Jepsen v. Camassar ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ANDERS B. JEPSEN ET AL. v. BETH M.
CAMASSAR ET AL.
(AC 42000)
Alvord, Prescott and Beach, Js.
Syllabus
The plaintiffs, who held a warranty deed to real property in a subdivision
and a quitclaim deed to an undivided one-forty-eighth interest in a beach
that was subject to certain restrictive covenants, brought an action
against the defendants, who also owned real property in the subdivision,
seeking a declaration that a 2011 modification to the restrictive cove-
nants of the beach deed was null and void. In 2014, a modification that
contained an extensive revision of the restrictive covenants governing
the use of the beach was filed in the land records, causing the plaintiffs
A and B to amend the complaint to seek a declaratory judgment that
the 2014 modification was null and void. The case was tried to the court,
which rendered judgment in part in favor of the defendants, declaring
that the 2011 modification was null and void but that the 2014 modifica-
tion was valid and in full force and effect. A and B thereafter filed a
motion for attorney’s fees and costs, which the court denied. A and B
appealed to this court, which, inter alia, reversed the trial court’s judg-
ment in favor of the defendants on the declaratory judgment count with
respect to the 2014 modification, concluding that the 2014 modification
was not valid and in full force and effect, and affirmed the court’s
judgment in favor of the defendants on A and B’s claim for attorney’s
fees and costs. The trial court, on remand, rendered judgment declaring
the 2014 modification invalid. Subsequently, A and B filed postjudgment
motions for equitable relief and for fees and costs and a motion to open
the judgment, which the court denied. On A and B’s appeal to this
court, held:
1. The claim of A and B that the trial court improperly denied their postjudg-
ment motion for equitable relief because this court’s order of remand
in the first appeal required the trial court to address their claims for
quiet title and injunctive relief was unavailing, as the relief sought by
A and B was beyond the scope of this court’s remand: the rescript in
the first appeal, as interpreted in conjunction with the entirety of the
opinion, conveyed to the trial court that the claims of A and B for
quiet title were beyond the scope of the mandate, as this court, having
identified all of the claims that A and B advanced in the first appeal
and having noted which of those claims would not be addressed in its
opinion, communicated to the parties that each claim was given its due
consideration before this court and ultimately concluded that it was
unnecessary to address the quiet title claims, this court’s favorable
rulings on the declaratory judgment counts of A and B obviated the
need to address their quiet title counts, which sought the same relief
as the declaratory judgment counts, and this court made no mention in
its rescript of the quiet title claims of A and B, despite acknowledging
that they had raised those claims; moreover, A and B could not prevail
on their claim that the trial court improperly declined to provide injunc-
tive relief on remand, as this court, having declared the 2011 and 2014
modifications null and void under the declaratory judgment counts,
invalidated the modifications’ attack on the original beach deed’s restric-
tive covenants by returning title to the beach to what it was prior to
the enactment of those modifications, and, therefore, A and B were not
entitled to any further relief.
2. A and B could not prevail on their claim that the trial court improperly
denied their postjudgment motion for fees and costs as to their success-
ful challenges to the 2011 modification, as that court was correct that
its consideration of the postjudgment motion for fees and costs as to
that modification was beyond the scope of the remand in the first appeal
because this court affirmed the trial court’s denial of attorney’s fees
and costs with respect to the 2011 modification and did not indicate in
its rescript that the issue warranted further consideration; nevertheless,
the trial court improperly denied the postjudgment motion for fees
and costs without reaching the merits of that motion as to the 2014
modification, as it was appropriate for A and B to seek postjudgment
fees and costs with respect to the 2014 modification on remand because
their entitlement under that modification to attorney’s fees and costs
had not been considered before a judgment was rendered in their favor
on the 2014 modification by this court’s reversal of the trial court, and
the postjudgment motion for fees and costs as to that modification was
not barred by the doctrines of res judicata or collateral estoppel because
it had not been considered by either the trial court or this court in the
first appeal.
3. The claim of A and B that, even assuming that this court’s mandate in
the first appeal did not encompass their claims to quiet title, equitable
relief, and fees and costs, the trial court improperly denied their motion
to open to provide them with their requested relief, was unavailing; the
trial court considered the issues raised by A and B by way of their
postjudgment motions to have been litigated and reviewed, and the
claim of A and B that the trial court and this court failed to rule on the
claims raised in their postjudgment motions was incorrect, as those
claims were raised in the first appeal and either rejected or not
addressed.
4. A and B could not prevail on their claim that the trial court violated
several of their state and federal constitutional rights by failing to hear
or grant their postjudgment motions to correct the record and clear the
cloud on their title caused by both the 2011 and 2014 modifications,
provide them with damages and injunctive relief inherent thereto, and
protect their rights and their title against further violations; that court
interpreted the scope of the remand correctly when it denied the claims
of A and B to quiet title, to injunctive relief, and to attorney’s fees and
costs as to the 2011 modification, and the court’s denial of those claims
did not amount to a violation of the constitutional rights of A and B.
Argued October 22, 2019—officially released February 25, 2020
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 L. Barrila withdrew from the action and Beth
Jepsen was added as an additional plaintiff; thereafter,
the named plaintiff et al. filed a third amended com-
plaint and 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, Lavine,
Sheldon and Elgo, Js.; subsequently, the court, Bates,
J., denied the motions for attorney’s fees and costs and
to reargue filed by the named plaintiff et al., and the
named plaintiff et al. filed an amended appeal with this
court, which reversed in part the trial court’s judgment
and remanded the case to that court with direction to
render judgment in part for the named plaintiff et al.;
thereafter, the court, Calmar, J., rendered judgment in
accordance with this court’s remand order; subse-
quently, the court, S. Murphy, J., denied the motions
for equitable relief, for fees and costs, and to open the
judgment filed by the named plaintiff et al., and the
named plaintiff et al. appealed to this court; thereafter,
the court, S. Murphy, J., issued articulations of its deci-
sion. Affirmed in part; reversed in part; further pro-
ceedings.
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
ALVORD, J. The plaintiffs Anders B. Jepsen and Beth
Jepsen1 appeal from the denial of their postjudgment
motions for equitable relief, for attorney’s fees and
costs, and to open the judgment rendered by the trial
court following a remand by this court. See Jepsen v.
