Jepsen v. Camassar

• Decision Date: 01 May 2018
• Docket Number: AC 39272
• Citation: 187 A.3d 486,181 Conn.App. 492
• Court: Connecticut Court of Appeals
• Parties: Anders B. JEPSEN et al. v. Beth M. CAMASSAR et al.

181 Conn.App. 492

187 A.3d 486

Anders B. JEPSEN et al.

v.Beth M. CAMASSAR et al.

AC 39272

Appellate Court of Connecticut.

Argued January 5, 2018

Officially released May 1, 2018

Beth A. Steele, Norwich, for the appellants (named plaintiff et al.).

Mark S. Zamarka, New London, with whom, on the brief, was Edward B. O'Connell, for the appellees (named defendant et al.).

Christine S. Synodi, for the appellees (defendant Savas S. Synodi et al.).

Lavine, Sheldon and Elgo, Js.

ELGO, J.

The plaintiffs Anders B. Jepsen and Beth Jepsen appeal from the declaratory judgment rendered by the trial court in this dispute regarding the modification of a beach deed. In this opinion, we address the plaintiffs' claims that the court improperly (1) concluded that the modification in question was properly enacted, (2) concluded 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.¹ We agree with the plaintiffs' first claim and, accordingly, affirm in part and reverse in part the judgment of the trial court.

The relevant facts are gleaned from the court's memorandum of decision and the undisputed evidence in the record before us. The parties are numerous individuals and entities that, at relevant times, owned real property in a subdivision in New London created in 1954 by the Quinnipeag Corporation (subdivision).² The subdivision plan filed on the New London land records depicts the location of various residential parcels, as well as a 250 foot strip of beachfront property commonly known as Billard Beach (beach). That area is designated as "beach rights" on the subdivision plan.

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).³ This litigation concerns a purported modification of the beach deed.

Section 2 of the beach deed sets forth certain "restrictions on the use" of the beach,⁴ known also as restrictive covenants. "A restrictive covenant is a servitude, commonly referred to as a negative easement .... A servitude is a legal device that creates a right or an obligation that runs with the land or an interest in land." (Citation omitted; internal quotation marks omitted.) Grovenburg v. Rustle Meadow Associates, LLC , 174 Conn. App. 18, 25 n.7, 165 A.3d 193 (2017). As the Restatement (Third) of Property, Servitudes notes, "[t]he distinctive character of a servitude is its binding effect for and against successors in interest in the property to which the servitude pertains ...." 1 Restatement (Third), Property, Servitudes c.7, introductory note, p. 334 (2000); see also Wykeham Rise, LLC v. Federer , 305 Conn. 448, 468, 52 A.3d 702 (2012) (concluding that "the burdens of the covenants at issue ... [could] run with the land" because "the covenants were formally created as part of a transfer of land; they explicitly provide that they are 'binding upon the [g]rantee, its successors and assigns, shall inure to the benefit of the [g]rantor, its successors and assigns, and shall run with the land'; and they appear on their face to relate to the land and not to impose any conceivable burden on the initial grantee independent of its ownership of the land"); Bauby v. Krasow , 107 Conn. 109, 112, 139 A. 508 (1927) ("[i]f [a restrictive covenant] runs with the land, it binds the owner"); Olmstead v. Brush , 27 Conn. 530, 536 (1858) ("if the grantee accepts the deed he assents to the [restrictive covenant] in it"). It is undisputed that all owners of property in the subdivision are bound by the restrictive covenants contained in the beach deed.⁵

Section 4 of the beach deed expressly provides a mechanism for the modification of the restrictive covenants contained in § 2 of the beach deed. It states: "That the restrictions on the use of the [beach] contained in [§] 2 hereof may be modified by a majority vote in writing of the owners of the premises conveyed. Each owner, (or in the case of joint ownership or ownership in cotenancy, such joint owners or owners in cotenancy together) shall be entitled upon any such vote to such number of votes as the numerator of their fractional interest in the premises conveyed, and upon any such vote, the majority shall be determined according to the sum of the votes so counted."

