Opinion
FSTCV156025384S
06-15-2016
Brian J. Raabe et al. v. Shoreland Association, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE THE DEFENDANT'S MOTION TO DISMISS (No. 131)
Hon. Charles T. Lee, J.
Before the court is the defendant's motion to dismiss for lack of subject matter jurisdiction caused by a failure to name as party defendants all persons who may claim an adverse interest in the property right in controversy, i.e., ownership or the right to use a paper road crossing plaintiffs' property. On May 20, 2015, the plaintiffs, Brian Raabe and Rachel Overton, filed a complaint against the defendant Shorelands Association, Inc. (the Association). In count one, the plaintiffs request a judgment declaring their ownership of certain disputed property (the paper road) and quieting title pursuant to General Statutes § 47-31 to any claim of right or interest in and to the disputed property by the defendant Association. In counts two through five, as alternative forms of relief, the plaintiffs request a judgment determining that they have acquired rights in and to the disputed property through General Statutes § 47-37 and the common law doctrine of adverse possession (count two); by virtue of the common law doctrine of equitable estoppel (count three); because the defendant has waived any claim of right and interest in and to the disputed property (count four); or by virtue of the common law doctrines of abandonment and laches (count five).
The defendant refers to itself as Shorelands Association, Inc. The plaintiffs inconsistently refer to the defendant as Shoreland Association, Inc. and Shorelands Association, Inc.
On March 18, 2016, the defendant filed the present motion to dismiss (#131.00) and a memorandum in support thereof (#132.00), along with a copy of the Shorelands subdivision map, various conveyance documents, and portions of and exhibits to the deposition of Thomas Heagney, an attorney who previously represented the plaintiffs.
On April 15, 2016, the plaintiffs responded with a memorandum of law in opposition to the defendant's motion to dismiss (#140.00), the affidavit of plaintiff Brian Raabe, and the affidavit of counsel for the plaintiffs accompanied by maps of Shorelands, a survey of one of the plaintiffs' lots, an aerial photograph of Shorelands, email correspondence, and conveyance documents.
On April 29, 2016, the defendant submitted a reply memorandum to the plaintiffs' opposition (#147.00). The court heard oral argument on May 9, 2016. Following the court's suggestion at oral argument, the plaintiffs on May 16, 2016 submitted a surreply memorandum of law in opposition to the defendant's motion to dismiss (#149.00), as well as the affidavit of their attorney and conveyance documents in support (#150.00).
As is more fully discussed below, the defendant's motion to dismiss is denied. The interests of the allegedly absent parties are insufficient to deprive the court of jurisdiction, especially because such interests are in alignment with, and being asserted by, the defendant Association.
BACKGROUND
The following facts, as set forth in the complaint, moving papers, and exhibits, provide a necessary backdrop to this dispute. At the turn of the twentieth century, the Grimes Tract on Greenwich Cove consisted of uplands, beaches, salt meadows, sedge flats, and land under water. In 1908, the Sound Beach Summer Homes Corporation (Sound Beach) took over ownership of the Grimes Tract and divided it into approximately 108 residential lots. This community is called Shorelands.
In 1923, Sound Beach and the Shorelands Improvement Association entered into an agreement which stated, among other things, that " [Sound Beach] has heretofore granted and will hereafter grant to each and every purchaser of land in said Shorelands a right to use all lanes, drives and roads as shown on the map of said Shorelands . . ." In 1949, Sound Beach, via quitclaim deed, transferred its ownership to Laurence Simpson and Kenneth Gerrish who, in 1951, conveyed their interests to the defendant Shorelands Association, Inc. Shorelands Association, Inc. now manages the common real property affairs of the private property owners in the residential community.
The 1951 grant specifically reserved " to the Grantors, and their heirs and assigns, the full right to use said lanes, road, drives, highways and beach . . . all in common with others to whom such rights may have been or may hereafter be granted." Many of the current owners within Shorelands are assigns of the grantors of the 1951 deed and therefore arguably possess a " right to use said lanes, road, drives, highways and beach . . . all in common" with one another.