Camassar, 181 Conn. App. 492, 187 A.3d 486 (Jepsen
I), cert. denied, 329 Conn. 909, 186 A.3d 12 (2018). On
appeal, the plaintiffs claim that (1) the trial court failed
to provide them with relief that was encompassed
within the mandate of Jepsen I when it denied their
claims to equitable relief and attorney’s fees and costs,
(2) even assuming that the mandate did not encompass
the relief sought by the plaintiffs, the trial court improp-
erly declined to open the judgment to provide the plain-
tiffs with their desired relief, and (3) the trial court
violated the plaintiffs’ constitutional rights by failing to
provide them with their desired relief on remand. We
agree in part with the plaintiffs’ claim to attorney’s fees
and costs, reverse the judgment of the trial court limited
to that issue and remand the case for further proceed-
ings consistent with this opinion.
The following relevant facts are set forth in this
court’s decision in Jepsen I. The plaintiffs and the defen-
dants,2 at all relevant times, owned real property in a
subdivision in New London (subdivision). Id., 495. In
addition to residential parcels, the subdivision is com-
prised of a 250 foot strip of beachfront property known
as Billard Beach (beach). Id., 496. ‘‘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).’’ Id.
The beach deed contains restrictive covenants on the
use of the beach and expressly provides a mechanism
for the modification of the restrictive covenants. Id.,
496–98. The beach deed is subject to an express condi-
tion subsequent that the beach deed would revert back
to the grantor, its successors or assigns ‘‘if the same
is aliened separately and apart from the land’’ in the
warranty deed.
In 2011, a dispute arose among some of the property
owners regarding guest access to the beach. In response
to this dispute, a modification to the restrictive cove-
nants of the beach deed (2011 modification) was filed
on the New London land records. See Jepsen I, supra,
181 Conn. App. 502. The 2011 modification prompted
the original plaintiffs to commence a declaratory judg-
ment action seeking to have the 2011 modification
declared null and void. Id. After the filing of the action,
‘‘the parties engaged in prolonged discussions, includ-
ing mediation, seeking to resolve the issues raised in
the legal action, while still trying to respond to the
concerns of the [Billard Beach] [A]ssociation [associa-
tion] members regarding uncontrolled [guest] use of
the beach. . . . In the course of these negotiations,
the proponents of the modification, working with the
[e]xecutive [c]ommittee of the [a]ssociation, developed
and proposed the Amended and Restated Covenants
and Restrictions Regarding Billard Beach, New London,
Connecticut (2014 modification). The 2014 modification
contained an extensive revision of the restrictive cove-
nants governing the use of the beach.’’ (Footnote omit-
ted; internal quotation marks omitted.) Id., 502–503.
The 2014 modification was filed on the New London
land records, causing the plaintiffs to amend their com-
plaint to seek a declaratory judgment that the 2014
modification is null and void. Id., 509. In their third
amended complaint (complaint), the plaintiffs pleaded
six counts in total: counts of declaratory judgment,
quiet title, and slander of title, as to both the 2011 and
2014 modifications.
A trial was held in December, 2015. Id. In a memoran-
dum of decision dated May 20, 2016, the trial court,
Bates, J., ‘‘ruled in favor of the defendants on the slan-
der of title counts of the . . . complaint,’’ ‘‘rendered
judgment in favor of the plaintiffs on the first count of
their complaint [seeking declaratory judgment], declar-
ing that ‘[t]he 2011 modification by agreement of the
parties is deemed null and void,’ ’’ and ‘‘rendered judg-
ment in favor of the defendants on the fourth count of
the . . . complaint, stating that ‘[t]he 2014 modifica-
tion is declared valid and in full force and effect.’ ’’ Id.,
510–12. Judge Bates 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 there-
after filed a motion for attorney’s fees and costs pursu-
ant to General Statutes § 52-245 and Practice Book § 13-
25, predicated on the defendants’ special defense that
the plaintiffs possessed knowledge of the modifications
to the beach deed but refused to participate. . . . The
[trial] court declined that request, concluding that such
an award was not warranted.’’ (Footnotes omitted.) Id.,
534. The plaintiffs appealed to this court, claiming that
‘‘the [trial] court improperly (1) concluded that the
[2014 modification] was properly enacted, (2) con-
cluded that they had not met their burden in establishing
slander of title, and (3) declined to render an award of
attorney’s fees in their favor.’’ Id., 495.
In Jepsen I, this court reversed the trial court’s judg-
ment in favor of the defendants on the declaratory judg-
ment count with respect to the 2014 modification, con-
cluding that the 2014 modification was not ‘‘approved
by owners of a majority of properties in the subdivision’’
and, thus, was not ‘‘ ‘valid and in full force and effect.’ ’’
Id., 529. We affirmed the trial court’s judgment in favor
of the defendants on the plaintiffs’ slander of title counts
and their claim to attorney’s fees and costs. Id., 533,
535. The following rescript was issued in Jepsen I: ‘‘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 modifi-
cation invalid. The judgment is affirmed in all other
respects.’’ Id., 535.
