Opinion
Nos. CV98-0414820 S, CV99 0422100, CV99 0422102, CV01 0455411
July 13, 2006
MEMORANDUM OF DECISION MOTION TO INTERVENE BEACHCROFT, LLC
In its remand order in McBurney v. Cirillo, 276 Conn. 782, 823 (2006) the Connecticut Supreme Court instructed the trial court to give notice of the pendency of the action to all "lot" owners" in the Crescent Bluff "development" so they would have the opportunity to join as parties. Id. In its motion to intervene, Beachcroft, LLC (Beachcroft) alleges that it owns real property included in the Crescent Bluff development, and therefore, Beachcroft argues that it has a direct and immediate interest that will be affected by a judgment following the remand hearing. Beachcroft additionally argues that the defendants' objection to its motion to intervene should be denied because Beachcroft is not required to prove its good title, through an evidentiary hearing, in order to intervene in the remand hearing.
"[T]he case is remanded for further proceedings to determine the scope of the implied easement in favor of the Paquin and Verderame defendants over the second lawn parcel. Furthermore, on remand, the trial court is instructed to give notice to all the lot owners in the development of the pendency of these actions and of this opinion, and allow such persons the opportunity to join as parties to these actions." McBurney v. Cirillo, 276 Conn. 782, 823 (2006).
The defendants object to Beachcroft's motion by denying the validity of Beachcroft's title to the property. The defendants contend that they are entitled to an evidentiary hearing at which Beachcroft would "be put to its proof" to establish its good title. The defendants claim that Beachcroft is not a "lot owner" in the subdivision in question in that Beachcroft purports to have purchased a portion of the roadway and its extension. Beachcroft's motion describes the subject property it purchased as "`the extension of the avenue' between lots 3 and 4 . . ." Because it is not a "lot owner," it has no entitlement to intervene. At best, it is a permissive intervention, and the court has discretion in this circumstance.
I Intervention
"To support intervention, a prospective intervenor must show that it has some legally protected interest in the subject matter of the litigation. 59 Am.Jur.2d 594-95, Parties § 176 (2002). A proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment." (Internal quotation marks omitted.) Franco v. East Shore Development, Inc., 271 Conn. 623, 629-30, 858 A.2d 703 (2004); Washington Trust Co. v. Smith, 241 Conn. 734, 747, 699 A.2d 73 (1997).
"For purposes of judging the satisfaction of [the] conditions [for intervention] we look to the pleadings, that is, to the motion for leave to intervene and to the proposed complaint or defense in intervention, and . . . we accept the allegations in those pleadings as true. The question on a petition to intervene is whether a well-pleaded defense or claim is asserted. Its merits are not to be determined. The defense or claim is assumed to be true on motion to intervene, at least in the absence of sham, frivolity, and other similar objections." (Internal quotation marks omitted.) Washington Trust Company v. Smith, supra, 241 Conn. 746.
"The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court . . . It must be kept in mind, however, that the rules of intervention should be liberally construed, in order to avoid multiplicity of suits and settle all related controversies in one action . . . A proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment." (Internal quotation marks omitted.) Id., 631; quoting Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 838-39, 826 A.2d 1102 (2003); see also Horton v. Meskill, 187 Conn. 187, 195, 445 A.2d 579 (1982) ("[a]n applicant for intervention has a right to intervene . . . whe[n] the applicant's interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment" [internal quotation marks omitted]).
"Connecticut appellate cases often have relied on rule 24 of the Federal Rules of Civil Procedure in determining issues of intervention and, in those decisions, the courts have spoken approvingly of the rule. See, e.g., Milford v. Local 1566, 200 Conn. 91, 94, 510 A.2d 177 (1986); Horton v. Meskill, 187 Conn. 187, 192, 445 A.2d 579 (1982); State Board of Education v. Waterbury, 21 Conn.App. 67, 72, 571 A.2d 148 (1990)." Wallingford Center Assoc. v. Board of Tax Review, 68 Conn.App. 803, 811, 793 A.2d 260 (2002).
Rule 24 of the Federal Rules of Civil Procedure provides in relevant part: Intervention
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made . . . pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought . . .
"Because our rules of practice provide no specific articulation of the factors to be considered in determining whether intervention should be allowed, we have turned to rule 24 of the Federal Rules of Civil Procedure for guidance. In reliance on that rule, our cases establish that, in determining whether to grant a request for permissive intervention, a court should consider several factors: the timeliness of the intervention, the proposed intervenor's interest in the controversy, the adequacy of representation of such interests by other parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in resolving the controversy." (Internal citations omitted.) (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 225, 884 A.2d 981 (2005); In re Baby Girl B., 224 Conn. 263, 277, 618 A.2d 1 (1992); accord Horton v. Meskill, supra, 197. "With respect to the propriety of the trial court's balancing of these factors, we have stated that "[a] ruling on a motion for permissive intervention would be erroneous only in the rare case [in which] such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court's discretion." Id. "A party challenging a ruling on permissive intervention "bear[s] the heavy burden of demonstrating an abuse of . . . discretion . . ." Id.
