885 BOSTON POST ROAD, LLC v. CARLO DIGIROLAMO ET AL.

2011 Ct. Sup. 16797
No. CV 11 6016890SConnecticut Superior Court Judicial District of New Haven at New Haven
July 29, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
WOODS, J.

FACTS
The plaintiff, 885 Boston Post Road, LLC, commenced this action for a declaratory judgment with respect to the defendants, Carlo DiGirolamo, John DiGirolamo and Banc Building, LLC (hereinafter the DiGirolamos and Banc), by filing a one-count complaint on January 4, 2011. The complaint alleges the following facts. Prior to 2000, the DiGirolamos owned three adjacent parcels of land located at 883, 885 and 891 Boston Post Road (hereinafter 883, 885 and 891). The DiGirolamos sold 885 to the plaintiff on August 25, 2000 by way of a warranty deed and a contemporaneously executed Right of First Refusal and Easement Agreement (hereinafter Easement Agreement). The DiGirolamos remained the owners of 883 and 891. The Easement Agreement, attached as an exhibit to the complaint, created a number of access easements along the rear of 883, 885 and 891 since cars cannot access the parking lots on 885 and 891 from Boston Post Road. Relevantly, 891 was granted access easements over 883 and 885, and 885 was granted an access easement over 883 so that the respective owners could access Boston Post Road. Additionally, 883 was granted access over 885 so that the DiGirolamos could park on 891.

The complaint further alleges that the DiGirolamos conveyed 891 to Banc on January 22, 2010 by warranty deed, subject to the Easement Agreement. The deed also granted 891 a parking easement on 883, a right which was not included in the terms of the Easement Agreement. The plaintiff alleges that it did not consent to the parking easement, that the defendants do not have a right to park on its property and that the parking easement overburdens the plaintiff’s access easement. As a result of the actions of the defendants, the plaintiff seeks a declaratory judgment to determine: 1) whether either of the defendants have a right to park on the plaintiff’s land; 2) whether Banc has a right to park on 883 and intensify its use of the access easement that the plaintiff originally granted to 891; and 3) if the defendants have such rights, what is the extent of their permissible use. CT Page 16798

On February 24, 2011, the DiGirolamos filed a motion to dismiss due to lack of subject matter jurisdiction on the ground that there is no justiciable issue because there is no actual controversy. On April 4, 2011, Banc also filed a motion to dismiss for lack of subject matter jurisdiction on the ground that there is no justiciable issue because the plaintiff cannot bring a cause of action cognizable in a nondeclaratory suit and because there is no actual controversy. The plaintiff filed an objection to the defendants’ motions to dismiss on April 14, 2011. The matter was heard at short calendar on June 14, 2011.

DISCUSSION
“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the fact of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.” Practice Book § 10-31(a). “[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430
n. 12, 829 A.2d 801 (2003). “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citation omitted; internal quotation marks omitted.) Wilcox v. Webster Ins. Co., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009). Moreover, “[w]hen a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the CT Page 16799 complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

The DiGirolamos argue that the court lacks subject matter jurisdiction because there is no justiciable issue. Specifically, they argue that there is no actual controversy because the plaintiff does not allege that the DiGirolamos were prevented from granting a parking easement either as part of the Easement Agreement or otherwise; does not allege that the plaintiff’s consent was required to convey a parking easement or that such a requirement was contained in the Easement Agreement or conveyance documents; and the plaintiff does not allege that the defendants have asserted a right to allow Banc to park on 885. Furthermore, the DiGirolamos maintain that the deed to Banc did not grant any rights to the plaintiff’s land and that parking easement does not impose any burden on the plaintiff’s property except those that were already existing.

In its motion, Banc adopts and incorporates the DiGirolamo’s motion with respect to the argument that there is no controversy in dispute. It additionally argues that this action for a declaratory judgment cannot be brought because there is no cognizable cause of action that would be recognized in a nondeclaratory suit. It asserts that the plaintiff does not set forth how the parking easement on 883 overburdens the access easement on 885 or affects traffic across the plaintiff’s property nor does the complaint allege that the defendants “have violated the [Easement] Agreement, nor is any other basis for relief sought.”

The plaintiff disputes the defendants’ argument that there is no actual controversy and argues that this is the kind of case where a declaratory judgment is necessary. It maintains that Practice Book § 17-54 does allow the plaintiff to bring such an action and that the allegations satisfy the requirements for bringing a declaratory judgment.

