Prime Locations of CT, LLC v. Rocky Hill Development, LLC , 167 Conn. App. 786 ( 2016 )

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PRIME LOCATIONS OF CT, LLC, ET AL. v. ROCKY
HILL DEVELOPMENT, LLC, ET AL.
(AC 37588)
DiPentima, C. J., and Alvord and West, Js.
Argued February 16—officially released August 30, 2016
(Appeal from Superior Court, judicial district of
Middlesex, Domnarski, J.)
Daniel J. Krisch, with whom was Matthew S. Car-
lone, for the appellants (defendant Luke DiMaria et al.).
Christopher A. Klepps, with whom were Kevin J.
McEleney, and, on the brief, Richard D. Carella, for
the appellees (plaintiffs).
Opinion
DiPENTIMA, C. J. The defendants MPM Enterprises,
LLC (MPM), and Luke DiMaria appeal from the judg-
ment of the trial court rendered in favor of the plaintiffs,
Prime Locations of CT, LLC (Prime Locations), Hasson
Holdings, LLC (Hasson), SMS Realty, LLC (SMS), and
C&G Holdings, LLC (C&G).1 On appeal, the defendants
argue that the court improperly (1) concluded that the
plaintiffs had standing and (2) decided the case on a
basis that was not pleaded, briefed or argued during
the proceedings in the trial court. We agree with the
defendants’ second claim, and reverse the judgment of
the trial court.
The following facts, as found by the trial court, and
procedural history are relevant to this appeal. On Sep-
tember 27, 2004, Coles Brook Commerce Park Associ-
ates, LLC (Declarant), subdivided property located in
the town of Cromwell into lots for the purpose of devel-
oping a business park. The Declarant also executed a
declaration of easements, covenants and restrictions
(declaration),2 and incorporated the Coles Brook Com-
merce Park Owners Association, Inc. (Owners Associa-
tion), for the purpose of maintaining, administering and
enforcing the covenants and restrictions.
Section 3.2 of article 3 of the declaration provided
that each owner of a lot would be a member of the
Owners Association. Each owner received a vote that
was directly proportional to its percentage of ownership
in the common elements of the business park.3 Article 5
of the declaration created a Design Review Committee,
which, pursuant to § 6.2 of article 6, was responsible
for determining if the final drawings and specifications
for structures on any lot conformed with the restrictions
contained in the declaration. Specifically, § 6.3 pro-
vided: ‘‘No use shall be permitted which is offensive by
reason of odor, fumes, dust, smoke, noise or pollution,
which is excessively hazardous by reason of excessive
danger or fire or explosion, or which violates any law
or ordinance.’’
DiMaria planned to build a crematorium on lot 2,
which he had purchased from MPM in late September,
2012.4 Members of the Owners Association were aware
of DiMaria’s plans to build a crematorium prior to his
purchase of lot 2 from MPM. On August 29, 2012, the
Design Review Committee met to consider DiMaria’s
plans.5 It did not give its permission to build such a
structure because it was not an approved use pursuant
to § 6.3 of article 6 of the declaration.
On August 1, 2012, Rocky Hill Development, LLC
(Rocky Hill Development), MPM, and Rescue One, LLC
(Rescue One), respectively the owners of lots 1, 2, and 7,
filed an amendment to the declaration on the Cromwell
land records. This amendment purported to withdraw
lots 1, 2, and 7 from the Owners Association on the
basis of their holding more than fifty percent of the
votes of the Owners Association.6
On August 6, 2014, the plaintiffs commenced this
action against the MPM, DiMaria, Rocky Hill Develop-
ment, and Rescue One, seeking a declaratory judgment
and injunctive relief in a three count complaint.7 In
count one of the complaint, the plaintiffs alleged that
for a variety of reasons, the August 1, 2012 amendment
did not effectively amend the declaration.8 For relief,
they sought, inter alia, a declaratory judgment that the
amendment was void ab initio and unenforceable, that
the original declaration remained in full force and effect
and that lots 1, 2, and 7 remained part of the Owners
Association and subject to the declaration. In count
two, the plaintiffs argued, in the alternative, that if the
amendment was valid, then the court issue a declaratory
judgment stating that MPM, DiMaria, Rocky Hill Devel-
opment, and Rescue One, not be permitted to use the
common area easement or the drainage easement. In
count three, directed only to MPM and DiMaria, the
plaintiffs sought a temporary and permanent injunction
prohibiting the construction of an unapproved building
on lot 2. DiMaria argued that, as a result of the August
1, 2012 amendment withdrawing lot 2 from the Owner’s
Association, he did not need the approval of the Design
Review Committee to build the crematorium on lot 2.
The court held an expedited trial on October 2, 2014.
