DocketNumber: 15009
Citation Numbers: 232 Conn. 27
Judges: Berdon, Norcott
Filed Date: 1/31/1995
Status: Precedential
Modified Date: 9/8/2022
In this action for a declaratory judgment and for other relief, the plaintiffs appeal from the judgment of the trial court rendered in favor of the defendants. The plaintiffs claim that the trial court improperly:
In 1927, the J. H. Whittemore Company (Whittemore) had recorded in the Naugatuck land records a subdivision map of a tract of land known as the Hop Brook development (Hop Brook), which consisted of six sections divided into fifty-two lots that were delineated on the subdivision map. The parties
Thereafter, the plaintiffs instituted this action seeking injunctive and declaratory relief to prevent the defendants from constructing additional dwellings on their resubdivided parcel. In commencing their action, the plaintiffs served only the defendants and sought no order of notice. The plaintiffs alleged that Whittemore had created, by restrictive covenant, a uniform plan of development, or “common scheme,” limiting any development within Hop Brook to one residential
At trial, the defendants contended that the language of the covenant relied on by the plaintiffs does not prohibit the resubdivision of their lot but, rather, expressly permits it. In support of this argument, the defendants pointed to their own deed that contains, in addition to the restrictions in footnote 2, language that evinces Whittemore’s 1937 attempt to revoke or amend Hop Brook’s restrictive covenants in a deed to Lewis A. Dibble. Dibble is the defendants’ predecessor in title.
After a trial, the court concluded that the original grantor’s intention as to the general plan or common scheme was to develop a residential area of single-family homes. The court also found, however, that the plan did not restrict the resubdivision of the defendants’ lot. Accordingly, the court rendered judgment for the defendants. The plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
The substantive issues in this appeal are whether the trial court properly: (1) concluded that, although a common scheme of development exists, the language of the restrictive covenant does not constitute an enforceable restriction on the number of dwellings that may be constructed on any one lot; (2) declined to declare that the attempted reservation of the right to revoke the restrictive covenants by the original grantor in 1937, and the subsequent revocation in 1946, without consent of all the prior grantees, was void and of no effect; and (3) concluded that the plaintiffs were not entitled to enforce the terms of the restrictive covenants. Because
The parties concede that the plaintiffs’ amended complaint sought both injunctive and declaratory relief.
“Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience.
“The purpose of a declaratory judgment action . . . is to ‘secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties’ ”; Wilson v. Kelley, 224 Conn. 110, 115, 617 A.2d 433 (1992), quoting Connecticut Assn, of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743 (1986); and to make certain that the declaration will conclusively settle the whole controversy. See National Transportation Co. v. Toquet, 123 Conn. 468, 481-84, 196 A. 344 (1937). “ ‘This rule is not merely a procedural regulation. It is in recognition and implementa
This case is analogous to Sloane-Wheeler Corp. v. Odiseos, 154 Conn. 705, 226 A.2d 508 (1967), in which this court dismissed an action for declaratory judgment for lack of jurisdiction because not all of the landowners in a forty acre tract were represented in the action to adjudicate whether building and use restrictions contained in each parcel’s deed were enforceable. The court concluded that “[t]he record fails to disclose that the plaintiffs sustained their burden of proving that all persons having any interest in the removal of the deed restrictions on the lots [in the tract] either were made parties to the action or have had reasonable notice thereof.” Id., 707.
Since, in this case, the plaintiffs, in their prayer for relief, invoked the declaratory judgment provision of General Statutes § 52-29, as implemented by Practice Book §§ 389 and 390, a proper order of notice to all parties having an interest in the subject matter of the complaint was mandatory. See Serrani v. Board of Ethics, supra, 225 Conn. 308. “Failure to comply with § 390 (d) deprives the trial court of subject matter juris
Furthermore, our concern with the provision of proper notice to all parties with an interest in property subject to the deed restrictions at issue applies with equal force to the plaintiffs’ claim for injunctive relief, at least in a case such as this where it is accompanied by a claim for a declaratory judgment. The plaintiffs’ claims for injunctive and declaratory relief both rise or fall on the interpretation of the deeds at issue in the case and are, therefore, inexorably intertwined.
The trial court’s lack of subject matter jurisdiction here, however, does not require a dismissal on remand. We have recently held that “[ujnlike other jurisdictional defects implicating the trial court’s subject matter jurisdiction . . . the bringing of a declaratory judgment action is not itself precluded by a failure to comply with the notice requirement.” Serrani v. Board of Ethics, supra, 225 Conn. 309 n.5; Connecticut Ins. Guaranty Assn. v. Raymark Corp., supra, 215 Conn. 230. On remand, the plaintiffs may pursue further procedural efforts to cure the jurisdictional defect regarding the notice requirement. Serrani v. Board of Ethics, supra, 309.
In this opinion Callahan, Borden and Palmer, Js., concurred.
The plaintiffs, Gordon B. Mannweiler, Arminda P. Murtha and William G. Boies, each own lots within Hop Brook. The defendants, Robert S. LaFlamme, Charles E. LaFlamme, Sr., David Apicella and John J. Carroll, are joint owners of a single parcel in the development.
