17 LLC v. Richard Wolfram et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 121 and CROSS MOTION FOR SUMMARY JUDGMENT # 129

On February 25, 2013, the plaintiff 17 Kimberly Place, LLC, the owner of two adjoining lots in the Havemeyer Park subdivision, located in Old Greenwich, commenced this action against the defendants, Richard Wolfram, Richard Ciappa and Elizabeth Ciappa, who each own property in Havemeyer Park that adjoins the plaintiff's.¹  In the first count of its complaint, the plaintiff seeks a declaratory judgment stating that the defendants, as individual property owners in Havemeyer Park, lack standing to enforce certain restrictive covenants common to the property deeds of the plaintiffs and the defendants' properties.   The restrictive covenants at issue affect the plaintiff's ability to construct more than two houses on its two adjoining lots.   Presently before this court is the plaintiff's motion, as well as the defendants' cross motion, for summary judgment as to count one of the plaintiff's complaint, filed on March 1, 2013.

The plaintiff's motion for summary judgment, filed on May 31, 2013, was accompanied by a memorandum of law and exhibits attached thereto.   The defendants, on July 10, 2013, filed their opposition to the plaintiff's motion, as well as their cross motion for summary judgment, accompanied by a memorandum of law and exhibits attached thereto.   The plaintiff, on July 11, 2013, filed a further memorandum addressing both motions, to which the defendants filed a reply memorandum on July 15, 2013.   The parties agreed to have this court consider both motions together at the short calendar on July 29, 2013.

“[Summary] judgment sought 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.”  Practice Book § 17–49.  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   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, 10–11, 938 A.2d 576 (2008).

“[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The court finds the following facts.

In 1946, two land developers purchased from Louisine Havemeyer a 200–acre tract of land that would eventually become Havemeyer Park. That same year, the developers formed the Stamford Building Company, Inc., which assumed ownership of the Havemeyer Park property.   In 1947, the Stamford Building Company began conveying deeds to buyers of individually numbered lots in Havemeyer Park. Today, the plaintiff's property consists of “lot 132” and “lot 132A,” or 66 and 68 Halsey Drive, respectively.   Lot 132 was conveyed by deed by the Stamford Building Company to its original owners on October 14, 1950.   Lot 132A was conveyed by deed by the Stamford Building Company to its original owners on April 9, 1951.   Defendant Richard Wolfram's property is “lot 131,” or 64 Halsey Drive.   Lot 131 was conveyed by deed by the Stamford Building Company to its original owners on January 20, 1951.   The property owned by defendants Richard and Elizabeth Ciappa is “lot 133,” or 72 Halsey Drive.   Lot 133 was conveyed by deed by the Stamford Building Company to its original owners on January 11, 1950.   The deeds to lots 131, 132, 132A and 133 ² each contain the following, identical clauses.   As stated in the section of the deeds labeled “GREETING,” “[t]his deed is ․ accepted subject to the following express covenants ․ which shall ․ be binding upon the Grantee and successors ․ and assigns of the Grantee, and enure to the benefit of the Grantor, its successors and assigns ․” The “Grantor” is the Stamford Building Company, and the “Grantee” is the original owner/transferee of the lots in question.   The restrictive covenant in Paragraph “1” prohibits the construction or maintenance of any “buildings or structures ․ other than one detached private residence for one family only with a garage attached thereto” on a single lot.  (Emphasis added.)   The restrictive covenant in Paragraph “3” states that the “premises shall not be subdivided for the purpose of sale or other transfer ․ without ․ the written approval of the Grantor, or its successors or assigns.”   Paragraph “11” states that “the assigns of the Grantor may include an association or corporation formed by the owners of property upon ․ which may be hereafter organized to ․ carr[y] on ․ the purposes as set forth in the within restrictive covenants and agreements, and in the event such an association or corporation becomes the assignee ․ all of the aforesaid rights and powers as set forth in the within restrictive covenants ․ shall vest in such association or corporation with all powers to enforce the same ․” Accordingly, as the plaintiff argues, the fair import of these collective deed provisions is that when the Stamford Building Company originally transferred each of the subject lots, it reserved in itself the right to enforce the restrictive covenants.   Moreover, the plaintiff argues, the Stamford Building Company/Grantor reserved the right to assign its enforcement power in the future.