After hearing evidence and reviewing the posttrial
briefs, the court issued its memorandum of decision on
December 19, 2014. It observed that the dispositive
issue was the validity and effect of the August 1, 2012
amendment. The court concluded that although the
owners of lots 1, 2, and 7 had a 54.15 percent vote, the
declaration did not contain any language that permitted
an owner to withdraw a lot from the Owners Associa-
tion. It set forth the following rationale to support its
conclusion that the amendment was invalid: ‘‘First, the
declaration specifically provides that its provisions run
with the lots and are binding upon all Owners. Second,
there is a lack of authority in the declaration to remove
lots from the Coles Brook Commerce Park community
and/or the [Owners] Association. . . . Third, the decla-
ration contains an express provision that every owner
shall be a member of the [Owners] Association. The
amendment is invalid because it violates the express
terms of the Declaration. . . . MPM, Rocky Hill [Devel-
opment] and Rescue One were not permitted, under
the declaration, to modify the declaration to withdraw
their lots from the [Owners] Association and to
renounce their status as Owners as defined by the decla-
ration.’’ (Citations omitted.)
The court then rejected some of the arguments that
had been presented by the plaintiffs. Specifically, the
court was not persuaded by the plaintiffs’ contention
that there had been an invalid vote because Rocky Hill
previously left the Owner’s Association, and MPM and
Rescue One alone lacked a majority vote. The court
also concluded that, contrary to the plaintiffs’ claim,
Coles Brook Commerce Park was not subject to the
Common Interest Ownership Act, General Statutes § 47-
214 et seq.9
Turning to the issue of injunctive relief, the court
noted that the declaration provided that approval of
the Design Review Committee was required for the
construction of buildings and that certain offensive uses
were prohibited. ‘‘It is undisputed that DiMaria has not
submitted the plans for the crematorium structure to
the [Design Review Committee]. It is also undisputed
that after the [Design Review Committee] became
aware of the DiMaria’s plans to build a crematorium,
they held a meeting on August 29, 2012. At that meeting,
the [Design Review Committee] declined to approve
DiMaria’s use of lot 2 as a crematorium because it
violated § 6.3 of article 6 of the declaration. . . . The
court also finds that DiMaria has violated the restrictive
covenants by constructing a structure or building upon
lot 2 without the approval of plans or proposed use
from the [Design Review Committee].’’
The court then issued the following orders: ‘‘The
court enters a declaratory judgment that the amend-
ment to the declaration . . . is invalid and of no force
and effect. . . . The defendant . . . DiMaria and his
agents, heirs and assigns are ordered to immediately
cease any construction or development activity upon
lot 2 . . . until such time as he/they have obtained
approval of plans and permission for use from the
Design Review Committee . . . .’’
On January 5, 2015, the defendants filed a motion to
reargue and for reconsideration of the December 19,
2014 decision. Specifically, the defendants claimed that
the decision addressed issues outside of the scope of
the pleadings and was contradictory to the allegations
of the complaint and the evidence presented at trial.
The court denied this motion on January 15, 2015. This
appeal followed.
On January 26, 2015, the defendants moved to open
the judgment and to dismiss the action for lack of sub-
ject matter jurisdiction. They argued that because the
declaration limited authority to commence a civil action
to enforce a violation of the declaration to the Declarant
and the Owners Association, and neither of those enti-
ties was a party to the action, the plaintiffs lacked stand-
ing to enforce a claimed violation of the declaration.
On February 4, 2015, the plaintiffs filed an objection
to the defendants’ motion to dismiss. Specifically, they
argued that the lot owners had standing to enforce the
restrictions contained in the declaration and that the
defendants’ standing claim was untimely.
On March 30, 2015, the court denied the defendants’
motion. The defendants then amended their appeal to
include a challenge to the court’s denial of their motion
to dismiss.
I
The defendants first claim that the court improperly
denied their motion to dismiss, filed after judgment had
been rendered in favor of the plaintiffs, for lack of
standing. Specifically, they argue that the court lacked
subject matter jurisdiction because the declaration
authorized only the Declarant and the Owners Associa-
tion to enforce the restrictions contained therein. We
disagree.
At the outset, we set forth the relevant legal principles
regarding the doctrine of standing. ‘‘Standing is the legal
right to set judicial machinery in motion. One cannot
rightfully invoke the jurisdiction of the court unless he
[or she] has, in an individual or representative capacity,
some real interest in the cause of action, or a legal or
equitable right, title or interest in the subject matter of
the controversy. . . . When standing is put in issue,
the question is whether the person whose standing is
challenged is a proper party to request an adjudication
of the issue . . . .’’ (Internal quotation marks omitted.)
Styslinger v. Brewster Park, LLC, 321 Conn. 312, 316,
A.3d (2016); see also Bongiorno v. J & G Realty,
LLC, 162 Conn. App. 430, 437, 131 A.3d 1230, cert.
denied, 320 Conn. 924, 133 A.3d 878 (2016). ‘‘We have
long held that because [a] determination regarding a
trial court’s subject matter jurisdiction is a question of
law, our review is plenary. . . . In addition, because
standing implicates the court’s subject matter jurisdic-
tion, the issue of standing is not subject to waiver and
may be raised at any time.’’ (Internal quotation marks
omitted.) Property Asset Management, Inc. v. Lazarte,
163 Conn. App. 737, 745, A.3d (2016). Further-
more, ‘‘[i]t is well established that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.’’