Shorelands is traversed, in part, by Greenwich Cove Drive. The majority of Greenwich Cove Drive is a paper road; that is, it is mostly unbuilt and is located below or straddles the mean high water line. The drive separates the Greenwich Cove waterfront from the lots of a number of Shorelands property owners. The plaintiffs, who own two adjacent lots in Shorelands, are among these property owners. The plaintiffs acquired title to their two lots in 2002 and 2008 by separate warranty deeds. All deeds in each title chain expressly convey the individual lots and all rights and interest down to the mean high water line of Greenwich Cove. Since obtaining ownership, the plaintiffs have treated the entirety of these properties--including the land extending over and containing the paper road to the high water line--as their private property. As such, plaintiffs claim to have invested at least $500,000 to construct and maintain fencing, landscaping, seawalls, and patios on this land. In 2014, the defendant Association asserted a claim to ownership or right of use of Greenwich Cove Drive, including those portions which the plaintiffs treated as their own. This dispute arises out of the plaintiffs' and the defendant's conflicting ownership and use claims.
CONTENTIONS OF THE PARTIES
The defendant argues that the court lacks subject matter jurisdiction over this action because the plaintiffs have failed or refused to name as party defendants all persons who may claim an adverse estate or interest in the real property that is the subject of this action as required by § 47-31. The defendant claims that, according to appellate authority, the failure to join interested parties in this context warrants dismissal. According to the defendant, each of the present owners of the lots within Shorelands possesses the right to use Greenwich Cove Drive in common with one another and is therefore an interested party. The defendant specifically points to the plaintiffs' neighbors, the Winthrops, as having a disputed ownership interest in the property. Relying on the deposition of Thomas Heagney, an attorney who represented the plaintiffs in connection with a licensing agreement with the Winthrops pertaining to an easement, and the conclusion of a 2008 title search, the defendant contends that the plaintiffs and the Winthrops have the same right to the disputed property. Therefore, the plaintiffs are required to name the Winthrops and all other property owners as defendants, or else suffer dismissal.
In response, the plaintiffs assert that their failure to join any party other than the named defendant does not implicate the court's subject matter jurisdiction. The plaintiffs concede that, where a statute mandates the naming and serving of a party, nonjoinder generally implicates the court's subject matter jurisdiction. Nonetheless, also citing appellate authority, nonjoinder of indispensable parties in statutory quiet title actions is not jurisdictional. If subject matter jurisdiction is implicated, the plaintiffs continue, they have met the statutory requirement because the named defendant is the only indispensable party. The plaintiffs contend that the other property owners' interests are not adverse to the plaintiffs' and, in any event, are unenforceable. As to the Winthrops, the plaintiffs argue that they do not possess a fee interest in the disputed property because: (1) the Winthrops have conveyed their property and only included a common right-of-way in the relevant deed, and (2) the language in the deed by which the Winthrops obtained title did not purport to grant any right to the disputed property.
DISCUSSION
A. Standard of Review
" Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." (Internal quotation marks omitted.) Mark v. Neundorf, 147 Conn.App. 485, 489, 83 A.3d 685 (2014). " [W]henever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33.
" Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). " [I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss; . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken; . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52.
B. Nonjoinder and Actions to Quiet Title
" Ordinarily, an objection predicated on a claim of nonjoinder of a necessary or indispensable party does not go to the jurisdiction of the court . . . Except as provided in [Practice Book § § ] 10-44 and 11-3 no action shall be defeated by the nonjoinder . . . of parties . . . Practice Book § 9-19. Additionally, [a]s set forth in Section 10-39, the exclusive remedy for nonjoinder of parties is by motion to strike. Practice Book § 11-3." (Citations omitted; internal quotation marks omitted.) Yellow Cab Co. v. Dep't of Transp., 127 Conn.App. 170, 176, 13 A.3d 690, cert. denied, 301 Conn. 908, 19 A.3d 178 (2011). Nevertheless, " [t]he nonjoinder of a party will generally implicate the court's subject matter jurisdiction and require dismissal . . . if a statute mandates the naming and serving of the party." D'Appollonio v. Griffo-Brandao, 138 Conn.App. 304, 314, 53 A.3d 1013 (2012).
