Anderson v. Latimer Point Management Corp.

• Decision Date: 12 July 1988
• Docket Number: No. 13352,13352
• Citation: 208 Conn. 256,545 A.2d 525
• Court: Connecticut Supreme Court
• Parties: Robert H. ANDERSON v. LATIMER POINT MANAGEMENT CORPORATION et al.

Page 525

545 A.2d 525

208 Conn. 256

Robert H. ANDERSON v. LATIMER POINT MANAGEMENT CORPORATION et al.

No. 13352.

Supreme Court of Connecticut.

Argued April 5, 1988.

Decided July 12, 1988.

Richard P. Weinstein, West Hartford, for appellant-appellee (plaintiff).

Robert J. Papp, with whom, on the brief, were Thomas J. Keramidas, Robert W. Clark and Jane Cable, New London, for appellee-appellant (named defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

COVELLO, Associate Justice.

The plaintiff, Robert H. Anderson, a resident of Latimer Point, Stonington, commenced this equitable action against the defendant, Latimer Point Management Corporation (LPMC), his lessor, and fourteen of his neighbors who were present or former directors of LPMC. The plaintiff sought an injunction restraining the defendants' interference with the proposed use of his Latimer Point property in a number of subject matter areas. ¹ The plaintiff also claimed compensatory and punitive damages together with attorneys' fees. ²

The trial court found some of the issues for the plaintiff and enjoined the defendants from: (1) interfering with the plaintiff's maintenance of certain shrubs, trees and other vegetation; (2) interfering with the plaintiff's membership in LPMC upon his payment of certain past due assessments; (3) pursuing the collection or levy of past fines from the plaintiff; and (4) pursuing a contemplated eviction of the plaintiff.

The plaintiff has appealed, contending that the court erred: in (1) refusing to grant an injunction restraining LPMC's interference with a proposed second story addition to his cottage; (2) concluding that the plaintiff should pay a portion of past due assessments as a condition to his membership in LPMC; and (3) refusing to award attorneys' fees. LPMC cross appealed claiming error in the court's failure to award attorneys' fees to the defendant corporation. We find no error.

The court found that Latimer Point is a peninsula located in Stonington. Prior to 1979, it was owned in its entirety by John Bindloss. Bindloss leased lots to various individuals who constructed summer homes upon them. Bindloss "governed" the peninsula and his approval was required for any proposed construction or planting. Part of his motive for this requirement was to maximize the water views for all the lessees. Although not perfectly accomplished, existing houses are situated on the various lots so as to afford the lessees a view of the water. Bindloss died in 1979, and Latimer Point was conveyed to Latimer Point Company, Inc.

In 1972, the individual lessees formed Latimer Point Management Corporation (LPMC), a nonstock corporation, pursuant to General Statutes § 33-419 et seq. The purpose of the corporation was to lease sublease, maintain and improve Latimer Point.

In 1979, Latimer Point Company, Inc., leased the entire peninsula to LPMC for a term of thirty years. LPMC in turn executed a series of identical subleases to the individual lot holders for thirty year terms. The subleases provided that each lot could have one private home to be maintained in its present location. Alterations to existing structures or material changes to the surface or vegetation required prior approval of the sublessor, which approvals would not be unreasonably withheld. With the exception of existing trees, vegetation was not to obstruct the water views of other sublessees.

In May, 1981, Percy Wilcox assigned his sublease of lot 10 to the plaintiff. The plaintiff applied to LPMC for permission to add a second story to the dwelling on lot 10. The corporation denied his request. Having heard the evidence and after viewing the property, the trial court concluded that the required approval had been reasonably withheld because the proposed second story would substantially interfere with the water views of other sublessees.

The trial court further found that LPMC had denied the plaintiff his voting rights in LPMC and threatened his eviction by reason of his failure to pay dock assessments. He had also been fined by LPMC for failing to pay his pro rata share of other LPMC assessments, including legal expenses incurred in seeking to enforce the LPMC bylaws against the plaintiff. The trial court concluded that a portion of the dock assessment had been unfairly levied against the plaintiff because LPMC had not timely notified the plaintiff that the town had assessed the docks. ³ The trial court also concluded that the sections of the bylaws sought to be enforced against the plaintiff were impermissibly vague and without standards. The trial court therefore concluded that the plaintiff need not pay the fines, the legal expense assessment and the 1981-1982 dock assessment but that the balance of the accrued assessments was owed by the plaintiff as an incident to his exercise of voting privileges in LPMC. The trial court also concluded that any contemplated eviction of the plaintiff for nonpayment of the erroneously levied fines and assessments was not in order.

