Opinion
CV136016327
10-21-2016
Peter White v. Latimer Point Condominium Association, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#118 AND #126)
Timothy D. Bates, J.
FACTS
On February 4, 2013, the plaintiff, Peter White, filed a complaint against Latimer Point Condominium Association, Inc. (the LPCA), LPCA's Architectural Control Committee (the ACC), and Genarro Modugno and Elizabeth Modugno (the Modugnos), members of the LPCA, alleging violation of General Statutes § 47-278. In the prayer for relief, the plaintiff seeks, inter alia, an injunction preventing the Modugnos from construction of their unit as approved by the ACC and the LPCA and attorneys fees under General Statutes § 47-278.
General Statutes § 47-278(a) provides, in relevant part: " A . . . unit owner or any other person subject to this chapter may bring an action to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws. The court may award reasonable attorneys fees and costs."
Specifically, the complaint alleges the following relevant facts. Peter White owns unit #23 at the LPCA. The LPCA's bylaws establish a " ten percent rule" in order to protect members' water views from obstructions including construction and renovation of buildings. The Modugnos are members of the LPCA and owners of unit #7, which is within the water view of the plaintiff's unit. On August 28, 2012, over the plaintiff's objection, the ACC granted the Modugnos' application for approval of construction. The plaintiff appealed the ACC decision to the LPCA. On September 22, 2012, the LPCA denied the appeal. The Modugnos commenced construction, which town of Stonington ordered to stop on September 17, 2013 for violation of building code and FEMA regulations. On May 28, 2015, the Modugnos submitted another construction plan to the ACC, which the ACC approved on July 24, 2015 by proposing to amend its annual trim list of vegetation. On August 1, 2015, the plaintiff appealed the ACC decision to the LPCA. The LPCA denied the appeal, and the present motions to dismiss followed.
Section 14.1.1 of the bylaws mandates that " [t]he Association shall ensure that no member's view shall ever be diminished by more than 10% due to cumulative constructions of other units and/or the Association."
The LPCA filed its motion and a supporting memorandum of law on October 23, 2015. It submitted the following evidence: (1) a copy of the LPCA's bylaws, (2) a signed and sworn affidavit of Andrew Feinstein, chair of the ACC, dated October 22, 2015, (3) a copy of the ACC report to the LPCA dated July 24, 2015 (the 2015 ACC report), and (4) a copy of the LPCA's executive board decision dated August 29, 2015 (the 2015 LPCA decision). The Modugnos filed their motion and a supporting memorandum of law on March 10, 2016. They submitted the following evidence: (1) a signed and sworn affidavit of Genarro Modugno dated October 23, 2015, (2) a signed and sworn supplemental affidavit of Genarro Modugno dated March 8, 2016, (3) a signed and sworn affidavit of Andrew Feinstein dated October 22, 2015, (4) a copy of the 2015 ACC report, (5) a copy of the 2015 LPCA decision, (6) a signed and sworn affidavit of the plaintiff dated November 17, 2015, (7) a copy of FEMA's notice dated October 30, 2012 regarding hurricane Sandy, (8) a copy of town of Stonington's geographic information system (GIS) showing the map of 2011 and 2013 FEMA flood zones, and (9) a copy of an email from Susan Noyes, president of the LPCA, dated October 23, 2013 indicating re-designation of Modugno's house. The plaintiff filed a memorandum in opposition to the LPCA's motion on November 19, 2015 and a memorandum in opposition to the Modugnos' motion on April 1, 2016. He did not submit any evidence.
Both motions were argued at the short calendar on June 10, 2016. Per the court's request, all parties submitted post-hearing supplemental briefs addressing the award of attorneys fees under § 47-278 and the statute of limitations applicable to an action under § 47-278. The last brief was filed on June 30, 2016.
