Wilkes v. Thomson ( 2015 )

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MARCIA L. WILKES v. KEVIN J. THOMSON ET AL.
(AC 35889)
Gruendel, Beach and Alvord, Js.
Argued November 21, 2014—officially released February 3, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Housing Session at Norwalk, Hon.
Jack L. Grogins, judge trial referee.)
David E. Dobin, with whom was Barbara M. Schel-
lenberg, for the appellants (defendants).
Jason P. Gladstone, for the appellee (plaintiff).
Opinion
PER CURIAM. The defendants, Kevin J. Thomson
and Christina C. Thomson, appeal from the judgment of
the trial court rendered in favor of the plaintiff, Marcia L.
Wilkes, denying the defendants’ motion for attorney’s
fees. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. In September, 2012, the plaintiff
brought a summary process action against the defen-
dants. She alleged that the defendants had failed to pay
rent pursuant to a lease agreement, that the defendants
had been served with a notice to quit possession, and
that the defendants had not timely vacated the prem-
ises. The plaintiff sought the remedy of immediate pos-
session of the premises.
In December, 2012, the defendants moved to dismiss
the action for lack of subject matter jurisdiction. They
argued that the notice to quit was fatally defective
because the plaintiff included in the notice to quit a
ground that was inapplicable to the case.1 The defen-
dants’ argument was premised, apparently, on the
notion that the first ground, nonpayment of rent,
depended on the existence of a valid lease, and the
second ground, no privilege to remain on the premises,
assumed the lack of a valid lease. Because the plaintiff
had admitted that there was a valid lease, the second
ground was clearly inapplicable, and the notice to quit
was, therefore, equivocal and, pursuant to law, the court
lacked subject matter jurisdiction. The court denied the
motion, stating that, although alternative grounds were
stated in the notice to quit, the notice was not thereby
ambiguous or doubtful.
In June, 2013, the defendants filed a motion to dismiss
the action as moot on the ground that they had vacated
the premises on May 29, 2013. The court granted the
motion because the only remedy sought in the com-
plaint was immediate possession of the premises and
the parties agreed that the defendants had vacated
the premises.
In July, 2013, the defendants filed a motion pursuant
to General Statutes § 42-150bb and Practice Book § 11-
21 for an award of attorney’s fees ‘‘for their successful
defense of [the] summary process action.’’ The court
denied the motion because the defendants had not suc-
cessfully defended the action, but, rather, the action
was rendered moot by the defendants’ vacating the
premises. This appeal followed.
Section 42-150bb provides in relevant part: ‘‘When-
ever any . . . lease entered into . . . provides for the
attorney’s fee of the commercial party to be paid by
the consumer, an attorney’s fee shall be awarded as a
matter of law to the consumer who successfully . . .
defends an action . . . based upon the . . . lease.
. . .’’ In Centrix Management Co., LLC v. Valencia, 145
Conn. App. 682, 692, 76 A.3d 694 (2013), this court
recognized that a prevailing defendant in a summary
process action may be entitled to attorney’s fees.
The defendants claim that they were the prevailing
parties and therefore were entitled to attorney’s fees
for two reasons: (1) the trial court should have granted
their motion to dismiss for lack of subject matter juris-
diction, and, had the court acted properly, they would
have prevailed; and (2) they ultimately successfully
moved to dismiss the case for mootness because they
had vacated the premises.
It is true that there is no subject matter jurisdiction
in a summary process action in the absence of a valid
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. . . . As a condition precedent to a sum-
mary process action, a proper notice to quit [pursuant to
General Statutes § 47a-23] is a jurisdictional necessity.’’
(Citations omitted.) Lampasona v. Jacobs, 209 Conn.
724, 728–29, 553 A.2d 175, cert. denied, 492 U.S. 919,
109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989). ‘‘A notice to
quit is a condition precedent to a summary process
action and, if defective, deprives the court of subject
matter jurisdiction. . . . [B]ecause [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary.’’ (Citation omit-
ted; internal quotation marks omitted.) Firstlight
Hydro Generating Co. v. First Black Ink, LLC, 143
Conn. App. 635, 639, 70 A.3d 174, cert. denied, 310 Conn.
913, 76 A.3d 629 (2013).
Section 47a-23 (a) provides in relevant part: ‘‘When
the owner or lessor . . . desires to obtain possession
or occupancy of any . . . dwelling unit . . . and (1)
when a rental agreement or lease of such property . . .
terminates for . . . (D) nonpayment of rent . . . 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 . . . .’’
The court did not err in denying the defendants’
motion for attorney’s fees on this basis. The notice to
quit was unambiguous and complied with § 47a-23 (a).
The notice to quit listed two clear reasons: nonpayment
of rent pursuant to § 47a-23 (a) (1) (D), and termination
of the privilege to occupy pursuant to § 47a-23 (a) (3).
Alternative pleading has long been recognized as
proper; see, e.g., Dreier v. Upjohn Co., 196 Conn. 242,
245, 492 A.2d 164 (1985); and there is no prohibition to
state alternative reasons in a notice to quit.2 See Nor-
walk Mall Venture v. Mijo, Inc., 11 Conn. App. 360, 365,
527 A.2d 1202 (1987). The court did not err in finding
that the notice to quit was not defective.
We cannot help but observe, moreover, that a party
does not ‘‘prevail’’ by filing a dispositive motion that is
denied by the trial court, even if the court errs in denying
the motion. Were the party successfully to appeal and
to have judgment rendered in its favor on remand, it
would be in a tenable position to claim attorney’s fees.
The defendants further claim that they successfully
defended the action by obtaining a dismissal of the
action as moot, and, thus, the court erred in denying
their motion for attorney’s fees pursuant to § 42-150bb.
We disagree. The court properly determined that the
defendants had not successfully defended the action.
They did not prevail on the merits of their answer or
special defenses. Rather, they vacated the premises,
voluntarily providing the only relief sought by the plain-
tiff.3 There was, then, no longer a case or controversy.
The court properly denied the defendants’ motion for
attorney’s fees.
The judgment is affirmed.
1
The defendants included a second ground, which they subsequently
withdrew.
2
If a notice to quit is otherwise ambiguous or equivocal, of course, it may
not provide a basis for subject matter jurisdiction.
3
The prospect of entitlement to attorney’s fees by virtue of agreeing
to relief the sought and then moving to dismiss on mootness grounds is
somewhat unsettling.