II Discussion
The defendants in their memorandum of law concede that Washington Trust Co. v. Smith, supra, 241 Conn. 746 provides that a right to intervene is based on allegations of the would-be intervenor without regard to their actual validity. The defendants, however, question whether the would-be intervenor, Beachcroft, LLC has a colorable right to intervene. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 139 (2000) 758 A.2d 916 (2000) The defendants argue that the remand order from the Supreme Court limits intervention to "all lot owners in the development." McBurney v. Cirillo, supra, 276 Conn. 823, and, in fact, while Beachcroft may be interested in the outcome of the implied easement on the property next door to the property it owns, Beachcroft is not within the universe of the prospective intervenors contemplated by the Supreme Court in its remand. Therefore, Beachcroft has no direct and substantial interest in the existence of the implied easement over the McBurney property, and thus, is not an intervenor as of right. The defendants claim that in order to grant a permissive intervention, Beachcroft should be required to establish its interest by way of proof at an evidentiary hearing.
The plaintiff, Beachcroft, LLC argues that requiring the proposed intervenor to prove its interest "by way of testimony or other evidence" is "too high a hurdle for purposes of establishing a right to intervene." Washington Trust Co. v. Smith, supra, 241 Conn. 747.
The plaintiff points out that the Supreme Court has also stated that supporting documentation corroborating the proposed intervenor's interest is not necessary. See Webster Bank v. Zak, 259 Conn. 766, 776 (2002), citing Washington Trust Co. v. Smith, supra, 241 Conn. 748 n. 9.
A review of the map of the Crescent Bluff development indicates that there is a strong physical and geographical relationship between the extension of the "avenue" claimed to belong to Beachcroft and the lawn area of McBurney, where the implied easement is located. Lot owners in the development cannot easily, if at all, access the implied easement without crossing the property claimed to be owned by Beachcroft. The land claimed to be owned by Beachcroft has traditionally been thought to be a "common area" where all lot owners in the development can gather and, in fact, have gathered for a period in excess of 100 years. At times in the past, stairs leading to the water have been built, maintained, and seasonally installed and removed, so as to provide access to the water. Historically, the stairs and access to the water's edge have been accessed through this common area at the end of the avenue by lot owners in the development, as well as, over the implied easement.
A review of the Supreme Court's remand orders in McBurney v. Cirillo, supra, 276 Conn. 823, must be made in the context of the concerns of that decision and not simply by a literal reading of the words "all lot owners in the development." In McBurney, the Supreme Court discussed at great length the notice that was provided to all lot owners in the development, so as to provide the court with subject matter jurisdiction to adjudicate property rights that would affect and bind the lot owners. Id., 792-98.
In the present appeal, we similarly conclude that the specific facts and circumstances establish that the other lot owners in the development were not prejudiced by the failure to give notice of the pendency of these four specific actions. Verderame was consolidated for trial with these actions. Furthermore, the notice in Verderame effectively apprised the remaining lot owners of the issues litigated in the present appeal and placed them on notice that their rights to the land would be affected by any final decree issued in Verderame. Specifically, Verderame involves the very same easement and the very same property agreement as are at issue in the present appeal. The other lot owners were free, upon receiving notice in that case, which was consolidated with these cases, to join as parties in order to protect their same interests in the land that are at issue in the present appeal. Therefore, we conclude that the notice in Verderame was sufficient to confer jurisdiction on the trial court to render the declaratory judgment in these four cases. [fn 19] We therefore proceed to consider the merits of these cases.
Id. at 797-98.
This court is convinced that the Supreme Court's remand orders to provide notice of the right to intervene to all lot owners was meant to be inclusive and not exclusive. Sound jurisprudential considerations compel the conclusion that the claimed owner of the land over whose land access to the implied easement is to be gained, is an indispensable party that must be afforded an opportunity to participate in the proceedings. Id., 797; see also, Hilton v. New Haven, 233 Conn. 701, 723, 661 A.2d 973 (1995). The claims in the present matter regarding the scope of the implied easement cannot "properly be adjudicated without the presence of those indispensable persons whose substantive rights and interests will be necessarily and materially affected by its outcome." (Internal quotation marks omitted.) Id. at 796; see also Hilton v. New Haven, 233 Conn. 701, 722, 661 A.2d 973 (1995).
Accordingly, the court finds that Beachcroft, LLC has established its right to interevene both as a matter of right and by those standards governing the court's discretion in granting a permissive intervention. Beachcroft, LLC's motion to interevene, therefore, is granted.