Jepsen v. Camassar

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ANDERS B. JEPSEN ET AL. v. BETH M.
CAMASSAR ET AL.
(AC 39272)
Lavine, Sheldon and Elgo, Js.
Syllabus
The plaintiffs, A and C, who owned real property in a subdivision that also
included a deed to an undivided 1/48 interest in a beach that was subject
to certain restrictive covenants, brought this action seeking a declaration
that a 2011 modification to the beach deed was improperly enacted.
Thereafter, C withdrew from the action and B was added as a party
plaintiff. The defendants included numerous individuals and entities
that, at relevant times, owned real property in the subdivision. In 2014,
a modification to the beach deed was signed by a majority of the property
owners in the subdivision and filed on the land records, and A and B
amended their complaint to challenge the propriety of the 2014 modifica-
tion, alleging, inter alia, that it was enacted without providing proper
notice to the owners of the land lots, without conducting a properly
noticed meeting of the owners, and without conducting a written vote
of the owners, as was required by the terms of the beach deed. The
matter was tried to the court, which rendered judgment in favor of the
defendants in part and held, inter alia, that the 2014 modification was
valid and in full force and effect. On the appeal to this court by A and
B, held:
1. Although the trial court correctly determined that modification of the
restrictive covenants in the beach deed pertaining to the use of the
beach did not require the unanimous approval of owners of all forty-
eight properties, as § 4 of the beach deed contained a modification
provision pursuant to which those covenants properly could be modified
by the owners of a majority of the properties in the subdivision, that
court improperly determined that other provisions of the beach deed
could be modified through that same process, as the beach deed con-
tained no provision for the modification of anything other than the
restrictive covenants regarding the use of the beach, and, therefore, the
sections of the 2014 modification that purported to modify, inter alia,
how the beach deed itself could be modified were invalid.
2. Contrary to the trial court’s conclusion, the process by which the 2014
amendment was enacted did not comport with the plain language of
§ 4 of the beach deed, which required a ‘‘majority vote in writing,’’ and
that a majority was to be determined in accordance with the ‘‘votes so
counted’’; moreover, a proper construction of § 4 of the beach deed
required notice to all property owners of any vote thereon, and because
the record here indicated that several property owners did not receive
notice of the meeting to vote to adopt the 2014 modification and that
although A and B attended the meeting, they endeavored to preserve
their objection to the failure to give proper notice both prior to and
during the meeting, the trial court improperly concluded that A and B
waived their objection to the adequacy of the notice of the meeting.
3. Although the trial court correctly determined that the mere act of securing
signatures on a modification instrument that was recorded on the land
records did not constitute a vote in writing as contemplated by the
beach deed, the record did not contain sufficient evidence to substantiate
the trial court’s finding that owners of a majority of properties cast
votes in writing that were in favor of the 2014 modification; the notice
of the vote on the 2014 modification was sent to forty-one of the forty-
eight properties and also contained a proxy ballot on which owners
could cast their written vote, twenty-four owners submitted a written
proxy votes in favor of the 2014 modification, which was less than a
majority of the forty-eight properties, and, thus, the trial court’s conclu-
sion that the 2014 modification was valid and in full force and effect
could not stand.
4. The trial court properly rendered judgment in favor of the defendants on
the claim against them alleging slander of title, that court having properly
determined that A and B had failed to satisfy their burden of proof
concerning that claim; A and B did not demonstrate that the defendants,
in filing the modifications on the land records, published a false state-
ment because although the 2011 and 2014 modifications may have been
improper under the terms of the beach deed, the filing of those modifica-
tions on the land records did not constitute the filing of a demonstrably
false statement about the title of A and B, the court’s finding that the
defendants’ actions were taken in good faith and with the intention of
clarifying appropriate uses of the beach and not to damage A and B
was supported by the evidence and testimony, which the court was free
to credit, and the record was bereft of evidence that A and B suffered
pecuniary loss as a result of the filing of the modifications.
5. The trial court did not abuse its discretion in declining to award attorney’s
fees to A and B for their defense against certain allegedly frivolous
special defenses that were filed by certain of the defendants; although
A and B claimed that no evidence at trial was presented to substantiate
the special defenses and that they had expended attorney’s fees in
response thereto, it was within that court’s discretion to determine that
an award of attorney’s fees was not warranted.
Argued January 5—officially released May 1, 2018
Procedural History
Action seeking a judgment declaring, inter alia, that
a certain modification to a beach deed was null and
void, and for other relief, brought to the Superior Court
in the judicial district of New London, where the plain-
tiff Craig Barrila withdrew his complaint and Beth Jep-
sen was cited in as an additional plaintiff; thereafter, the
named plaintiff et al. filed a third amended complaint;
subsequently, the matter was tried to the court, Bates,
J.; judgment in part for the defendants, from which the
named plaintiff et al. appealed to this court; thereafter,
the court, Bates J., issued an articulation of its decision;
subsequently, the court, Bates J., denied the motion for
attorney’s fees filed by the named plaintiff et al., and
the named plaintiff et al. filed an amended appeal.
Reversed in part; judgment directed.
Beth A. Steele, for the appellants (named plaintiff
et al.).
Mark S. Zamarka, with whom, on the brief, was
Edward B. O’Connell, for the appellees (named defen-
dant et al.).
Christine S. Synodi, for the appellees (defendant
Savas S. Synodi et al.).
Opinion
ELGO, J. The plaintiffs Anders B. Jepsen and Beth
Jepsen appeal from the declaratory judgment rendered
by the trial court in this dispute regarding the modifica-
tion of a beach deed. In this opinion, we address the
plaintiffs’ claims that the court improperly (1) con-
cluded that the modification in question was properly
enacted, (2) concluded that they had not met their bur-
den in establishing slander of title, and (3) declined to
render an award of attorney’s fees in their favor.1 We
agree with the plaintiffs’ first claim and, accordingly,
affirm in part and reverse in part the judgment of the
trial court.
The relevant facts are gleaned from the court’s memo-
randum of decision and the undisputed evidence in the
record before us. The parties are numerous individuals
and entities that, at relevant times, owned real property
in a subdivision in New London created in 1954 by the
Quinnipeag Corporation (subdivision).2 The subdivision
plan filed on the New London land records depicts the
location of various residential parcels, as well as a 250
foot strip of beachfront property commonly known as
Billard Beach (beach). That area is designated as ‘‘beach
rights’’ on the subdivision plan.
Each owner of real property in the subdivision is the
holder of two deeds relevant to this dispute: a warranty
deed that conveyed ownership rights in fee simple to
his or her individual parcel of subdivision property
(warranty deed) and a quitclaim deed that conveyed
an ‘‘undivided one-forty-eighth (1/48th) interest’’ in the
beach (beach deed).3 This litigation concerns a pur-
ported modification of the beach deed.
Section 2 of the beach deed sets forth certain ‘‘restric-
tions on the use’’ of the beach,4 known also as restrictive
covenants. ‘‘A restrictive covenant is a servitude, com-
monly referred to as a negative easement . . . . A ser-
vitude is a legal device that creates a right or an
obligation that runs with the land or an interest in land.’’
(Citation omitted; internal quotation marks omitted.)
Grovenburg v. Rustle Meadow Associates, LLC, 174
Conn. App. 18, 25 n.7, 165 A.3d 193 (2017). As the
Restatement (Third) of Property, Servitudes notes,
‘‘[t]he distinctive character of a servitude is its binding
effect for and against successors in interest in the prop-
erty to which the servitude pertains . . . .’’ 1
Restatement (Third), Property, Servitudes c.7, introduc-
tory note, p. 334 (2000); see also Wykeham Rise, LLC
v. Federer, 305 Conn. 448, 468, 52 A.3d 702 (2012) (con-
cluding that ‘‘the burdens of the covenants at issue . . .
[could] run with the land’’ because ‘‘the covenants were
formally created as part of a transfer of land; they
explicitly provide that they are ‘binding upon the
[g]rantee, its successors and assigns, shall inure to the
benefit of the [g]rantor, its successors and assigns, and
shall run with the land’; and they appear on their face
to relate to the land and not to impose any conceivable
burden on the initial grantee independent of its owner-
ship of the land’’); Bauby v. Krasow, 107 Conn. 109,
112, 139 A. 508 (1927) (‘‘[i]f [a restrictive covenant] runs
with the land, it binds the owner’’); Olmstead v. Brush,
27 Conn. 530, 536 (1858) (‘‘if the grantee accepts the
deed he assents to the [restrictive covenant] in it’’). It
is undisputed that all owners of property in the subdivi-
sion are bound by the restrictive covenants contained
in the beach deed.5
Section 4 of the beach deed expressly provides a
mechanism for the modification of the restrictive cove-
nants contained in § 2 of the beach deed. It states: ‘‘That
the restrictions on the use of the [beach] contained in
[§] 2 hereof may be modified by a majority vote in
writing of the owners of the premises conveyed. Each
owner, (or in the case of joint ownership or ownership
in co-tenancy, such joint owners or owners in co-ten-
ancy together) shall be entitled upon any such vote to
such number of votes as the numerator of their frac-
tional interest in the premises conveyed, and upon any
such vote, the majority shall be determined according
to the sum of the votes so counted.’’
For more than one-half century, owners of property
in the subdivision enjoyed the use of the beach without
incident. That changed after Craig Barrila moved into
the subdivision in 2008. As the court found, ‘‘[i]n 2008,
[Barrila] purchased 755 Pequot Avenue, one of the forty-
eight residential lots in [the subdivision], and although,
as he testified, he did not personally use the beach, he
allowed his girlfriend and her three children to swim,
hold campfires and party at the beach. . . . Barrila
testified that initially no one objected to this conduct.
However, he stated that in July, 2011 . . . he received
a telephone call from a representative of the [Billard
Beach Association (association)]6 stating that these
individuals could not use the beach without his being
present. . . . Prior to the telephone call to Barrila, tes-
timony and evidence received at trial does not indicate
any significant concern being expressed about the use
of or conduct on the beach by members of the [subdi-
vision].
‘‘In reaction to the use of the beach allowed by Barrila
and what was perceived to be a lack of clarity in the
deeds and [the association’s] bylaws regarding allow-
able use of the beach, a group of residents including
Garon Camassar,7 an attorney and husband of defen-
dant Beth M. Camassar, in the summer of 2011, began
to circulate a petition for a ‘Modification of Covenants
and Restrictions re Billard Beach, New London, Con-
necticut.’ This modification (2011 modification)—
which all parties now agree is of no force or effect—
purported to supersede all covenants and restrictions
contained in the [beach deed].’’ (Footnotes added.)