The plaintiff argues that, indeed, the Stamford Building Company assigned that enforcement power exclusively to the Havemeyer Park Owners Association, Inc. (“Owners Association”).   On September 4, 1964, the Stamford Building Company, by way of a quit claim deed,³ transferred to the then formed Owners Association “all right ․ claim and demand whatsoever, which ․ the said Releasor has ․ under and by virtue of the covenants ․ contained in deeds heretofore given by the releasor to the then owners of various lots or tracts of land ․ of Havemeyer Park ․” The “Releasor” is the Stamford Building Company.   The quit claim deed further stated that “[i]t is intended hereby that all the rights and provisions set forth in the aforesaid covenants and agreements shall vest in the release as the assignee of the releasor.”   The “assignee” is the Owners Association.

Accordingly, the plaintiff contends that the collective effect of these deed provisions was to give the Stamford Building Company the exclusive right to enforce the restrictive covenants prior to the time when it transferred that right to the Owners Association.   Consequently, the Owners Association now holds the right to enforce the restrictive covenants, to the exclusion of individual property owners.   Thus, the individual homeowner defendants lack standing to enforce the restrictive covenants, which, the plaintiff asserts, entitles it to summary judgment as to count one.

“Although in most contexts the issue of intent is a factual question ․ the determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law ․” (Citation omitted;  internal quotation marks omitted.)  Contegni v. Payne, 18 Conn.App. 47, 51, cert. denied 211 Conn. 806 (1989).

The clause in the deed conveying lot 132A owned by the plaintiff contemplates that the Stamford Building Company could later assign “all powers to enforce” the restrictive covenants to an association later formed by Havemeyer Park property owners.   Nevertheless, “all” powers to enforce does not necessarily mean that those powers would be exclusive.   Rather, it seems that the quitclaim deed served to merely extinguish all of the powers of enforcement that the Stamford Building Company had at that time.   The only way to arrive at the plaintiff's conclusion is to assume that the Stamford Building Company had the exclusive right to enforce the restrictive covenants before executing the 1964 quitclaim deed and then transferred that exclusive right to the Owners Association.   Of course, this would mean that those who bought Havemeyer Park properties prior to 1964 could not have had any rights to enforce those restrictive covenants themselves.   There is, however, nothing in the plaintiff's or the defendants' property deeds, all of which were executed before 1964, to suggest that.   Accordingly, the plaintiff's interpretation of the deed clauses which it has cited fail to establish the absence of a genuine issue of material fact as to whether the defendants, as individual property owners, lack standing to enforce the restrictive covenants.   The plaintiff's motion for summary judgment as to count one is thus denied.

In their opposition and cross motion for summary judgment, the defendants contend that they are entitled to enforce the restrictive covenants under a uniform or common plan of development theory.   Under this theory, a restrictive covenant will be enforceable in circumstances where there are “uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme ․” (Internal quotation marks omitted.)  Cappo v. Suda, 126 Conn.App. 1, 4, 10 A.3d 560 (2011).  “[A]ny grantee under such a ․ uniform development scheme may enforce the restrictions against any other grantee.”  (Emphasis added;  internal quotation marks omitted.)  Id. “The owner's intent to develop the property under a common scheme is evidenced by the language in the deeds ․ [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 ․” (Citation omitted;  internal quotation marks omitted.)  Id., 8.

“There are several factors that help to establish the existence of a common grantor's intent to develop the land according to a uniform plan [which] include (1) the common grantor's selling or stating an intention to sell an entire tract of land, (2) the common grantor's exhibiting a map or plot of the entire tract at the time of the sale of one of the parcels, (3) the actual development of the tract in accordance with the restrictions, and (4) a substantial uniformity in the restrictions imposed in the deeds executed by the common grantor ․ The factors that help to negate the presence of a development scheme are:  (1) the grantor retains unrestricted adjoining land;  (2) there is no plot of the entire tract with notice on it of the restrictions;  and (3) the common grantor did not impose similar restrictions on other lots.”  (Internal quotation marks omitted.)  Id., 8–9.

