St. Paul's Flax Hill Co-op. v. Johnson

• Decision Date: 02 November 2010
• Docket Number: No. 31288.,31288.
• Citation: 6 A.3d 1168,124 Conn.App. 728
• Court: Connecticut Court of Appeals
• Parties: ST. PAUL'S FLAX HILL CO-OPERATIVE v. Zena Mae JOHNSON et al.

6 A.3d 1168

124 Conn.App. 728

ST. PAUL'S FLAX HILL CO-OPERATIVE

v.Zena Mae JOHNSON et al.

No. 31288.

Appellate Court of Connecticut.

Argued Sept. 7, 2010.

Decided Nov. 2, 2010.

Sean C. Donohue, for the appellant (defendant Larry K. Johnson).

Frederic S. Brody, for the appellant (named defendant).

Steven G. Berg, Westport, for the appellee (plaintiff).

HARPER, ROBINSON and SCHALLER, Js.

SCHALLER, J.

The defendant Larry K. Johnson ¹ appeals from the judgment of the trial court in favor of the plaintiff, St. Paul's Flax Hill Co-operative, in its summary process action alleging, among other things, that the defendant had no legal right or privilege to occupy the premises at issue. The defendant claims that the trial court should have dismissed the summary process action (1) on the ground that the court lacked subject matter jurisdiction in that the plaintiff simultaneously served a pretermination notice and notice to quit, and (2) on the ground that the plaintiff failed to return the complaint within three days of the return day pursuant to General Statutes § 47a-23a. ² We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant's appeal. The premises owned by the plaintiff is a housing cooperative sponsored and subsidized by the United States Department of Housingand Urban Development (HUD) and is subject to regulation by that agency. The plaintiff served the defendant with a pretermination notice dated November 18, 2008, asserting that his "unauthorized occupation of [the premises would] be terminated effective December12, 2008." He was advised therein that he may correct the claimed violation within twenty-one days by moving out of the unit.³ On that same date, he was also served with a notice to quit possession on or before December 12, 2008, on the ground that he had no right to occupy the premises. The defendant did not quit the premises, and the plaintiff commenced a summary process action by service of process on February 7, 2009. In count three of its complaint, the plaintiff alleged that the written lease and occupancy agreement prohibited occupancy by persons who were not approved by the board and that the defendant had no legal right to occupy the premises in that he was not a party to the lease or occupancy agreement. ⁴

The defendant filed a pro se appearance on February 23, 2009. In his answer, he admitted that he had received the pretermination notice and notice to quit. On April 22, 2009, the defendant filed a motion to dismiss on the ground that the simultaneous service of the pretermination notice and notice to quit deprived him of the fifteen day cure period required by General Statutes § 47a-15 and deprived the court of subject matter jurisdiction. The court denied the motion in an oral decision on April 23, 2009. On April 28, 2009, counsel for the defendant entered an appearance and, on May 7, 2009, moved todismiss for want of subject matter jurisdiction raising the same ground, which the court again denied.

Zena Mae Johnson, the defendant's mother, had entered into an occupancy agreement with the plaintiff in 1977. On the basis of the testimony and evidence presented at trial, the court found that the defendant was not a party to that agreement. He was never approved as an occupant by the plaintiff or by HUD.⁵ He occupied the premises for an undetermined period of time and, at some point, his occupancy was interrupted by his incarceration. The court concluded that the defendant was not a lawful tenant and was not entitled to a pretermination notice. The court found in favor of the plaintiff and ordered the defendant evicted from the premises. See footnote 1 of this opinion. This appeal followed.

I

The defendant claims that the trial court improperly refused to dismiss the summary process action for lack of subject matter jurisdiction because the plaintiff, alleging a violation of § 47a-15, simultaneously served a pretermination notice and notice to quit on him,⁶ thusrenderingthe notice to quit defective. The plaintiff argues that although it served gratuitously a pretermination notice on the defendant, it was not required to do so because he was not a tenant. We agree with the plaintiff that the defendant was not entitled to a pretermination notice pursuant to § 47a-15 and accordingly affirm the judgment of the trial court.