For more than one-half century, owners of property in the subdivision enjoyed the use of the beach without incident. That changed after Craig Barrila moved into the subdivision in 2008. As the court found, "[i]n 2008, [Barrila] purchased 755 Pequot Avenue, one of the forty-eight residential lots in [the subdivision], and although, as he testified, he did not personally use the beach, he allowed his girlfriend and her three children to swim, hold campfires and party at the beach.... Barrila testified that initially no one objected to this conduct. However, he stated that in July, 2011 ... he received a telephone call from a representative of the [Billard Beach Association (association) ]⁶ stating that these individuals could not use the beach without his being present.... Prior to the telephone call to Barrila, testimony and evidence received at trial does not indicate any significant concern being expressed about the use of or conduct on the beach by members of the [subdivision].

"In reaction to the use of the beach allowed by Barrila and what was perceived to be a lack of clarity in the deeds and [the association's] bylaws regarding allowable use of the beach, a group of residents including Garon Camassar,⁷ an attorney and husband of defendant Beth M. Camassar, in the summer of 2011, began to circulate a petition for a 'Modification of Covenants and Restrictions re Billard Beach, New London, Connecticut.' This modification (2011 modification)—which all parties now agree is of no force or effect—purported to supersede all covenants and restrictions contained in the [beach deed]." (Footnotes added.)

The 2011 modification purported to revise the beach deed in three significant respects. First, it sought to modify the restrictive covenants governing the use of the beach contained in § 2 of the beach deed. Second, it revised the modification provision contained in § 4 of the beach deed to require the approval of 75 percent of owners instead of a simple majority. Third, the 2011 modification added a new section regarding the enforcement of the beach deed, which provided for an award of compensatory damages, punitive damages, costs and attorney's fees.⁸

After learning of the 2011 modification proposal, Barrila sent an e-mail to approximately fifty e-mail addresses, the subject of which was "Proposed Changes to Billard Beach Land Deed." In that September 24, 2011 e-mail, Barrila indicated that he had been provided a copy of the 2011 modification earlier that day. He then stated that "there is an effort underway to collect a majority of signatures to support a modification to our current [beach] deed.... I have reviewed the proposed document today and have some substantial concerns.... I want to reiterate that these are not the beach rules (which are guidelines). These are legally binding and enforceable changes to our current [beach] deed which will impact your future ability to convey your asset.... I'm willing to support whatever the majority of my neighbors believe to be fair regarding the rules. However, I want to ensure that appropriate process is followed to effect any proposed changes...."

The very next day, Ronald E. Beausoleil replied to Barrila by e-mail and offered to meet privately with him and Garon Camassar. Beausoleil at that time was a member of the executive committee of the association⁹ and had collected signatures on the 2011 modification with Garon Camassar. Barrila responded to that e-mail hours later, stating that "[w]ith all due respect the time for private meetings has passed. I'm advocating [for] a public meeting with all interested/impacted parties involved." Later that night, Barrila's attorney contacted Garon Camassar, who had drafted the 2011 modification and had solicited signatures thereon. In an e-mail sent on the evening of September 25, 2011, Attorney Michael W. Sheehan reiterated Barrilla's concerns and asked "that nothing be implemented or recorded on the land records until all owners have been notified and been given the opportunity to meet and be heard." Despite that request, no meeting or vote of the owners transpired. Instead, the 2011 modification was filed on the New London land records the next morning.

On September 27, 2011, defendant Hope H. Firestone, a signatory to the 2011 modification acting in her capacity as president of the association, sent a letter to owners of property within the subdivision on association letterhead. That letter began by stating, "Good News!! As of Monday morning September 26, 2011, the restrictive provisions of the original beach deed have been modified." Firestone then provided an overview of the principal changes contained in the 2011 modification.

In its memorandum of decision, the court found that "contrary to the requirements of the beach deed, no formal 'vote' was ever noticed or taken on the [2011] modification; rather, the circulators assumed that once they had obtained the signatures of a majority of lot owners, the deed was recordable.... [A] 'vote' requires more formality than just obtaining signatures.

Black's Law Dictionary 10th Ed. (2009), defines a vote as '[t]he expression of one's preferences or opinion in a meeting or election by ballot, show of hands, or other type of communication.' Accordingly, the [2011] modification appears to have been a legal nullity."¹⁰ No party has challenged the propriety of that determination in this appeal.

After the 2011 modification was filed on the New London land...