The 2011 modification purported to revise the beach
deed in three significant respects. First, it sought to
modify the restrictive covenants governing the use of
the beach contained in § 2 of the beach deed. Second,
it revised the modification provision contained in § 4
of the beach deed to require the approval of 75 percent
of owners instead of a simple majority. Third, the 2011
modification added a new section regarding the
enforcement of the beach deed, which provided for an
award of compensatory damages, punitive damages,
costs and attorney’s fees.8
After learning of the 2011 modification proposal, Bar-
rila sent an e-mail to approximately fifty e-mail
addresses, the subject of which was ‘‘Proposed Changes
to Billard Beach Land Deed.’’ In that September 24,
2011 e-mail, Barrila indicated that he had been provided
a copy of the 2011 modification earlier that day. He
then stated that ‘‘there is an effort underway to collect
a majority of signatures to support a modification to
our current [beach] deed. . . . I have reviewed the pro-
posed document today and have some substantial con-
cerns. . . . I want to reiterate that these are not the
beach rules (which are guidelines). These are legally
binding and enforceable changes to our current [beach]
deed which will impact your future ability to convey
your asset. . . . I’m willing to support whatever the
majority of my neighbors believe to be fair regarding
the rules. However, I want to ensure that appropriate
process is followed to effect any proposed changes.
. . .’’
The very next day, Ronald E. Beausoleil replied to
Barrila by e-mail and offered to meet privately with him
and Garon Camassar. Beausoleil at that time was a
member of the executive committee of the association9
and had collected signatures on the 2011 modification
with Garon Camassar. Barrila responded to that e-mail
hours later, stating that ‘‘[w]ith all due respect the time
for private meetings has passed. I’m advocating [for]
a public meeting with all interested/impacted parties
involved.’’ Later that night, Barrila’s attorney contacted
Garon Camassar, who had drafted the 2011 modifica-
tion and had solicited signatures thereon. In an e-mail
sent on the evening of September 25, 2011, Attorney
Michael W. Sheehan reiterated Barrilla’s concerns and
asked ‘‘that nothing be implemented or recorded on the
land records until all owners have been notified and
been given the opportunity to meet and be heard.’’
Despite that request, no meeting or vote of the owners
transpired. Instead, the 2011 modification was filed on
the New London land records the next morning.
On September 27, 2011, defendant Hope H. Firestone,
a signatory to the 2011 modification acting in her capac-
ity as president of the association, sent a letter to own-
ers of property within the subdivision on association
letterhead. That letter began by stating, ‘‘Good News!!
As of Monday morning September 26, 2011, the restric-
tive provisions of the original beach deed have been
modified.’’ Firestone then provided an overview of the
principal changes contained in the 2011 modification.
In its memorandum of decision, the court found that
‘‘contrary to the requirements of the beach deed, no
formal ‘vote’ was ever noticed or taken on the [2011]
modification; rather, the circulators assumed that once
they had obtained the signatures of a majority of lot
owners, the deed was recordable. . . . [A] ‘vote’
requires more formality than just obtaining signatures.
Black’s Law Dictionary 10th Ed. (2009), defines a vote
as ‘[t]he expression of one’s preferences or opinion in
a meeting or election by ballot, show of hands, or other
type of communication.’ Accordingly, the [2011] modifi-
cation appears to have been a legal nullity.’’10 No party
has challenged the propriety of that determination in
this appeal.
After the 2011 modification was filed on the New
London land records, Anders B. Jepsen and Barrila com-
menced this declaratory action.11 Their original com-
plaint sought to have the 2011 modification declared
null and void. They alleged, inter alia, that the 2011
modification ‘‘was enacted without the knowledge or
consent of the plaintiffs’’; that it ‘‘was enacted without a
full and fair opportunity to have a meaningful discussion
between the owners [in the subdivision] and to voice
opinion as to the merits of the [m]odification’’; and that
‘‘the contents and meaning of the [m]odification was
misrepresented to one or more of the signers . . . and
to others who were not given an opportunity to review
the [m]odification prior to its enactment.’’
As the court found in its memorandum of decision,
‘‘[i]n response to the suit, the parties engaged in pro-
longed discussions, including mediation, seeking to
resolve the issues raised in the legal action, while still
trying to respond to the concerns of the [a]ssociation
members regarding uncontrolled use of the beach. . . .
In the course of these negotiations, the proponents of
the modification, working with the Executive Commit-
tee of the Association, developed and proposed the
‘Amended and Restated Covenants and Restrictions
Regarding Billard Beach, New London, Connecticut’ ’’
(2014 modification).12 The 2014 modification contained
an extensive revision of the restrictive covenants gov-
erning the use of the beach.13 It removed the 75 percent
super majority requirement imposed in the 2011 modifi-
cation proposal, stating in relevant part that the restric-
tive covenants in the beach deed ‘‘may be modified by
a written vote of a majority of the [r]esidential [l]ot
[o]wners . . . .’’14 The 2014 modification also elimi-
nated the enforcement provisions set forth in § 7 of the
2011 modification. See footnote 8 of this opinion.
On October 3, 2014, defendant Anne Marie Lizarralde,
who at that time served as the secretary of the associa-
tion, sent an e-mail to forty-one of the forty-eight owners
within the subdivision notifying them that the associa-
tion’s annual meeting would be held on October 10,
2014.15 In that correspondence, Lizarralde stated: ‘‘Bil-
lard Beach Members—The annual [association] meet-
ing has been scheduled for Friday, October 10th at 7
p.m. in the New London Senior Center (120 Broad
Street). Please find attached four documents to read
carefully. If you are unable to open any of them, please
let us know and we’d be happy to put a hard copy in
the mail to you. If you are unable to attend, please fill
out the proxy and get it back to us as soon as possible
so that you are represented. You can either e-mail back
the proxy to [Lizarralde] or drop it off at any of the
board members’ homes. . . .’’ (Emphasis in original.)
Appended to that e-mail were four documents. The
first was a copy of the 2014 modification. The second
document was titled ‘‘BILLARD BEACH ASSOCIATION
BALLOT OR PROXY’’ and purportedly permitted own-
ers within the subdivision to vote by proxy on the 2014
modification.16 The third document, titled ‘‘BILLARD
BEACH ASSOCIATION NOTICE OF ANNUAL MEET-
ING,’’ was an agenda that set forth five items for busi-
ness, including the ‘‘vote upon’’ the 2014 modification.17
The fourth and final document was a letter addressed
to ‘‘Billard Beach property owner’’ from the ‘‘Billard
Beach Association Board,’’ which provided an overview
of the revisions contained in the 2014 modification.
That letter indicated that ‘‘[t]his version of the [c]ove-
nants was conceived and drawn as a final document,
not subject to revision . . . .’’
Two days later, on October 5, 2014, Beth Jepsen
replied to Lizarralde and all parties copied on Lizar-
ralde’s October 3, 2014 e-mail. In that communication,
Jepsen stated in relevant part that the plaintiffs ‘‘object
to both your improper Annual Meeting notice and to
the [2014 modification] contained within it.’’ After not-
ing that ‘‘[i]t would take far too long to cover each issue
with [respect to] both the ‘notice’ provided or the new
[2014 modification] in a single e-mail,’’ Jepsen stated
that ‘‘there are too many issues and much of the legal
language may be overly complicated for a . . . late
night association meeting with other topics on the
agenda.’’ She thus requested ‘‘open discussion with the
owners . . . over a reasonable amount of time with
proper notice . . . in a much more respectful manner
going forward.’’
The executive committee of the association held a
meeting on the eve of the annual meeting on October 9,
2014. The minutes of that meeting, which were admitted
into evidence, indicate that the committee had a ‘‘dis-
cussion about the annual meeting that will take place
tomorrow,’’ at which a vote would be held on the 2014
modification. With respect to that vote, the minutes
state that ‘‘[o]nly property owners should be allowed
to speak’’ and ‘‘[t]he plan will be to leave the vote open
after the meeting for several weeks so that it will give
those who are unable to attend the time to vote.’’
The association’s annual meeting was called to order
at 7:04 p.m. on October 10, 2014. The record indicates
that the owners of fewer than half of the forty-eight
properties in the subdivision attended that meeting.18
It is undisputed that, prior to the commencement of
that meeting, several of the ‘‘ballot or proxy’’ forms
contained in Lizarralde’s October 3, 2014 notice were
submitted to the association either electronically or in
person that night. The first item of association business
discussed during the meeting, which had been desig-
nated as item ‘‘b’’ on the association’s agenda; see foot-
note 17 of this opinion; was the 2014 modification. As
the court noted in its decision, defendant Robert
McLaughlin, Jr., who was the president of the associa-
tion at that time, began the discussion by stating that
the executive committee had agreed to hold open the
time for collection of the proxy votes until November
1, 2014.
The court found, and the testimony at trial reflects,
that ‘‘[t]he meeting became quite contentious.’’ In par-
ticular, the court found that, when Beth Jepsen was
speaking, some attendees interrupted her and
attempted to cut her off. The official minutes of the
association meeting, which were admitted into evi-
dence at trial, likewise state that ‘‘[s]everal people made
rude comments that, in part, caused [the plaintiffs] to
leave.’’ Those minutes state that McLaughlin then
‘‘attempted to regroup’’ and ‘‘again mentioned that the
vote [on the 2014 modification] would remain open until
November 1st.’’ At that time, defendant Eric Parnes
made a motion ‘‘to move on with the rest of the annual
meeting agenda,’’ which was approved. Other associa-
tion business then was conducted. Lizarralde and
McLaughlin both testified at trial that, at the conclusion
of the October 10, 2014 meeting, a majority of owners
of the forty-eight properties in the subdivision had not
cast votes in favor of the 2014 modification, as required
by § 4 of the beach deed.
The record likewise indicates, and the parties do not
dispute, that owners of a majority of the forty-eight
properties had not voted in favor of the 2014 modifica-
tion by the November 1, 2014 deadline announced at
the association’s October 10, 2014 annual meeting. As
the court found, ‘‘[t]wenty-two votes in favor of the
[2014] modification—not a majority of all lot owners—
were officially received by November 1 . . . .’’ The
record nonetheless indicates that Lizarralde, on Novem-
ber 6, 2014, sent an e-mail to owners of fewer than thirty
properties in the subdivision that stated in relevant part:
‘‘Many thanks to everyone who voted yes to amend the
[beach deed]. We received a majority of yes votes and
so . . . we now need to have each of you sign the
official document that will be notarized. . . .’’19 In her
testimony at trial, Lizarralde admitted that, at the time
that she sent that e-mail, owners of a majority of the
forty-eight properties had not submitted written votes
in favor of the 2014 modification.
Prior to trial, the plaintiffs served a request for pro-
duction on the defendants, in which they sought, inter
alia, ‘‘[c]opies of all proxies submitted in conjunction
with the 2014 Deed Modification.’’ The defendants com-
plied with that request, and produced copies of twenty-
six proxy votes, which were admitted into evidence at
trial. A total of twenty-four proxies contain votes in
favor of the 2014 modification, less than a majority of
the forty-eight properties in the subdivision.20
On December 23, 2014, the 2014 modification was
filed on the New London land records. That instrument
contained the signatures of owners of twenty-nine prop-
erties within the subdivision,21 including several who
did not attend the October 10, 2014 annual meeting and
did not at any time submit a proxy vote.22 The plaintiffs
thereafter amended their complaint to challenge the
validity of that enactment. Specifically, they sought a
declaratory judgment that the 2014 modification ‘‘be
declared null and void’’ for multiple reasons, including
that it ‘‘was enacted without providing proper notice
to the owners of the land lots . . . without conducting
a properly noticed meeting of the owners, without
allowing for ample prior discussion or comment by the
owners . . . and without conducting a written vote of
the owners. . . .’’
