayment of rent. In that letter, counsel indicated his client was proceeding with the summary process action but indicated that `my client had no objection to rewriting the lease with the increased rent, but at this point the only thing that stands in the way is money.' Danpar Associates v. Falkha, supra, 822. The court held that `the letter from the attorney on the very next day negated the effect of the notice to quit, however, at least until the further negotiations which that letter invited had terminated.' Danpar Associates v. Falkha, supra, 824." Londregan v. Freedman, Superior Court, judicial district of New London, Docket No. 17122 (June 8, 2001, Dyer, J.).

In the present case, Dennie received three documents on or about December 10, 2007 after service of the notice to quit, which are marked as exhibits A, B, and C. Exhibit A discloses that the subject premises CT Page 9548 has been foreclosed and instructs the tenant to contact the plaintiff and leave the appropriate contact information. Exhibit B reiterates that title to the subject process has been transferred through foreclosure and implores the tenant not to make any rental payments to the previous landlord. Additionally, Exhibit B invites the tenant to contact the plaintiff in order to discuss the prospect of voluntarily surrendering the premises with the possibility of compensation. Exhibit C, titled "Occupant Move-Out Agreement Release," explains that if the tenant surrenders the property by January 1, 2008, the plaintiff will pay the tenant $1,000 in relocation assistance. Additionally, exhibit C lays out the conditions precedent to the payment of the $1,000 and includes other clauses relating to "eviction proceedings," "right to lock out," and "waiver of use and occupancy."

Dennie argues that these exhibits "create ambiguity, doubt and/or a question as to the meaning or intention of the Plaintiff's `Notice to Quit.'" However, the documents in this case differ from the letters in Church Street South Limited Partnership and Danpar because there is no indication that the documents created any opportunity to negotiate a new lease or tenancy. Indeed, these documents are clear in informing Dennie that the title to the subject premises has transferred through a foreclosure proceeding and that Dennie can no longer remain in possession of the subject premises. The documents do not negate the notice to quit, but rather reinforce the plaintiff's desire to facilitate Dennie's surrender of the premises. Accordingly, the documents sent by the plaintiff did not render the notice to quit equivocal.

For the forgoing reasons, the defendant's motion to dismiss is hereby denied. The plaintiff's request for sanctions is also hereby denied.

It is So Ordered this 2nd day of June 2008.