PRIME LOCATIONS OF CT, LLC, ET AL.
ROCKYHILL DEVELOPMENT, LLC, ET AL.
February 16, 2016
from Superior Court, judicial district of Middlesex,
J. Krisch, with whom was Matthew S. Car-lone, for the
appellants (defendant Luke DiMaria et al.).
Christopher A. Klepps, with whom were Kevin J. McEleney, and,
on the brief, Richard D. Carella, for the appellees
DiPentima, C. J., and Alvord and West, Js.
DiPENTIMA, C. J.
defendants MPM Enterprises, LLC (MPM), and Luke DiMaria
appeal from the judgment of the trial court rendered in favor
of the plaintiffs, Prime Locations of CT, LLC (Prime
Locations), Hasson Holdings, LLC (Hasson), SMS Realty, LLC
(SMS), and C&G Holdings, LLC (C&G). On appeal, the
defendants argue that the court improperly (1) concluded that
the plaintiffs had standing and (2) decided the case on a
basis that was not pleaded, briefed or argued during the
proceedings in the trial court. We agree with the
defendants’ second claim, and reverse the judgment of
the trial court.
following facts, as found by the trial court, and procedural
history are relevant to this appeal. On September 27, 2004,
Coles Brook Commerce Park Associates, LLC (Declarant),
subdivided property located in the town of Cromwell into lots
for the purpose of developing a business park. The Declarant
also executed a declaration of easements, covenants and
restrictions (declaration),  and incorporated the Coles Brook
Commerce Park Owners Association, Inc. (Owners Association),
for the purpose of maintaining, administering and enforcing
the covenants and restrictions.
3.2 of article 3 of the declaration provided that each owner
of a lot would be a member of the Owners Association. Each
owner received a vote that was directly proportional to its
percentage of ownership in the common elements of the
business park. Article 5 of the declaration created a
Design Review Committee, which, pursuant to § 6.2 of
article 6, was responsible for determining if the final
drawings and specifications for structures on any lot
conformed with the restrictions contained in the declaration.
Specifically, § 6.3 provided: ‘‘No use shall
be permitted which is offensive by reason of odor, fumes,
dust, smoke, noise or pollution, which is excessively
hazardous by reason of excessive danger or fire or explosion,
or which violates any law or ordinance.’’
planned to build a crematorium on lot 2, which he had
purchased from MPM in late September, 2012. Members of the
Owners Association were aware of DiMaria’s plans to
build a crematorium prior to his purchase of lot 2 from MPM.
On August 29, 2012, the Design Review Committee met to
consider DiMaria’s plans. It did not give its permission to
build such a structure because it was not an approved use
pursuant to § 6.3 of article 6 of the declaration.
August 1, 2012, Rocky Hill Development, LLC (Rocky Hill
Development), MPM, and Rescue One, LLC (Rescue One),
respectively the owners of lots 1, 2, and 7, filed an
amendment to the declaration on the Cromwell land records.
This amendment purported to withdraw lots 1, 2, and 7 from
the Owners Association on the basis of their holding more
than fifty percent of the votes of the Owners
August 6, 2014, the plaintiffs commenced this action against
the MPM, DiMaria, Rocky Hill Development, and Rescue One,
seeking a declaratory judgment and injunctive relief in a
three count complaint. In count one of the complaint, the
plaintiffs alleged that for a variety of reasons, the August
1, 2012 amendment did not effectively amend the
declaration. For relief, they sought, inter alia, a
declaratory judgment that the amendment was void ab initio
and unenforceable, that the original declaration remained in
full force and effect and that lots 1, 2, and 7 remained part
of the Owners Association and subject to the declaration. In
count two, the plaintiffs argued, in the alternative, that if
the amendment was valid, then the court issue a declaratory
judgment stating that MPM, DiMaria, Rocky Hill Development,
and Rescue One, not be permitted to use the common area
easement or the drainage easement. In count three, directed
only to MPM and DiMaria, the plaintiffs sought a temporary
and permanent injunction prohibiting the construction of an
unapproved building on lot 2. DiMaria argued that, as a
result of the August 1, 2012 amendment withdrawing lot 2 from
the Owner’s Association, he did not need the approval
of the Design Review Committee to build the crematorium on
court held an expedited trial on October 2, 2014. After
hearing evidence and reviewing the posttrial briefs, the
court issued its memorandum of decision on December 19, 2014.