An action to quiet title is a statutory action instituted under the provisions of General Statutes § 47-31. Section 47-31, in relevant part, states: " The complaint in . . . [an] action [arising under this section] shall describe the property in question and state the plaintiff's claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest . . ." Although, on its face, the statute mandates joinder; see D'Appollonio v. Griffo-Brandao, supra, 138 Conn.App. 312; there is an apparent split of authority regarding whether, in an action to quiet title, the failure to join all persons who may claim an adverse estate or interest implicates subject matter jurisdiction. Resolution of the issue requires consideration of seven relevant Connecticut appellate cases.
First in line is a leading Supreme Court case, Lake Garda Improvement Ass'n. v. Battistoni, 155 Conn. 287, 231 A.2d 276 (1967), which held that, in an action to quiet title, a plaintiff must join all interested persons. In that case, plaintiff brought an action to quiet title in lakefront property, known as Children's Beach, and named two defendants, both of which claimed they had conveyed ownership to the Lake Garda Water Company, which was not named as a defendant. Id., 295. Nevertheless, the trial court ruled on the property rights of the parties before it. The Supreme Court reversed, holding that " [a]n action to quiet title is one quasi in rem, and it lies against those who, at the time it is instituted, are the present claimants to the land under the instrument which creates the cloud." The court concluded that the trial court " should not have endeavored to determine and settle the disputed title to the land in the absence of the water company"; id., 294; and that the party that was not named " would not be bound by the judgment." Id., 294-95. The absentee " had no opportunity to be heard as to the issue of title or, perhaps even more important, the restriction placed upon the title . . ." Id., 296. The Lake Garda court set aside the trial court's judgment without discussing subject matter jurisdiction. Id., at 297.
Later, in Swenson v. Dittner, 183 Conn. 289, 439 A.2d 334 (1981), plaintiffs brought an action to quiet title to a " two rod right of way" running between their property and that of their neighbor defendants and connecting the Boston Post Road to a cemetery. Defendants claimed the court erred in determining the rights of the parties because of the failure to name the state of Connecticut, which allegedly held two easements near or over the right of way, and the town of East Lyme, because it maintained and used the right of way. The Supreme Court affirmed the decision below, holding, " [a]n action to quiet title is a statutory action instituted under the provisions of General Statutes § 47-31. The statute requires the plaintiffs to name the person or persons who may claim such adverse estate or interest. Lake Garda Improvement Ass'n v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967). So that the trial court can make a full determination of the rights of the parties to the land, an action to quiet title is brought against persons who claim title to or have an interest in the land . . . Only the parties to an action to quiet title are bound by the judgment. Lake Garda Improvement Ass'n v. Battistoni, supra, 294-95. The failure to include the town of East Lyme and the state of Connecticut in this case is not error because the decision to join a party in a suit to quiet title is made by the plaintiff." (Citation omitted.) Swenson v. Dittner, supra, 183 Conn. 292.
Subsequently, the Appellate Court determined that, in an action to quiet title, the failure to join an interested party may implicate subject matter jurisdiction. In Cardillo v. Cardillo, 27 Conn.App. 208, 605 A.2d 576 (1992), the named defendant executor had no arguable title in the disputed land, which it claimed had devolved on the heirs of the estate. Id., 212. Thus, the disputed property owners were the plaintiff, claiming a contract right, and the absentee heirs. Id., 212-13. Although the court agreed with the plaintiff that her action was not actually an action to quiet title; id., 211 n.3; pursuant to § 47-31, the court determined that the plaintiffs claim for relief must fail because " [i]t is axiomatic that an action to determine title to real estate must include all parties in interest." Id., 212-13. " The effect of declaring the plaintiff to be the sole owner in fee simple would be to deprive the [absentees] of their shares of title in an action in which they were not parties . . . The [absentees'] rights to the property cannot be authoritatively determined where they were not joined . . . Accordingly, we conclude that those counts of the plaintiff's complaint that sought conveyance of the real estate to her should have been dismissed by the trial court." (Citation omitted.) Id., 213.