On remand, on May 7, 2018, the trial court, Calmar,
J., rendered judgment in favor of the plaintiffs on the
fourth count of their complaint, declaring the 2014 mod-
ification invalid. The plaintiffs thereafter filed a petition
for certification to appeal to our Supreme Court, which
was denied. See Jepsen v. Camassar, 329 Conn. 909,
186 A.3d 12 (2018).
On July 9, 2018, the plaintiffs filed two postjudgment
motions: (1) a motion captioned ‘‘claim for equitable
relief pursuant to [General Statutes §] 47-31, [Practice
Book §§] 10-27 and 11-21 and for alternative relief pursu-
ant to [Practice Book] § 10-25’’ (postjudgment motion
for equitable relief); and (2) a motion captioned ‘‘motion
for fees and costs pursuant to . . . § 52-245 and [Prac-
tice Book] § 13-25 and for alternative relief pursuant to
. . . [§] 47-31 and [Practice Book] § 10-25’’ (postjudg-
ment motion for fees and costs).3
On July 20, 2018, the defendants represented by Syn-
odi & Videll, LLC, and the defendants represented by
Waller, Smith & Palmer, P.C.,4 separately filed objec-
tions to the plaintiffs’ postjudgment motions. Therein,
those defendants argued that the plaintiffs’ postjudg-
ment motions were improper because a judgment had
been rendered in the case and no motion to open that
judgment had been filed. The defendants further argued
that the plaintiffs’ claims in the postjudgment motions
exceeded the scope of this court’s mandate in Jepsen
I. The Synodi defendants claimed that the plaintiffs
had ‘‘filed frivolous motions which [were] an abuse of
process’’ and sought to have the plaintiffs foreclosed
from filing other similar motions. The WSP defendants
claimed that the plaintiffs’ postjudgment motions had
‘‘no basis in law or fact’’ and were ‘‘blatant and baseless
attempts to relitigate issues already ruled [on],’’ and
requested an award of costs and attorney’s fees for
defending against the plaintiffs’ ‘‘vexatious claims.’’ On
July 25, 2018, the trial court, S. Murphy, J., summarily
denied the plaintiffs’ postjudgment motions and sum-
marily sustained the defendants’ objections thereto.
On July 23, 2018, in response to arguments raised in
the defendants’ objections and while awaiting the trial
court’s ruling on their postjudgment motions, the plain-
tiffs filed a motion to open the judgment (motion to
open). The plaintiffs sought to have the court open
Judge Calmar’s May 7, 2018 judgment and award attor-
ney’s fees and costs, and equitable relief. The Synodi
defendants and the WSP defendants objected, and
Judge Murphy summarily denied the plaintiffs’ motion
to open. The plaintiffs thereafter filed this appeal of
the trial court’s denial of their postjudgment motions
and their motion to open.5 Additional facts will be set
forth as necessary.
I
The plaintiffs claim that the trial court improperly
denied their (1) postjudgment motion for equitable
relief and (2) postjudgment motion for fees and costs.
We will consider each claim in turn.
A
The plaintiffs claim that this court’s order of remand
in Jepsen I required the trial court to address their
claims for quiet title and injunctive relief. The defen-
dants argue that the relief sought by the plaintiffs was
beyond the scope of this court’s remand. We agree with
the defendants.
We first set forth the principles of law and the stan-
dard of review by which we evaluate this claim. ‘‘In
carrying out a mandate of this court, the trial court
is limited to the specific direction of the mandate as
interpreted in light of the opinion. . . . This is the guid-
ing principle that the trial court must observe. . . .
Compliance means that the direction is not deviated
from. The trial court cannot adjudicate rights and duties
not within the scope of the remand. . . . It is the duty
of the trial court on remand to comply strictly with the
mandate of the appellate court according to its true
intent and meaning. No judgment other than that
directed or permitted by the reviewing court may be
rendered, even though it may be one that the appellate
court might have directed. The trial court should exam-
ine the mandate and the opinion of the reviewing court
and proceed in conformity with the views expressed
therein. . . .
‘‘Our remand orders, however, are not to be con-
strued so narrowly as to prohibit a trial court from
considering matters relevant to the issues upon which
further proceedings are ordered that may not have been
envisioned at the time of the remand. . . . So long
as these matters are not extraneous to the issues and
purposes of the remand, they may be brought into the
remand hearing.’’ (Citation omitted; internal quotation
marks omitted.) TDS Painting & Restoration, Inc. v.
Copper Beech Farm, Inc., 73 Conn. App. 492, 515–16,
808 A.2d 726 (TDS Painting), cert. denied, 262 Conn.
925, 814 A.2d 379 (2002). ‘‘Because a mandate defines
the trial court’s authority to proceed with the case on
remand, determining the scope of a remand is akin to
determining subject matter jurisdiction. . . . 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.’’ (Citation omitted; internal
quotation marks omitted.) Gianetti v. Norwalk Hospi-
tal, 304 Conn. 754, 791–92, 43 A.3d 567 (2012).
As previously set forth, this court’s rescript in Jepsen
fourth count of the plaintiffs’ complaint and the case
is remanded with direction to render judgment declar-
ing the 2014 modification invalid. The judgment is
affirmed in all other respects.’’ Jepsen I, supra, 181
Conn. App. 535. In two separate footnotes, this court
stated that, in light of its decisions to affirm the trial
court’s determination that the 2011 modification was
null and void and to reverse the trial court by declaring
the 2014 modification null and void, it was unnecessary
to reach any of the plaintiffs’ other claims for relief,
including their request for quiet title. Id., 495 n.1, 529–30
n.49. This court stated that ‘‘[t]he plaintiffs also have
raised claims concerning a reverter clause in the beach
deed, their request to quiet title to the property in ques-
tion, the applicability of the Common Interest Owner-
ship Act, General Statutes § 47-200 et seq., and various
constitutional rights under the state and federal consti-
tutions that allegedly have been violated by the modifi-
cation of the beach deed. In light of our resolution of
the principal issue in this appeal, we do not address
those contentions.’’ (Emphasis added.) Id., 495 n.1.
Later in the opinion, this court ‘‘acknowledge[d] 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 conclu-
sion that the 2014 modification likewise is invalid, fur-
ther 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 modifications.’’ (Emphasis added.)
Jepsen I, supra, 529–30 n.49.
We conclude that the rescript in Jepsen I, as interpre-
ted in conjunction with the entirety of the opinion,
particularly the two footnotes recited in the preceding
paragraph, conveyed to the trial court that the plaintiffs’
claims for quiet title were beyond the scope of the
mandate.
First, this court identified all of the claims that the
plaintiffs advanced on appeal and noted which of these
claims would not be addressed in its opinion. This
included the plaintiffs’ quiet title claims. See id., 495
n.1, 529–30 n.49. In so doing, this court communicated
to the parties that each claim was given its due consider-
ation before this court and ultimately concluded that,
in light of its determination on other claims presented
in the appeal, it was unnecessary to address the quiet
title claims. In this way, this court’s direction in Jepsen
I is distinguishable from other appellate cases in which
a remand was found not to have proscribed the trial
court from considering certain issues on remand
because those issues had not been raised in the appeal.