(Internal quotation marks omitted.) Wilcox v. Webster
Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).
We iterate that the defendants raised the issue of
standing in a postjudgment motion to dismiss. The court
denied this motion with an order stating: ‘‘The court
finds that the [d]eclaration does not limit enforcement
of the terms of the [d]eclaration only to the [Owners]
Association. The court relie[d] on the language stated
in its original memorandum that the individual unit
owners may enforce a declaration which is found to be
a common scheme in the development.’’ In that memo-
randum of decision, the court had determined that ‘‘the
[d]eclaration specifically provides that its provisions
run with the lots and are binding upon all Owners.’’
On appeal, the defendants argue that contract law
principles alone control who may bring an action to
enforce a claimed violation of the declaration. They
further contend that the plaintiffs, as individual lot own-
ers, are neither parties to the declaration nor contem-
plated beneficiaries. In other words, the defendants
contend that the issue is one of contract law, not prop-
erty law,10 and that under the terms of the declaration,
the plaintiffs lack standing.
The defendants primarily rely on § 8.1 of article 8 of
the declaration, which provides: ‘‘If any person or entity
subject to the herein stated restrictions shall violate or
attempt to violate the same, Declarant or the [Owners]
Association may, after thirty (30) days’ prior written
notice, given by certified mail, return receipt requested,
to the violator, commence legal action against said
person or entity in order to prevent and/or evade such
violation. Enforcement shall be by proceedings at law
or in equity against any person or persons violating or
attempting to violate any covenant in order to restrain
any violation and/or to recover damages on account
thereof, and Declarant or the [Owners] Association,
are each specifically given the right to enforce these
covenants by injunction or other lawful procedure, and
to recover any damages resulting from any violation
from any party committing said violation. The costs
incurred by any party hereunder in the enforcement of
the herein stated restrictions and any damages awarded
on account of any violation hereof shall become a valid
lien against the Lot on which the violation occurred for
the benefit of the party commencing action on account
of said violation. Such lien shall be enforceable as any
other lien, as more fully detailed in and in accordance
with Section 4.6 above.’’ (Emphasis added.)
The defendants claim that because § 8.1 of article 8
of the declaration specifically lists only the Declarant
and the Owners Association as the entities who may
enforce its restrictions, the individual owners, such as
the plaintiffs, lack standing. The defendants further con-
tend that other sections of the declaration, namely,
the preamble,11 § 3.412 and § 9.5,13 further support this
interpretation. We disagree with the defendants’ inter-
pretation of the declaration.
As previously noted, the defendants argue that the
issue of standing must be decided solely by applying
contract law. In support, they rely on our Supreme
Court’s decision in Cantonbury Heights Condominium
Assn., Inc. v. Local Land Development, LLC, 273 Conn.
724, 734–35, 873 A.2d 898 (2005). In that case, the court
set forth the standard of review and the applicable
principles of contract interpretation. ‘‘In ascertaining
the contractual rights and obligations of the parties, we
seek to effectuate their intent, which is derived from
the language employed in the contract, taking into con-
sideration the circumstances of the parties and the
transaction. . . . We accord the language employed in
the contract a rational construction based on its com-
mon, natural and ordinary meaning and usage as applied
to the subject matter of the contract. . . . Where the
language is unambiguous, we must give the contract
effect according to its terms.’’ (Citations omitted.) Id.The court further noted: ‘‘A contract is unambiguous
when its language is clear and conveys a definite and
precise intent. . . . The court will not torture words
to impart ambiguity where ordinary meaning leaves no
room for ambiguity. . . . Moreover, the mere fact that
parties advance different interpretations of the lan-
guage in question does not necessitate a conclusion
that the language is ambiguous. . . . In contrast, a con-
tract is ambiguous if the intent of the parties is not
clear and certain from the language of the contract
itself. . . . [A]ny ambiguity in a contract must emanate
from the language used by the parties. . . . The con-
tract must be viewed in its entirety, with each provision
read in light of the other provisions . . . and every
provision must be given effect if it is possible to do
so.’’ (Internal quotation marks omitted.) Id., 735; see
also Harbour Pointe, LLC v. Harbour Landing Condo-
minium Assn., Inc., 300 Conn. 254, 259–61, 14 A.3d
284 (2011).14
Contrary to the defendants’ argument, § 8.1 of article
8 of the declaration does not grant sole authority to the
Declarant and the Owners Association. That section
provides that the Declarant and the Owners Associa-
tion, after giving thirty days prior written notice may
commence legal action against a person or entity who
has violated or attempted to violate the restrictions
contained therein. There is no language in the declara-
tion that these two entities are the sole parties to bring
an action to stop or prevent a violation of the declara-
tion. Indeed, one of the purposes of the declaration was
to create the Owners Association and to grant it certain
rights and responsibilities, including the power to use
legal actions to enforce the restrictions set forth in the
declaration, but it does not follow, a fortiori, that only
the Declarant and the Owners Association had that
right. In other words, there is nothing in the sections
of the declaration cited by the defendants, stating that
the individual owners, such as the plaintiffs, are barred
from bringing an action to enforce the restrictions in
the declaration that they themselves are bound by. See,
e.g., Pulver v. Mascolo, 155 Conn. 644, 649–50, 237 A.2d
97 (1967) (where covenant in deed contained no express
prohibition on building outbuilding and nothing in
record to support claim that parties intended to prohibit
construction of any and all building except one-family
house with attached garage, covenant would not be
extended by implication).
