Julie A. Wojeck et al. v. Latimer Point Condominium Association et al. (2013)

MEMORANDUM OF DECISION RE Motions To Dismiss [126, 128]

The plaintiff Latimer Financial, LLC is the record owner of Unit # 24 of a common ownership community located at Latimer Point, Stonington.   The community is governed by the defendant Latimer Point Condominium Association, Inc. (LPCA).

The plaintiffs Julie A. and James Wojeck are the managing members of Latimer Financial.   Latimer Financial and the Wojecks are members of the LPCA. The Wojecks bring this action as managing members of Latimer Financial and individually.

This action is centered upon the “water view” for or from plaintiffs' Unit # 24.   Water views are important for LPCA members.   The rules governing the LPCA detail how the water views are to be measured and protected from incursions by other members.   Those rules establish the process by which a unit's water view is to be protected and the process by which any obstructions to the water view are to be measured and, perhaps, allowed.

The defendants Gennaro and Elizabeth Modugno are members of the LPCA and are the owners of Unit # 7, which is within the water view of plaintiffs' Unit # 24.

The defendant Architectural Control Committee (ACC) is a “Standing Committee” of the LPCA. The ACC plays a vital role in the process by which building construction is permitted at Latimer Point.

The defendant, Andrew Feinstein, has been chairman of the ACC during the times here relevant.   The defendants, Jill Bennett, Grace Ann Conti, Douglas Delahanty, Malcolm Smith, Michael Guidera and Sharon Stryker have served as appointed members of the ACC.

“The LPCA is the reviewing body for all decisions rendered by the ACC.” Amended complaint (# 107), ¶ 7.

Central to the dispute here is the LPCA's Ten Percent Rule. “The Ten Percent Rule mandates that ‘[t]he Association shall ensure that no member's water view shall ever be diminished by more than 10% due to cumulative constructions of other units and/or the Association.’  “ (Emphasis in original.)   Amended Complaint (# 107) ¶ 15.   If and when a building application is filed, “the ACC shall determine whether each building plan is within the ACC's jurisdiction, i.e., less than the 10% rule;  or whether each building plan requires the approval of unit's owner, i.e., over the 10% rule.”  (Emphasis in original.)   Id.

During 2011, the Modugnos made known their desire and plan for an add-on to their Unit # 7 dwelling.   The add-on involved constructing an additional vertical level to the existing dwelling.   The add-on would directly affect the water view from plaintiffs' Unit # 24.

The ACC and the LPCA granted the Modugnos permission to construct the add-on.

The plaintiffs claim in this action that the Association defendants ¹ had improperly performed their duties and violated relevant bylaws.

This action was returned to this court on November 11, 2011.

In approximately May of 2012, unbeknownst to the plaintiffs, the Association defendants and the Modugnos agreed among themselves to rescind the permission given to the Modugnos in 2011 to build the additional level, but agreed that the Modugnos could submit the same plans during the 2012 construction season.   The plaintiffs were not consulted and were not a party to any such agreement.

By letter dated May 30, 2012, the LPCA's attorney wrote plaintiffs' counsel informing of the defendants' agreement and rescission.   In that letter it is stated:  “The LPCA and ACC wish to emphasize that they did not violate the Bylaws or State Statute in the 2011 review process ․” Nonetheless, the letter shortly thereafter states:  “The ACC will follow the procedures for the 2012 application review cycle that address the claims made in your clients' complaint.”

The plaintiffs were urged to withdraw this lawsuit;  defendants threatened to move for dismissal on mootness grounds.   Plaintiffs refused.

Now before the court is the Association defendants' Motion to Dismiss, June 8, 2012 (# 126),² Defendants contend that, with the rescission of the permission given the Modugnos, injunctive relief as had been a part of this action is now moot warranting dismissal of the entire action.