DISCUSSION
" Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " [T]he plaintiff bears the burden of proving subject matter jurisdiction." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
" [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 . . . [I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . [and/or] other types of undisputed evidence . . . 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 . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss." (Citations omitted; emphasis in original; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
In the memoranda of law in support of their motions, both the LPCA and the Modugnos contend that the 2015 construction plan is different from the 2012 plan in that it is an application for a new construction as opposed to a renovation, which presents a change in the circumstances. The movants argue that the 2015 plan made the subject matter of the plaintiff's claim, the approval of the 2012 plan, moot and, therefore, the claims for injunctive relief, attorneys fees and monetary damages, which are incidental to the primary claim, should be also dismissed as moot. Additionally, the Modugnos claim that under the express language of General Statutes § 47-253(b), no cause of action exists against them as individual unit owners when the allegation of wrongdoing is directed at the association and, accordingly, there is no legitimate basis to seek either an injunction or an award of the attorneys fees against them.
General Statutes § 47-253(b) provides, in pertinent part that " [a]n action alleging a wrong done by the association . . . may be maintained against the association and not against any unit owner."
In opposition, the plaintiff contends that the LPCA violated the bylaws' " ten percent rule" in approving both Modugnos' construction applications, and, therefore, there is no change in the circumstances. The plaintiff further contends that because the court has already denied the defendants' mootness claim predicated on the same argument as their present claim; see Wojeck v. Latimer Point Condominium Assn., Inc., Superior Court, judicial district of New London, Docket No. CV-11-6010879-S (June 7, 2013, Parker, J.) (56 Conn.L.Rptr. 246, ); the court should deny the present motions too.
First, this court will address the main issue in the present motions--the mootness claim. " Mootness . . . implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties." (Internal quotation marks omitted.) Batchelder v. Planning & Zoning Commission, 133 Conn.App. 173, 180, 34 A.3d 465, cert. denied, 304 Conn. 913, 40 A.3d 319 (2012). " A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief ." (Emphasis added; internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn.App. 43, 46, 800 A.2d 641 (2002).
Both movants cite Bornemann v. Connecticut Siting Council, 287 Conn. 177, 947 A.2d 302 (2008) and Gagnon v. Planning Commission, 222 Conn. 294, 608 A.2d 1181 (1992) as controlling authority for their mootness claim. In Bornemann, our Supreme Court concluded that after the defendant vacated its approval of the applicant's plan and the applicant failed to file a new plan, there was no longer any actual controversy to litigate and the matter was moot. Bornemann v. Connecticut Siting Council, supra, 287 Conn. 182. In Gagnon, a neighbor appealed the granting of a subdivision permit. While the appeal was pending, the subdivider went back to the planning commission and secured a resubdivision permit which the neighbor did not appeal. Gagnon v. Planning Commission, supra, 222 Conn. 294. After the appeals period passed, the subdivider moved to dismiss the original appeal as moot, the trial court agreed, and the Supreme Court confirmed. Id., 299. Accord Wray v. Inland Wetlands & Watercourses Commission of New Canaan, Superior Court, judicial district of Hartford, Docket No. CV-12-6041240-S (August 16, 2013, Berger, J.) (revised plan, approved and not timely objected, made plaintiffs' claim based on original plan moot).
" These cases [Bornemann and Gagnon], while good law, are not dispositive in this case." Wojeck v. Latimer Point Condominium Assn., supra, 56 Conn.L.Rptr. 247. In the present case, unlike in Bornemann, the applicants for the construction permit, the Modugnos, after their previous construction plans had failed, filed a new, 2015 plan, to which the plaintiff, unlike in Gagnon, continues to object on the same ground, i.e., the plan's violation of the bylaws' " ten percent rule." According to a land surveyor's report to the ACC dated May 29, 2015, which is included into the 2015 ACC report, the Modugnos' 2015 plan will cause a 15.4% loss in the plaintiff's water view, but if it is accompanied by trimming or removal of certain trees and vegetation on the property of different units of the LPCA, the 2015 plan will result in a 41.2% gain in the plaintiff's water view. According to the bylaws, " where water view is increased due to the tree and vegetation regulation authority of the ACC, the increase is included in the water loss view calculation." Thus, it is undisputed that the 2015 construction plan violates the bylaws' " ten percent rule." The disputed fact, however, is whether the 2015 plan with certain vegetation removal or trimming violates the by-laws' " ten percent rule."