A trial was held over the course of four days in
December, 2015. The plaintiffs called nineteen wit-
nesses and submitted sixty documents that were admit-
ted into evidence. The defendants submitted three
exhibits, which were duplicative of documents already
in evidence, but otherwise presented no documentary
or testimonial evidence.23 At the conclusion of trial, the
parties, at the behest of the court, submitted posttrial
briefs that outlined their respective positions on the
issues presented at trial. In their brief, the plaintiffs
argued, among other things, that ‘‘the 2014 modification
[is] invalid because it was not properly noticed,24 did
not receive the requisite number of votes and was not
executed pursuant to proper procedure.’’25 (Footnote
added.) In response, the defendants argued in their
posttrial brief that ‘‘[t]he Beach Deed does not require
notice, a meeting, or discussion or comment of any kind
in order to modify its terms.’’ The defendants further
claimed that the act of signing the 2014 modification
qualified as the written vote of the owners.
In its memorandum of decision, the court ruled in
favor of the defendants on the slander of title counts
of the operative complaint, finding that the plaintiffs
had not demonstrated the existence of either a false
statement, malice on the part of the defendants, or
pecuniary loss to the plaintiffs. With respect to the
plaintiffs’ challenge to the 2011 modification, the court
noted that the defendants at trial had conceded that it
was ‘‘of no force or effect . . . .’’ The court then
explained that ‘‘contrary to the requirements of the
beach deed, no formal ‘vote’ was ever noticed or taken
on the [2011] modification; rather, the circulators
assumed that once they had obtained the signatures of
a majority of lot owners, the deed was recordable.’’ The
court flatly rejected that proposition, stating that ‘‘a
‘vote’ requires more formality than just obtaining signa-
tures.’’ The court thus rendered judgment in favor of the
plaintiffs on the first count of their complaint, declaring
that ‘‘[t]he 2011 modification by agreement of the par-
ties is deemed null and void.’’
With respect to the 2014 modification, the court dis-
agreed with the plaintiffs’ claim that the beach deed
could not be ‘‘altered without unanimous approval of
all owners of the subdivided lots.’’ The court also
rejected the plaintiffs’ claims that both the notice of
the vote on the 2014 modification and the vote itself
were improper. The court noted that, unlike the enact-
ment of the 2011 modification, ‘‘a formal ‘vote’ was
noticed and conducted prior to recording’’ the 2014
modification. The court emphasized, consistent with
the stipulation of the parties; see footnote 3 of this
opinion; that the association was a voluntary associa-
tion that had no authority over owners within the subdi-
vision, and further found that ‘‘the portion of the
[October 10, 2014 association] meeting dedicated to the
beach use was not considered by any party to be an
official meeting of the association.’’ Nevertheless, with
respect to the ‘‘general standards of due process’’ that
it deemed applicable to the modification process, the
court stated that the association was ‘‘not held to the
same ‘due process’ standards as a governmental author-
ity’’ and concluded that no impropriety transpired with
respect thereto.
Although a majority of owners had not voted in favor
of the 2014 modification by the November 1, 2014 dead-
line, the court found that ‘‘seven more votes in favor,
either in the form of proxies or signed documents, were
received and accepted in the weeks thereafter, repre-
senting twenty-nine of the forty-eight properties—a
majority.’’26 The court also found that the plaintiffs
waived their right to object to any deficiency in the
notice provided by Lizarralde’s October 3, 2014 e-mail
notice ‘‘as a result of their awareness [of] and participa-
tion’’ in the meeting. Accordingly, the court rendered
judgment in favor of the defendants on the fourth count
of the operative complaint, stating that ‘‘[t]he 2014 mod-
ification is declared valid and in full force and effect.’’27
I
The principal contention advanced by the plaintiffs
is that the 2014 modification was improperly enacted.
Specifically, they claim that the court improperly deter-
mined that (A) modification of the beach deed did not
require the unanimous approval of all owners within
the subdivision and (B) the 2014 modification was
enacted in accordance with the strictures set forth in
the beach deed. We address each claim in turn.
A
We first consider the claim that modification of the
beach deed requires the unanimous approval of all lot
owners within the subdivision. In support of that propo-
sition, the plaintiffs rely on this court’s decision in Mann-
weiler v. LaFlamme, 46 Conn. App. 525, 700 A.2d 57,
cert. denied, 243 Conn. 934, 702 A.2d 641 (1997). In
Mannweiler, this court held that ‘‘when, as here, the
owner of a tract of land sells lots with restrictive cove-
nants . . . and does not retain the right to rescind or
amend them and does not provide a method for termi-
nating or amending them, [the owner] has no right to
do so without the consent of all the then property (lot)
owners.’’ (Emphasis added.) Id., 542. Accordingly, when
no provision for the modification of a restrictive cove-
nant is contained in the operative instrument filed on
the land records, Mannweiler instructs that such modi-
fication may only be accomplished through the unani-
mous approval of all property owners. That precept
comports with the position adopted by the Restatement
(Third) of Property, Servitudes, which recognizes that
‘‘[a] servitude may be modified . . . by agreement of
the parties [or] pursuant to its terms . . . .’’ 2
Restatement (Third), supra, § 7.1, p. 337. As a general
matter, the Restatement notes that ‘‘[w]here all of the
parties interested in a servitude agree, they are free to
modify’’ the servitude. (Emphasis added.) Id., comment
(b), p. 339. The Restatement further indicates that ‘‘[t]he
terms of a servitude may include a provision that per-
mits modification . . . without the consent of all the
parties. . . . [A] modification . . . pursuant to such a
provision is generally effective.’’ Id., comment (c), p.
340. Absent such an express provision, ‘‘[a] modification
agreed to by some but not all of the parties is not
effective . . . .’’ Id.; accord 9 Powell on Real Property
(M. Wolf ed., 2000) § 60.08, pp. 112–13 (noting that
‘‘absent express provisions to the contrary, amend-
ments may only be effected by all of the owners of
property burdened by the covenants’’ and observing
that ‘‘[c]ovenants can also be modified . . . where the
covenants permit modification . . . by a specified per-
centage of lot owners’’).
It is undisputed that the beach deed in the present
case contains a modification provision, which requires
the written approval of the owners of a majority of the
forty-eight properties in the subdivision to modify ‘‘the
restrictions on the use of the [beach]’’ set forth in § 2.28
Because a method for amending the restrictive cove-
nants contained in § 2 is expressly provided for in the
beach deed, those covenants properly could be modi-
fied by the owners of a majority of the properties in
the subdivision. For that reason, the trial court correctly
concluded that modification of those restrictive cove-
nants does not require the unanimous approval of own-
ers of all forty-eight properties.29
At the same time, it is undisputed that §§ 7 through
12 of the 2014 modification amended various provisions
of the beach deed other than the ‘‘restrictions on use
of’’ the beach contained in § 2 thereof, including the
manner by which the beach deed itself may be modi-
fied.30 Yet the beach deed contains no provision for
the modification of anything other than the restrictive
covenants regarding ‘‘the use of’’ the beach. Because
no such provision exists in the beach deed, the modifi-
cation of anything other than the restrictive covenants
contained in § 2 of the beach deed required the unani-
mous approval of all property owners in the subdivision.
Mannweiler v. LaFlamme, supra, 46 Conn. App. 542.
The modifications contained in §§ 7 through 12 of the
2014 modification, therefore, are invalid. The court
improperly concluded otherwise in its memorandum
of decision.
B
The plaintiffs also challenge the process by which
the 2014 modification was enacted. More specifically,
they maintain that the court improperly concluded that
adequate notice was provided to the owners of subdivi-
sion properties, that a formal vote was properly con-
ducted in accordance with § 4 of the beach deed, and
that signatures on the 2014 modification by owners that
otherwise did not attend the October 10, 2014 meeting
or submit a written vote or proxy nevertheless consti-
tuted proper votes, as required by the beach deed.31
Those claims require us to construe § 4 of the beach
deed, which governs the modification of the restrictive
covenants at issue.
‘‘The principles governing our construction of con-
veyance instruments are well established. In construing
a deed, a court must consider the language and terms
of the instrument as a whole. . . . Our basic rule of
construction is that recognition will be given to the
expressed intention of the parties to a deed or other
conveyance, and that it shall, if possible, be so con-
strued as to effectuate the intent of the parties. . . .
In arriving at the intent expressed . . . in the language
used, however, it is always admissible to consider the
situation of the parties and the circumstances con-
nected with the transaction, and every part of the writ-
ing should be considered with the help of that evidence.
. . . The construction of a deed in order to ascertain
the intent expressed in the deed presents a question
of law and requires consideration of all its relevant
provisions in the light of the surrounding circum-
stances.’’32 (Internal quotation marks omitted.) Il Giar-
dino, LLC v. Belle Haven Land Co., 254 Conn. 502,
510–11, 757 A.2d 1103 (2000).
In articulating those principles of construction, our
Supreme Court has expressly ‘‘adopted the position’’ set
forth in the Restatement (Third), Property, Servitudes
§ 4.1.33 Zhang v. Omnipoint Communications Enter-
prises, Inc., 272 Conn. 627, 636, 866 A.2d 588 (2005).
The commentary to § 4.1 specifically addresses the
interpretation of expressly created servitudes, such as
those contained in the beach deed. With respect to such
expressly created servitudes, the Restatement notes
that ‘‘[t]he fact that servitudes are intended to bind
successors to interests in the land, as well as the con-
tracting parties, and are generally intended to last for
an indefinite period of time, lends increased importance
to the writing because it is often the primary source of
information available to a prospective purchaser of the
land. The language [in a deed] should be interpreted to
accord with the meaning an ordinary purchaser would
ascribe to it in the context of the parcels of land
involved. Searching for a particular meaning adopted
by the creating parties is generally inappropriate
because the creating parties intended to bind and bene-
fit successors for whom the written record will provide
the primary evidence of the servitude’s meaning.’’ 1
Restatement (Third), supra, § 4.1, comment (d), pp.
499–500; accord Dent v. Lovejoy, 85 Conn. App. 455,
463–64, 857 A.2d 952 (2004) (adhering to that standard
of construction), cert. denied, 272 Conn. 912, 866 A.2d
1283 (2005).
We begin, therefore, with the language of the deed.
Section 4 of the beach deed provides: ‘‘That the restric-
tions on the use of the [beach] contained in [§] 2 hereof
may be modified by a majority vote in writing of the
owners of the premises conveyed. Each owner, (or in
the case of joint ownership or ownership in co-tenancy,
such joint owners or owners in co-tenancy together)
shall be entitled upon any such vote to such number
of votes as the numerator of their fractional interest in
the premises conveyed, and upon any such vote, the
majority shall be determined according to the sum of
the votes so counted.’’34 The first sentence of that sec-
tion sets forth three requirements for the modification
of the restrictions on the use of the beach: (1) there must
be ‘‘a majority vote’’; (2) that vote must be expressed
‘‘in writing’’; and (3) that vote must be among ‘‘the
owners’’ of the properties in the subdivision.
