Abel v. Johnson

          Argued March 7, 2019

         Procedural History

         Action for, inter alia, injunctive relief barring the defendant from violating restrictive covenants on certain of the defendant's real property, brought to the Superior Court in the judicial district of Stamford-Nor-walk and tried to the court, Hon. Edward R. Karazin, Jr., judge trial referee; judgment for the plaintiffs, from which the defendant appealed to this court. Reversed in part; vacated in part; judgment directed.

          Heather M. Brown-Olsen, for the appellant (defendant).

          John R. Harness, for the appellees (plaintiffs).

          Keller, Moll and Beach, Js.

          OPINION

          KELLER, J.

         In this action to enforce restrictive covenants, the defendant, Celeste M. Johnson, appeals from the judgment of the trial court, rendered following a trial to the court, in favor of the plaintiffs, Michael Abel and Carol Abel. The defendant claims that the court erred (1) in its determination that the plaintiffs had standing to enforce a restrictive covenant that appears in a deed that was executed by the original grantors of the parties' real properties^[1] and (2) by granting the plaintiffs injunctive relief on the basis of two restrictive covenants that appeared in a declaration of restrictions that applied to the parties' real properties. We affirm in part and reverse in part the judgment of the trial court.

         The record reveals the following procedural history. In their one count complaint, the plaintiffs alleged that they own real property located at 37 Mill Stream Road in Stamford and that the defendant owns real property located at 59 Mill Stream Road in Stamford. The plaintiffs alleged that their property abutted that of the defendant, and that both properties are located in a subdivision named the Saw Mill Association.

         The plaintiffs alleged: ‘‘The plaintiffs' property and the defendant's property are subject to certain restrictive covenants recorded in volume 792 at page 118 of the Stamford land records which states that property shall be used for private residential purposes only.'' Also, the plaintiffs alleged: ‘‘The plaintiffs' property and the defendant's property are also subject to certain restrictive covenants recorded in volume 917 at page 114 of the Stamford land records which state in relevant part that no animals, poultry or water fowl, except usual pets quartered within the family dwelling at night shall be kept on a tract.'' The plaintiffs alleged that the restrictive covenants ‘‘are common to all tracts or parcels of land located within the area or subdivision known as the Saw Mill Association.''

         The plaintiffs further alleged: ‘‘The defendant is violating the restrictive covenants by maintaining chickens and chicken coops upon the defendant's property and by conducting a landscaping business from the defendant's property.'' Also, the plaintiffs alleged: ‘‘The defendant has not obtained consent from the Saw Mill Association . . . the plaintiffs or any neighboring property owner to maintain chickens upon the defendant's property or to conduct a landscaping business from the defendant's property.'' The plaintiffs alleged that they had demanded that the defendant cease and desist the activities at issue, but the defendant had failed to comply with their demand. The plaintiffs alleged that they had suffered and would continue to suffer irreparable harm as a result of the activities at issue, and that they lacked an adequate remedy at law. The plaintiffs sought injunctive relief ordering the defendant to immediately cease and desist from violating the restrictive covenants and such other relief as the court deemed equitable and proper.

         In her answer, the defendant admitted owning 59 Mill Stream Road, which abuts the plaintiffs' property, but she denied that she had violated any restrictive covenant by virtue of her keeping chickens or by virtue of her landscaping business, denied that she had failed to obtain consent to conduct her landscaping business, and denied that the plaintiffs had suffered harm or would continue to suffer harm as a result of her alleged violation of the restrictive covenants at issue. Otherwise, the defendant left the plaintiffs to their proof. The defendant raised four special defenses sounding in the following legal theories: (1) equitable estoppel and waiver; (2) unclean hands;^[2] (3) ripeness, mootness, and frustration of purpose; and (4) a claim that the action was time barred pursuant to General Statutes § 52-575a in that the plaintiffs did not commence the action within three years from the time that they had actual or constructive knowledge of the alleged violations of the restrictive covenants. By way of a reply, the plaintiffs denied all of the special defenses.

         The trial court, Hon. Edward R. Karazin, Jr., judge trial referee, held a trial in this matter on June 29 and 30, 2017. On August 24, 2017, the court rendered its judgment by way of a memorandum of decision that provides, in relevant part, as follows: ‘‘The defendant . . . resides with her husband, Eusevio Martinez, at 59 Mill Stream Road, Stamford . . . . The plaintiffs . . . reside at 37 Mill Stream Road, Stamford . . . . The plaintiffs' property abuts the defendant's property, and both parcels of land are located within a subdivision known as the Saw Mill Association.

         ‘‘The court finds the [plaintiffs] aggrieved as being . . . adjoining property [owners].