Defendants' principal authorities for their mootness claims are Bornemann v. Connecticut Siting Council, 287 Conn. 177, 947 A.2d 302 (2008), and Gagnon v. Planning Commission, 222 Conn. 294, 608 A.2d 1181 (1992).

These cases, while good law, are not dispositive in this case.   First, the plaintiffs herein seek only a temporary injunction to prevent the Modugnos from constructing the add-on while this case was moving forward, thus indicating that injunctive relief enjoining the use of the permission to build granted to the Modugnos is only sought for a short time while the case is being adjudicated.

This action is, in the main, an action pursuant to the Common Interest Ownership Act, General Statutes §§ 47–200 to 47–299.³  The Act creates an actionable interest in adherence to the bylaws.   See, principally, § 47–278(a):

A declarant, association, unit owner or any other person subject to this chapter may bring an action to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws.   The court may award reasonable attorneys fees and costs.

Connecticut's Common Interest Ownership Act (CIOA) is modeled after the Uniform Common Interest Ownership Act;  § 47–287 is similar to § 4–117 of the uniform act.   Comment 1 to § 4–117 provides in relevant part:

This section provides a general cause of action or claim for relief for failure to comply with the Act by either a declarant or any other person subject to the Act's provisions.   Such persons might include unit owners ․ A claim for appropriate relief [under the Act] might include damages, injunctive relief, specific performance, rescission, or reconveyance if appropriate under the law of the State, or any other remedy normally available under state law ․

Comment 3 to § 4–117 of the uniform act clarifies the broad relief available under the uniform statute and, by extension, § 47–278(a) of the CIOA:

The language of subsection (a) is intentionally broad, and emphasizes the traditional authority of a court in equity to fashion a remedy suited to the circumstances of the case.   Importantly, the provisions of this section would apply with equal force to a violation of either this Act or the declaration or by-laws by “any person” besides the declarant—including, for example, the association in its dealings with unit owners ․

Uniform Common Interest Ownership Act, § 4–117, comment 3.

This action is “to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws.”

The right of action here, founded upon specific statutes, the CIOA, is not to be treated as merely an ancillary claim for relief to be swept out where an injunction was not the only real relief sought.   The plaintiffs' claims alleging violations of the bylaws remain unresolved.

The defendants additionally argue that the court must dismiss counts four and five of the amended complaint, which allege breach of fiduciary duty against the Association defendants, because the plaintiffs “fail to allege a specific personal and legal interest has been specially and injuriously affected by the challenged action” necessary to plead classical aggrievement.   Association Defendants' Memorandum in Support of Motion to Dismiss (# 127), 17.   The court does not agree.

The plaintiffs allege that, despite the defendants' later unilateral agreement to rescind approval of the Mudugnos' 2011 application, the defendants had violated the LPCA bylaws during the 2011 approval process.   As articulated above, the plaintiffs bring this action pursuant to § 47–278(a), which provides an actionable interest in adherence to the bylaws of common interest communities.   The plaintiffs seek injunctive relief, monetary damages and attorneys fees, which are available under the statute.   The plaintiffs have therefore alleged that they have been specially and injuriously affected by the defendants' alleged actions.

The Motions to Dismiss are denied.

Parker, J.T.R.

FOOTNOTES

FN1. “Association defendants” are the LPCA, the ACC, Chairman Feldman and ACC members..  FN1. “Association defendants” are the LPCA, the ACC, Chairman Feldman and ACC members.

FN2. On June 12, 2012, the Modugnos filed a motion to dismiss (# 128) formally adopting and incorporating by reference the arguments made by the Association defendants in their motion to dismiss..  FN2. On June 12, 2012, the Modugnos filed a motion to dismiss (# 128) formally adopting and incorporating by reference the arguments made by the Association defendants in their motion to dismiss.

FN3. General Statutes §§ 47–296 to 47–299 do not exist but are “Reserved for future use.”.  FN3. General Statutes §§ 47–296 to 47–299 do not exist but are “Reserved for future use.”

Parker, Thomas F., J.T.R.