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. |
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(defendantSavas S. Synodi et al.).
Lavine, Sheldon and Elgo, Js.
The plaintiffsAnders 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.1We 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).2The 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).3This 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.(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, Servitudesc.7, introductory note, p. 334(2000);see alsoWykeham Rise, LLC v. Federer , 305 Conn. 448, 468, 52 A.3d 702(2012)( );Bauby v. Krasow , 107 Conn. 109, 112, 139 A. 508(1927)();Olmstead v. Brush , 27 Conn. 530, 536(1858)().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:
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 defendantBeth M. Camassar, in the summer of 2011, began to circulate a petition for a (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
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 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, defendantHope 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, 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 Dictionary10th 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."10No party has challenged the propriety of that determination in this appeal.
After the 2011 modification was filed on the New London land...
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