Michael T. Masin et al. v. Paula A. Timmerman (2013)

MEMORANDUM OF DECISION

The plaintiffs in this matter, Michael T. Masin and Thomas Foley have brought this action to recover money they claim is due them from the defendants, their neighbors, pursuant to the terms of certain restrictive covenants.   All parties are the owners of residential property located in a private development in Greenwich known as Khakum Wood. The plaintiffs' claims against all defendants, other than Paula A. Timmerman have been withdrawn.¹

The plaintiffs' claims arise out of the following facts and circumstances.   The homes of all the remaining parties abut a pond located within the Khakum Wood development.   The plaintiffs claim that the chains of title of the parties can be traced back to a common grantor, Edith M. Phelps Stokes.   In the 1920s she conveyed title to various tracts of land abutting the subject pond.   Each of the deeds contained the following language:

Together with the right to use and enjoy the pond as shown on said map adjoining said premises and together with the right title and interest in and to the land included in said pond to the extent and in proportion that the area included in the above described premises bears to the area of all of the plots shown on said map, fronting on said pond subject to the rights of other owners of said land adjoining said pond to whom such right has been or may be hereafter conveyed to use and enjoy said pond ․ and the Grantee agrees to pay in proportion to its ownership of the pond the cost of maintaining said ․ pond in the manner the owners of the majority in interest may determine.

The plaintiffs allege that there are presently eight properties which abut the pond.   They claim that they obtained the agreement of four additional owners to dredge the pond.   The defendant and Annelise Rothe, formerly a defendant in this action, did not agree to the dredging.   However, the six property owners agreeing to the dredging consisted a clear majority in interest under the terms of the Stokes deeds.   The dredging project was commenced in 2003 and completed in 2004 at a cost of $1,447,878.   The plaintiffs paid for the cost of dredging and now seek to obtain reimbursement from the defendant in the amount of $185,183 which they claim represents her share of the cost of maintaining the pond.   Following withdrawal of their claims against Annelise Rothe, only two counts of the plaintiffs' complaint remain.   Both are directed against the defendant.   One claims breach of contract and the other claim is based on unjust enrichment.

Presently before the court is the plaintiffs' motion for summary judgment, filed on February 27, 2013 (# 134.00).   That motion claims that there is no genuine issue of material fact and the plaintiff is entitled to judgment as a matter of law on both of the remaining counts of their complaint.   Attached to the motion was a memorandum of law with an affidavit executed by plaintiff, Thomas Foley (# 133.00).   Exhibits A, B, C and D to the Foley affidavit purport to be copies of the Stokes deeds in the respective chains of title of the parties and Annelise Rothe.   Those deeds bear dates ranging from March 5, 1926 to June 15, 1929.   Exhibits E and F to the affidavit are copies of demand letters sent by the plaintiffs to the defendant and Annelise Rothe dated October 1, 2004 asking those owners to honor their obligations to contribute to the expense of the dredging.

On March 27, 2013, the defendant filed a memorandum in opposition to the motion for summary judgment (# 138.00).   The defendant claims that there are numerous issues of material fact which preclude the granting of summary judgment.   Specifically, the defendant identifies these four issues.   1) Whether the covenants and agreements relied on by the plaintiffs are currently in effect?   2) Whether plaintiff Thomas Foley is qualified to give an opinion as to the chains of title of the parties and the applicability of the deed restriction?   3) Whether the $1.4 million dredging project meets the definition of “maintenance?” and 4) Whether the defendant has been unjustly enriched by the dredging project?

On May 9, 2013, the plaintiff submitted a reply memorandum in support of their motion for summary judgment (# 140.00).   On May 10, 2013, the defendant filed a “surreply” in answer to the plaintiff's reply memorandum (# 141.00).   The matter was heard at short calendar on May 13, 2013.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279 (1989).  “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.”  (Internal quotation marks omitted.)   Brooks v. Sweeney, 299 Conn. 196, 210 (2010).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365 (2010).

“The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11 (2008).   “ ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).

VIABILITY OF COVENANT FOR POND MAINTENANCE TITLE OPINIONS IN THE PLAINTIFF'S AFFIDAVIT

In support of her claim that the restrictive covenants relied on by the plaintiff have expired, the defendant has submitted copies of amendments to restrictions and covenants.   Those amendments are exhibits A and B to the affidavit of the defendant.   The first amendment (Ex. A), filed on the Greenwich land records on December 13, 1950, purported to extend the expiration date of the restrictive covenants from December 31, 1950 to December 31, 1975.   The second amendment (Ex. B) filed on the Greenwich land records on December 22, 1975 purported to extend the expiration date of the restrictive covenants from December 31, 1975 to December 31, 2000 with certain modifications.   Exhibit B contains an explicit reference to “special agreements in certain deeds relative to lakes and ponds” and extends the expiration date of those agreements to December 31, 2000.