See, e.g., State v. Brundage, 320 Conn. 740, 750, 135 A.3d
697 (2016) (‘‘In Brundage . . . the Appellate Court did
not have before it the question of whether the state
could file, subsequent to a reversal of the defendant’s
judgments of conviction, a substitute information bring-
ing different charges against the defendant. That ques-
tion was completely outside the scope of the issues
presented in the appeal, and to impose a rule that pre-
sumes that a reviewing court would address such an
issue would require the reviewing court to act with a
degree of prescience that cannot reasonably be
expected, and, therefore, is completely inconsistent
with the role played by a reviewing court.’’); Beccia v.
Waterbury, 192 Conn. 127, 131, 133, 470 A.2d 1202
(1984) (concluding that constitutionality defense that
was raised to trial court on remand was not beyond
scope of remand because it was not before our Supreme
Court in first appeal); Behrns v. Behrns, 124 Conn. App.
794, 814–15, 817, 6 A.3d 184 (2010) (concluding that
trial court did not exceed its authority on remand when
it ordered defendant to pay interest on arrearages
because ‘‘[a]t the time of our remand . . . neither the
trial court nor this court had addressed the plaintiff’s
entitlement to interest on the money owed by the defen-
dant’’); TDS Painting, supra, 73 Conn. App. 514–18
(holding that trial court and attorney trial referee were
not barred on remand from considering issue of post-
judgment attorney’s fees and costs because they were
not part of earlier appeal). This court’s acknowledg-
ment of the plaintiffs’ quiet title claims and its conclu-
sion that it need not address them was interpreted cor-
rectly by the trial court as an indication that no further
consideration was owed to these claims on remand.
Second, as noted in footnotes 1 and 49 of Jepsen I;
see Jepsen I, supra, 181 Conn. App. 495 n.1, 529–30
n.49; this court’s favorable rulings on the plaintiffs’
declaratory judgment counts obviated the need to
address their quiet title counts, as the plaintiffs sought
the same relief under both sets of counts. In the plain-
tiffs’ second and fifth counts of their complaint, in
which they sought to quiet title, the plaintiffs’ claim for
relief was a ‘‘[j]udgment determining the rights of the
parties in and to the property and settlement [of] the
title thereto by declaring the modification to be null
and void,’’ and ‘‘[s]uch other relief as in equity may
appertain.’’ Under the first and fourth counts, seeking
a declaratory judgment, the plaintiffs likewise sought,
inter alia, that the 2011 and 2014 modifications be
declared null and void. Because this court provided the
plaintiffs with their requested relief under their declara-
tory judgment counts—declaring both modifications
null and void—it would have been superfluous for this
court to address their quiet title counts, which also
sought that the modifications be declared null and void.
It would have been similarly redundant for the trial
court to interpret this court’s mandate as requiring it
to consider the same issue that this court declined to
address. The trial court correctly refrained from
doing so.
In footnote 49 of Jepsen I, this court stated 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.’’ Jepsen I, supra,
181 Conn. App. 529 n.49. Although this factual statement
arguably could be seen as an observation by this court
that Judge Bates had failed to rule on the plaintiffs’
quiet title counts, we do not share in that interpretation.
Rather, we read this statement as a simple recognition
that Judge Bates did not separately analyze or set forth
his ruling on the plaintiffs’ quiet title counts.
Instead, Judge Bates implicitly disposed of the plain-
tiffs’ quiet title counts because those counts sought the
same relief that was requested by the plaintiffs under
their declaratory judgment counts and his analysis of
the validity of the 2011 and 2014 modifications corres-
ponded to both sets of those counts. The plaintiffs’
requested relief under both sets of counts—that the
modifications be invalidated—required Judge Bates to
analyze whether the modifications to the beach deed
were created in accordance with the beach deed’s
express mechanism for modifying its restrictive cove-
nants. Judge Bates performed this analysis with respect
to the 2011 modification, as evidenced by his conclusion
that ‘‘a ‘vote’ requires more formality than just obtaining
signatures’’ and that ‘‘the [2011] modification appears
to have been a legal nullity.’’ Judge Bates likewise per-
formed this analysis with regard to the 2014 modifica-
tion, as exhibited by his conclusion that ‘‘a ‘vote’
occurred regarding the [2014] modification.’’ With
respect to the applicability of a quiet title claim to the
2014 modification, Judge Bates found that the valid
modification did not create any interest adverse to the
plaintiffs’ interest, which precluded the need ‘‘for a full
determination of the rights of the parties in’’ the beach
deed. Lake Garda Improvement Assn. v. Battistoni,
155 Conn. 287, 293, 231 A.2d 276 (1967). Judge Bates’
conclusion is best illustrated by his finding that ‘‘[n]one
of [the] changes [provided by the 2014 modification]
affected the ‘ownership’ of beach rights; rather, the
changes more precisely described and to some degree
expanded those rights. Instead of severing the beach
lot from the house lot—as alleged by the plaintiff[s]—
the changes clarified and defined the rights of lot own-
ers and their tenants to use the beach.’’ Because of
Judge Bates’ rulings on the validity of both modifica-
tions, and in light of his finding that no adverse interests
were created as a result of the 2014 modification, the
quiet title claims effectively were adjudicated.
Third, this court made no mention in its rescript of
the plaintiffs’ quiet title claims, despite acknowledging
that the plaintiffs had raised these claims and, neverthe-
less, declining to address them. If this court wanted the
trial court to address the plaintiffs’ quiet title claims on
remand, it would have said so explicitly. See Barlow
v. Commissioner of Correction, 328 Conn. 610, 613–14,
182 A.3d 78 (2018) (stressing need for ‘‘clarity and con-
sistency between the opinion and the rescript’’). This
court did not do so.
