Bueno v. Firgeleski, FSTCV135014138S

• Decision Date: 20 January 2016
• Docket Number: FSTCV135014138S
• Parties: Luz Bueno et al. v. Michael Firgeleski et al
• Court: Connecticut Superior Court

Luz Bueno et al. v. Michael Firgeleski et al

No. FSTCV135014138S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

January 20, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

A William Mottolese, Judge Trial Referee.

The plaintiffs are the owners of 1.38 acres of land on the easterly side of Hoyt Street in the Town of Darien and known as 123 Hoyt Street. The property is improved with a dwelling house with outbuildings. The house is situated northerly of the center line of the lot thereby making the southerly portion available for development in accordance with the Darien zoning regulations. However, in order to erect a single-family dwelling on that portion of the lot the plaintiffs must subdivide the land into two lots which would result in a building lot of at least 1/2-acre in area. When the plaintiffs acquired the property on June 16, 2008 by trustee's deed, the deed contained the following provision among others:

Said premises are conveyed subject to the following:

Restrictive covenants and agreements set forth in a deed from Arthur I. Crandall, Committee, to Clyde E. Vaughn dated June 5, 1941, recorded in Book 100 at Page 139 of said land records.

That restriction reads as follows:

This deed is given by the grantor and accepted by the grantee upon the following restrictive covenants and agreements which shall run with the land hereby conveyed and be binding upon the grantee, his heirs and assigns forever viz: (1) said premises shall be used for private residential purposes only and shall be limited to the erection thereon of one dwelling house and accessory buildings; (2) no building shall be erected within fifty (50) feet of the easterly line of said premises, nor within twenty-five (25) feet of the Southerly line thereof; and (3) no building, structure or erection of any kind shall be erected or maintained on said premises, unless the plans therefore shall have been approved in writing by the grantor, or his successors, provided, that such approval shall not be unreasonably withheld.

The plaintiffs seek declaratory relief from this restrictive covenant (hereinafter referred to as " restriction") so they will be able to sell off the southerly portion of their property for development in accordance with the Darien zoning regulations.^[1] Compliance with the minimum zoning side-yard setback for the R-1/2 zone would violate the restriction's 25-foot setback from the southerly line.

The operative complaint is the substitute complaint of March 4, 2014. The plaintiffs are self-represented which undoubtedly accounts for the fact that although it alleges several grounds for why the restriction is unenforceable, the complaint is not framed in separate counts. On August 11, 2014 the court (Mintz, J.) struck that portion of the complaint which sought to quiet title leaving only the request for declaratory judgment. The plaintiffs assert that the restriction is unenforceable (a) because when it was created in 1941 it was done so " against court orders and therefore is invalid"; (b) there has been a change in circumstances which render the restriction invalid or least unenforceable; (c) part, if not all of the restriction has been abandoned; (d) the restriction does not benefit anyone; (e) the restriction is unfair to the plaintiffs; (f) the action is barred by laches; (g) the restriction was extinguished pursuant to the Connecticut Marketable Title Act (C.G.S. § § 47-33b through 47-33l). The defendants are the owners of single-family homes which abut the plaintiffs' property to the north south and east. They have filed a motion to dismiss on the grounds that (1) there is no bonafide question or issue in dispute between the parties; (2) the complaint does not present a justiciable claim; (3) the original grantor who created the restriction has not been made a party. While grounds 1 and 2 present mixed questions of fact and law which can only be addressed by analyzing all the evidence in terms of the applicable law, the third ground can be addressed at the outset.

The defendants argue in support of grounds number 3 that because the restriction was created by Arthur I. Crandall (hereinafter " Crandall") who acted as committee appointed by the Superior Court in a partition action to sell real property owned by the estate of Wilbur Waterbury, he as grantor of the property or his successor is an indispensable party because only he has the " power to enforce or provide approval for subdivision and/or building on subject premises." During the course of the trial, in response to a question from the court, counsel for the defendants acknowledged that both Crandall and Richard W. Fitch, his successor, were no longer living. Nevertheless, counsel argued that the plaintiffs were obliged to apply to the Superior Court in order to have a successor committee appointed who would then become an " interested party" and who should then be joined as a defendant in this action.

