Heyse v. Case

• Decision Date: 02 June 2009
• Docket Number: No. 29289.,29289.
• Parties: Lauren HEYSE et al. v. William CASE et al.
• Court: Connecticut Court of Appeals

971 A.2d 699

114 Conn.App. 640

Lauren HEYSE et al. v. William CASE et al.

No. 29289.

Appellate Court of Connecticut.

Argued February 10, 2009.

Decided June 2, 2009.

Jonathan M. Starble, for the appellant (named plaintiff).

Kerry R. Callahan, Hartford, for the appellee (defendant Connecticut Attorneys Title Insurance Company).

BISHOP, ROBINSON and PETERS, Js.

PETERS, J.

An insurance company's duty to provide its insured with indemnity, or to undertake a defense on the insured's behalf, depends on whether the terms of the insurance policy provide coverage for the dispute in which the insured is engaged. Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463, 876 A.2d 1139 (2005). In this case, the principal issue is whether a title insurance policy provided coverage for a dispute about subdivision rights between the insured and another member of a planned community organized under General Statutes § 47-220.¹ Concluding that two exclusions in the insured's policy establish that she has no coverage for this dispute, the trial court granted the insurer's motion for summary judgment. The insured has appealed. We affirm the judgment of the trial court.

In a multicount complaint filed on August 21, 2006, the plaintiff Lauren Heyse and others challenged the right of the defendants William Case and Tria Case to subdivide a lot within a common interest community in New Hartford known as West Hill Estates. In count four of the complaint, the plaintiff sought a declaratory judgment that a title insurance policy issued by the defendant Connecticut Attorneys Title Insurance Company² obligated the defendant to defend and to indemnify her in her pursuit of her alleged right to enforce a limitation on subdivisions allegedly established in the documents creating the common interest community. In count five, the plaintiff sought monetary compensation for the defendant's alleged failure to honor the implied duty of good faith and fair dealing in her title insurance policy. The defendant filed a motion for summary judgment, challenging the merits of both of the plaintiff's claims. The court granted the motion, and the plaintiff has appealed from the summary judgment rendered in favor of the defendant.

I JURISDICTION

During the pendency of this appeal, the court permitted the plaintiff to amend her complaint by adding a sixth count against the defendant. The merits of that count have not yet been addressed by the court. Regardless of its merits, however, the filing of this belated amendment requires us to decide whether we continue to have jurisdiction to hear the plaintiff's appeal from the existing judgment on counts four and five. We conclude that we have jurisdiction to hear the appeal.

Although "[a] judgment that disposes of only a part of a complaint is not a final judgment ... [o]ur rules of practice ... set forth certain circumstances under which a party may appeal from a judgment disposing of less than all of the counts of a complaint. Thus, a party may appeal if the partial judgment disposes of all causes of action against a particular party or parties ...." (Citation omitted; internal quotation marks omitted.) Rino Gnesi Co. v. Sbriglio, 98 Conn.App. 1, 7-8, 908 A.2d 1, cert. denied, 280 Conn. 945, 912 A.2d 480 (2006); Practice Book § 61-3. Pursuant to this rule of practice, this court had jurisdiction to hear the plaintiff's appeal at the time that it was filed because the only counts in her complaint that were addressed to the defendant had been decided by the judgment rendered on the defendant's motion for summary judgment.

Our assessment of the jurisdictional consequence of the plaintiff's amendment of her complaint is governed by the decision of our Supreme Court in RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 899 A.2d 586 (2006). In RAL Management, Inc., the court held: "In considering the effect of the opening of a judgment on a pending appeal ... the appropriate question is whether the change to the judgment has affected the issue on appeal. If, in opening the judgment, the court reverses itself and resolves the matter at issue on appeal in the appellant's favor, it is clear that the appeal is moot as there is no further practical relief that may be afforded.... Conversely, if the judgment is opened to address issues entirely unrelated to the appeal, the opening of the judgment has had no effect on the availability of relief. A more difficult question may be presented if the trial court addresses the matter at issue on appeal, but does not entirely afford the appellant the relief sought. In such cases, the extent to which the court alters the judgment may require either a new appeal or an amended appeal. See Practice Book §§ 61-9 and 63-1(c)(3). As [t]he determination of whether a claim has become moot is fact sensitive ... the facts of each case similarly must dictate the appropriate procedure to follow." (Citations omitted; internal quotation marks omitted.) RAL Management, Inc. v. Valley View Associates, supra, at 691-92, 899 A.2d 586.