NPC Offices, LLC v. Kowaleski, supra, 320 Conn. 519,
is illustrative of circumstances in which our Supreme
Court provided the trial court with explicit instructions
to address certain claims in a new trial. In that case, a
dispute arose over the legal effectiveness of an express
easement that provided the grantee-plaintiff the right
to use the driveway of the grantor-defendants to access
a parking area behind the parties’ abutting real proper-
ties. Id., 522–23. The easement was conditioned on the
plaintiff’s property being used for purposes of residen-
tial or professional offices. Id., 522. When the defen-
dants constructed an iron fence behind the buildings
along the parties’ common boundary, resulting in
restricted access to and maneuverability in the parking
area behind the plaintiff’s property, the plaintiff brought
an action, claiming fraudulent transfer, entry and
detainer, and the creation of prescriptive and implied
easements, and sought quiet title and an injunction.
Id., 523. The trial court concluded that the plaintiff’s
property was not being used as ‘‘ ‘professional offices,’ ’’
as those terms in the easement had been interpreted
by the trial court, and, thus, that the easement was
terminated. Id., 524. Our Supreme Court reversed. Id.,
533. The court recognized that, ‘‘[a]s a result of the trial
court’s determination that the easement had termi-
nated, there [were] several claims that the trial court
did not independently address,’’ including quiet title,
injunctive relief, and entry and detainer. Id., 533–34.
Our Supreme Court remanded the case to this court
with direction to reverse the trial court’s judgment and
to remand the case to the trial court for a new trial
and provided the trial court with explicit directions to
address those claims in a new trial. Id., 534–35.
The plaintiffs maintain that this court’s citation to
NPC Offices, LLC, in footnote 49 of Jepsen I; see Jepsen
I, supra, 181 Conn. App. 529–30 n.49; is a ‘‘clear direc-
tion’’ by this court that the plaintiffs’ quiet title claims
be considered on remand. We disagree. NPC Offices,
LLC, is distinguishable from the present case and, thus,
cannot be used as the plaintiffs suggest. In NPC Offices,
LLC, the trial court concluded that the easement was
terminated and, for that reason, did not consider the
plaintiff’s claims for quiet title, injunctive relief, and
entry and detainer, all of which related to the defen-
dants’ construction of an iron fence along the parties’
common boundary. Upon reversal, however, our
Supreme Court noted that, because the easement was
not terminated, meaning that the plaintiff’s right to
access the defendants’ driveway remained effective, the
plaintiff could be entitled to further relief under its
additional claims relating to the defendants’ iron fence.
See NPC Offices, LLC v. Kowaleski, supra, 320 Conn.
534. Conversely, in the present case, when, in Jepsen
I, we affirmed the trial court’s ruling that the 2011 modi-
fication was null and void and reversed the trial court
as to the 2014 modification, finding it null and void,
there was no need to consider the plaintiffs’ quiet title
claims because the plaintiffs were already given the
relief they sought, namely, a declaration that both modi-
fications are null and void.6 Accordingly, unlike NPC
Offices, LLC, in the present case there was no lingering
impediment, physical or otherwise, to the plaintiffs’
beach deed after both modifications were declared null
and void. We reiterate that, if this court wanted the
trial court to consider the plaintiffs’ quiet title counts on
remand, it would have done so explicitly in its rescript
rather than by oblique citation to NPC Offices, LLC,
within a footnote.
The plaintiffs also argue that the trial court improp-
erly declined to provide injunctive relief on remand.7
The plaintiffs argue that ‘‘injunctive relief is essential
to implementing and protecting [this court’s] decision
[in Jepsen I] to invalidate the modifications’ attack on
the original deed’s restrictive covenants.’’ This court,
by declaring the 2011 and 2014 modifications null and
void under the plaintiffs’ declaratory judgment counts,
had already ‘‘invalidate[d] the modifications’ attack on
the original deed’s restrictive covenants,’’ by returning
‘‘title to the beach . . . [to what it] was prior to the
enactment of the 2011 and 2014 modifications.’’ Jepsen
I, supra, 181 Conn. App. 530 n.49. As a result, the plain-
tiffs were not entitled to any further relief.8
The trial court interpreted correctly this court’s man-
date as not requiring that the plaintiffs’ claims for quiet
title and injunctive relief be addressed.9
B
The plaintiffs next claim that the trial court improp-
erly denied their postjudgment motion for fees and
costs as to their successful challenges to both the 2011
and 2014 modifications. The defendants respond that
Jepsen I affirmed Judge Bates’ denial of attorney’s fees
and costs, and, thus, the trial court would have gone
beyond the scope of the remand were it to revisit that
issue. The defendants further argue that the plaintiffs’
postjudgment motion for fees and costs is barred by
the principles of res judicata and collateral estoppel. We
agree with the plaintiffs that the trial court improperly
denied their postjudgment motion for fees and costs
without reaching the merits of the motion as to the
2014 modification. We affirm the trial court’s denial of
that motion as to the 2011 modification.
The following additional facts are relevant to our
analysis of this issue. In his May 20, 2016 memorandum
of decision, Judge Bates stated that ‘‘[c]laims for attor-
ney’s fees and costs, if any, have been reserved by
agreement of the parties for posttrial motions.’’ On June
6, 2016, the plaintiffs moved for attorney’s fees and
costs with respect to prevailing on the 2011 modifica-
tion under § 52-24510 and Practice Book § 13-25.11 The
plaintiffs argued that certain ‘‘defendants have continu-
ously maintained special defenses that the plaintiffs
had notice of the 2011 modification and refused to par-
ticipate in meaningful discussions regarding it,’’ but that
those defendants lacked just cause to plead those
defenses and refused to respond to the plaintiffs’
requests to admit with regard to them. Because the
plaintiffs did not prevail with respect to the 2014 modifi-
cation, they did not seek attorney’s fees and costs as
to the 2014 modification. On September 7, 2016, Judge
Bates denied the plaintiffs’ motion for fees and costs
relative to the 2011 modification. Judge Bates cited
General Statutes § 52-24312 and held that, ‘‘[g]iven [the]
dynamics between the parties and the good faith efforts
of the defendants to work with the plaintiffs, the award-
ing [of] fees for a partial verdict—the invalidation of
the initial bylaw changes—is not appropriate, and the
motion is denied.’’
On appeal in Jepsen I, the plaintiffs argued that Judge
Bates ‘‘abused [his] discretion in declining to render an
award of attorney’s fees in their favor due to the alleg-
edly frivolous filing of . . . special defense[s] by cer-
tain defendants.’’ Jepsen I, supra, 181 Conn. App. 533.