In the next Appellate Court decision, Gemmell v. Lee, 42 Conn.App. 682, 680 A.2d 346 (1996), the absent party was the parties' grantor, who had retained rights in the land over which the parties were contesting various easement rights. As a result, the absentee was the undisputed title holder. Id., 683-84. The court held, " It is axiomatic that an action to determine title to real estate must include all parties in interest." (Internal quotation marks omitted.) Id. at 685. The court reasoned that " [t]he effect of declaring the plaintiffs to have a right-of-way over [the absentee's] real estate would be to deprive [the absentee] of her title in an action in which she was not a party"; id., 686; and refused to condone such a situation. Id. Finding that the trial court lacked subject matter jurisdiction; id., 683; the court " vacate[d] the judgment of the trial court and remand[ed] [the] case with direction to include all record owners of the subject property as parties . . ." Id., 686.
Recently, the Appellate Court has addressed this issue in three more decisions. D'Appollonio v. Griffo-Brandao, supra, 138 Conn.App. 304, involved a dispute between neighbors as to their rights to use or obstruct an easement providing access to the plaintiffs' property and to the defendants' property. The trial court held in favor of the defendants and plaintiffs claimed that the court lacked jurisdiction because of the failure to join as parties the owners of two other lots, who also claimed the right to use the driveway for access to their property. Id., 306-07, 313. The court affirmed the trial court's decision, stating " that the statutory mandate found in the quiet title statute, § 47-31, although on its face mandating joinder, is subject to an exception drawn by our Supreme Court [in Swenson ] which permits such an action to proceed in the absence of some parties." Id., 312. Accordingly, the Appellate Court held, " After careful review of the record, we conclude that the failure to join [the absent neighbors] does not implicate the court's subject matter jurisdiction." Id., 315.
Shortly after it released D'Appollonio, the Appellate Court issued its decision in 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn.App. 776, 54 A.3d 232 (2012). That case involved the claim of the plaintiff LLC to own a piece of land by quitclaim deed, a strip of land bordering that property owned by defendants, and a certain woodland lot. After considerable procedural maneuvering, the trial court found in favor of defendants-counterclaim plaintiffs. Id. at 783. Plaintiff claimed that the court lacked jurisdiction to make its finding for defendants because they had failed to name a party named Muller who apparently held a prior deed to the land claimed by plaintiffs. However, defendants had adduced evidence defeating plaintiff's title without reference to the earlier deed. In affirming jurisdiction, the Appellate Court stated: " [O]ur Supreme Court has explained that the failure to join . . . persons [who may have an adverse interest in the property] is not error. Swenson v. Dittner, 183 Conn. 289, 292, 439 A.2d 334 (1981). In Swenson, our Supreme Court stated: 'An action to quiet title is a statutory action instituted under the provisions of . . . § 47-31. The statute requires the plaintiffs to name the person or persons who may claim such adverse estate or interest . . . So that the trial court can make a full determination of the rights of the parties to the land, an action to quiet title is brought against persons who claim title to or have an interest in the land . . . Only the parties to an action to quiet title are bound by the judgment . . . The failure to include [an interested party therefore] is not error because the decision to join a party in a suit to quiet title is made by the plaintiff.' (Citations omitted.) Id.; but see Gemmell v. Lee, 42 Conn.App. 682, 685, 680 A.2d 346 (1996) (failure to join interested party in action to quiet title deprives court of subject matter jurisdiction). After careful consideration of the Swenson precedent, we conclude that the failure to join Muller did not implicate the court's subject matter jurisdiction." 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, supra, 138 Conn.App. 785.
Finally, in Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013), plaintiff LLC brought an action to, among other things, quiet title and invalidate mortgages placed by a member of the LLC on two parcels of land, one owned by the LLC and the other by the other member of the LLC. The trial court's decision in favor of the LLC was challenged on jurisdictional grounds arising out of the failure to include the other member as a party. The Appellate Court affirmed jurisdiction, finding that the absent member's interest was not adverse to the LLC's because both wanted to invalidate the mortgages. The Appellate Court stated that " the defendants' claim implicates the court's subject matter jurisdiction . . ." Id., 648. Relying in part on Swenson, D'Appollonio, and 98 Lords Highway, LLC, the court concluded that " although § 47-31(b) requires the joining of adverse parties, the failure to join such parties does not require reversal." Id., 650-51.