I

The plaintiff first claims error in the trial court's refusal to grant an injunction restraining interference with his proposed second story addition. In this connection he advances two arguments.

First, the plaintiff challenges the court's conclusion that LPMC acted reasonably in withholding permission for the addition because it would encroach on the view of the water from other properties. The plaintiff characterizes this conclusion as, in effect, creating "an easement of light or air by prescription or implication." The plaintiff argues that General Statutes § 47-25 ⁴ prohibits the creation of such easements through adverse possession. The plaintiff cites no authority for the proposition that the court's ruling created such an easement nor does our research disclose this to be the case. We conclude that no prescriptive interest in favor of adjoining properties was created by the court's holding and therefore § 47-25 is inapplicable.

Second, the plaintiff argues that LPMC had no adequate rules, bylaws or other procedures governing construction applications. The trial court found the only specific reference in the bylaws concerning construction applications to be impermissibly vague and incapable of providing standards. ⁵ Although not specifically articulated the plaintiff implies that these deficiencies in the LPMC bylaws somehow required the trial court to issue the injunctive relief requested. This argument overlooks the significant role of the exercise of the trial court's broad discretion in injunctive matters and the fact that the trial court could and did consider not only the language of the sublease between the parties but also the insights gained from personal inspection of the property.

"It is clear that the power of equity to grant injunctive relief may be exercised only under demanding circumstances. Leo Foundation v. Cabelus, 151 Conn. 655, 657, 201 A.2d 654 [1964].... 'Restraining the action of an individual or a corporation by injunction is an extraordinary power, always to be exercised with caution, never without the most satisfactory reasons.' Goodwin v. New York, N.H. & H.R. Co., 43 Conn. 494, 500 [1876]; Ginsberg v. Mascia, 149 Conn. 502, 505, 182 A.2d 4 [1962]." Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507, 511, 218 A.2d 383 (1966).

"We have repeatedly held that the issuance of an injunction rests in the sound discretion of the trial court." Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981). "[I]ts action will not be disturbed unless it has abused its discretion." Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 440, 440 A.2d 935 (1981).

The trial court viewed the premises, found that the proposed addition would substantially interfere with the water views of others, and declined to grant the requested injunction against LPMC. "[T]he visual observations made by the trier on a visit to the property are as much evidence as the evidence presented for his consideration by the witnesses under oath." Houston v. Highway Commissioner, 152 Conn. 557, 558, 210 A.2d 176 (1965).

The court assessed the relative harm to others should the injunction issue and concluded that its entry was inappropriate. " 'In exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction....' Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972)." Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 541-42, 450 A.2d 369 (1982). We therefore find no abuse of discretion in the trial court's declining to issue the requested injunction.

II

The plaintiff next claims that the trial court erred in ordering that he pay a portion of certain past due assessments levied by LPMC as a condition to his participation as a member in good standing in LPMC. He argues that in a prior suit between the parties ⁶ LPMC could have raised the past due assessments issue and that, it having failed to do so, the issue is now res judicata as between these parties. We disagree.

Examination of the complaint discloses that the plaintiff alleged that "the defendant corporation has sought to collect dues, assessments, fines, and alike, from the plaintiff even though the plaintiff was denied participation in said corporation during the time applicable to the dues, assessments, etc." LPMC denied this allegation.

The plaintiff's theory was that the assessments were not due because LPMC had denied him participation in the corporation. The theory at trial was not, as he now alleges, that LPMC's claim to assessments was barred by res judicata, a legal doctrine which must be specially pleaded. Practice Book § 164.

Since the plaintiff had not alleged that res judicata was implicated in the determination of the assessment issue, "[t]he trial court was entitled to follow the theory on which the case was tried. Alexander v....