We also find support in the preamble for our conclu-
sion that the declaration did not limit enforcement of
its restrictions to the Declarant and the Owners Associa-
tion. The language used in the preamble indicates that
the restrictions run with the land, and that fact, coupled
with the circumstances in which the land was devel-
oped, indicates that there was a uniform development
scheme. Therefore, a grantee, such as an individual lot
owner, under these facts and circumstances, i.e., a lot
owner in a business park not subject to the Common
Interest Ownership Act, General Statutes § 47-214 et
seq., may enforce the restrictions against any other
grantee. See generally, Castonguay v. Plourde, 46 Conn.
App. 251, 260, 699 A.2d 226, cert. denied, 243 Conn.
931, 701 A.2d 660 (1997). This particular property law
doctrine is inextricably intertwined with the declaration
and informs an interpretation of that contract. In other
words, the language of the preamble, combined with
the circumstances of the parties and the development
of the business park, grafts the property law principle
that permits enforcement of the restrictions by one lot
owner against another.
Specifically, the preamble of the declaration stated:
‘‘[T]his [d]eclaration and all of the easements, cove-
nants, conditions and restrictions as set forth herein
shall run with the Lots and the balance of the Property
for all purposes and shall be binding upon and inure to
the benefit of all Owners, and their tenants, subtenants,
employees, concessionaires, licensees, customer and
business invitees, and their successors in interest.’’
Thus the declaration, and the limitations contained
therein, run with the land. See, e.g., Castonguay v.
Plourde, supra, 46 Conn. App. 258 (‘‘[w]here a restrictive
covenant contains words of succession . . . a pre-
sumption is created that the parties intended the restric-
tive covenant to run with the land’’ [internal quotation
marks omitted]).
Taking into consideration the circumstances of the
parties and the transaction at issue, the creation of a
business park, the use of the language that the restric-
tions set forth in the declaration would run with the
land supports a conclusion that the Declarant intended
to incorporate into the declaration the doctrine that an
individual lot owner would be permitted to enforce
those restrictions against any other lot owner, along
with the Declarant and the Owners Association. We
further iterate the principle that every presumption in
favor of jurisdiction should be indulged. For these rea-
sons, we conclude that the court properly denied the
defendants’ motion to dismiss for lack of standing.
II
The defendants next claim that the court improperly
decided the case on a basis not raised by the plaintiffs.
Specifically, they argue that the court’s conclusion that
the declaration did not permit a lot owner to withdraw
from the Owners Association or permit the removal of
a lot from the business park was not pleaded, briefed
or argued before the trial court and cannot stand.15
We agree.
In their complaint, the plaintiffs alleged that the pur-
ported amendment of the declaration, which withdrew
the defendants and their lots from the Owners Associa-
tion, in fact, did not effectively amend the declaration.
Specifically, the complaint alleged that the amendment
(1) was not enacted in accordance with General Stat-
utes § 47-252; (2) failed to obtain sufficient votes as
required by General Statutes § 47-236; (3) violated § 47-
236 (d) by altering the boundaries of the property and
changing the allocated interests of a unit without the
unanimous consent of all the lot owners; and (4) vio-
lated § 47-236 (a) by failing to obtain 67 percent of the
votes. For these reasons, the plaintiffs claimed that the
amendment was void ab inito and unenforceable.
The plaintiffs argued in their posttrial brief that the
amendment was not valid because at the time of the
vote, Rocky Hill Development already had left the Own-
ers Association, and without that entity, the votes of
MPM and Rescue One lacked a majority. The court
rejected this argument that Rocky Hill Development,
the owner of lot 1, had been removed effective June
12, 2012. ‘‘In their attempt to remove Rocky Hill [Devel-
opment] the [Owners] Association did not formally
amend the [d]eclaration and did not record any docu-
ment on the land records. The purported removal of
Rocky Hill [Development] is ineffective for the same
reasons the defendants’ amendment is invalid. The
[d]eclaration does not authorize the removal of lots or
Owners from the [Owners] Association.’’ The court also
rejected the plaintiffs’ contention that the amendment
did not comply with the Common Interest Ownership
Act, General Statutes § 47-214 et seq.