Both the DiGirolamos and Banc argue that the court lacks subject matter jurisdiction for this declaratory judgment action. They maintain that there is no justiciable issue because there is no actual controversy. “A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). A “declaratory judgment action pursuant to § 52-29, which, as [the court has] recognized, provides a valuable tool by which litigants may resolve uncertainty of legal obligations . . . The [declaratory judgment] procedure has the distinct advantage of affording to the court in granting any relief CT Page 16800 consequential to its determination of rights the opportunity of tailoring that relief to the particular circumstances . . . A declaratory judgment action is not, however, a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies.” (Citations omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 625, 822 A.2d 196 (2003).

“Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. 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.” (Internal quotation marks omitted.) Board of Education v. Naugatuck, 257 Conn. 409, 416, 778 A.2d 862 (2001). “The first . . . factor — the requirement of an actual controversy — is premised upon the notion that courts are called upon to determine existing controversies, [and therefore] may not be used as a vehicle to obtain judicial opinions on points of law . . . An actual controversy exists where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement.” (Citation omitted; internal quotation marks omitted.) Id.

In the present case, the plaintiff alleges that the DiGirolamos’s parking easement to Banc was not included in the original Easement Agreement and was granted without the plaintiff’s consent. Based on the allegations, the court can infer the additional facts that the parties entered into the Easement Agreement with the understanding that it constituted the complete set of easements that would be granted with respect to the three properties and, thus, any changes to the easements required the plaintiff’s consent. Since the parking easement was granted without the plaintiff’s consent and in contradiction to the parties’ understanding about the completeness of the Easement Agreement, a violation has occurred. Because the defendants argue that nothing in the Easement Agreement prevents them from granting additional easements nor requires them to get the plaintiff’s consent before doing so, there is an actual controversy at issue. Moreover, the plaintiff has alleged an actual injury due to the actions of the defendants, namely, that its easement is being overburdened. Thus, the defendants’ motions on this ground are denied.

Banc additionally argues that the court lacks subject matter jurisdiction because there is no cause of action cognizable in a nondeclaratory suit. Practice Book § 17-54 provides: “The judicial CT Page 16801 authority will, in cases not herein excepted, render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power or immunity now exists or will arise in the future.” While Connecticut courts have noted that “declaratory judgments [are] highly remedial and the statute and rules should be accorded a liberal construction to carry out the purposes underlying such judgments,” (internal quotation marks omitted.) Larkin v. Bontatibus, 145 Conn. 570, 575, 145 A.2d 133 (1958), they have also stated that “a declaratory judgment action must rest on some cause of action that would be cognizable in a nondeclaratory suit . . . [because] [t]o hold otherwise would convert our declaratory judgment statute and rules into a convenient route for procuring an advisory opinion on moot or abstract questions . . . and would mean that the declaratory judgment statute and rules created substantive rights that did not otherwise exist.” (Citations omitted.) Wilson v. Kelley, 224 Conn. 110, 116, 617 A.2d 433
(1992).

In the present case, the plaintiff alleges that the DiGirolamos granting of a parking easement to Banc, in contradiction to the Easement Agreement and without the plaintiff’s consent, “increases the pedestrian and vehicular traffic across the [p]laintiff’s land and overburdens the easement on it.” She additionally alleges that Banc “has no right to park on 883 because that right would overburden the easement over, across and upon the [p]laintiff’s parcel.” Such allegations constitute facts that would support a cause of action of overburdening an easement in a nondeclaratory judgment suit. See, e.g., Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 640 n. 8, 866 A.2d 588
(2005) (“[T]he owner of the servient estate has the burden of proving overburdening because the servient owner has asserted overburdening as a cause of action . . . when the purpose of the easement is not in dispute”); Abington Ltd. Partnership v. Heublein, 257 Conn. 570, 577, 778 A.2d 885 (2001) (plaintiff asserts overburdening of easement as a cause of action); Urfirer v. Annunziata, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 4010474 (February 25, 2011, Adams, J.) (court concluding that plaintiff brought overburdening cause of action); Herasimovich v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV 03 0481797 (October 7, 2009, Cosgrove, J.), aff’d, 128 Conn.App. 413, 17 A.3d 502 (2011) (memorandum of decision on overburdening of easement cause of action). Therefore, Banc’s motion on this ground is denied.

For the foregoing reasons, the defendants’ motions to dismiss are denied. CT Page 16802

CT Page 16803