Exhibit C to the defendant's affidavit is an “Amended and Restated Declaration of Khakum Wood signed in 1999 which states that the owners of lots comprising in the aggregate at least two-thirds of the acreage within Khakum Wood have agreed to amend the 1975 restrictions.   The declaration states that the 1975 restrictions are “of no further force of effect” and that thereafter the agreements, covenants and restriction set forth therein would be in effect.   The covenants and restrictions which follow make no reference to any “special agreements in certain deeds relative to lakes and ponds.”

In their May 9, 2013 reply memorandum the plaintiff's claim that the “sunset” provision in the original deeds, containing the December 31, 1950 expiration date, is recited prior to the pond maintenance provisions and refers to the “foregoing covenants, restrictions and agreements.”   From this placement of the sunset provisions, the plaintiff reasons that the pond maintenance provisions were not time limited, but instead were intended to be of unlimited duration.

In her May 10, 2013 “sur-reply,” the defendant claims that regardless of whether the pond maintenance agreements were subject to a December 31, 1950 sunset provision or not, the 1975 extension agreement expressly provided for a December 31, 2000 “sunset” for all restrictions, covenants and agreements including “The special agreements in certain deeds relative to lakes and ponds ․ including, but limited to the agreements of owners of land adjoining such lakes and ponds to pay in proportion to each owner's ownership of a lake or pond, as the case may be, the cost of maintaining any such lake or pond ․” In the absence of evidence showing the extension of the lake/pond maintenance agreements beyond December 31, 2000, the defendant claims that there is no contractual basis on which the plaintiffs are entitled to reimbursement from her for the funds they expended to dredge the pond.

The defendant also claims that the affidavit of Thomas Foley cannot be considered insofar as it purports to state an opinion as to whether the agreements in question are in the chains of title of the parties.   The defendant correctly points out that nothing in Foley's affidavit shows that, either by reason of training or experience, he has the requisite expertise to offer any opinions as to land titles.

The plaintiffs' reply memorandum also argues that Thomas Foley's statement regarding the applicable covenants and agreements set forth in the parties' chains of title does not purport to state an expert opinion.   The court disagrees.

The court agrees with the defendant that Foley's affidavit does not qualify him as an expert to state whether any particular deeds are in his chain of title or the chains of title of any of the other, present or former, parties to this litigation.   To offer an opinion on such matters requires such “special training and experience as to fall within the proper range of expert knowledge.”  Byard v. Hoelscher, 112 Conn. 5, 9 (1930).   For similar reasons, the court cannot accept those portions of the defendant's affidavit which purport to place documents from the Greenwich land records before the court.²

“[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law ․” Eis v. Meyer, 17 Conn.App. 664, 667–68, aff'd, 213 Conn. 29 (1989).   In this case both parties have failed to supply the court with an adequate basis to determine whether or not the defendant has any viable contractual obligations to reimburse the plaintiffs for any portion of the funds they expended to dredge the pond.   The plaintiffs' motion for summary judgment based on their contractual claims is, accordingly, denied.

UNJUST ENRICHMENT

The plaintiffs also seek summary judgment against the defendant based on their claim of unjust enrichment.  “The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit.”   (Internal quotation marks omitted.)  BHP Land Services, LLC v. Seymour, 137 Conn.App. 165, 169, cert. denied, 307 Conn. 927 (2012).   On the basis of the competent materials submitted to it by the parties, the court is unable to determine whether any contractual obligations exist between the plaintiffs and the defendant relating to the dredging of the pond.   Until it is determined that no such obligations exist, the court cannot entertain, let alone grant, a motion for summary judgment based on unjust enrichment.   Accordingly, the motion for summary judgment on the plaintiff's unjust enrichment count is denied.

David R. Tobin, J.T.R.

FOOTNOTES

FN1. Paula A. Timmerman will be referred to in this memorandum of decision as “the defendant.”.  FN1. Paula A. Timmerman will be referred to in this memorandum of decision as “the defendant.”

FN2. In light of the court's finding that neither parties evidence from the land records was properly before the court, the court cannot address the parties respective claims as to whether the agreements and covenants relating to lake/pond maintenance had any viability after December 31, 2000..  FN2. In light of the court's finding that neither parties evidence from the land records was properly before the court, the court cannot address the parties respective claims as to whether the agreements and covenants relating to lake/pond maintenance had any viability after December 31, 2000.

Tobin, David R., J.T.R.