The second sentence in § 4 of the beach deed clarifies
the nature of ‘‘any such vote’’ conducted pursuant
thereto. That sentence memorializes the fact that, when
a vote on a proposed modification transpires, the prop-
erty owners in the subdivision are ‘‘entitled upon any
such vote’’ to cast votes in proportion to their fractional
interest in the beach. That sentence then concludes by
instructing that ‘‘upon any such vote, the majority shall
be determined according to the sum of the votes so
counted.’’
In its memorandum of decision, the trial court con-
cluded that the vote contemplated by § 4 of the beach
deed ‘‘requires more formality than just obtaining signa-
tures.’’ We agree. The plain language of § 4 not only
requires a ‘‘majority vote in writing,’’ but twice qualifies
that imperative with modifiers that are implicated
‘‘upon any such vote.’’35 The plain language of § 4 also
mandates that the issue of whether a ‘‘majority’’ has
been secured in favor of any proposed modification
is to be determined in accordance with ‘‘the votes so
counted.’’ (Emphasis added.) In this regard, we are
mindful that every word and phrase of a deed is pre-
sumed to have meaning, and must be construed in a
manner that does not render it superfluous. Bird Peak
Road Assn., Inc. v. Bird Peak Corp., 62 Conn. App. 551,
557, 771 A.2d 260, cert. denied, 256 Conn. 917, 773 A.2d
943 (2001). The use of the plural ‘‘votes’’ in the conclud-
ing sentence of § 4 to determine whether a ‘‘majority’’
has been secured is strong evidence of an intent to
establish a two-step modification process. Under the
first step of that modification process, which involves
a vote ‘‘in writing of the owners of the premises con-
veyed,’’ all owners of a fractional interest in the beach
possess the right to participate in any such vote. Pursu-
ant to the plain language of the concluding sentence
clause of § 4, ‘‘upon any such vote,’’ the ‘‘votes’’ of those
owners then are ‘‘counted,’’ from which it ‘‘shall be
determined’’ whether owners of a ‘‘majority’’ of the
properties in the subdivision favor the proposed modifi-
cation.
That construction is one which we believe an ordi-
nary purchaser of property in the subdivision would
ascribe to it in the context of the parcels of land
involved. See Dent v. Lovejoy, supra, 85 Conn. App.
463. In this respect, we note the particular situation
of the parties and the circumstances surrounding the
enactment of the beach deed. The record reflects that
the beach was an integral part of the subdivision when
it was created in 1954. Each property is allocated an
‘‘undivided one-forty-eighth (1/48th) interest’’ in the
beach, as memorialized in the beach deed. The subdivi-
sion plan filed on the New London land records
describes the beach area as one subject to ‘‘beach
rights.’’ Moreover, the restrictive covenants contained
in the beach deed are uniform covenants enacted by a
grantor that divided its property into building lots under
a general development scheme. Under Connecticut law,
purchasers of those lots are presumed to have ‘‘paid a
premium for the property in reliance upon the uniform
development plan being carried out.’’ Mannweiler v.
LaFlamme, supra, 46 Conn. App. 536; see also Leabo
v. Leninski, 182 Conn. 611, 615, 438 A.2d 1153 (1981)
(noting that beach easements ‘‘enhance the value of the
property and that such enhancement was implied by
the subdivision’s character as a waterfront develop-
ment’’). As the Restatement recognizes, ‘‘the consider-
ation paid for the servitude’’ is a proper consideration
in the construction of expressly created servitudes. 1
Restatement (Third), supra, § 4.1, comment (d), p. 499.
The servitudes at issue in this case secured the right
of property owners to ‘‘use and have access to’’ the
beach. To paraphrase our Supreme Court, those servi-
tudes constitute a ‘‘property right which the parties to
the original conveyance voluntarily created, which was
and is of substantial benefit to the [property owners],
and for which [they] paid.’’36 Harris v. Pease, 135 Conn.
535, 541, 66 A.2d 590 (1949).37 Both the magnitude of
that right and the context in which it arose inform
our construction of § 4 of the beach deed, and further
explain why that modification provision memorializes
the right of all owners of a fractional interest in the
beach to cast a vote on any proposed modification.
In that vein, we emphasize that the present dispute
does not involve a trivial dispute between neighbors.
This case concerns the modification, and possible
restriction, of an owner’s right to use the beach. The
law presumes that owners purchased their properties
in this beachfront subdivision in reliance on the use
rights memorialized in § 2 of the beach deed. Mann-
weiler v. LaFlamme, supra, 46 Conn. App. 536. Although
that deed includes a mechanism for the modification
of those use rights, we are convinced that purchasers
in the subdivision would read those provisions, which
mandate both a ‘‘vote in writing of the owners of the
premises conveyed’’ and a determination of ‘‘the major-
ity’’ view on any proposed modification based on ‘‘the
sum of the votes so counted,’’ as requiring a formal
vote, at which each owner of a fractional interest in
the beach has the opportunity to cast a vote.38 As the
trial court rightly concluded in its construction of the
beach deed, the mere act of collecting signatures on a
written document does not suffice.
The particular language employed in § 4 of the beach
deed distinguishes this case from others in which the
deed specifically provided that modification may be
accomplished by the mere filing of a written instrument
on the land records. See, e.g., Cappello v. Ciresi, 44
Conn. Supp. 451, 455, 691 A.2d 42 (1996) (‘‘[p]aragraph
eleven of the [deed] provides that the restrictive cove-
nants may be terminated . . . at the end of certain
periods by an agreement executed by at least 51 percent
of the then owners of the parcels of land, provided the
agreement is recorded in the land records’’), aff’d, 44
Conn. App. 587, 689 A.2d 1169 (1997); Armbrust v.
Golden, 594 So. 2d 64, 65 (Ala. 1992) (modification provi-
sion stated in relevant part that ‘‘[t]hese restrictions
shall continue in full force . . . unless the then owners
of a majority of the lots affected hereby sign a written
agreement terminating these restrictions, and put such
written termination on record in the Office of the Judge
of Probate of the County where the property is situ-
ated’’); Miller v. Sandvick, 921 S.W.2d 517, 519–20 (Tex.
App. 1996, writ. denied) (modification provision stated
in relevant part that restrictive covenants ‘‘may be
amended at any time by an instrument signed by two-
thirds . . . of the then owners . . . and such instru-
ment is recorded in the office of the County Clerk’’).
Unlike those cases, the deed here contains no provision
for modification by the filing of a written instrument
on the land records. Rather, § 4 plainly contemplates a
vote of subdivision property owners, with the ‘‘votes
so counted’’ determinative of whether a majority has
been obtained.
Although the proponents of the 2014 modification,
now defendants in this action, maintain that the simple
act of signing the 2014 modification qualifies as ‘‘the
written vote’’ of the owners, the trial court rejected
that claim, as do we. As the court aptly noted, the
modification procedure outlined in § 4 of the beach
deed ‘‘requires more formality than just obtaining signa-
tures.’’ The defendants’ construction is contrary to both
the plain language of § 4 of the beach deed and the
meaning that an ordinary purchaser would ascribe to
it, given the purchaser’s significant property interest in
the use of the beach.39 See Harris v. Pease, supra, 135
Conn. 541.
In its memorandum of decision, the court found that
the 2011 modification was invalid because ‘‘no formal
‘vote’ was ever noticed or taken,’’ which conclusion is
consistent with our construction of § 4 of the beach
deed.40 The court distinguished that 2011 enactment
from the 2014 modification, stating in relevant part that
‘‘[u]nlike the process of approving and recording the
[2011 modification], a formal ‘vote’ was noticed and
conducted prior to recording of the [2014] modifica-
tion.’’ Accordingly, the court declared the 2014 modifi-
cation ‘‘valid and in full force and effect.’’ That
determination is problematic in two respects.
1
First, the court found, and the parties do not dispute,
that notice of the vote on the 2014 modification was
not provided to all property owners. See footnote 15
of this opinion.41 As we previously have discussed, § 4
of the beach deed affords owners of a fractional interest
in the beach the right to cast a vote on any proposed
modification to the restrictions on its use. As the defen-
dants concede in their appellate brief, ‘‘each owner is
entitled to one vote . . . .’’ It is axiomatic that the right
to vote is meaningless without notice that a vote is
being held. See, e.g., Walgren v. Board of Selectmen,
373 F. Supp. 624, 635 (D. Mass. 1974) (‘‘in view of the
importance of the right to vote’’ it was ‘‘inconceivable’’
that notice would not be required), aff’d, 519 F.2d 1364
(1st Cir. 1975); Graham v. State Officers Electoral
Board, 269 Ill. App. 3d 609, 612, 646 N.E.2d 1357 (1995)
(‘‘[n]otice is the most basic prerequisite to ensure the
right to vote’’). For that reason, we disagree with the
defendants that notice of the vote on a proposed modifi-
cation of the beach deed is not required pursuant to § 4.
Indeed, § 4.1 (2) of the Restatement (Third) of Prop-
erty, Servitudes, provides in relevant part that ‘‘a servi-
tude should be interpreted to avoid violating public
policy. Among reasonable interpretations, that which
is more consonant with public policy should be pre-
ferred.’’ 1 Restatement (Third), supra, § 4.1 (2), p. 497.
Connecticut’s ‘‘strong public policy favoring the protec-
tion of private property rights’’; Ace Equipment Sales,
Inc. v. Buccino, 273 Conn. 217, 232 n.11, 869 A.2d 626
(2005); coupled with the fact that the beach deed
expressly provides for a vote of the property owners on
any proposed modification to the restrictive covenants
governing their use of that private property, convinces
us that the proper construction of § 4 of the beach deed
requires notice to property owners of any vote thereon,
as the trial court concluded.42
At trial, the defendants maintained that the plaintiffs
waived any objection to the adequacy of the notice
through their attendance at and participation in the
October 10, 2014 association meeting, relying primarily
on Schwartz v. Hamden, 168 Conn. 8, 357 A.2d 488
(1975). In its memorandum of decision, the court agreed
with the defendants, citing Schwartz. That precedent,
however, is readily distinguishable from the present
case. Schwartz involved a public hearing of a planning
and zoning commission, at which certain plaintiffs
appeared through counsel. Id., 14. Our Supreme Court
emphasized that although notice by mail had not been
provided to those plaintiffs, they ‘‘waived their right to
object to that omission when they appeared without
objection at the hearing.’’ Id., 15.
That context is plainly distinguishable from this case,
which does not involve a public hearing on proposed
zoning action but, rather, a vote on proposed modifica-
tions to the plaintiffs’ deed to the beach and correspond-
ing use rights. Those rights are memorialized in
restrictive covenants, in which the plaintiffs here pos-
sess a property interest. Harris v. Pease, supra, 135
Conn. 541. Interested members of the public may attend
a zoning hearing, and participate in the public comment
portion thereof, but they are not entitled to cast votes
on the proposed zoning action. By contrast, the beach
deed’s modification provision expressly vests in owners
of a fractional interest in the beach the right to vote
on proposed modifications to the restrictions on its use.