Several key exhibits in the record that speak to these factors.

First, the record reveals that the Stamford Building Company was a “common grantor.”   For instance, the defendants have submitted a copy of the affidavit of Robert Jaeger, a professional title searcher, who stated that a title search of eighty-seven Havemeyer Park lots, on file on the Greenwich Land Records, revealed that all eighty-seven titles were conveyed from a common grantor, the Stamford Building Company, and each contained the identical restrictive covenants found in the plaintiff's and the defendants' property deeds.   This demonstrates substantial uniformity in the restrictions imposed in the deeds executed by the common grantor.

Further, the defendants have submitted a copy of an “original development brochure” for Havemeyer Park, which is emblazoned with the name “STAMFORD BUILDING CO., INC. Community Builders” at the bottom of the front and back pages.⁴  The defendants highlight the following language in the brochure.  “A PLANNED COMMUNITY:  Havemeyer Park is zoned residential, and is further protected by the master plan of a complete home community.   The Stamford Building Company plans to build on all of the land, assuring harmonious design, adequate land space, and a fully built community with no unsightly vacant plots.”  (Emphasis added.)   The brochure further indicates the Stamford Building Company's intent of uniformity in stating that Havemeyer Park residents must seek approval from, presumably, the Stamford Building Company, if they wish to construct a house according to their own specifications, rather than the specifications set down by the Stamford Building Company.   Finally, the back page of the brochure contains a map, a rather crudely drawn one, depicting Havemeyer Park and, more specifically, Halsey Drive.

Assuming, arguendo, that the court finds that this evidence establishes a uniform or common scheme of development with respect to Havemeyer Park, the inquiry does not end there.

“Once a common scheme has been established, it is possible to find that the restrictive covenants are not enforceable because they have been abandoned ․ Such a change in circumstances is decided on a case by case basis, and the test is whether the circumstances show an abandonment of the original restriction making enforcement inequitable ․ Any such change in conditions must be so substantial so as to frustrate completely the intent of the original covenant [and may include] repeated violations of the restrictions without effective action to enforce them.”  (Citations omitted;  internal quotation marks omitted.)  Id., 9.

In its complaint, the plaintiff alleges scores of instances where certain restrictive covenants were ignored.   For instance, there are restrictive covenants that prohibit property owners from constructing or maintaining fences, signs, and hedges taller than five feet on their property without the approval of the grantor or its assigns, which, at the present time, would be the Owners Association.   Nevertheless, the plaintiff alleges that numerous fences, signs, and prohibitively tall hedges currently exist on properties throughout Havemeyer Park, and that no approval from the Owners Association was ever sought, or required.   Another restrictive covenant prohibits the construction or alteration of a residence or garage without submitting the “[p]lans, specifications, exterior colors scheme and location” of such building to the Owners Association.   Nevertheless, the plaintiff alleges that numerous building construction projects are currently ongoing in Havemeyer Park without the approval of the Owners Association.   Specifically, the plaintiff alleges that defendant Richard Ciappa, without seeking approval, added to his current residence a sunroom, attic and enclosed porch.   Finally, certain restrictive covenants require approval for subdividing lots for the purpose of a transfer or sale.   The plaintiff alleges at least one instance where a property was transferred, then subdivided or “free cut,” without the proper approval.

“The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Callender v. Reflexite Corp., 143 Conn.App. 351, 361 (2013).   Accordingly, in order to satisfy their initial burden on their cross motion for summary judgment, the defendants must show the absence of a genuine issue as to the fact that the restrictive covenants inhering in the purported uniform or common development scheme have not been abandoned.

The defendants Richard Ciappa and Richard Wolfram stated in their respective affidavits that “of the more than 350 separate residential lots in Havemeyer Park, there have been virtually no deviations ․ from the restrictive covenants at issue here, or indeed (for a number of years) the several others uniformly stated in their deeds Havemeyer Park therefore was in fact developed in accordance with the uniform plan ․” (Emphasis added.)

