J. Norman A. Wylie et al. v. Diane Franco et al.

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Superior Court of Connecticut.

J. Norman A. Wylie et al. v. Diane Franco et al.

FSTCV116011589S

-- October 15, 2013

MEMORANDUM OF DECISION RE MOTION FOR PARTIAL SUMMARY JUDGMENT (112.00)

I. Background

This case involves a festering dispute among neighbors living on three lots of a common interest ownership community known as “Victoria” located in Old Greenwich, Connecticut and bounded on three sides by Forest Avenue, Brown House Road and Harding Road. The plaintiffs Wylie live at, and own, what is described as “Lot 6” on Maps 6464 and 6527 filed with the Greenwich Town Clerk;  the defendant Diane Franco owns and lives with her husband defendant John Franco on what is known as Lot 7, and the defendant Judith Sunko owns and lives on Lot 8. Lots 6, 7 and 8 are also known as 32, 30 and 28 Forest Avenue respectively.

The dispute arises over the meaning and effect of certain markings and notations on the two maps referred to above, a smaller version of which is attached to the Declaration of Victoria as Schedule A–3. Pl. Motion, Ex. A. The dispute also involves language contained in some deeds and not in others.   Section 6.2 of the Declaration states, “․ if more than one unit is served by a common driveway, each unit so served shall have an easement over the portion of such driveway beyond the boundaries of the Unit ․ all expenses attributable to the maintenance, repair or replacement of the Driveway Easement Area shall be shared equally among the units so served.”

The two filed maps referred to above show Lots 6, 7 and 8 situated along the western border of the Victoria development.   The maps show two adjacent parcels of land to the west of Lot 6 (Wylie) each about 20 feet wide.   The parcel closest to Lot 6 is designated as “Lot 7 Accessway” and the westernmost and parallel parcel is designated “Lot 8 Accessway.”   Both parcels are cross-hatched indicating, according to the legend on the maps, that these parcels are meant to include “Approximate Driveway Easements.”   Note 9 on the maps states that Lots 6 through 8 share a common drive and construction of individual driveways is “prohibited.”

The residences on all three lots contain two-car garages which open to an asphalt driveway constructed entirely within the aforementioned cross-hatched areas on the maps denominated “Accessway[s].”  Apparently not all of these areas are used for the driveway.   The dispute arose between the parties about six or seven years ago and seems to have been initially sparked by the parking of the Wylies' vehicles and those of their visitors and service purveyors in front of the Wylie garage and elsewhere, a situation which purportedly caused difficulties in getting access to the Franco and Sunko garages.   Wylie Affidavit (Ex. D. To Pl. Motion) and accompanying exhibits.   Dkt. Entry No. 114.00.   The Francos placed a “no parking” sign next to Wylie garage and matters deteriorated from there.   Among the developments was the planting of shrubs and erecting fences by the Francos in the easement area not covered by the asphalt driveway very close to the Wylie residence, but on Franco property, which according to the Wylies obstructs their view and their access to the easement.  Id. Ms. Sunko has largely been a non-participant in the above dispute, but her affidavit states that at no time was it ever expressed to her that other unit owners had a right to park vehicles in front of her home or along the border of her property.   Sunko Affidavit, attached to her opposition to summary judgment motion.   Dkt. Entry 121.00.

In support of their motion the plaintiffs have submitted the affidavit of James A. Manzi, Jr., an attorney admitted in Connecticut (and now living in Florida) who states he was retained to draft the declaration of the Victoria and the Schedule A to the original deed to Lot 6 which provided as follows:

By acceptance of this deed, the Grantee agrees with the owners from time to time of Lots Nos. 7 and 8 not to obstruct, impede, or interfere, one with the other, in the reasonable use and enjoyment of the common driveway shared by Lots Nos. 6, 7 and 8 for ingress and egress from Forest Avenue to their respective properties.

Manzi Affidavit, ¶ 10, attached as Exhibit B to Pl. Memorandum, Dkt. Entry No. 113.00

II. Standard of Review

Practice Book § 17–49 provides that summary judgment shall be rendered forthwith 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 trial court must view the evidence in the light most favorable to the nonmoving party.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such a issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.   See generally Mott v. Wal–Mart Stores East L.P., 139 Conn.App. 618, 624–25 (2012).

III. Discussion

This is a difficult and close case.   The plaintiffs have offered a strong presentation of their position.   There is a plethora of documents involved:  deeds, maps and condominium documents, but they are not dispositive of the claims for declaratory relief sought by the Wylies.   As set forth in their motion the plaintiffs ask for a judicial declaration that they have a “general driveway easement” over the areas owned by Franco and Sunko and designated as Lot 7 Accessway and Lot 8 Accessway “including parking and gaining open and free access by vehicle and foot from their home and lot ․ provided they do not impede, or interfere with the reasonable use and enjoyment of common driveway ․” Pl. Motion, 3, ¶¶ 1, 2. Neither the language of the Declaration nor the maps and information thereon are clear as to the scope of the easement referred to in the documents.   Indeed, while Manzi states he intended the easement to allow the parking of vehicles on the common driveway, the language of the deed he drafted for Lot 6 seems to this court to read otherwise.   The deed language directs the owners of Lot 6 “not to obstruct the reasonable use and enjoyment of the common driveway,” but goes on to define the purpose of “the common driveway shared by Lots 6, 7 and 8” to be “for the purpose of ingress and egress from Forest Avenue to their respective properties.”

Ingress and egress is a narrower interpretation of the scope of the easement than what Manzi seems to advocate, and the narrower interpretation is the one that has in the past been advocated by the Francos.   See Pl. Memorandum, Ex. D (Wylie Affidavit) Ex. 2 thereto.

The court denies the motion for partial summary judgment.   Based on the record presently before it, there is an insufficient factual basis for the declaratory judgment remedy sought, specifically whether the common driveway was meant to be used for all driveway purposes or simply for ingress and egress.   Further, there are at least two material fact issues not resolved on the present record.   First, it is not clear whether the deed received by the Wylies to Lot 6 (Ex. F to Pl. Memorandum) (found in Dkt. Entry No. 115.00) contains the language quoted in Manzi's Affidavit at ¶ 10 and referred to above.   Paragraph 13 of Schedule A to the Wylie deed incorporates “all restrictions, covenants and agreements” contained in an earlier deed without further elucidation.   Second, there is no evidence in the record as to how other “common driveways” at Victoria are managed, or how the easements are enforced.   This evidence could be of material assistance in construing the documents at issue in this case.

III. Conclusion

The motion for partial summary judgment is denied.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.

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