Schwartz also is inapposite on a factual level, as the
plaintiffs here did not appear at the October 10, 2014
meeting without objection.43 As Beth Jepsen stated in
her October 5, 2014 response to Lizarralde’s notice of
the vote on the 2014 modification, the plaintiffs ‘‘object
to both your improper Annual Meeting notice and to the
[2014 modification] contained within it.’’ Beth Jepsen
reiterated those objections during her comments at the
October 10, 2014 meeting. Schwartz, therefore, is both
contextually and factually inapplicable to the present
case. Far from intentionally relinquishing their objec-
tions to the October 10, 2014 proceeding, the record
demonstrates that the plaintiffs endeavored to preserve
those objections both prior to and during that pro-
ceeding.
The court, therefore, improperly concluded that the
plaintiffs waived their objection to the adequacy of
Lizarralde’s October 3, 2014 notice. In light of the undis-
puted fact that notice of the vote on the 2014 modifica-
tion was not provided to all property owners in the
subdivision, we agree with the plaintiffs that the enact-
ment of the 2014 modification did not comport with § 4
of the beach deed.44
2
We already have determined that the court properly
concluded that the mere act of securing signatures on
a modification instrument does not constitute the ‘‘vote
in writing’’ contemplated by § 4 of the beach deed. In
its decision, the court also determined that, unlike the
2011 modification, the 2014 modification was the prod-
uct of a formal vote. Section 4 of the beach deed requires
a ‘‘vote in writing of the owners’’ on any proposed
modification to the restrictive covenants governing the
use of the beach. Section 4 further mandates that the
determination of whether a majority has been secured
‘‘shall be determined according to the sum of the votes
so counted.’’ The question, then, is whether the record
contains evidence to substantiate the court’s finding
that owners of a majority of the properties cast votes
in writing that were in favor of the 2014 modification.
In its memorandum of decision, the court found that
a formal vote on the 2014 modification was scheduled
for, and conducted at, the association’s October 10,
2014 annual meeting. As the court found, Lizarralde
provided notice of that vote to owners of forty-one
properties. That notice, which was admitted into evi-
dence at trial, included (1) a copy of the 2014 modifica-
tion; (2) the October 10, 2014 meeting agenda, on which
‘‘[t]o vote upon the [2014 modification]’’ was the second
item of business; and (3) a form titled ‘‘BILLARD
BEACH ASSOCIATION BALLOT OR PROXY’’ on which
owners could cast their written vote on the 2014 modifi-
cation. See footnotes 16 and 17 of this opinion. The
testimonial and documentary evidence in the record,
including the minutes of the October 10, 2014 meeting45
and Lizarralde’s November 6, 2014 e-mail,46 substanti-
ates the court’s finding that a formal vote on the 2014
modification transpired. The record indicates that sev-
eral owners submitted written proxy votes at the Octo-
ber 10, 2014 meeting, while others submitted theirs in
the ensuing weeks.
It is undisputed that a total of twenty-six proxy votes47
were submitted by owners of properties in the subdivi-
sion, twenty-four of which were in favor of the 2014
modification—less than a majority of the forty-eight
properties in the subdivision.48 The record contains no
other written votes on the 2014 modification.
When a vote is held on a proposed modification of
the restrictive covenants governing the use of the beach,
§ 4 of the beach deed plainly provides that the issue of
whether a ‘‘majority’’ has been secured in favor of any
such proposal ‘‘shall be determined according to the
sum of the votes so counted.’’ The court found, and
the record indicates, that a formal vote on the 2014
modification was held at the October 10, 2014 annual
meeting, and that written votes were received at that
time and in the weeks thereafter. Most significantly,
the record before us indicates that only twenty-four
written votes ultimately were submitted in support of
the 2014 modification. The court, therefore, improperly
determined that the formal vote on the 2014 modifica-
tion was approved by owners of a majority of properties
in the subdivision. Accordingly, its declaration that the
2014 modification is ‘‘valid and in full force and effect’’
cannot stand.49
II
The plaintiffs also claim that the court improperly
concluded that the plaintiffs had not met their burden
in establishing slander of title. We disagree.
‘‘A cause of action for slander of title consists of the
uttering or publication of a false statement derogatory
to the plaintiff’s title, with malice, causing special dam-
ages as a result of diminished value of the plaintiff’s
property in the eyes of third parties. The publication
must be false, and the plaintiff must have an estate or
interest in the property slandered. Pecuniary damages
must be shown in order to prevail on such a claim.’’
(Internal quotation marks omitted.) Elm Street Build-
ers, Inc. v. Enterprise Park Condominium Assn., Inc.,
63 Conn. App. 657, 669–70, 778 A.2d 237 (2001).
For three reasons, we agree with the court’s determi-
nation that the plaintiffs did not satisfy their burden to
establish slander of title. First, they have not demon-
strated that the defendants, in filing the modifications
on the land records, published a false statement. There
is no suggestion that the substance of those written
instruments was anything other than an accurate state-
ment of their content—namely, that the signatories
thereto wished to amend the beach deed in various
respects. As the defendants concede in their appellate
brief, those modifications may have been improper
under the terms of the beach deed, as we have con-
cluded in part I of this opinion, but they do not contain
any demonstrably false statements about the plain-
tiffs’ title.
Second, the court’s finding that the defendants did
not act with the requisite malice is supported by the
evidence in the record before us. The court found that
the modifications were enacted in response to a con-
cern ‘‘about having the beach open to numerous
unknown individuals and thus exposing the owners to
possible tort claims in the event of accidents and injur-
ies’’ and that ‘‘all disputed actions [by the defendants]
were taken in good faith . . . with the intention of
clarifying appropriate uses of the beach and protecting
[owners] from potential liabilities . . . .’’ Testimony at
trial by various signatories to the 2011 and 2014 modifi-
cations substantiates those findings.50 In addition, the
court heard testimony indicating that the 2011 and 2014
modifications were enacted without any malice toward
the plaintiffs. At trial, McLaughlin testified that those
modifications were crafted to ‘‘protect ourselves’’ and
emphasized that ‘‘[i]t was no malice toward anyone, it
was just that we were concerned’’ about liability for
activities on the beach. Like others, Firestone in her
testimony confirmed that the events that led to the
enactment of those modifications had ‘‘absolutely noth-
ing to do’’ with the plaintiffs. ‘‘[I]t is well established that
the evaluation of a witness’ testimony and credibility
are wholly within the province of the trier of fact. . . .
Credibility must be assessed . . . not by reading the
cold printed record, but by observing firsthand the wit-
ness’ conduct, demeanor and attitude. . . . An appel-
late court must defer to the trier of fact’s assessment
of credibility because [i]t is the [fact finder] . . . [who
has] an opportunity to observe the demeanor of the
witnesses and the parties; thus [the fact finder] is best
able to judge the credibility of the witnesses and to
draw necessary inferences therefrom.’’ (Internal quota-
tion marks omitted.) CHFA–Small Properties, Inc. v.
Elazazy, 157 Conn. App. 1, 21, 116 A.3d 814 (2015). The
court, as trier of fact, was free to credit that testimony,
which supports its conclusion that the plaintiffs had
not established malice on the part of the defendants.
Third, the record is bereft of evidence that the plain-
tiffs suffered pecuniary loss as a result of the filing of
the 2011 and 2014 modifications on the land records.
At trial, Beth Jepsen testified that she believed that the
filing of those modifications created a cloud on their
title that made their property less marketable. It never-
theless remains that ‘‘a clouded title, alone, does not
constitute damages per se. Rather, a plaintiff must pre-
sent evidence of how the clouded title resulted in some
pecuniary loss.’’ Gilbert v. Beaver Dam Assn. of Strat-
ford, Inc., 85 Conn. App. 663, 673, 858 A.2d 860 (2004),
cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005). Like
the plaintiffs in Gilbert, the plaintiffs here ‘‘did not pre-
sent evidence of monetary loss caused by the clouded
title.’’ Id., 674; contra Fountain Pointe, LLC v. Calpi-
tano, 144 Conn. App. 624, 657, 76 A.3d 636 (evidence
presented that cloud on title ‘‘caused the plaintiff to
lose out on the proceeds of a $1.8 million sale of its
property’’), cert. denied, 310 Conn. 928, 78 A.3d 147
(2013). In her trial testimony, Beth Jepsen acknowl-
edged that the plaintiffs had not attempted to sell or
rent their property and did not have a comparative
market analysis performed. Asked directly if she knew
‘‘how much [her] property was devalued,’’ Beth Jespen
replied, ‘‘No, I don’t.’’ She also conceded that the plain-
tiffs’ use of the beach was not impaired following the
recording of the 2011 and 2014 modifications on the
land records.51
Speculation and conjecture do not suffice for proof
of pecuniary loss. See American Diamond Exchange,
Inc. v. Alpert, 302 Conn. 494, 513, 28 A.3d 976 (2011)
(‘‘the plaintiff bears the burden of producing evidence
of sufficient quality to permit the fact finder to award
damages without resort to conjecture or speculation’’);
Smith v. Whittlesey, 79 Conn. 189, 193, 63 A. 1085 (1906)
(fact finder must be presented with evidence of pecuni-
ary loss and is ‘‘not permitted to resort to mere conjec-
ture’’). We concur with the trial court that the record
here lacks evidence of actual, rather than hypothesized,
pecuniary loss. In light of the foregoing, the court prop-
erly rendered judgment in favor of the defendants on
the slander of title claims.
III
As a final matter, we briefly address the plaintiffs’
contention that the court abused its discretion in declin-
ing to render an award of attorney’s fees in their favor
due to the allegedly frivolous filing of a special defense
by certain defendants. We do not agree.
Prior to trial, certain defendants raised, as a special
defense, allegations that the plaintiffs possessed knowl-
edge of the drafting of the 2011 and 2014 modifications
but refused to participate.52 At trial, no evidence was
presented to substantiate those allegations.
In its memorandum of decision, the court noted that
‘‘[c]laims for attorney’s fees and costs, if any, have been
reserved by agreement of the parties for posttrial
motions.’’ The plaintiffs thereafter filed a motion for
attorney’s fees and costs pursuant to General Statutes
§ 52-24553 and Practice Book § 13-25,54 predicated on the
defendants’ special defense that the plaintiffs possessed
knowledge of the modifications to the beach deed but
refused to participate. In that motion, the plaintiffs
averred that they had expended attorney’s fees in
response thereto, and emphasized that no evidence to
support those allegations was presented at trial. The
plaintiffs thus argued that it was ‘‘appropriate for [the]
court to award reasonable attorney’s fees and double
costs . . . .’’ The court declined that request, conclud-
ing that such an award was not warranted.
‘‘Whether to award attorney’s fees is a quintessential
example of a matter entrusted to the sound discretion
of the trial court.’’ Grovenburg v. Rustle Meadow Asso-
ciates, LLC, supra, 174 Conn. App. 96. ‘‘An abuse of
discretion in [granting or denying attorney’s fees] will
be found only if [an appellate court] determines that
the trial court could not reasonably have concluded as
it did.’’ (Internal quotation marks omitted.) Hornung
v. Hornung, 323 Conn. 144, 170, 146 A.3d 912 (2016).
On our thorough review of the record, we cannot say
that the court abused its discretion in denying the plain-
tiffs’ request for attorney’s fees and costs in the pre-
sent case.