Initially, we review the allegations of the complaint
to determine if the court addressed an issue that was
not pleaded by the plaintiffs. ‘‘The interpretation of
pleadings presents a question of law over which our
review is plenary.’’ (Internal quotation marks omitted.)
Oxford House at Yale v. Gilligan, 125 Conn. App. 464,
469, 10 A.3d 52 (2010).
‘‘The purpose of the complaint is to limit the issues
to be decided at the trial of a case and is calculated to
prevent surprise. . . . A complaint should fairly put
the defendant on notice of the claims against him. . . .
The modern trend, which is followed in Connecticut,
is to construe pleadings broadly and realistically, rather
than narrowly and technically. . . . Although essential
allegations may not be supplied by conjecture or remote
implication . . . the complaint must be read in its
entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded, and do substantial justice between the parties.
. . . As long as the pleadings provide sufficient notice
of the facts claimed and the issues to be tried and do
not surprise or prejudice the opposing party, we will
not conclude that the complaint is insufficient to allow
recovery. . . . Whether a complaint gives sufficient
notice is determined in each case with reference to the
character of the wrong complained of and the underly-
ing purpose of the rule which is to prevent surprise upon
the defendant.’’ (Citations omitted; internal quotation
marks omitted.) Id., 469–70; see also Michalski v. Hinz,
100 Conn. App. 389, 393, 918 A.2d 964 (2007) (‘‘It is
fundamental in our law that the right of a plaintiff to
recover is limited to the allegations of [its] complaint.
. . . More than one century ago, our Supreme Court
held that [w]hen the facts upon which the court in
any case founds its judgment are not averred in the
pleadings, they cannot be made the basis for a recovery.
. . . The vitality of that bedrock principle of Connecti-
cut practice is unquestionable.’’ [Citations omitted;
internal quotation marks omitted.]).
The plaintiffs’ complaint did not allege that the decla-
ration prevented a lot or owner from leaving the Owners
Association. Moreover, during the trial, the plaintiffs
maintained the view that the owner of lot 1 had with-
drawn from the Owners Association, and therefore the
vote purporting to amend the declaration lacked suffi-
cient votes. Specifically, the plaintiffs contended that
because the owner of lot 1 no longer had any voting
rights, the votes of lots 2 and 7 were insufficient to
sustain the proposed amendment to the declaration.
Thus, despite the fact that the court may have awarded
the plaintiffs the relief they sought in their complaint,
we conclude that the basis of that award was not
pleaded, briefed, or raised in any manner to the trial
court.
On appeal, however, the plaintiffs argue that the trial
court was not bound by the pleadings and the evidence
because they brought a declaratory judgment action
pursuant to General Statutes § 52-29. Specifically, they
argue that § 52-29 is a remedial statute that should be
afforded a liberal construction to carry out its purpose.
See generally ACMAT Corp. v. Greater New York
Mutual Ins. Co., 88 Conn. App. 471, 475–76, 869 A.2d
1254, cert. denied, 274 Conn. 903, 876 A.2d 11 (2005).
That liberal construction, according to the plaintiffs,
includes the ability of the trial court to decide the case
on matters not pleaded, briefed or argued by the parties.
Under the facts and circumstances of this case, we
disagree.
‘‘The purpose of a declaratory judgment action, as
authorized by . . . § 52-29 and Practice Book § [17-55],
is to secure an adjudication of rights [when] there is a
substantial question in dispute or a substantial uncer-
tainty of legal relations between the parties. . . . Sub-
divisions (1) and (2) of Practice Book § 17-55
respectively require that the plaintiff in a declaratory
judgment action have an interest, legal or equitable, by
reason of danger of loss or of uncertainty as to the
party’s rights or other jural relations and that there be
an actual bona fide and substantial question or issue
in dispute or substantial uncertainty of legal relations
which requires settlement between the parties. . . .
This court previously has observed that our declaratory
judgment statute provides a valuable tool by which
litigants may resolve uncertainty of legal obligations.
. . .
‘‘We also have recognized that our declaratory judg-
ment statute is unusually liberal. An action for declara-
tory judgment . . . is a statutory action as broad as it
well could be made. . . . Indeed, our declaratory judg-
ment statute is broader in scope than . . . the statutes
in most, if not all, other jurisdictions . . . and [w]e
have consistently construed our statute and the rules
under it in a liberal spirit, in the belief that they serve a
sound social purpose. . . . [Although] the declaratory
judgment procedure may not be utilized merely to
secure advice on the law . . . it may be employed in a
justiciable controversy where the interests are adverse,
where there is an actual bona fide and substantial ques-
tion or issue in dispute or substantial uncertainty of
legal relations which requires settlement, and where all
persons having an interest in the subject matter of the
complaint are parties to the action or have reasonable
notice thereof.’’ (Internal quotation marks omitted.)
