DocketNumber: No. CV87 0090545 S
Citation Numbers: 1990 Conn. Super. Ct. 2636
Judges: LEWIS, JUDGE.
Filed Date: 10/15/1990
Status: Non-Precedential
Modified Date: 7/5/2016
By way of background, this is a declaratory judgment action seeking a determination of whether certain restrictions contained in a deed to the plaintiffs should be declared unenforceable because of a material charge of circumstances.
The plaintiffs own real property situated in Norwalk. The eighteen named defendants are owners of other plots in the subdivision where plaintiffs' property is also located or otherwise are interested parties to the action. The motion to strike relates to a claim for the jury by six of the defendants.
In a single count amended complaint dated April 13, 1990 the plaintiffs allege, inter alia, that they own property in a subdivision originally consisting of fourteen plots. The deed to plaintiffs' property is alleged to contain a restrictive covenant prohibiting the construction of more than two dwellings thereon. It is alleged by plaintiffs that although other plots in the subdivision contain building restrictions, these restrictions are not uniform, and none contain the same restrictions as plaintiffs' deed. The complaint further alleges that restrictions on two of the plots in the subdivision were released by the grantor, and that the owners of five other plots, by quitclaim deed, released any rights they had to enforce the restrictive covenants encumbering plaintiffs' property.
Plaintiffs also claim that these facts represent material changes in circumstances and an abandonment of the original purpose of the restrictive covenant in plaintiffs' CT Page 2637 deed, thus making enforcement of this covenant inequitable. Plaintiffs allege that they wish to develop their property by constructing additional single family homes, but are prevented from doing so by the restriction.
In their answers to the complaint, the defendants deny that any material changes in circumstances evidencing an abandonment of the purpose of the deed restriction, and deny that enforcement of the restriction would be inequitable to the plaintiffs.
The defendants claimed this case for the jury docket, and the plaintiffs now move to strike the case from this docket on the ground that the action sounds in equity, and therefore no right to a jury exists. A previous claim that the case was not timely claimed by the defendants to the jury trial list has been withdrawn.
Plaintiffs in this action seek to invoke the court's equitable jurisdiction to invalidate the deed restriction due to changed circumstances, and they argue that a declaratory judgment procedure neither enlarges nor restricts the right to a jury trial.
The defendants, on the other hand, characterize this action as one for the interpretation and enforcement of restrictive covenants and claim that this type of action historically has been held to be triable to a jury. The defendants also argue that Practice Book 391(f) specifically provides that "issues of fact necessary to the determination of the cause may be submitted to the jury as in other actions." They also contend that they have a constitutional right to have issues of fact determined by a jury.
The Superior Court is authorized to render declaratory judgments by General Statutes
See also Middlebury v. Steinmann,
In Skinner v. Angliker,
The Constitution of Connecticut, Article
First ,19 , states that ``[t]he right of trial by jury shall remain inviolate.' This particular provision of our constitution has been consistently construed by Connecticut courts to mean that if there was a right to a trial by jury at the time of the adoption of the provision, then that right remains intact. It is generally held that the right to jury trial ``exists not only in cases in which it existed at common law and at the time of the adoption on constitutional provisions preserving it, but also exists in cases substantially similar thereto . . .' At common law, ``legal claims [were] tried by a jury, [and] equitable claims [were] tried by a court . . .' Equitable actions, therefore, are not within the constitutional guarantee by jury.
Moreover, General Statutes
To determine whether a right to a jury trial exists under Article
To the same effect is Motor Vehicle Mfrs. v. O'Neil
The action before this court essentially is an action to remove a restrictive covenant from the deed to plaintiffs' property. Although no Connecticut decision has been found which specifically holds that such an action is equitable, the cases in which such relief was sought have been tried to the court, and are dealt with as equitable actions. See, e.g. Harris v. Pease,
The allegations in the complaint state a cause of action which is essentially equitable in nature, involving issues of fact to be determined by the court and not a jury.
As regards the reference to a jury in Practice Book 391(f), relied on heavily by the defendants, Linahan v. Linahan,
Therefore, the defendants are not entitled to a jury trial, and the motion to strike from the jury docket should be and is hereby granted.
SO ORDERED.
Dated at Stamford, Connecticut this twelfth day of October, 1990.
LEWIS, JUDGE CT Page 2640
Linahan v. Linahan , 131 Conn. 307 ( 1944 )
Town of Middlebury v. Steinmann , 189 Conn. 710 ( 1983 )
Suarez v. State , 391 So. 2d 343 ( 1980 )
Lamana-Panno-Fallo, Inc. v. Heebe , 352 So. 2d 1303 ( 1977 )
Andrews v. Connecticut Light & Power Co. , 23 Conn. Super. Ct. 486 ( 1962 )
Fidelity Title & Trust Co. v. Lomas and Nettleton Co. , 125 Conn. 373 ( 1939 )
Franchi v. Farmholme, Inc. , 191 Conn. 201 ( 1983 )
Bickell v. Moraio , 117 Conn. 176 ( 1933 )