Heyman Associates No. 5, L.P. et al. v. TRS (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (235.00)

The defendant Felcor Trs Guarantor, L.P. (Felcor) has moved to dismiss the first three counts of the plaintiff Heyman Associates No. 5 L.P.'s (Heyman) amended complaint which seek declaratory and injunctive relief.   The first and second counts seek a judicial declaration that a certain land use restriction is in full force and affect, and that a notice of termination of such restriction recorded by Felcor in 2006 is null and void.   The third count seeks to enjoin Felcor from violating the land use restriction.   All parties agree that the fifteen-year land use restriction expired by its express terms in July 2011.   Oral argument on the motion occurred on December 19, 2011.

The land use restriction appeared in both a deed and sublease agreement negotiated in 1996 between predecessors in interest of the plaintiffs and the defendant transferring certain parcels of real property containing hotel facilities in Stamford, Connecticut whereby the operation of an “upscale” hotel on the premises was barred for fifteen years.   The deed and sublease were recorded on the land records.   In 2006 Felcor, then the owner and lessee of the property sought to sell it to a buyer who wished to operate a Hilton hotel (defined as “upscale” in the restriction), and recorded a notice of termination of the restriction.   Heyman brought this action thereafter.   Felcor's motion contends that the court lacks subject matter jurisdiction over these counts because the expiration of the restriction makes them moot and nonjusticiable.   Heyman has objected to the motion, but has stated that it will withdraw the third count claiming injunctive relief.

The issue of mootness involves the doctrine of justiciability.  Wilcox, Webster Insurance, Inc., 294 Conn. 206, 221–22 (2009).   The concept of justiciability, which arises out of the cases and controversies language of Article III of the United States Constitution, is an absolute requirement for subject matter jurisdiction.

Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ․ (2) that the interests of the parties be adverse ․ (3) that the matter in controversy be capable of being adjudicated by judicial power ․ and (4) that the determination of the controversy will result in practical relief to the complainant.

Dean–Moss Family Ltd Partnership v. Five Mile River Works, 130 Conn.App. 363, 370 (2011) (citation omitted).

A motion to dismiss admits all facts well pleaded, but when there are affidavits containing undisputed facts the court may look to them to determine the jurisdictional issue.  Cogswell v. American Transit Ins. Co., 505 Conn. 516 (2007).   In determining whether a court has subject matter jurisdiction every presumption favoring jurisdiction should be indulged.  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443 (2002).

Felcor contends that with the expiration of the land use restriction, the questions on which Heyman seeks a declaratory judgment;  i.e. what is the effect and enforceability of the recorded restriction and the recorded notice of its termination are now moot, and a declaration of rights would be of no practical benefit.   Felcor also argues that because the issue of enforceability of the land use restriction will still be litigated in connection with, and because of the existence of, Felcor's counterclaims for tortious interference, slander of title and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq.

The court disagrees with Felcor and finds the issues raised in the declaratory judgment counts are not moot.   The issue raised in those counts as to the existence and enforceability of the use restriction, underlies all of the plaintiffs' claims and all of the defendant's counterclaims in this case.   Indeed, the parties have stipulated that the proper issue to be tried is, “[a]t the time the plaintiffs sought to enforce the restrictive covenant(s) against Felcor in 2006, were the restrictive covenant(s) valid, effective, and enforceable?”   Letter to the Honorable Douglas Mintz, Dkt. Entry 243.00 The court finds that practical relief will arise from the determination of the two declaratory judgment counts, and that the parties' claims cannot be resolved without a determination of those issues.

Felcor has argued that the precise issue raised by the declaratory judgment counts was the request for a declaration that the restrictive covenant ․ “is in full force and effect” and the purported “[t]ermination is null and void” and this relief is mooted because the use restriction has now expired, and no court could grant the requested relief, as worded.   The court concludes this is a too mechanical and arbitrary approach.   Instead, the court follows the language quoted with approval by the Connecticut Supreme Court in Statewide Grievance Committee v. Burton, 282 Conn. 1, 13–14 (2007):

‘Thus, the question in a mootness problem is whether a change in the circumstances that prevailed at the beginning of the litigation has forestalled the prospect for meaningful, practical, or effective relief.   The mere fact that there are difficulties in formulating a remedy in an otherwise living case does not evidence the absence of a case or controversy, nor will a case be considered moot where, although the court cannot grant the specific relief originally requested by the plaintiff, the plaintiff still has a stake in the outcome of the proceedings for which effective relief can be provided.’   5 Am.Jur.2d 321–22, Appellate Review § 642 (1995).

In this case meaningful and practical relief can be provided by determining the issue of the enforceability and effectiveness of the use restriction.   All parties have a stake in the resolution of that issue, and the first and second counts are not moot.

The motion to dismiss is denied.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

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