Travelers Casualty & Surety Co. of America v. Nether-
lands Ins. Co., 312 Conn. 714, 726–27, 95 A.3d 1031(2014); see also Bysiewicz v. DiNardo, 298 Conn. 748,
756–57, 6 A.3d 726 (2010); Interlude, Inc. v. Skurat, 253
Conn. 531, 536, 754 A.2d 153 (2000).
In support of their appellate argument, the plaintiffs
rely on a statement from Stueck v. Murphy Co., 107
Conn. 656, 661, 142 A. 301 (1928), in which our Supreme
Court noted: ‘‘In an action for a declaratory judgment,
we are not limited by the issues joined or by the claims
of counsel.’’ The plaintiffs also cite to Riley v. Liquor
Control Commission, 153 Conn. 242, 215 A.2d 402(1965). In Riley, two individual plaintiffs applied to the
defendant commission for a permit to operate a liquor
store in Enfield and Norwalk, respectively. Id., 243. The
Great Atlantic and Pacific Tea Company (company)
was listed as a ‘‘backer’’ on both applications. Id. A state
statute prohibited a backer from having any interest in
more than two alcoholic beverage liquor permits, and,
on that basis, the defendant had denied the applications.
Id., 244. The company was a backer of fifty-seven other
liquor store permitees in the state. Id., 246. The plaintiffs
appealed to the Superior Court, which held that the
statute was unconstitutional. Id., 245. Our Supreme
Court, however, raised a jurisdictional question and
determined that because all entities having an interest
in the subject matter of the complaint were not parties
or provided reasonable notice, the trial court lacked
jurisdiction to render a declaratory judgment.16 Id.,
248–49.
The plaintiffs also direct us to our Supreme Court’s
more recent decision in Constantino v. Skolnick, 294
Conn. 719, 988 A.2d 257 (2010). In that case, the plaintiff,
the alleged victim of medical malpractice, commenced
an action against the named defendant, a physician. Id.,
724. The plaintiff filed an offer of judgment in the
amount of $1 million dollars. Id. The offer, which was
not accepted within thirty days as set forth in General
Statutes § 52-192a (a), was deemed rejected as a matter
of law. Id. Approximately nineteen months later, the
plaintiff and named defendant executed an agreement
to settle the case where the named defendant’s insur-
ance provider would pay the plaintiff $1 million dollars.
Id. The plaintiff would agree to release his claims except
for a claim for offer of judgment interest of $293,000.
Id., 725. The only issue for the court was whether the
insurer was required to pay the plaintiff the offer of
judgment interest in the amount of $293,000. Id. Specifi-
cally, the plaintiff and the named defendant proceeded
under the assumption that had the matter gone to trial,
the plaintiff would have been entitled to receive $1
million dollars plus the offer of judgment interest, and
agreed that their settlement should be considered a
verdict and judgment in favor of the plaintiff. Id.
The plaintiff successfully moved to cite in the insur-
ance provider as a defendant and amended his com-
plaint to add a count seeking a declaratory judgment
as to whether the insurance provider was obligated to
pay both the $1 million dollars and the offer of judgment
interest. Id., 726. The trial court concluded that despite
the agreement of the plaintiff and the named defendant,
the language of § 52-192a did not authorize offer of
judgment interest because the matter had been settled
before trial. Id., 727. The statutory language authorized
the court to award offer of judgment interest only after
a trial had occurred. Id., 734. Our Supreme Court agreed
with the trial court, and stated: ‘‘[W]e conclude that
the trial court properly declined to decide whether the
policy limitation on damages barred payment of offer
of judgment interest because it properly concluded that
a necessary predicate to reaching this question had not
been satisfied.’’ Id., 730. In other words, the trial court
lacked the authority to award offer of judgment interest
because there had not been a trial, and the agreement
of the parties could not remedy that fatal flaw. Thus,
unlike this case where there is not such a predicate
issue, the trial court in Constantino properly resolved
an issue outside of the pleadings and arguments of
the parties.
We are mindful, however, that our case law has recog-
nized that there are limits to the scope of a declaratory
judgment action. In Edward Balf Co. v. East Granby,
152 Conn. 319, 326, 207 A.2d 58 (1965), our Supreme
Court declined to consider the issue of whether the
town had included the plaintiff’s land in an agriculture
zone, noting that that issue was not in the pleadings
and that the plaintiff had sought only a determination
of whether it could lawfully operate a stone quarry. The
court refused to consider the ‘‘much broader question’’
because it was ‘‘not fairly within the issues in [the]
case.’’ Id.In the present case, the trial court was not faced with
a jurisdictional question or a predicate issue that the
parties had failed to plead, brief or address during the
trial. Instead, it based its decision on an argument that
never had been pleaded, argued or briefed. Moreover,
the court’s reasoning was directly contrary to one of
the plaintiffs’ arguments. The plaintiffs had claimed that
the vote was invalid because the owner of lot 1 pre-
viously had withdrawn from the Owners Association.