Section 17-56(a)(6)(b) of the Practice Book provides in pertinent part as follows:

" (a) Procedure in actions seeking a declaratory judgment shall be as follows:

(b) All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof ." (Emphasis added.)

Pursuant to an order of notice of this court delivered from the bench on June 17, 2015 the plaintiffs caused to be published the following legal notice in the Darien Times on July 9 and 15, 2015. The legal notice reads as follows:

NOTICE TO: ARTHUR I. CRANDALL, COMMITTEE, HIS HEIRS, SUCCESSORS AND ASSIGNS, RICHARD W. FITCH, SUCCESSOR COMMITTEE, HIS HEIRS, SUCCESSORS AND ASSIGNS, AND ALL PARTIES WHO MAY CLAIM AN INTEREST IN ANY RESTRICTIVE COVENANTS THAT APPEAR IN A COMMITTEE DEED IN BOOK 100, PAGE 139 OF THE DARIEN, CT LAND RECORDS.

The plaintiffs have commenced an action which they are prosecuting in the above named court seeking a declaratory judgment rendering a deed restriction imposed on 123 Hoyt Street in Darien, CT, and further described in the committee deed in said volume and page, as null and void. All interested parties may review and obtain copies of the pleadings at the Office of the Clerk of the Superior Court of Connecticut, located at 123 Hoyt Street in Stamford, CT. 7-9-7-16

The court deems the legal notice to constitute reasonable notice to the successors, if any to Crandall and Fitch and anyone else who may claim an adverse interest. Without analysis, ^[2] the defendants claim that reasonable notice is not enough but that the plaintiffs should have applied to the Superior Court for the appointment of a successor committee and joined him as a defendant.

While not raised by the plaintiffs undoubtedly because of their unfamiliarity with our rules of practice, P.B. § 11-3 provides that " the exclusive remedy for nonjoinder of parties is by motion to strike." P.B. § 10-39(a) requires that a motion to strike be used whenever any party wishes to contest the absence of any necessary party or, pursuant to § 17-56(b) the failure to join or give notice to any interested person. Section 10-39(d) provides as follows:

(d) A motion to strike on the ground of the nonjoinder of a necessary party or noncompliance with Section 17-56(b) must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action.

While the defendants have not moved to strike the complaint on this ground they have alleged in their third special defense that the " plaintiffs have failed to bring suit against all parties in interest." Nevertheless, our Appellate Court has consistently held that nonjoinder of a party is not a jurisdictional issue. W.G. Glenney Co. v. Bianco, 27 Conn.App. 199, 202, 604 A.2d 1345 (1992). Notwithstanding this rule, our Supreme Court held in Bender v. Bender, 292 Conn. 696, 722-23, n.23, 975 A.2d 636 that: " because of the definition of indispensable party and its relation to the proper disposition of an action, it is necessary for us to review the . . . claim even though [the defendant] did not move to strike the plaintiff's complaint." (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 723, 661 A.2d 973 (1995). Specifically, the nonjoinder of indispensable parties may violate due process because such parties must be given notice and an opportunity to protect their interests. Id., 722-23. We therefore review the trial court's decisions on the merits of the joinder issue even though the defendants failed to file a proper motion to strike."

Consequently this court must review the defendants' claim to make certain that the failure to join a successor committee to Arthur I. Crandall or Richard W. Fitch does not implicate due process rights. The court concludes that it does not simply because the order of notice caused " reasonable notice" to be given to the successors and assigns of these committees. Additionally, there would be no point in making a successor committee a party defendant because the committee, as committee, has no ownership interest of his own in the real estate. He is the " mere agent of the court and the court is the vendor." Raymond v. Gilman, 111 Conn. 605, 613, 151 A. 248 (1930). " Although a committee may exercise discretion in certain of its duties, its function is more administrative than judicial in nature. A committee does not have the authority to undertake selectively certain types of activities as...