The plaintiff attested in his affidavit: " On or about July 24, 2015, the ACC approved the Modugno amended construction application by proposing to amend its Annual Trim List of vegetation . . . Previously, on September 3, 2005, the LPCA had approved an ACC recommendation that in order to resolve a water view and shade dispute between the Plaintiff and another unit owner, " the trees would need to be more frequently trimmed. The plaintiff further attested that " [t]he LPCA has not adhered to the tree trimming resolution over the past ten (10) years."
Additionally, section 14.1.2 of the bylaws provides that " [i]n considering building applications, the ACC shall take into account, and make part of the record, the number of other units within a member's water view that may desire space for future building construction (potential space). After such determination, the ACC may allot up to 2% of a member's water view to a single construction." The plaintiff attested that the ACC " did not take into account, or make part of the record, the number of other units within the Plaintiff's primary water view that may desire space for future building construction." Furthermore, the ACC report states that, according to the calculations of their land surveyor, the 2015 plan will result in a house that will block more than 2% of the plaintiff's water view. Accordingly, it is undisputed that the 2015 plan violates this provision of the bylaws.
Thus, the submitted evidence does not conclusively establish that the court lacks subject matter jurisdiction over the plaintiff's claim. The facts pertinent to the tree trimming and to the allocation of the water view permitted to a single construction present a critical factual dispute as to whether there is a change of the circumstances in that the 2015 construction plan, subsequent to the original 2012 plan to which the plaintiff objects in the complaint, does not violate the " ten percent rule" in the bylaws and, accordingly, the court can no longer grant the plaintiff any practical relief. A factual dispute cannot be resolved on a motion to dismiss, and, therefore, the plaintiff's substantive claim is not moot, the court has subject matter jurisdiction over it, and the plaintiff has the right to maintain it. As the court has explained, " [t]his action is 'to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws.' [General Statutes § 47-278(a)] . . . The plaintiffs' claims alleging violations of the bylaws remain unresolved." Wojeck v. Latimer Point Condominium Assn., supra, 56 Conn.L.Rptr. 247-48, . Because the court will continue to adjudicate this matter, it will not address the issue of the attorneys fees at this time.
Next, this court will consider whether the Modugnos are a necessary party to this matter. " Necessary parties . . . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and to complete justice, by adjusting all the rights involved in it." (Internal quotation marks omitted.) In Re Devon B., 264 Conn. 572, 579, 825 A.2d 127 (2003). " It is well settled that those having an interest in real property who are not joined as parties in litigation affecting that property will not be bound by the court's judgment . . . [T]he well-established rule of this jurisdiction [is] that a court should not determine questions unless all persons whose interests will be affected are parties to the action." (Citation omitted; internal quotation marks omitted.) Loricco Towers Condominium Assn. v. Pantani, 90 Conn.App. 43, 49, 876 A.2d 1211, cert. denied, 276 Conn. 925, 888 A.2d 93 (2005). " This is a jurisdictional limitation which rests upon a sound constitutional basis." Gill v. Shimelman, 180 Conn. 568, 570, 430 A.2d 1292 (1980).
In the present case, the Modugnos are owners of the unit, the construction plan of which the plaintiff challenges, and therefore the outcome of this action will inevitably affect their property rights. If the Modugnos are " not joined as parties, the trial court's judgment will not be binding as to them, " which means that " failure to include them now might result in unnecessary litigation later." Gill v. Shimelman, supra, 180 Conn. 571. Having the status of a party to the action satisfies the Modugnos' due process rights to a hearing and appeal. Id., 570. Thus, this court concludes that it is necessary to keep the Modugnos as parties to this action.
With respect to the assertion that the plaintiff's claims are time-barred, this court agrees that " [t]he limitation period for violation of § 47-278 . . . is not jurisdictional. Consequently, the more appropriate course of action here would be for the defendants to plead any statute of limitations defense in the usual manner, and for the plaintiff to respond." White v. Latimer Point Condominium Assn., Superior Court, judicial district of New London, Docket No. CV-13-6016327-S, (January 7, 2014, Cole-Chu, J.).
CONCLUSION
For the foregoing reasons, the court hereby denies both motions to dismiss.