In light of RAL Management, Inc., we are persuaded that the plaintiff's addition of a sixth count to her complaint setting forth a new cause of action against the defendant, whatever its merit s, does not deprive this court of jurisdiction to hear her appeal from the court's judgment on counts four and five. Significantly, RAL Management, Inc., did not hold that the filing of a motion to open a judgment per se had immediate jurisdictional consequences for a pending appeal. We are persuaded that the filing of an additional count likewise should not be deemed to require dismissal of a pending appeal. In either case, resolution of a new claim at some time in the future might make some part of the existing trial court judgment moot, and might make some part of an appellate judgment moot. We will not, however, presume mootness because, as our Supreme Court has noted, mootness is fact sensitive. Id., at 692, 899 A.2d 586. There is no such thing as anticipatory mootness.

Although the plaintiff cites Mazurek v. Great American Insurance Co., 284 Conn. 16, 930 A.2d 682 (2007), for a contrary holding, we are not persuaded of the applicability of that case. In Mazurek, at the time the appeal was filed, the court had not resolved all the claims against a party to the appeal. Id., at 34, 930 A.2d 682. The parties had engaged in procedural manipulation to create "an artificial final judgment," which our Supreme Court refused to countenance. Id., at 33, 930 A.2d 682. In this case, there was nothing artificial about the judgment at the time that it was rendered. We are persuaded, therefore, that we have jurisdiction to address the merits of the plaintiff's appeal.

II COVERAGE

The plaintiff's principal claim on appeal is that the court improperly granted the defendant's motion for summary judgment with respect to the coverage afforded to her by the terms of the title insurance contract that she purchased when she bought her property in West Hill Estates. The standard of review governing this claim is well established. Practice Book § 17-49 directs a court to render summary judgment "if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., supra, 284 Conn. at 26-27, 930 A.2d 682.

The relevant facts underlying the court's decision to render summary judgment on count four of the plaintiff's complaint are undisputed. West Hill Estates was created in 1991 as a common interest community by the filing and recording of a declaration. One of the eight initial units in West Hill Estates was lot 9, which the plaintiff purchased in 1993. Pursuant to General Statutes § 47-36l³ the plaintiff's purchase of lot 9 entitled her to enforce § 13.4 of the declaration, which stated that "[e]xcept to the extent expressly permitted ... by other provisions of ... this Declaration, no amendment may ... increase the number of Lots [or] change the boundaries of any Lot ... in the absence of unanimous consent of the Lot Owners."

In 2005, the Cases, the owners of lot 1C, initiated proceedings for subdivision approval of their property without having obtained the plaintiff's consent. The Cases claim that they do not need the plaintiff's consent because they have acquired special development rights under "other provisions" of the declaration. The plaintiff disputes the Cases' claim for two reasons. She disagrees with the Cases' contention that the declaration contained a reservation for the special development rights that the Cases are purporting to exercise. In the alternative, she argues that, even if such rights once existed, they were never validly conveyed to the Cases.

The defendant maintains that the title insurance policy that it issued to the plaintiff in 1993 does not require it to defend the plaintiff or to indemnify her in her dispute with the Cases about their rights to subdivide lot 1C. In its motion for summary judgment, it relied on two provisions in the insurance policy that the court found to be applicable and dispositive.

The first provision cited by the defendant is an exclusion in the part of the plaintiff's title insurance policy that defines the coverage provided by the policy. The clause begins by...