These allegations made by the defendants fail to sufficiently establish that the restrictive covenants have not been abandoned based on the following.   First, the allegations are lacking in terms of their substance.   By employing the caveat “virtually,” when describing the extent that covenants have been deviated from in the past, the defendants have effectively admitted that the covenants were, at least to some extent, abandoned.   This caveat permits the further speculation that those deviations may well have been significant.   Further, the defendants conceding that other restrictive covenants, i.e., those contained in the deeds but not necessarily applicable to the present case, were enforced “for a number of years,” suggests that restrictive covenants comprising the common development scheme were at some point abandoned.   To be sure, the abandonment of any restrictive covenants, regardless of whether they are pertinent in this case, inform the analysis as to whether the common development scheme, viewed as a whole, has been abandoned.   Second, the defendants' allegations may be procedurally defective.   Allegations contained in an affidavit that are merely denials of the allegations in a complaint “are an insufficient basis for the rendition of summary judgment.”  Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995).   Moreover, “it is especially appropriate to hold an affidavit submitted by a moving party to a stringent standard.”  Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978).   Further, a party's conclusory statements, “in the affidavit and elsewhere ․ do not constitute evidence sufficient to establish the existence of disputed material facts.”  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   Accordingly, the defendants have failed to establish the absence of a genuine issue as to whether the restrictive covenants comprising the Havemeyer Park development scheme have been abandoned.

Finally, defendant Richard Wolfram makes the separate argument that the court should grant his cross motion for summary judgment as to count one because the “retained land” theory gives him standing to enforce the restrictive covenants.

Our Appellate Court has explained the retained land theory as follows.  “Where the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor's successor in title can enforce, or release, the covenant depends on whether [the covenant] was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant expressed therein, read in light of the circumstances attending the transaction and the object of the grant ․ If the covenant is for the benefit of the retained land it runs with the land and may be enforced by the successor in title to the retained land against the successor in title to the conveyed land, on the principle which prevents one with notice of the just rights of others from defeating those rights.”   (Citation omitted;  internal quotation marks omitted.)  Contegni v. Payne, supra, 18 Conn.App. 61.

The defendant Wolfram's property, lot 131, and the plaintiff's property, lot 132, are adjacent parcels.   As between these two lots, the “retained land” would be lot 131 because the Stamford Building Company, i.e., the “grantor,” owned both lots prior to transferring lot 132 on October 14, 1950 and lot 131 on January 20, 1951.   Because the Stamford Building Company retained lot 131 for a period of time after it transferred lot 132, lot 131 is the “retained land.”   Thus, the question becomes whether the covenants contained in the lot 132 deed were made for the benefit of lot 131.

Contegni v. Payne, 18 Conn.App. 47, is on all fours with the facts of the present case and dictates that defendant Wolfram indeed has standing to enforce the restrictive covenants.   In Contegni, in 1904, a land developer, SPLC, purchased a large tract of land located on the southwesterly tip of Shippan Point, boasting acreage along the Stamford Harbor and Long Island Sound.   SPLC divided the tract into sections, including one section referred to by the Appellate Court as the “developed area.”   The developed area was further subdivided into twenty-five lots that, by transfer deeds, were restricted to residential use.   By September 1929, SPLC had transferred all but two adjacent lots within the developed area.   On September 21, 1929, SPLC transferred one of these lots to the defendants' predecessor in title.   Later that year, i.e., within approximately three months of transferring the first lot, SPLC transferred the other lot to the plaintiff's predecessor in title.   Accordingly, the court found that the plaintiff's land was the “retained land.”   The deed to the defendants' property contained the following restrictive covenant.  “[T]he land ․ shall be used for private residence purposes only, and ․ there shall not be erected any buildings other than (1) one family dwelling ․ (2) a stable ․ for the horses and ․ (3) a garage ․ for the motor vehicles of the occupants of the said land only ․” (Internal quotation marks omitted.)  Id., 62.   The defendants' deed also contained the following provision.  “This deed is accepted upon the express agreements ․ which shall run with the land and be binding upon the grantee and all persons claiming or to claim said land or any part or parcel thereof under the grantee, and shall inure to the benefit of the grantor and all its grantees ․” (Internal quotation marks omitted.)  Id., 62.