This court noted that those defendants raised those
special defenses with respect to the 2011 and 2014 modi-
fications. Id. Ultimately, this court concluded that, ‘‘[o]n
our thorough review of the record, we cannot say that
the [trial] court abused its discretion in denying the
plaintiffs’ request for attorney’s fees and costs in the
present case.’’ Id., 535. The case was remanded, and
Judge Calmar rendered judgment in favor of the plain-
tiffs on the fourth count of their complaint on May 7,
2018. The plaintiffs filed a postjudgment motion for fees
and costs as to both the 2011 and 2014 modifications,
to which the defendants filed objections. Judge Murphy
summarily denied the plaintiffs’ motion and summarily
sustained the defendants’ objections and, in an articula-
tion, reasoned that in Jepsen I this court ‘‘addressed
[Judge Bates’] ruling [on attorney’s fees and costs] and,
after consideration, left it unchanged . . . .’’
We begin our analysis by setting forth the standard of
review and the controlling principles of law. ‘‘Because
a mandate defines the trial court’s authority to proceed
with the case on remand, determining the scope of a
remand is akin to determining subject matter jurisdic-
tion. . . . We have long held that because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion is a question of law, our review is plenary.’’
(Citation omitted; internal quotation marks omitted.)
Gianetti v. Norwalk Hospital, supra, 304 Conn. 791–92.
‘‘Connecticut case law follows the general rule, fre-
quently referred to as the American Rule, that attorney’s
fees are not allowed to the prevailing party as an ele-
ment of damages unless such recovery is allowed by
statute or contract.’’ (Emphasis added; internal quota-
tion marks omitted.) TDS Painting, supra, 73 Conn.
App. 516; see id., 516–17 (holding that plaintiff’s entitle-
ment to attorney’s fees was not available until plaintiff
received favorable judgment, postappeal).
The trial court was correct that its consideration of
the plaintiffs’ postjudgment motion for fees and costs
as to the 2011 modification was beyond the scope of
the remand in Jepsen I.13 When Judge Bates denied the
plaintiffs’ June 6, 2016 motion for attorney’s fees and
costs, he did so with respect to the 2011 modification
because that is the modification that the plaintiffs suc-
cessfully challenged. Thus, in Jepsen I, when this court
affirmed Judge Bates’ denial of attorney’s fees and costs
after concluding that he did not abuse his discretion,
it did so only as to the challenge to the 2011 modifica-
tion. This court did not indicate in its rescript that the
issue warranted further consideration. Therefore, the
trial court correctly interpreted this court’s mandate
because the mandate did not direct that any further
action be taken on the plaintiffs’ request for attorney’s
fees and costs as to the 2011 modification.14
The trial court, however, improperly concluded that
it would have exceeded the scope of the remand had
it considered the plaintiffs’ entitlement to attorney’s
fees and costs with respect to the 2014 modification.
In Jepsen I, this court granted the plaintiffs the reversal
they were seeking on the trial court’s determination
that the 2014 modification was ‘‘ ‘valid and in full force
and effect’ . . . .’’ Jepsen I, supra, 181 Conn. App. 529.
Before a judgment was rendered in the plaintiffs’ favor
on the 2014 modification by this court’s reversal of the
trial court, their entitlement under that modification
to attorney’s fees and costs had not been considered.
Therefore, it was appropriate for the plaintiffs to seek
postjudgment fees and costs on remand. See TDS Paint-
ing, supra, 73 Conn. App. 516–17. Moreover, because
the plaintiffs’ postjudgment motion for fees and costs
as to the 2014 modification had not been considered
by either the trial court or this court in Jepsen I, it
would not be barred by the doctrines of res judicata
(claim preclusion) or collateral estoppel (issue preclu-
sion). See Rocco v. Garrison, 268 Conn. 541, 554, 848
A.2d 352 (2004) (‘‘[C]laim preclusion prevents a litigant
from reasserting a claim that has already been decided
on the merits. . . . [I]ssue preclusion . . . prevents a
party from relitigating an issue that has been deter-
mined in a prior suit.’’ (Emphasis added; internal quota-
tion marks omitted.)). The trial court’s denial of the
plaintiffs’ postjudgment motion for fees and costs is
reversed as to the 2014 modification and affirmed as
to the 2011 modification.
II
The plaintiffs next claim that, even assuming that the
mandate in Jepsen I did not encompass their claims to
quiet title, equitable relief, and fees and costs, the trial
court improperly denied their motion to open to provide
them with their requested relief. The plaintiffs argue
that the trial court ‘‘used the language of [Jepsen I] as
a shield against exercising its discretion . . . .’’ The
plaintiffs further argue that a good and compelling rea-
son to open the judgment was ‘‘predicated [on] the fact
that both the trial court and [this court] failed to rule
on the quiet title counts of the . . . complaint’’ and
that the plaintiffs ‘‘are entitled to compensation for their
exhaustive efforts to protect the rights of themselves,
their invited family and all owners in the subdivision.’’
The defendants argue that the plaintiffs ‘‘have not been
able to meet their burden to show an abuse of the trial
court’s discretion’’ because they ‘‘have not cited to any
authority which supports [opening] a judgment for the
sole purpose of relitigating issues previously litigated
and disposed of.’’ We are not persuaded by the plain-
tiffs’ arguments.
‘‘The principles that govern motions to open or set
aside a civil judgment are well established. Within four
months of the date of the original judgment, Practice
Book [§ 17-4] vests discretion in the trial court to deter-
mine whether there is a good and compelling reason
for its modification or vacation. . . . The exercise of
equitable authority is vested in the discretion of the
trial court . . . to grant or to deny a motion to open
a judgment. The only issue on appeal is whether the
trial court has acted unreasonably and in clear abuse
of its discretion. . . . In determining whether the trial
court abused its discretion, this court must make every
reasonable presumption in favor of its action.’’ (Internal
quotation marks omitted.) Newtown v. Ostrosky, 191
Conn. App. 450, 468, 215 A.3d 1212, cert. denied, 333
Conn. 925, 218 A.3d 68 (2019).