The judgment is reversed only as to the fourth count
of the plaintiffs’ complaint and the case is remanded
with direction to render judgment declaring the 2014
modification invalid. The judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The plaintiffs also have raised claims concerning a reverter clause in
the beach deed, their request to quiet title to the property in question, the
applicability of the Common Interest Ownership Act, General Statutes § 47-
200 et seq., and various constitutional rights under the state and federal
constitutions that allegedly have been violated by the modification of the
beach deed. In light of our resolution of the principal issue in this appeal,
we do not address those contentions.
2
The operative complaint, the plaintiffs’ third amended complaint, named
as defendants Beth M. Camassar, Reuben Levin, Lenore Levin, Edwin J.
Roland, Mary B. Roland, Richard L. Thibeault, Theresa Tuthill, David Eder,
Estella C. Kuptzin, Ronald J. Wofford, Jeffrey R. Seidel, Bethany R. F. Seidel,
Eunice Greenberg, Trustee, Emily S. King, Daniel S. Firestone, Hope H.
Firestone, Leonard T. Epstein, Sandra R. Epstein, Eric Parnes, Marilyn
Parnes, Anthony C. Polcaro, Joanne L. Polcaro, John A. Spinnato, Janine,
Stavri, Sophocles Stavri, Robert McLaughlin, Jr., Roberta I. McLaughlin,
Stanley Banks, Elaine Banks, Shirley Gottesdiener, Trustee, Jerry C. Olson,
Vivian C. Stanley, David M. Goebel, Earline B. Goebel, Ronald E. Beausoleil,
Pamela Beausoleil, Marian E. Dippel, Marilyn Simonson, Barry Weiner, Cyn-
thia C. Weiner, Debra B. Gruss, Savas S. Synodi, Christine Synodi, Barbara
Sinclair, Richard Sinclair, Michael P. Shapiro, Elaine P. Shapiro, Miriam
Levine, John Oliva, Nancy Krant, Mary Margaret Kral, Trustee, Kenneth C.
Wimberly, Dawn Hickey Thibeault, James J. Correnti, Willa M. Correnti,
Arnold D. Seifer, Judith A. Pickering, Hugh F. Lusk, Anne Marie Mitchell,
Paul Burgess, Deborah Burgess, Michael J. Raimondi, Anne Marie Lizarralde,
Manuel Lizarralde, George Synodi, and Maria S. Synodi. In that complaint,
the plaintiffs alleged that those defendants ‘‘either had, on August 25, 2011,
or now have an ownership interest in property located in [the subdivision]’’
or ‘‘either had, on December 23, 2014, or now have an ownership interest
in property located in [the subdivision].’’
The complaint also named, as interested persons to the declaratory action
pursuant to Practice Book § 17-56, Jean P. Tuneski, J. Robert Tuneski,
Frank J. Pezzello, Mary D. Passero, Michael E. Passero, Rabbi Carl Astor,
Congregation Beth El of New London, Inc., William Keating, Mary J. Keating,
Michael Levine, Craig Barrila, Frank Fazio, Antionette Foster, Leila Shak-
kour, Willa M. Correnti, James J. Correnti, and Paul J. Botchis. With respect
to those interested persons, the plaintiffs alleged that they ‘‘either had, on
August 25, 2011, or now have an ownership interest in [property] located
in [the subdivision], but did not participate in the [m]odification hereinafter
complained of’’ or ‘‘either had, on December 23, 2014, or now have an
ownership interest in [property] located in [the subdivision], but did not
participate in the [m]odification hereinafter complained of . . . .’’
3
On the first day of trial, the parties filed a stipulation of facts with the
court, in which they stipulated, inter alia, that the language contained in
the warranty and beach deeds that were marked as plaintiffs’ exhibits 1
and 2 was ‘‘identical to the language contained in the [warranty] and beach
deeds in the chains of title of all of the owners in the [subdivision].’’
4
Section 2 of the beach deed provides in relevant part: ‘‘[T]he Grantee,
his heirs and assigns, shall use and have access to the premises conveyed
in common with those to whom interests in said land have or may hereafter
be granted solely for the purpose of sitting, taking family meals, and/or
bathing upon the beach included within the northerly and southerly sides
of said lot when projected in the same courses indefinitely toward the
southeast. It being understood and agreed that said use of the premises by
the grantee shall be limited to the grantee, his heirs and assigns, and those
who dwell with and form a part of the family of the grantee upon the [beach]
premises . . . conveyed by this grantor to this grantee by deed of even
date herewith, and lodged for record herewith in the New London Land
Records, and shall be exercised by the grantee and his family only during
such times as they shall dwell on the premises last referred to. In the event
the grantee shall lease the premises last referred to, the tenant thereof and
those who dwell with and form a part of the family of said tenant may
exercise the use to the same extent as the grantee and in lieu of the grantee’s
right to so use during the term of the lease. The word family as used herein
shall have the same meaning as the term is defined in the [warranty deed]
. . . .’’ The warranty deed, in turn, defines ‘‘family’’ as ‘‘any collective body
of persons who regularly reside together and form a single household, but
shall not be deemed to include lodgers or boarders.’’
5
We note in this regard that the beach deed states that ‘‘the Grantor . . .
has remised, released, and forever QUITCLAIMED, and does by these pre-
sents, for itself and its successors and assigns justly and absolutely remise,
release and forever QUITCLAIM until the said Grantee, his heirs and assigns,
an undivided one-forty-eighth (1/48th) interest in’’ the beach. Prior to reciting
the restrictive covenants governing the use of the beach, the beach deed
states that ‘‘[t]he Grantee, by the acceptance of this deed covenants with
Grantor, its successors and assigns, for the benefit of said Grantor, its
successors and assigns and for all those who interest in said land may
hereafter be granted . . . .’’
6
The December 16, 2015 stipulation of facts filed by the parties states
that ‘‘[t]he Billard Beach Association is a voluntary organization and has no
authority over its members or other [subdivision] owners.’’ In its memoran-
dum of decision, the court emphasized that ‘‘the court and all parties are
bound by the stipulation for purposes of this litigation.’’
7
It is undisputed that, at all relevant times, Garon Camassar was not an
owner of property in the subdivision.
8
Section 7 of the 2011 modification stated: ‘‘Any [o]wner of a [r]esidential
[l]ot may enforce any of the provisions of this agreement by way of injunctive
relief in the Superior Court, New London Judicial District, and with respect
thereto, shall be entitled to compensatory damages as well as punitive
damages, as the Court may deem appropriate. In addition to the foregoing
the prevailing party shall be entitled to reasonable attorney’s fees and costs
incurred as a result of such action.’’
9
An unsigned copy of the bylaws of the association, as amended on July
23, 1990, was admitted into evidence at trial. Pursuant to those bylaws, the
affairs of the association are governed by its executive committee, which
‘‘shall consist of nine members of the Association in good standing. . . .’’
The record indicates that the executive committee alternatively is referred
to as the ‘‘board’’ by members of the association. At trial, counsel for both
the plaintiffs and the defendants clarified for the record that the terms
‘‘board’’ and ‘‘executive committee’’ were used synonymously.
10
At trial, counsel for the defendants conceded that the 2011 modification
was, as the plaintiffs’ counsel put it, ‘‘void from the get-go.’’
11
A withdrawal later was filed on behalf of Barrila by Attorney Mark E.
Block on August 19, 2013. On March 3, 2014, Beth Jepsen was cited in as
an additional party plaintiff.
12
Defendant Robert McLaughlin, Jr., who was the president of the associa-
tion at the time that the 2014 modification was drafted, offered undisputed
testimony that he crafted the language of that document with Garon Cam-
assar and Attorney Edward O’Connell.
13
The 2014 modification revised the restrictive covenants contained in
§ 2 of the beach deed as follows: ‘‘(2) The [o]wners, their heirs and assigns,
shall use and have access to and the right to use the [beach] in common
with those to whom interests in said [beach] have or may hereafter be
granted solely for the purpose of sitting, taking family meals, bathing and/or
related activities upon the beach included within the northerly and southerly
sides of said [beach] when projected in the same courses indefinitely toward
the southeast. It being understood and agreed that said use of the [beach]
by the [o]wners shall be limited to the [o]wners, their heirs and assigns,
and those who dwell with and form a part of the family of the [o]wners, and
to their parents, children and grandchildren, whether or not such parents,
children or grandchildren dwell upon a [r]esidential [l]ot. The word ‘family’
as used herein shall be construed to mean any collective body of persons
who regularly reside together and form a single household, but shall not
be deemed to include lodgers or boarders.
‘‘(3) (a) Those persons who dwell in the residence who are [o]wners of
the [r]esidential [l]ots appurtenant hereto (but not their parents, children
or grandchildren) may invite [d]ay [g]uests to the [beach], not exceeding
ten (10) in number. Provided, however, that an [o]wner of the [r]esidential
[l]ot referred to herein be in attendance when such [o]wner’s [d]ay [g]uests
are present. A [d]ay [g]uest is an [o]wner’s visitor who does not stay overnight
at the [o]wner’s residence.
‘‘(b) Those persons who dwell in the residence who are [o]wners of the
[r]esidential [l]ots appurtenant hereto (but not their parents, children or
grandchildren) may invite [h]ouse [g]uests to the [beach], not exceeding
five (5) in number. An [o]wner need not be in attendance when a [h]ouse
[g]uest is present at the [beach]. A [h]ouse [g]uest is an [o]wner’s visitor
who is an overnight guest at the [o]wner’s residence.
‘‘(4) In the event the [o]wners shall lease a [r]esidential [l]ot, the tenant
thereof and those who dwell with and form a part of the family of said
tenant may exercise the use of the [beach] to the same extent as the grantees
and in lieu of the grantees’ right to so use during the term of the lease.
‘‘(5) Use of the [beach] by all persons, whether [o]wner, family member,
tenant or guest, is further subject to the following:
‘‘a. Guests, as defined in [§] 3, may not exceed six (6) in number on
Saturdays, Sundays and [l]egal [h]olidays between May 25th and September
10th of each year.
‘‘b. All campfires must be completely extinguished upon completion of
use and all coals must be removed from the [beach] at the end of such use.
No guest shall be permitted to maintain a campfire without the presence
of an [o]wner.
‘‘c. Any garbage or debris generated from use or presence on the beach
shall be removed from the [beach] at the time that the [o]wner, family
member, tenant or guest departs the [beach].
‘‘d. No beach parties shall be conducted earlier than 5 P.M. or later than
10 P.M. of any day.
‘‘e. No dogs, cats or other pets are permitted on the [beach] between May
25th and September 10th of each year.
‘‘f. No excessive noise shall be generated on the [beach] at any time.
(6) If a [r]esidential [l]ot [o]wner anticipates that the number of guests
will exceed the limits set forth in [§§] 3 and 5 hereof, the [o]wner shall
notify an officer of the [association] of the proposed gathering. Such officer
shall advise the [o]wner if any other gatherings are scheduled for the same
date and time. If a conflict with a previously scheduled gathering exists,
the [o]wner shall adjust his or her scheduled gathering as required. Any
such gatherings shall not be held on weekends before 5:00 P.M.’’
14
Section 7 of the 2014 modification provides: ‘‘The restrictions on the
use of the premises contained in [§§] 2 through 5 hereof may be modified
by a written vote of a majority of the Residential Lot Owners, in form
suitable for recording in the New London Land Records. Each owner (or
in the case of joint ownership or ownership in co-tenancy, such joint owners
or owners in co-tenancy together) shall be entitled upon such vote to such
number of votes as the numerator of their fractional interest in the prop-
erty conveyed.’’
