Lyons v. Citron, 191 A.3d 239, 182 Conn. App. 725 (2018)

June 19, 2018 · Connecticut Appellate Court · AC 39940
191 A.3d 239, 182 Conn. App. 725

Cyndi LYONS
v.
Robert CITRON et al.

AC 39940

Appellate Court of Connecticut.

Argued March 15, 2018
Officially released June 19, 2018

*242Abram Heisler, for the appellants (defendants).

DiPentima, C.J., and Elgo and Beach, Js.

BEACH, J.

*727This 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 history 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.

*728The 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 *243August 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, nonpayment of rent. Again, the defendants did not vacate the premises. Accordingly, on September 13, 2016, the *729plaintiff 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 complaint, 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 residential 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 serving the notice to quit in [the second action]."8 The plaintiff 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 equivocal,9 the lease was never terminated and that, therefore, *730the plaintiff did not need to wait nine days after withdrawing *244the 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 possession. The defendants moved to reargue, arguing that the court improperly rendered judgment for the plaintiff on the ground of nonpayment of rent because the plaintiff 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 possession.10

On appeal, the defendants claim that the court erroneously 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 summary 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 *731leased 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 quotation 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; internal 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 determination as to whether the notice to quit served by the plaintiff effectively conferred subject matter jurisdiction is plenary." Bayer v. Showmotion, Inc. , supra, at 388, 973 A.2d 1229.

Under the summary process statute, one of the grounds for terminating a *245lease and obtaining occupancy or possession of the premises is "nonpayment of rent within the grace period provided for residential *732property 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. at 582, 548 A.2d 744.

"A breach of a covenant to pay rent does not automatically result in the termination of a lease .... The failure 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 demonstrates his intent to terminate the lease." (Citations omitted.) Id., at 583, 548 A.2d 744 n.8. "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.) 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 omitted.) 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 commences a summary process action based on that notice *733to quit, then voluntarily withdraws the summary process action prior to "a hearing and judgment thereon," the original lease is reinstated. See id., at 156-57, 535 A.2d 377. When a landlord withdraws a summary process action that had been preceded by a valid notice to quit, "the landlord is required to serve a new notice to quit pursuant to § 47a-23 prior to commencing another summary process action against that tenant under § 47a-23a." Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc. , supra, 292 Conn. at 465, 474, 974 A.2d 626 (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 subsequent 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 ...."

*246Housing Authority v. Hird , supra, 13 Conn. App. at 158, 535 A.2d 377. 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 *734action is withdrawn and the lease is restored. See Housing Authority v. Hird , supra, at 156-57, 535 A.2d 377 (rent due for January when summary process action commenced in November and withdrawn in January); see also Tamborra 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 termination of the lease." (Internal quotation marks omitted.) See Centrix Management Co., LLC v. Valencia , supra, 132 Conn. App. at 587, 33 A.3d 802. 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 *735of 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 equivocal 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 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, 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 *247quit, 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 requirements, the court did not have jurisdiction to hear the *736second summary process action. See Bridgeport v. Barbour-Daniel Electronics, Inc. , supra, 16 Conn. App. at 582, 548 A.2d 744.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the action.

In this opinion the other judges concurred.