Each deed within Hop Brook contained a similar covenant. For example, the first lot conveyed out of the Hop Brook subdivision was a warranty deed from Whittemore to Howard H. Bristol dated September 28, 1927. That deed contained the following language: “This conveyance is made subject to the following covenants and restrictions and the said Grantee, his heirs and assigns, by the acceptance of this deed, assents and agrees to take the said premises subject thereto:
“1. The aforesaid premises shall be occupied and used by the Grantee, his heirs and assigns, for private residential purposes only and not otherwise, and there shall at no time be erected or maintained thereon anything except one private residence for the use of one family only, which private residence shall cost, exclusive of the land not less than $15,000.00, together with the necessary outbuildings appurtenant thereto. . . .
“3. Each and all the foregoing covenants and restrictions are for the mutual benefit of all persons who have derived or who shall derive title, directly or indirectly from the Grantor to any lot or lots shown on the Map hereinbefore referred to, and shall run with the land in favor of all lots shown on said Map, and any breach or threatened breach of any one or more or all of the covenants and restrictions aforesaid may be enjoined upon application of the Grantor, its successors and assigns, or any person or persons who have derived or shall derive title directly or indirectly from the Grantor to any lot or lots shown on said map.”
The deed to Dibble, dated August 6,1937, contained the following language: “4. It is particularly agreed and understood that should the Grantee, his heirs or assigns, purchase further lands from the Grantor, or its successors, within Block ‘E,’ as shown on said Map, the foregoing covenants and restrictions may be revoked, in whole or in part, and others substituted therefor, by an agreement entered into by and between the Grantor, or its successors, and the Grantee, or his heirs or assigns, alone, and without the consent of any other person or persons.”
The restrictive language in the 1946 deed is as follows: “2. Said premises may be re-subdivided into building lots of dimensions other than those shown on said Map, provided, however, that no lot shall have a street frontage of less than 100 feet nor a total area of less than 15,000 square feet. On any such lot, or on the original lots if not re-subdivided, no house or outbuildings, including garage, stable, or any other structure, or any part or portion thereof, including p[or]ches, steps, porte cochere, bay windows, and any and all projections therefrom, shall be at any time erected or placed nearer to the front or sidewalk lines of any such lot than forty feet, nor nearer to the side line of any such lot than twenty feet or, where such lot sides upon a street, nearer than forty feet to such side or sidewalk line.”
The plaintiffs’ amended complaint expressly sought, in part, a declaratory judgment, requesting: “6. A declaratory judgment determining whether or not additional residency can be constructed on the subject property, which is shown as Lot 1 in Section E on the Map and Plot recorded in Map Book 3, Page 1 of the Naugatuck Land Records.”
It is unclear from the trial court’s memorandum of decision whether it ruled separately on the claims for injunctive and declaratory relief. After discussing the question of a common scheme, the court concluded by stating: “Judgment is entered for the defendants.” The judgment file also is not instructive, as it merely reads: “The court, having heard the parties, finds the issues in favor of the defendants.” Pursuant to Practice Book § 4061, “[i]t is the responsibility of the appellant to provide an adequate record for review.” Neither party sought articulation, pursuant to Practice Book § 4051, of the trial court’s memorandum of decision to clarify this issue and to preserve properly the issue for appeal.
The pertinent language of the trial court’s memorandum of decision states: “From all of the evidence regarding the conveyances at issue here, it is the conclusion of the court that the grantor’s intention as to the gen
At oral argument, the plaintiffs’ suggested that a newspaper article relating to the defendants’ proposed subdivision satisfied the notice requirement of Practice Book § 390 (d). We find no merit to this claim.
The rule requiring joinder of all necessary parties is not inflexible. As this court stated in National Transportation Co. v. Toquet, 123 Conn. 468, 484,196 A. 344 (1937): “Under our rule all such persons even though their presence is not necessary to a decision of the issues between the parties of record are required either to be made parties or to have reasonable notice of the action. Where they are reasonably within the reach of process and are not so numerous that it would impose an unreasonable burden upon the plaintiff they should be made parties; but if they or some of them are not reasonably available for service or to summon them or all of them into
In Manley v. Pfeiffer, 176 Conn. 540, 544-45, 409 A.2d 1009 (1979), this court affirmed a trial court judgment that had granted injunctive relief, even though the trial court had lacked jurisdiction to rule on the request for declaratory judgment because proper notice had not been afforded to all interested parties. Although in Manley this court did not explicitly consider whether the trial court had jurisdiction to hear the request for an injunction, our holding implied that the trial court had been competent to hear this claim. That implication is incorrect. Had we considered that issue, as we do in this case, we would have concluded that a trial court lacks jurisdiction to rule on a request for injunctive relief when that relief depends
Once the notice to the other property owners has been given pursuant to Practice Book § 390 (d), several procedural paths are possible. If any such owner joins as a party and objects to the judgment already rendered, the case must be retried ab initio, so that the new party has a full opportunity to participate therein. Of course, to the extent that the parties agree, the record of the first trial may be incorporated into and made the record of the new trial. If, however, such owner joins but does not request such a new trial or if no such owner joins as a party, the trial court, after giving the parties the opportunity to be heard, will be free either (1) to reissue the decision and rerender its original judgment, or (2) proceed to hear the case anew if it entertains doubt about the original judgment.