15
At trial, Beth Jepsen provided uncontroverted testimony that Lizarralde’s
notice of the association’s October 10, 2014 annual meeting, at which the
2014 modification was to be voted upon, was provided to owners of forty-
one properties in the subdivision. In its memorandum of decision, the court
likewise found that Lizarralde’s October 3, 2014 notice was furnished to
owners of forty-one of the forty-eight properties.
16
That document stated: ‘‘The undersigned, an owner of property in the
Billard subdivision herewith moves or votes as follows:
‘‘a. With respect to the Annual Meeting of the [association], I herewith
give my proxy to vote at the Annual Meeting to be held on October 10, 2014,
to [blank].
‘‘b. With respect to the Amended and Restated Covenants and Restrictions
[contained in the 2014 modification], I herewith vote as follows:
‘‘a. That the [2014 modification] be adopted.
‘‘b. That the [2014 modification] be rejected.
‘‘Dated at New London, Connecticut this [blank] day of [blank], 2014.
‘‘Property Owner [blank].’’
17
That notice stated: ‘‘Notice is hereby given that the Annual Meeting of
the [association] shall be held on October 10, 2014, at the New London
Senior Center, 120 Broad Street, New London, Connecticut, to transact the
following business:
‘‘a. Election of Officers and Directors;
‘‘b. To vote upon the [2014 modification];
‘‘c. To establish the dues structure for the upcoming year;
‘‘d. Discussion of old business and new business;
‘‘e. To transact any and all other business which may lawfully come before
said meeting.
‘‘f. Adjournment.
‘‘Dated at New London, Connecticut this 2nd day of October 2014.
‘‘Billard Beach Association Board.’’
18
A sign-in sheet titled ‘‘BILLARD BEACH LOT OWNERS 2014 (48) 2014
Annual Meeting October 10th’’ was admitted into evidence at trial. That
document indicates that owners of twenty properties attended the October
10, 2014 annual meeting.
19
One recipient of that communication, defendant Miriam Levine, replied
to Lizarralde by e-mail that she ‘‘never voted yes to anything,’’ which affirma-
tion is confirmed by the proxy signed by Levine on October 9, 2014, in
which Levine voted against the 2014 modification. Both Levine’s e-mail to
Lizarralde and Levine’s October 9, 2010 proxy vote were admitted into
evidence at trial.
20
Two owners who cast proxy votes in favor of the 2014 modification,
Mary Margaret Kral and Cynthia C. Weiner, ultimately did not sign the
2014 modification.
21
Those signatures were made on various dates in November and Decem-
ber of 2014. It is undisputed that notice of the signing of the 2014 modification
was not furnished to all property owners in the subdivision.
22
We reiterate that both a copy of the 2014 modification filed on the New
London land records and the defendants’ September 22, 2015 notice of
compliance with the plaintiffs’ request for production, which included ‘‘[c]op-
ies of all proxies submitted in conjunction with the [2014 modification],’’
were admitted into evidence at trial as plaintiffs’ exhibits 7 and 24. Those
exhibits indicate, and the parties do not dispute, that owners of seven
properties that did not submit a written vote or proxy nevertheless signed
the 2014 modification. They are: (1) Reuben Levin, Trustee, and Lenore
Levin, Trustee; (2) Stanley Banks and Elaine Banks; (3) Kenneth C. Wimberly;
(4) Eunice Greenberg, Trustee; (5) Estella C. Kuptzin; (6) Frank J. Pezzello
and Debra B. Gruss; and (7) Hugh F. Lusk, for whom Janine Fay signed as
‘‘His Attorney-in-Fact.’’
23
Following the close of the plaintiffs’ case-in-chief on December 22, 2015,
the defendants moved for a judgment of dismissal on the two slander counts,
which the court denied. The defendants then rested without presenting
any evidence.
24
With respect to the notice issue, the plaintiffs stated that they ‘‘believe
that fifteen days notice would be adequate advance notice, if it was given
to all forty-eight owners, and if the notice included an explanation or warning
as to how it differed from the original beach deed or how it would change
owners’ rights. However, those criteria were not met.’’
25
The plaintiffs raised similar claims in the pretrial memorandum of law
that they filed with the court on December 14, 2015.
26
In its memorandum of decision, the court cited to plaintiffs’ exhibit 24
and the ‘‘testimony of Beth Jepsen December 19, 2015’’ to substantiate that
finding. Exhibit 24 is the response to the plaintiffs’ request for production
that was filed by the defendants and admitted into evidence. It contains
copies of all ballot/proxies that were ‘‘submitted in conjunction with the
2014 deed modification.’’ Only twenty-four votes in favor of the 2014 modifi-
cation are contained therein.
We further note that Beth Jepsen did not offer any testimony on December
19, 2015, but rather testified on December 22, 2015. Nowhere in her testimony
does Jepsen acknowledge that any additional ‘‘votes in favor’’ were cast by
property owners. Rather, Jepsen testified only that owners of twenty-eight
or twenty-nine properties ultimately signed the 2014 modification. As she
testified on cross examination:
‘‘[The Defendants’ Attorney]: How many people signed the 2014 document?
‘‘[Jepsen]: I don’t know individual people but I know it was about twenty-
eight or twenty-nine properties.
‘‘[The Defendants’ Attorney]: So that’s a majority?
‘‘[Jepsen]: That’s a majority of signatures. It’s not a majority vote.’’
27
Following the commencement of this appeal, the plaintiffs asked the
court to articulate as to various factual and legal issues. Relevant to this
appeal are two such requests. First, the plaintiffs asked the court to articulate
whether ‘‘the proxy/ballots collected constituted a majority written vote,
which was later memorialized by signature on the 2014 Modification, and
if so, what was the proper process that the court found to be undertaken
in that vote.’’ Second, the plaintiffs asked the court to articulate ‘‘the basis
for court’s finding that ‘seven more votes in favor . . . were received and
accepted in the weeks thereafter’ and further articulate how many proxies/
ballots were accepted in that time period as opposed to how many ‘signed
documents’ were accepted.’’ The court heard argument on that motion on
October 28, 2016, and thereafter issued a two-page articulation of its decision
that did not address either of those two requests. The plaintiffs filed a
motion for review of that articulation with this court, in which it argued
that the trial court had ‘‘failed to articulate the factual and legal basis of
its determinations that appropriate ‘due process,’ ‘notice’ and a ‘vote’ had
occurred.’’ This court granted that motion but denied the relief requested.
28
Section 4 is one of five enumerated covenants in the beach deed. It
states: ‘‘That the restrictions on the use of the [beach] contained in [§] 2
hereof may be modified by a majority vote in writing of the owners of the
premises conveyed. Each owner, (or in the case of joint ownership or
ownership in co-tenancy, such joint owners or owners in co-tenancy
together) shall be entitled upon any such vote to such number of votes as
the numerator of their fractional interest in the premises conveyed, and
upon any such vote, the majority shall be determined according to the sum
of the votes so counted.’’
29
In its memorandum of decision, the court stated that ‘‘the plain language
of the [1959] beach deed . . . specifically allows the owners of a majority
of the house lots to modify the restrictions on the beach uses set forth in
[§] 2.’’
30
Section 7 of the 2014 modification states in relevant part that ‘‘[t]he
restrictions on the use of the premises contained in [§§] 2 through 5 hereof
may be modified by a written vote of a majority of the Residential Lot
Owners, in form suitable for recording in the New London Land Records.
. . .’’ Section 7 of the 2014 modification also eliminated the requirement of
§ 4 of the beach deed that ‘‘upon any such vote, the majority shall be
determined according to the sum of the votes so counted.’’ See footnotes
14 and 28 of this opinion. In addition, §§ 8 through 12 of the 2014 modification
all contain modifications to other provisions of the beach deed that do not
pertain to the restrictions on the use of the beach set forth in § 2 of the
beach deed.
31
We note that the plaintiffs alternatively argue that the 2014 modification
failed to comply with the requirement of ‘‘a written vote of at least 75 percent
of the Residential Lot Owners’’ in the subdivision, as provided in the 2011
modification filed on the New London land records. At oral argument, the
plaintiffs acknowledged that, if this court concludes that the 2014 modifica-
tion was improperly enacted without ‘‘a majority vote in writing’’ of the
owners of the forty-eight properties in the subdivision, as required by § 4
of the beach deed, there is no need to address that alternative contention.
32
As our Supreme Court recently observed, ‘‘[a]lthough in most contexts
the issue of intent is a factual question on which our scope of review is
limited . . . the determination of the intent behind language in a deed,
considered in the light of all the surrounding circumstances, presents a
question of law on which our scope of review is plenary.’’ (Internal quotation
marks omitted.) Deane v. Kahn, 317 Conn. 157, 166, 116 A.3d 259 (2015).
33
Section 4.1 of the Restatement states: ‘‘(1) A servitude should be interpre-
ted to give effect to the intention of the parties ascertained from the language
used in the instrument, or the circumstances surrounding creation of the
servitude, and to carry out the purpose for which it was created.
‘‘(2) Unless the purpose for which the servitude is created violates public
policy, and unless contrary to the intent of the parties, a servitude should
be interpreted to avoid violating public policy. Among reasonable interpreta-
tions, that which is more consonant with public policy should be preferred.’’
1 Restatement (Third), supra, § 4.1, pp. 496–97.
34
Despite a canvass of state and federal decisional law across this nation,
we have discovered no authority involving a deed or contract with the
‘‘majority vote in writing’’ or the ‘‘votes so counted’’ language at issue in
the present case.
35
‘‘The word ‘such’ has been construed as a related adjective referring
back to and identifying something previously spoken of and that it naturally,
by grammatical usage, refers to the last precedent.’’ (Internal quotation
marks omitted.) Nichols v. Warren, 209 Conn. 191, 197, 550 A.2d 309 (1988).
36
In the operative complaint, the plaintiffs alleged that ‘‘[o]ne or more
provisions of the 2014 Modification is contrary to the property interests of
the Plaintiffs and all owners of interests in [the subdivision]’’ and that ‘‘[t]he
2014 Modification deprived individual owners of the land lots of significant
property . . . rights.’’
37
Accord Chapman v. Sheridan-Wyoming Coal Co., 338 U.S. 621, 626–27,
70 S. Ct. 392, 94 L. Ed. 393 (1950) (concluding that restrictive covenant was
a ‘‘property right’’ similar to an easement); Harris v. Pease, supra, 135 Conn.