The Contegni court concluded that the restrictive covenant in the defendants' deed was exacted presumptively, or actually, for the benefit of the adjoining retained land, reasoning as follows.  “The language of the deed explicitly states that the covenants are to run with the land and be binding on the grantee's successor and her assigns and will be enforceable by the grantor and its assigns.   The deed further explicitly states that the conveyed parcel may be used only for residential purposes.   This indicated an intent to preserve the residential character and value of the land retained by [SPLC]. Certainly such a restriction inured to [SPLC's] benefit as the eventual seller of [its] retained land, since it would affect the value of ․ the land ․” (Internal quotation marks omitted.)  Id., 64.

This memorandum previously recited a deed provision contained in the plaintiff's lot 132 deed, providing “[t]his deed is ․ accepted subject to the following express covenants ․ which shall run with the land hereby conveyed and be binding upon the Grantee and successors ․ and assigns of the Grantee, and enure to the benefit of the Grantor, its successors and assigns ․” This provision is nearly identical to that of the deed provision binding the non-retained land in Contegni.   Moreover, as in Contegni, the restrictive covenants in the plaintiff's lot 132 deed inure to the benefit of the retained lot 131 because the value of lot 131 may well be jeopardized if the owner of the adjacent lot 132 were to fail to adhere to the restrictive covenants.   In accordance with the Appellate Court's ruling in Contegni, defendant Wolfram has the right to seek enforcement of the restrictive covenants contained in the plaintiff's lot 132 property deed.

Accordingly, the court (1) denies the plaintiff's motion for summary judgment, (2) denies the cross motion for summary judgment as asserted by defendants Richard Ciappa and Elizabeth Ciappa and (3) grants the cross motion for summary judgment as asserted by defendant Richard Wolfram.   In effect, then, this conclusion decides only that defendant Wolfram has standing to enforce the restrictive covenants, and whether defendants Richard Ciappa and Elizabeth Ciappa have standing cannot be determined, based on the record, at this juncture.

SO ORDERED.

EDWARD R. KARAZIN

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. The plaintiff also made several other parties defendants in this action, including the Havemeyer Park Owners Association, Inc., however, the present matter pertains only to defendants Richard Wolfram, Richard Ciappa and Elizabeth Ciappa, as named above..  FN1. The plaintiff also made several other parties defendants in this action, including the Havemeyer Park Owners Association, Inc., however, the present matter pertains only to defendants Richard Wolfram, Richard Ciappa and Elizabeth Ciappa, as named above.

FN2. See “Exhibit C,” pertaining to lot 131;  “Exhibit D,” pertaining to lot 132;  “Exhibit E,” pertaining to lot 132A;  and “Exhibit F,” pertaining to lot 133.   These exhibits were submitted as an attachment to a copy of the affidavit of defendant Richard Ciappa (# 132.00)..  FN2. See “Exhibit C,” pertaining to lot 131;  “Exhibit D,” pertaining to lot 132;  “Exhibit E,” pertaining to lot 132A;  and “Exhibit F,” pertaining to lot 133.   These exhibits were submitted as an attachment to a copy of the affidavit of defendant Richard Ciappa (# 132.00).

FN3. See “Exhibit B,” as attached to the plaintiff's complaint (# 100.31)..  FN3. See “Exhibit B,” as attached to the plaintiff's complaint (# 100.31).

FN4. See “Exhibit A,” which was submitted as an attachment to a copy of the affidavit of defendant Richard Ciappa (# 132.00).   Ciappa avers that “Exhibit A” is an “original development brochure” of Havemeyer Park..  FN4. See “Exhibit A,” which was submitted as an attachment to a copy of the affidavit of defendant Richard Ciappa (# 132.00).   Ciappa avers that “Exhibit A” is an “original development brochure” of Havemeyer Park.

Karazin, Edward R., J.T.R.