Before addressing the specifics of the defendant's claim, it is helpful to identify the legal principles regarding summary process actions. "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.... Summary process statutes secure a prompt hearing and final determination.... Therefore, the statutes relating to summary process must be narrowly construed and strictly followed." (Citations omitted; internal quotation marks omitted.) Young v. Young, 249 Conn. 482, 487-88, 733 A.2d 835 (1999). It must be noted, however, that based on the language of General Statutes § 47a-23,⁷ "[n]o leasehold interest is required for dispossession under § 47a-23. [Otherwise] ... trespassers andsquatters would enjoy far more rights than legitimate tenants. Section 47a-23 provides for dispossession against any person who has no right or privilege to occupy such premises...." (Internal quotation marks omitted.) Urban v. Prims, 35 Conn.Supp. 233, 234, 406 A.2d 11 (1979). Our Supreme Court has stated that "[a]s a condition precedent to a summary process action, proper notice to quit [pursuant to § 47a-23] is a jurisdictional necessity." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229 (2009).

We now identify the applicable standard of review. The defendant's "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.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo." (Internal quotation marks omitted.) Waterbury Twin, LLC, v. Renal Treatment Centers-Northeast, Inc., 292 Conn. 459, 466-67, 974 A.2d 626 (2009).

Pursuant to § 47a-15, before a landlord may proceed with a summary process action, except in those situations specifically excluded, the landlord must first deliver a notice to the tenant specifying the alleged violations and offer the tenant a fifteen day period to remedy. See Housing Authority v. DeRoche, 112 Conn.App. 355, 361-62, 962 A.2d 904 (2009); Housing Authority v. Martin, 95 Conn.App. 802, 813, 898 A.2d 245, cert. denied, 280 Conn. 904, 907 A.2d 90 (2006); see also Kapa Associates v. Flores, 35 Conn.Supp. 274, 408 A.2d 22 (1979) (decided under General Statutes [Rev. to 1979] § 47a-15, requiring thirty day notice period). "The legislative purpose [of a pretermination or Kapa notice] isto discourage summary evictions against first offenders...." Marrinan v. Hamer, 5 Conn.App. 101, 104, 497 A.2d 67 (1985). The salutary purpose of this notice is to apprise the tenant of the information he needs to protect himself against premature, discriminatory or arbitrary eviction. See Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987). "This notice provision has been interpreted to be separate from and preliminary to the maintenance of a summary process action pursuant to ... § 47a-23." Housing Authority v. Harris, 225 Conn. 600, 605, 625 A.2d 816 (1993); Ossen v. Kreutzer, 19 Conn.App. 564, 569, 563 A.2d 741 (1989); see also Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 593, 548 A.2d 744 ( Borden, J., dissenting) ("a § 47a-15 notice is a necessary precondition to the landlord's right to serve a notice to quit arising out of the tenant's material non-compliance"), cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).

A pretermination notice pursuant to § 47a-15 does not have the effect of terminating a tenancy or of altering the relationship of the landlord and tenant. See Kapa Associates v. Flores, supra, 35 Conn.Supp. at 278, 408 A.2d 22. In contrast, it is well established that service of a notice to quit possession pursuant to § 47a-23 is typically an unequivocal act terminating a lease agreement with a tenant. See Thompson v. Coe, 96 Conn. 644, 651, 115 A. 219 (1921) ("[w]e think the service of the notice to quit was a definite, unequivocal act of the lessor showing the exercise of her option to terminate, and that it took effect on ... the date the notice was served"); Sproviero v. J.M. Scott Associates, Inc., 108 Conn.App. 454, 458 n. 2, 948 A.2d 379 ("[s]ervice 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] ), cert. denied, 289 Conn. 906, 957 A.2d 873 (2008). It would be inconsistentwith the salutary purpose of § 47a-15 to condone simultaneous delivery of a pretermination notice and a notice to quit on a tenant.

The issue in the present appeal is whether the defendant, an adult person whose occupancy was not approved by the plaintiff when such approval was required and who was not a party to the written lease and occupancy agreement, is entitled to a pretermination notice pursuant to § 47a-15. This issue "raises a question of statutory construction, which is a [question] of law, over which we exercise plenary review.... The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply....

"When construing a...