With respect to the plaintiffs’ motion to open, the
trial court stated in its October 3, 2018 articulation that,
‘‘in reviewing [this court’s] opinion [in Jepsen I], [it]
considers the issues raised by the plaintiffs by way of
[their] postjudgment motions to have been litigated and
reviewed. There is nothing in [this court’s] opinion,
when read in conjunction with the direction on remand,
that leads [the trial] court to believe [that] there is good
cause or a compelling reason to relitigate any issues
concerning the present case.’’ The plaintiffs do not offer
any good and compelling reason for opening the judg-
ment other than their position that the trial court and
this court failed to rule on the claims raised in their
postjudgment motions. The plaintiffs’ position is incor-
rect. As discussed in part I of this opinion, the plaintiffs’
claims of quiet title, to injunctive relief and to attorney’s
fees and costs as to the 2011 modification were raised
in Jepsen I and either rejected or not addressed. As
such, the trial court did not abuse its discretion by
declining to open the judgment so as to resurrect
these claims.15
III
The plaintiffs argue that by failing to hear or grant
their postjudgment motions to ‘‘correct the record and
clear the cloud [on] their title caused by [the 2011 and
2014] modifications, provide them with damages and
injunctive relief inherent thereto, and protect their
rights and their title against further violations,’’ the trial
court violated several of their state and federal constitu-
tional rights. Specifically, the plaintiffs claim that the
trial court ‘‘has involved the state in sanctioning,
allowing and enforcing baseless litigation, enforcing pri-
vate discrimination, invading privacy, taking the [plain-
tiffs’] property . . . [and] in interfering with their right
of association.’’ We disagree.
Our standard of review when interpreting a mandate
of this court is as set forth in parts I A and B of this
opinion. In part I A of this opinion, we concluded that
the plaintiffs’ claims to quiet title and injunctive relief
were beyond the scope of the remand. In part I B of
this opinion, we concluded that the plaintiffs’ claim to
attorney’s fees and costs as to the 2011 modification
also was beyond the scope of the remand.16 Because the
trial court interpreted the scope of the remand correctly
when it denied the plaintiffs’ aforementioned claims,
we reject the plaintiffs’ assertion that the trial court’s
sound denial amounted to a violation of their state and
federal constitutional rights.
The judgment is reversed only as to the denial of the
plaintiffs’ postjudgment motion for fees and costs as
to the 2014 modification and the case is remanded for
further proceedings limited to that issue; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
The original plaintiffs in the present action were Anders B. Jepsen and
Craig L. Barrila. On August 19, 2013, a withdrawal was filed on behalf of
Barrila by his attorney. On March 3, 2014, Beth Jepsen was cited in as an
additional plaintiff. We will refer to Anders B. Jepsen and Barrila as the
original plaintiffs and to Anders B. Jepsen and Beth Jepsen as the plaintiffs.
2
See footnote 4 of this opinion for a complete list of the defendants in
the present action.
3
We refer in this opinion to the postjudgment motion for equitable relief
and the postjudgment motion for fees and costs, collectively, as the postjudg-
ment motions.
4
In this appeal, Synodi & Videll, LLC, represented the defendants Christine
Synodi, George Synodi, Savas S. Synodi and Maria S. Synodi (Synodi defen-
dants). Waller, Smith & Palmer, P.C., represented the defendants Mary B.
Roland, Richard L. Thibeault, Beth M. Camassar, Rubin Levin, Lenore Levin,
Theresa Tuthill, David Eder, Ronald J. Wofford, Jeffrey R. Seidel, Bethany R.
F. Seidel, Eunice Greenburg, trustee, Daniel S. Firestone, Hope H. Firestone,
Leonard T. Epstein, Sandra R. Epstein, Eric Parnes, Marilyn Parnes, John
A. Spinnato, Janine Stavri, Sophocles Stavri, Robert McLaughlin, Jr., Roberta
McLaughlin, Stanley Banks, Elaine Banks, Jerry C. Olsen, Vivian C. Stanley,
David M. Goebel, Earline B. Goebel, Ronald E. Beausoleil, Pamela Beausoleil,
Marilyn Simonson, Barry Weiner, Cynthia C. Weiner, Barbara Sinclair, Rich-
ard Sinclair, Michael P. Shapiro, Elaine P. Shapiro, Miriam Levine, John
Oliva, Nancy Krant, Mary Margaret Kral, trustee, Edwin J. Roland, Michael
J. Raimondi, Hugh F. Lusk, Anne Marie Lizarralde, Manuel Lizarralde, Paul
Burgess and Deborah Burgess (WSP defendants).
The defendants Estella C. Kuptzin, Emily S. King, Anthony C. Polcaro,
Joanne L. Polcaro, Shirley Gottesdiener, trustee, Marian E. Dippel, Debra
B. Gruss, Kenneth C. Wimberly, Dawn Hickey Thibeault, James J. Correnti,
Willa M. Correnti, Arnold D. Seifer, Judith A. Pickering, Anne Marie Mitchell
and Frank Pezzello were not represented by either counsel.
Hereinafter in this opinion, the Synodi defendants, the WSP defendants
and the unrepresented defendants will be referred to collectively as the
defendants.
5
After filing their appeal, the plaintiffs filed a motion for articulation on
September 11, 2018, directed at Judge Murphy’s summary denial of the
plaintiffs’ postjudgment motions and their motion to open, and her decision
sustaining the defendants’ objections to the plaintiffs’ postjudgment motions.
Judge Murphy issued a ‘‘memorandum of decision on the motion for articula-
tion’’ on October 3, 2018, in which she stated that ‘‘the matters raised by
the plaintiffs by way of postjudgment motions to this court are hereby
considered to have been litigated, decided, reviewed, and left undisturbed,
with no direction [on] remand to this court to entertain any such issues by
way of relitigation.’’
On October 16, 2018, the plaintiffs moved for review of Judge Murphy’s
articulation to this court. On December 5, 2018, this court granted review
of the plaintiffs’ motion but denied the relief requested therein. We also
ordered, sua sponte, that Judge Murphy articulate ‘‘(1) whether in sustaining
the defendants’ objections to the plaintiffs’ [postjudgment] motion for fees
and costs and their claim for equitable relief . . . [she] granted the affirma-
tive requests for relief contained in those objections, wherein the defendants
sought to have the trial court foreclose the plaintiffs from filing other similar
motions . . . and award them costs and attorney’s fees for defending
against the plaintiffs’ ‘vexatious claims’ . . . and (2) the factual and legal
basis for [her] decision.’’