539–40 (‘‘[t]he right of [the property owner] and his successors in title to
have the [restrictive covenant] continued in force is a property interest
which they have in [the property subject to that covenant]’’); Grovenburg
v. Rustle Meadow Associates, LLC, supra, 174 Conn. App. 45 (‘‘the right of
one property owner to the protection of a restrictive covenant is a property
right just as inviolable as is the right of others to the free use of their
property when unrestricted’’ [internal quotation marks omitted]); Downes-
Patterson Corp. v. First National Supermarkets, Inc., 64 Conn. App. 417,
428, 780 A.2d 967 (‘‘the defendant possessed a property right that it had
bargained for when it purchased its land’’), cert. granted, 258 Conn. 917,
782 A.2d 1242 (2001) (appeal dismissed June 25, 2002); 135 Wells Ave., LLC
v. Housing Appeals Committee, 478 Mass. 346, 357 n.10 and 358, 84 N.E.3d
1257 (2017) (noting that ‘‘deed restrictions are a property interest, a restric-
tive covenant on land’’ and describing restrictive covenants as ‘‘real property
rights’’); Malcolm v. Shamie, 290 N.W.2d 101, 102 (Mich. App. 1980) (‘‘restric-
tive covenants are valuable property rights subject to judicial protection’’);
Cunningham v. Gross, 102 N.M. 723, 725, 699 P.2d 1075 (1985) (restrictive
covenants ‘‘constitute valuable property rights of all lot owners’’ in subdivi-
sion); Crane Neck Assn., Inc. v. NYC/Long Island County Services Group,
92 A.D. 2d 119, 122, 460 N.Y.S.2d 69 (1983) (‘‘restrictive covenants
constitute private property rights which must be observed by the State’’),
aff’d, 61 N.Y.2d 154, 460 N.E.2d 1336, 472 N.Y.S.2d 901 (1984); Restatement
(Third), supra, § 7.8, reporter’s note, p. 383 (‘‘in this Restatement, all servi-
tude benefits are treated as property rights’’).
38
Section 4.10 of the Restatement addresses use rights conferred by servi-
tude and notes that the holder of an instrument memorializing such rights
‘‘is entitled to use the servient estate in a manner that is reasonably necessary
for the convenient enjoyment of the servitude. . . .’’ 1 Restatement (Third),
supra, § 4.10, p. 592. In ‘‘balancing the interests’’ of various holders, the
Restatement recognizes that ‘‘neighborhood preservation concerns should
be’’ a relevant consideration. Id., comment (h), p. 602. The requirement of
a formal vote at which all property owners are afforded an opportunity to
vote on any proposed modification to their beach use rights, rather than
an effort to simply secure a majority of signatures on a document, strikes
us as far more conducive to neighborhood preservation.
39
As our Supreme Court has observed, ‘‘[a]ctions may be held to speak
louder than words . . . .’’ Malone v. Santora, 135 Conn. 286, 292, 64 A.2d
51 (1949). The construction advanced by the defendants is belied by the
fact that the proponents of the 2014 modification deemed it necessary to
both conduct a formal vote at the October 10, 2014 association meeting,
and to materially alter the modification provisions of the beach deed. In
part I A of this opinion, we concluded that those revisions to the modification
provisions of the beach deed are invalid, as they were not enacted by
unanimous consent of the owners of the forty-eight properties in the subdi-
vision.
Significantly, the 2014 modification amended the modification provisions
of § 4 of the beach deed in several crucial respects. First, § 7 of the 2014
modification replaced ‘‘modified by a majority vote in writing of the owners’’
with ‘‘modified by a written vote of a majority of the Residential Lot Owners,
in form suitable for recording in the New London Land Records.’’ See foot-
note 14 of this opinion. Second, the 2014 modification eliminated altogether
the requirement of § 4 that ‘‘upon any such vote, the majority shall be
determined according to the sum of the votes so counted.’’ In contrast to
§ 4 of the beach deed, all that is required to modify the restrictions on the
use of the beach under the 2014 modification is the filing on the land records
of an instrument signed by the owners of a majority of the properties in
the subdivision.
In addition, § 12 of the 2014 modification inserted new language regarding
the manner in which such an instrument to modify the beach deed may be
executed. That new section states that ‘‘[t]his Amendment and Restatement
may be signed by the respective Owners in counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.’’ ‘‘In counterparts,’’ known also as ‘‘execution
in counterparts,’’ is a term of art that refers to the practice of compiling
various documents and/or signatures to a contract and treating the combina-
tion thereof as a single agreement. See, e.g., Aubin v. Miller, Superior Court,
judicial district of Fairfield, Docket No. CV 98-0355768-S (April 10, 2000),
aff’d, 64 Conn. App. 781, 781 A.2d 396 (2001); Central Basin Municipal
Water District v. Fossette, 235 Cal. App. 2d 689, 751, 45 Cal. Rptr. 651 (1965);
Industrial Heat Treating Co. v. Industrial Heat Treating Co., 104 Ohio
App. 3d 499, 505, 662 N.E.2d 837, review denied, 74 Ohio St. 3d 1477, 657
N.E.2d 784 (1995). In the present case, the proponents of the 2014 modifica-
tion utilized the very practice memorialized in § 12 of the 2014 modification
in enacting the 2014 modification, as the signatures on that instrument
appear on various documents bearing divers dates between November 9,
2014 and December 17, 2014. It nonetheless remains that § 4 of the beach
deed contains no provision for that practice.
40
We reiterate that § 4 of the beach deed pertains solely to the modification
of the restrictions on the use of the beach contained in § 2 of the beach deed.
41
In finding that Lizarralde’s October 3, 2014 notice of the vote on the
2014 modification was provided to owners of only forty-one of the forty-
eight properties in the subdivision, the court in its memorandum of decision
stated that ‘‘[i]t appears that the [proponents of the 2014 modification]
lacked the e-mail and home addresses for a few of the property owners
. . . .’’ The court then cited to Lizarralde’s trial testimony on December 18,
2015, in support of that finding. A review of the transcripts reveals that no
such statement is contained in Lizarralde’s testimony or the testimony of
any witness regarding the enactment of the 2014 modification. That finding
thus is clearly erroneous. See McBurney v. Paquin, 302 Conn. 359, 368, 28
A.3d 272 (2011). Moreover, ‘‘a simple review of the town assessor’s online
records’’ would have disclosed the addresses of all property owners. Sino-
way Family Partnership v. Zoning Board of Appeals, 50 Conn. Supp. 513,
522–23, 947 A.2d 20 (2007).
42
Cf. Grovenburg v. Rustle Meadow Associates, LLC, supra, 174 Conn.
App. 82–83 (‘‘[t]he concept of notice concerns notions of fundamental fair-
ness, affording parties the opportunity to be apprised when their interests
are implicated in a given matter’’ [internal quotation marks omitted]); 9
Powell on Real Property, supra, § 60.08, p. 115 (noting that, with respect to
modification of restrictive covenants, ‘‘[i]n all cases, due process must be
observed as to general amendment and voting procedures’’).
43
The plaintiffs also were not accompanied by legal counsel at the October
10, 2014 association meeting.
44
We cannot speculate as to what impact the failure to provide notice to
all property owners had on the formal vote on the 2014 modification, or
whether such notice would have impacted the decisionmaking of other
owners in the subdivision. See New Hartford v. Connecticut Resources
Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009) (speculation
and conjecture have no place in appellate review).
45
Those minutes state in relevant part that McLaughlin, who at that time
was president of the association, began the meeting by stating that ‘‘we
[are] here to discuss the adoption of the [2014 modification].’’ The minutes
further state that ‘‘[t]he vote for this [2014 modification] would remain open
until November 1 . . . .’’
46
In her November 6, 2014 e-mail to certain owners, Lizarralde stated in
relevant part: ‘‘Many thanks to everyone who voted yes to amend the [beach
deed]. We received a majority of yes votes and so . . . we now need to
have each of you sign the official document that will be notarized. . . .’’
At trial, Lizarralde testified that a majority of written votes in favor of the
2014 modification had not been received at that time.
47
In their appellate brief, the defendants claim that the proxies completed
by owners of twenty-six properties do not constitute votes because ‘‘there
were issues other than the [2014] modification on the October meeting
agenda that required votes, and that the proxies applied to those issues.’’
That contention is untenable, as the sole matter specified on the ‘‘BILLARD
BEACH ASSOCIATION BALLOT OR PROXY’’ was the ‘‘vote’’ to either adopt
or reject the 2014 modification. See footnote 16 of this opinion.
48
We repeat that, prior to trial, the plaintiffs served a request for production
on the defendants, in which they sought, inter alia, ‘‘[c]opies of all proxies
submitted in conjunction with the 2014 Deed Modification.’’ The defendants
complied with that request, and produced copies of twenty-six proxy votes,
which were admitted into evidence at trial.
49
We acknowledge that the plaintiffs’ complaint also sought to have the
court quiet title to the beach. In its memorandum of decision, the trial court
did not address that request. See NPC Offices, LLC v. Kowaleski, 320 Conn.
519, 534, 131 A.3d 1144 (2016). In light of the trial court’s declaration that
the 2011 modification is null and void, and our conclusion that the 2014
modification likewise is invalid, further consideration of the plaintiffs’ quiet
title request is unnecessary. As a result of our decision today, title to the
beach remains as it was prior to the enactment of the 2011 and 2014 modifi-
cations.
50
For example, McLaughlin testified that the modifications were enacted
to protect owners in the subdivision for liability and insurance purposes.
Beausoleil testified that, despite his efforts, the association was unable to
obtain insurance on the beach. Firestone similarly testified that the propo-
nents of the modifications were ‘‘afraid of insurance situations. . . . We
were worried as homeowners’’ about activity on the beach.
51
At trial, Beth Jepsen was asked whether, ‘‘[o]utside of the modification,
has anyone in [the subdivision], an owner, a member of the board, a member
of the association in any way interfered with your use of the beach?’’ She
answered, ‘‘No. They didn’t enforce their document.’’ Beth Jepsen further
testified that, since those modifications were enacted, no one had asked a
guest of theirs to leave the beach.
52
As two examples of the special defenses at issue, we note that the April
30, 2012 answer and special defenses filed by defendants Christine Synodi
and Savas Synodi alleges in relevant part: ‘‘Upon information and belief,
the [p]laintiffs had notice of the [m]odification . . . and refused any oppor-
tunity to review the same; therefore, [p]laintiffs must therefore be equitably
estopped from claiming [that] ‘The [m]odification was enacted without the
knowledge and consent of the [p]laintiffs . . . .’ ’’ The September 22, 2015
answer and special defenses filed by four dozen defendants similarly alleges
that the plaintiffs ‘‘had notice of the proposed modifications to the covenants
and restrictions, but declined to participate in meaningful discussions regard-
ing same. If they had any right to notice and an opportunity to be heard
regarding said modifications, they have waived any such right that may
exist.’’
53
General Statutes § 52-245 provides: ‘‘In any case in which an affidavit
has been filed by the defendant, or a statement that he has a bona fide
defense has been made to the court by his attorney, and the plaintiff recovers
judgment, if the court is of the opinion that such affidavit was filed or
statement made without just cause or for the purpose of delay, it may allow
to the plaintiff, at its discretion, double costs, together with a reasonable
counsel fee to be taxed by the court.’’
54
Practice Book § 13-25 provides: ‘‘If a party fails to admit the genuineness
of any document or the truth of any matter as requested herein, and if the
party requesting the admissions thereafter proves the genuineness of the
document or the truth of the matter, such party may apply to the court for
an order requiring the other party to pay the reasonable expenses incurred
in making that proof, including reasonable attorney’s fees. The judicial
authority shall make the order unless it finds that such failure to admit
was reasonable.’’