The court concluded, sua sponte, that no party was
permitted to leave under the terms of the declaration.
The defendants in this case had no warning that the
court would decide the case on a basis that was directly
contrary to one of the arguments that had been pleaded,
briefed and argued by the plaintiffs.17 Under these facts
and circumstances, we conclude, despite the broad and
remedial nature of a declaratory judgment action, that
the decision of the court must be reversed.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
The plaintiffs commenced this action against MPM, DiMaria, Rocky Hill
Development, LLC, and Rescue One, LLC. On October 1, 2014, the plaintiffs
withdrew the action against Rocky Hill Development, LLC, and Rescue One,
LLC, and those two entities are not part of this appeal. We refer to MPM
and DiMaria as the defendants in this opinion.
2
See, e.g., Harbour Pointe, LLC v. Harbour Landing Condominium
Assn., Inc., 300 Conn. 254, 255 n.1, 14 A.3d 284 (2011) (declaration is instru-
ment recorded and executed in same manner as deed for purposes of creating
common interest community).
3
Section 3.3 of article 3 of the declaration provided in relevant part: ‘‘The
[Owners] Association shall have one class of voting membership. Each
Owner and the owner or owners of any portion of the Property that is not
a Lot shall be entitled to that number of votes equal to the numerator of
the fraction that is each parties’ Pro Rata share (rounded off to a whole
number), as determined from time to time by the formula set forth on the
schedule attached hereto as Exhibit C.’’
Lot 1 had a vote of 27.84 percent, lot 2 had a vote of 11.01 percent, lot
3 had a vote of 9.25 percent, lot 4 had a vote of 8.57 percent, lot 5 had a
vote of 9.16 percent, lot 6 had a vote of 17.05 percent, and lot 7 had a vote
of 15.30 percent.
4
Gary Simonsen, the president of the Owners Association and a member
of the three person Design Review Committee, testified that lot 2 was an
undeveloped parcel of land.
5
Simonsen testified that DiMaria was invited to attend the meeting of the
Design Review Committee, but he did not.
6
Specifically, Rocky Hill Development, as the owner of lot 1, claimed a
vote of 27.84 percent, MPM, the owner of lot 2, claimed a vote of 11.01
percent and Rescue One, the owner of lot 7, claimed a vote of 15.30 percent
for a total of 54.15 percent.
7
See generally Practice Book § 17-56 (a) (3) and General Statutes § 52-29.
8
The plaintiffs’ complaint provided in relevant part: ‘‘29. Despite the Defen-
dants’ [Rocky Hill Development, MPM, DiMaria, and Rescue One] description
of the Purported Amendment as an amendment of the Declaration, the
Purported Amendment did not effectively amend the Declaration.
‘‘30. The Defendants [Rocky Hill Development, MPM, DiMaria, and Rescue
One] failed to conduct a valid vote in accordance with the requirements of
Connecticut General Statutes § 47-252.
‘‘31. Not only the did the Defendants [Rocky Hill Development, MPM,
DiMaria, and Rescue One] fail to conduct a valid vote, they failed to obtain
sufficient votes required by Connecticut General Statutes § 47-236 to effec-
tively accomplish their Purported Amendment.
‘‘32. Pursuant to Connecticut General Statutes § 47-236 (d) ‘. . . no amend-
ment may create or increase special declarant rights, increase the number
of units or change the boundaries of any unit or the allocated interests of
a unit, in the absence of unanimous consent of unit owners.’
‘‘33. The Defendants [Rocky Hill Development, MPM, DiMaria, and Rescue
One] failed to comply with Connecticut General Statutes § 47-236 (d) by
purporting to alter the boundaries of the Property within the [Owners]
Association without unanimous consent of all unit owners.
‘‘34. The Defendants [Rocky Hill Development, MPM, DiMaria, and Rescue
One] further failed to comply with Connecticut General Statutes § 47-236
(d) by purporting to change the allocated interests of a unit without the
unanimous consent of all unit owners.
‘‘35. In addition, Connecticut General Statutes § 47-236 (a) generally
required the Defendants [Rocky Hill Development, MPM, DiMaria, and Res-
cue One] to obtain at least sixty-seven percent of the votes for any amend-
ment because Declaration does not specifically restrict the Property to
nonresidential use.
‘‘36. The Defendants [Rocky Hill Development, MPM, DiMaria, and Rescue
One] failed to obtain sufficient votes to approve the Purported Amendment.’’
9
Although this issue was mentioned in the plaintiffs’ preliminary statement
of issues, they have not challenged on appeal the court’s conclusion regard-
ing the Common Interest Ownership Act, General Statutes § 47-214 et seq.