On December 13, 2018, in response to this court’s order, Judge Murphy
issued an articulation of her orders sustaining the defendants’ objections
to the plaintiffs’ postjudgment motions. Judge Murphy stated that she had
denied the defendants’ two affirmative requests for relief seeking to have
the court foreclose the plaintiffs from filing other similar motions and award
the defendants costs and attorney’s fees.
6
The plaintiffs argue that their title is clouded, despite the 2011 and 2014
modifications having been determined null and void, which necessitated
consideration of their quiet title claims and an award of injunctive relief on
remand. The plaintiffs had advanced this argument in Jepsen I. This court,
aware of the plaintiffs’ argument that a cloud would remain over their title
even if both modifications were deemed null and void, was not persuaded
to address the plaintiffs’ claims. Jepsen I, supra, 181 Conn. App. 495 n.1,
529–30 n.49. The disinclination in Jepsen I to discuss the plaintiffs’ claims,
and their related argument of clouded title, supports the conclusion in this
appeal that the remand did not envision the trial court’s addressing of those
same claims.
7
The plaintiffs requested that ‘‘the restrictive covenants (including the
reverter) in the parties’ mutual [beach] deed be enforced.’’ The reverter
clause is triggered if the beach deed is ‘‘aliened separately and apart from
the land’’ in the warranty deed. In Jepsen I, this court affirmed Judge Bates’
judgment that the 2011 modification was invalid and reversed Judge Bates’
judgment that the 2014 modification was valid. We determined in Jepsen I
that the 2014 modification was void, a conclusion that, as a matter of logic,
means that the beach deed has not been separately aliened. Accordingly,
by virtue of our conclusion that the 2014 modification was void, no further
proceedings were required regarding this issue.
8
The plaintiffs cite Grady v. Schmitz, 21 Conn. App. 111, 572 A.2d 71,
cert. denied, 215 Conn. 806, 576 A.2d 537 (1990), for the proposition that
‘‘injunctive relief is within the scope of a remand when restrictive covenants
are violated.’’ We disagree. In the underlying action, the plaintiffs sought
only an injunction to enforce a restrictive covenant. See Grady v. Schmitz,
16 Conn. App. 292, 294, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d
755 (1988). The trial court rendered judgment in favor of the defendants; id.,
293; which this court found erroneous on appeal and, accordingly, remanded
‘‘with direction to render judgment for the plaintiffs.’’ Id., 303. In the second
appeal, the trial court was found to have interpreted correctly the remand
as a directive to render a judgment of injunctive relief in favor of the
plaintiffs, but erred with regard to the ‘‘breadth of the injunction . . . .’’
Grady v. Schmitz, supra, 21 Conn. App. 114. Those cases are limited to their
facts and do not establish the general principle advanced by the plaintiffs.
See id. (‘‘[t]he trial court should examine the mandate and the opinion of
the reviewing court and proceed in conformity with the views expressed
therein’’ (emphasis omitted; internal quotation marks omitted)). Injunctive
relief was within the scope of the remand in Grady v. Schmitz, supra, 21
Conn. App. 111, because it was the only relief sought by the plaintiffs. Here,
however, the plaintiffs sought and received a declaratory judgment that
invalidated the 2011 and 2014 modifications and, therefore, were not also
entitled to injunctive relief.
9
The defendants argue that the plaintiffs’ claims to quiet title and for
equitable relief are barred by the doctrines of res judicata and collateral
estoppel. Because we conclude that the plaintiffs’ claims are beyond the
scope of this court’s remand in Jepsen I, we do not consider this argument.
10
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.’’
11
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.’’
12
General Statutes § 52-243 provides: ‘‘If a verdict is found on any issue
joined in an action in favor of the plaintiff, costs shall be allowed to him,
though on some other issue the defendant should be entitled to judgment,
unless the court which tried the issue is of the opinion that the defendant
had probable cause to plead the matter found against him.’’
13
In light of our conclusion that the plaintiffs’ postjudgment motion for
fees and costs as to the 2011 modification is beyond the scope of the remand,
we do not consider the defendants’ argument that the plaintiffs’ motion is
barred by the doctrines of res judicata and collateral estoppel.
14
The plaintiffs argue that Judge Murphy ‘‘erred in failing to recognize
that the plaintiffs only prevailed on [count one with respect to the 2011
modification] after the Appellate Court so articulated, and erred in failing
to recognize that [Judge Bates’] prior analysis and the Appellate Court’s
affirmance of it was made pursuant to . . . § 52-243.’’ The plaintiffs are
mistaken. Judge Bates considered the plaintiffs’ motion for attorney’s fees
and costs under § 52-243 because that statute allows a plaintiff to recover
attorney’s fees and costs after securing a partial verdict. Judge Bates did
provide the plaintiffs with a partial verdict when he rendered judgment in
the defendants’ favor on the 2014 modification and on the plaintiffs’ slander
of title counts as to both modifications, and in the plaintiffs’ favor on the
2011 modification. The fact that Judge Bates considered the plaintiffs’ 2016
motion for attorney’s fees and costs prior to the plaintiffs’ appeal in Jepsen
I is proof that Judge Bates rendered judgment in their favor on the 2011 modi-
fication.
15
Because we conclude that consideration of the plaintiffs’ postjudgment
motion for fees and costs as to the 2014 modification is not beyond the
scope of the remand; see part I B of this opinion; it is unnecessary to address
that portion of the plaintiffs’ motion to open that asserts a claim to attorney’s
fees and costs with regard to the 2014 modification.
16
In part I B of this opinion, we concluded that the trial court incorrectly
interpreted the remand as barring consideration of the plaintiffs’ claims to
attorney’s fees and costs as to the 2014 modification. The plaintiffs have
not demonstrated, however, that the trial court’s error rises to the level of
a constitutional violation. Accordingly, we consider these claims meritless,
and they warrant no further discussion.