ANALYSIS
How to harmonize these cases? In Swenson, the court found that the absent entities did not deprive the court of the ability to adjudicate the dispute. In Lake Garda, Cardillo and Gemmell, the court found that the trial court should not have ruled in the absence of an interested entity. In D'Appollonio, Lords Highway and Fountain Pointe, the absent entity did not deprive the court of jurisdiction. Often the court simply stated that it had " conducted a careful review of the record" and found their absence unimportant.
Garda and Swenson did not explicitly discuss subject matter jurisdiction, but they are cited regularly in the later cases mentioned above, and the court includes them in the analysis for that reason.
An analysis of the facts of these cases reveals a consistent pattern, which reliably predicts their outcomes. The results are determined by the answers to two questions: 1) is the interest of the absent entity remote, academic or abstract?; and 2) is the interest of the absent entity advocated by a party in the litigation? If the answer to both questions is " no, " the appellate courts have held that the court lacks jurisdiction. If the answer to either of the questions is " yes, " the appellate courts have upheld jurisdiction, as shown below:
In Lake Garda, the absent party was said to hold fee title to the property in contention, so its interest was in no way academic, and the parties in the action declined any interest, so they were not in a position to defend the absent party's interest. Accordingly, the Supreme Court held that the trial court should not have ruled in its absence.
In Swenson, the interests of the town of East Lyme and the state of Connecticut in purported easements adjoining or near the " two rod" right of way connecting the Boston Post Road to a cemetery were remote, and the litigants expressed no interest in interfering with such interests. Hence, their absence did not deprive the court of the ability to adjudicate the dispute.
In Cardillo, the absent devisees had a claim to the fee title at issue and there was no adequate surrogate for their interests in the action as constituted. Therefore, the Appellate Court held jurisdiction was lacking.
In Gemmell, the absent party was the common grantor who had reserved rights to herself in the land over which the contested easements passed, and which the litigants sought to extinguish or confirm. Thus, the court held that jurisdiction was lacking.
In D'Appollonio, the owners of two other lots benefiting from the contested easement were not parties, but their interests were identical to those of the named parties. The court ruled that the action could proceed without the absent lot owners.
In Lords Highway, the absentee apparently held a somewhat mysterious title document, which might invalidate the plaintiff's claim to the property, but it was the objective of the defendants to defeat the plaintiff's claim, which they accomplished without reference to the absentee's title document, and the action was allowed to proceed in the absentee's absence.
In Fountain Pointe, a member of the LLC was absent, whose interest in invalidating a mortgage that had been placed on his property was identical to that of the plaintiff LLC in invalidating the mortgage placed by the defendant on its own property. The action was allowed to proceed.
The answers to the two questions, derived from the results of the above cases, dictate the result in the instant case. Here, the absentees, the other property owners in the Shorelands community, allegedly have an interest in the paper road traversing plaintiffs' property. This interest in a paper road substantially submerged under Greenwich Cove is remote at best. Furthermore, their interests, no matter how remote or abstract, are being vigorously advanced by the Association on their behalf. As a result, the consistent holdings of the appellate cases discussed above lead to the conclusion that the absence of the other Shorelands owners will not deprive the court of jurisdiction. The absent owners do not have a substantial interest in the proceedings and are not prejudiced by their absence from the proceedings because of the similarity of interests with the defendant. As a result, the answer to both dispositive questions discussed above is " yes, " and the facts of the case justify the application of the Swenson exception to the requirement that all interested entities be joined in the litigation.
Although the defendant argues that the Winthrops possess an ownership interest, the plaintiffs have presented evidence which shows that, in 2010, the Winthrops conveyed the entirety of their interest to an unrelated third party. This interest included the right to use the private roads in common with others. The defendant has not disputed this transaction. Therefore, the court finds that the Winthrops do not have an arguable ownership or usage interest in the disputed land.
Accordingly, the court finds that defendant's contention that subject matter jurisdiction is defeated by the failure to join as parties the other hundred-plus owners in Shorelands or the Winthrops is without merit because their interests are remote at best and are adequately represented by the defendant Association.
CONCLUSION
By reason of the foregoing, the defendant's motion to dismiss is denied.