10
In denying the defendants’ motion to dismiss, the court referred to the
doctrine that if a declaration is found to be a common scheme in a develop-
ment, then the individual owners may enforce the restrictions contained in
that declaration. Although the court did not directly cite to an authority for
this proposition, this court has stated: ‘‘In general, restrictive covenants fall
into three classes: (1) mutual covenants in deeds exchanged by adjoining
landowners; (2) uniform covenants contained in deeds executed by the
owner of property who is dividing his property into building lots under a
general development scheme; and (3) covenants exacted by a grantor from
his grantee presumptively or actually for the benefit and protection of his
adjoining land which he retains. . . . With respect to the second class of
covenants, any grantee under such a general or uniform development scheme
may enforce the restrictions against any other grantee.’’ (Internal quotation
marks omitted.) Cappo v. Suda, 126 Conn. App. 1, 4, 10 A.3d 560 (2011).
We also have stated that enforcement by any grantee under a general
development scheme comes from the doctrine of the enforceability of uni-
form restrictive covenants. ‘‘With respect to this type of covenant, any
grantee under a general or uniform development scheme may enforce the
restrictions against any other grantee. . . . The doctrine of the enforceabil-
ity of uniform restrictive covenants is of equitable origin. The equity springs
from the presumption that each purchaser has paid a premium for the
property in reliance on the uniform development plan being carried out.
While that purchaser is bound by and observes the covenant, it would be
inequitable to allow any other landowner who is also subject to the same
restriction to violate it.’’ (Citations omitted; internal quotation marks omit-
ted.) Mannweiler v. LaFlamme, 46 Conn. App. 525, 535–36, 700 A.2d 57,
cert. denied, 243 Conn. 934, 702 A.2d 641 (1997); see also Pulver v. Mascolo,
155 Conn. 644, 650, 237 A.2d 97 (1967); Contegni v. Payne, 18 Conn. App.
47, 51–52, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989).
11
The preamble to the declaration provides in relevant part: ‘‘WHEREAS,
in order to develop the Property as a functionally integrated business park,
Declarant desires to establish and create certain easements, covenants, and
restrictions affecting the Property and to create an ’[Owners] Association’
(as hereinafter defined) to maintain, administer and enforce these covenants
and restrictions and the levy, collection and disbursement of the assessments
and charges hereafter created . . . . ’’
12
Section 3.4 of article 3 of the declaration provides in relevant part: ‘‘The
members of the [Owners] Association shall elect a three member Board of
Directors from amongst the Owners, which Board shall oversee all activities
of the [Owners] Association and which shall call meetings of the [Owners]
Association as necessary. The Board of Directors shall have, subject to the
limitations contained in this Declaration and the Act, the powers and duties
necessary for the administration of the affairs of the [Owners] Association
which shall include, but not be limited to, the following . . . (f) Institute,
defend or intervene in litigation or administrative proceedings in the [Own-
ers] Association’s name on behalf of the [Owners] Association . . . .’’
13
Section 9.5 of article 9 of the declaration provides in relevant part: ‘‘No
delay or omission by the Declarant or the [Owners] Association in exercising
any right or power accruing upon any default, noncompliance or failure of
performance of any of the provisions of this Declaration by any Owners
shall be construed as a waiver thereof.’’
14
As a result of our conclusion that the plaintiffs have standing under the
language of the declaration, we express no opinion on the defendants’
arguments regarding the scope of our Supreme Court’s decisions in Harbour
Pointe, LLC v. Harbour Landing Condominium Assn., Inc., supra, 300
Conn. 254, and Cantonbury Heights Condominium Assn., Inc. v. Local
Land Development, LLC, supra, 273 Conn. 724. We note, however, that
neither of those cases addressed the issue of standing, or that consideration
of standing was limited to contract law principles.
15
The defendants also challenge the court’s conclusion that § 9.10 of
article 9 of the declaration does not permit the withdrawal from the Owners
Association or the lot from the business park. As a result of our conclusion
that it was improper for the trial court to base its decision on a claim that
was not pleaded, briefed or argued by the plaintiffs, we need not address
the merits of this claim.
16
In Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277,
289, 914 A.2d 996 (2007), our Supreme Court concluded that ‘‘the failure to
notify interested persons in a declaratory judgment action does not implicate
the court’s subject matter jurisdiction. . . . We therefore now overrule our
past precedent in which we conclude that the lack of notice to interested
persons of the pendency of declaratory judgment action deprives the court
of subject matter jurisdiction.’’
17
We note that as a general rule, the principles of due process and funda-
mental fairness require that the parties be provided sufficient notice that
the court intends to consider an issue and a meaningful opportunity to be
heard on that issue. See, e.g., Valentine v. Valentine, 149 Conn. App. 799,
803–805, 90 A.3d 300 (2014); Styrcula, v. Styrcula, 139 Conn. App. 735,
744–48, 57 A.3d 822 (2012); see generally State v. Connor, 321 Conn. 350,
370–72, A.3d (2016).