It observed that the dispositive issue was the validity and
effect of the August 1, 2012 amendment. The court concluded
that although the owners of lots 1, 2, and 7 had a 54.15
percent vote, the declaration did not contain any language
that permitted an owner to withdraw a lot from the Owners
Association. It set forth the following rationale to support
its conclusion that the amendment was invalid:
‘‘First, the declaration specifically provides
that its provisions run with the lots and are binding upon
all Owners. Second, there is a lack of authority in the
declaration to remove lots from the Coles Brook Commerce Park
community and/or the [Owners] Association. . . . Third, the
declaration contains an express provision that every owner
shall be a member of the [Owners] Association. The amendment
is invalid because it violates the express terms of the
Declaration. . . . MPM, Rocky Hill [Development] and Rescue
One were not permitted, under the declaration, to modify the
declaration to withdraw their lots from the [Owners]
Association and to renounce their status as Owners as defined
by the declaration.’’ (Citations omitted.)
court then rejected some of the arguments that had been
presented by the plaintiffs. Specifically, the court was not
persuaded by the plaintiffs’ contention that there had
been an invalid vote because Rocky Hill previously left the
Owner’s Association, and MPM and Rescue One alone
lacked a majority vote. The court also concluded that,
contrary to the plaintiffs’ claim, Coles Brook Commerce
Park was not subject to the Common Interest Ownership Act,
General Statutes§ 47-214 et seq.
to the issue of injunctive relief, the court noted that the
declaration provided that approval of the Design Review
Committee was required for the construction of buildings and
that certain offensive uses were prohibited. ‘‘It
is undisputed that DiMaria has not submitted the plans for
the crematorium structure to the [Design Review Committee].
It is also undisputed that after the [Design Review
Committee] became aware of the DiMaria’s plans to build
a crematorium, they held a meeting on August 29, 2012. At
that meeting, the [Design Review Committee] declined to
approve DiMaria’s use of lot 2 as a crematorium because
it violated § 6.3 of article 6 of the declaration. . . .
The court also finds that DiMaria has violated the
restrictive covenants by constructing a structure or building
upon lot 2 without the approval of plans or proposed use from
the [Design Review Committee].’’
court then issued the following orders: ‘‘The
court enters a declaratory judgment that the amendment to the
declaration . . . is invalid and of no force and effect. . .
. The defendant . . . DiMaria and his agents, heirs and
assigns are ordered to immediately cease any construction or
development activity upon lot 2 . . . until such time as
he/they have obtained approval of plans and permission for
use from the Design Review Committee . . . .’’
January 5, 2015, the defendants filed a motion to reargue and
for reconsideration of the December 19, 2014 decision.
Specifically, the defendants claimed that the decision
addressed issues outside of the scope of the pleadings and
was contradictory to the allegations of the complaint and the
evidence presented at trial. The court denied this motion on
January 15, 2015. This appeal followed.
January 26, 2015, the defendants moved to open the judgment
and to dismiss the action for lack of subject matter
jurisdiction. They argued that because the declaration
limited authority to commence a civil action to enforce a
violation of the declaration to the Declarant and the Owners
Association, and neither of those entities was a party to the
action, the plaintiffs lacked standing to enforce a claimed
violation of the declaration.
February 4, 2015, the plaintiffs filed an objection to the
defendants’ motion to dismiss. Specifically, they
argued that the lot owners had standing to enforce the
restrictions contained in the declaration and that the
defendants’ standing claim was untimely.
March 30, 2015, the court denied the defendants’
motion. The defendants then amended their appeal to include a
challenge to the court’s denial of their motion to
defendants first claim that the court improperly denied their
motion to dismiss, filed after judgment had been rendered in
favor of the plaintiffs, for lack of standing. Specifically,
they argue that the court lacked subject matter jurisdiction
because the declaration authorized only the Declarant and the
Owners Association to enforce the restrictions contained
therein. We disagree.
outset, we set forth the relevant legal principles regarding
the doctrine of standing. ‘‘Standing is the legal
right to set judicial machinery in motion. One cannot
rightfully invoke the jurisdiction of the court unless he [or
she] has, in an individual or representative capacity, some
real interest in the cause of action, or a legal or equitable
right, title or interest in the subject matter of the
controversy. . . . When standing is put in issue, the
question is whether the person whose standing is challenged
is a proper party to request an adjudication of the issue . .
. .’’ (Internal quotation marks omitted.)
Styslinger v.Brewster Park, LLC, 321 Conn.
312, 316, A.3d (2016); see also Bongiorno v.J
& G Realty, LLC, 162 Conn.App. 430, 437, 131 A.3d
1230, cert. denied, 320 Conn. 924, 133 A.3d 878 (2016).
‘‘We have long held that because [a]
determination regarding a trial court’s subject matter
jurisdiction is a question of law, our review is plenary. . .
. In addition, because standing implicates the court’s
subject matter jurisdiction, the issue of standing is not
subject to waiver and may be raised at any
time.’’ (Internal quotation marks omitted.)
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