         ‘‘Both properties are subject to three deed restrictions. The first restriction, [as modified by an agreement] dated March 27, 1957, states that ‘said premises shall be used for private residential purposes only (except that a residence may be used for professional purposes by a member of a profession occupying the same as his home to the extent that such use is permitted from time to time by the applicable zoning regulations of the city of Stamford).' The second restriction is dated March 15, 1961, and states that ‘no animals, poultry or water fowl, except usual pets quartered within the family dwelling at night, shall be kept on a tract.' The third restriction is also dated March 15, 1961, and states that ‘any commercial vehicle used by an occupant of a tract shall be kept within a garage with doors closed, except for brief periods required for loading or unloading.'

         ‘‘At trial, the defendant testified that she operates a landscaping business from her property, that chickens were on the property but have since been removed, and that various vehicles parked on her property are used in conjunction with her landscaping business. . . .

         ‘‘The plaintiff[s] [argue] that the three deed restrictions listed above are part of a common development scheme and, therefore, they are able to bring this action to enforce the restrictions against the defendant. . . .

         ‘‘The defendant argues that the deed restrictions on her property are the result of covenants exacted by the original landowner from the developer of the Saw Mill Association for the benefit and protection of his adjoining land which he retains and, as a result, the [plaintiffs] cannot enforce the deed restrictions. In addition, the defendant asserts four special defenses . . . .'' (Footnotes omitted.)

         After setting forth relevant legal principles, the court stated: ‘‘The plaintiffs submitted multiple deeds from various properties of the Saw Mill Association that contained the restrictive covenant[s] they seek to enforce. In addition, the deeds from both parties contain the deed restrictions at issue in this case. . . . The court is satisfied that both the [plaintiffs'] and defendant's properties are part of a common scheme of development. Therefore, the plaintiffs may enforce the deed restrictions against the defendant. Without a showing by the defendant that the enforcement of those deed restrictions would be inequitable or that a special defense applies, the court will enforce the restrictions.''

         The court then addressed the special defenses: ‘‘The defendant argues that the plaintiffs are estopped from enforcing the restrictive covenants regarding the operation of a home business because they previously utilized services from the landscaping business. . . .

         ‘‘Even if the plaintiffs hired the defendant's company in its capacity as a landscaping company, no evidence submitted at trial supports the proposition that the defendant changed her position in response to the [plaintiffs'] offer of work. Nor is there evidence that the defendant was prejudiced by accepting the work from the [plaintiffs]. . . . Therefore, the defendant has failed to prove the special defense of equitable estoppel.

         ‘‘The defendant also argues that with respect to the covenant involving poultry, this action is moot and not justiciable because the chickens that were on the property have been removed prior to the start of trial. . . .

         ‘‘Both parties agree that the chickens have been removed from the defendant's property. In addition, both parties agree that the chicken coops are still on the defendant's property. The defendant testified that she moved the chickens to another property she owns and does not have plans to return them to her property at 59 Mill Stream Road. Given that an injunction against the defendant regarding the enforcement of the 1961 covenant would provide practical relief to the [plaintiffs] and would resolve any ambiguity about whether the chickens could be returned to the property, this court does not find the issue moot. Therefore, the injunction regarding poultry and water fowl and the [plaintiffs'] request to order an injunction is not moot, and the defendant's special defense has not been proven.

         ‘‘The defendant argues that the plaintiffs' action is barred by the three year statute of limitations provided in . . . § 52-575a. General Statutes § 52-575a provides in relevant part: ‘No action or any other type of court proceedings shall be brought to enforce a private restriction recorded in the land records of the municipality [in which the property is located] . . . [unless such action or proceeding] shall be commenced within three years of the time that the person seeking to enforce such restriction had actual or constructive knowledge of such violation.' ‘Section 52-575a requires that a violation occur before the statute begins to run'. . . .

         ‘‘The defendant submitted evidence and elicited testimony from [the] plaintiff Michael Abel at trial which indicated that the plaintiffs had actual knowledge of the defendant's landscaping business. The defendant submitted checks dated in 2007 that the [plaintiffs] used to pay for landscaping services from the defendant. In addition, [Michael Abel] testified that he knew the defendant and her husband were attempting to start a business and hired them in order to help them with [the] financial troubles he knew they were having. If this were the only evidence and testimony relevant to the defendant's breach of the restrictive covenant involving the operation of a home business, then perhaps the statute of limitations would apply and bar the [plaintiffs'] claim.

         ‘‘Instead, the defendant has been continually expanding the operations of her home business. These expansions involve deliveries of mulch, chipping tree branches, maintenance of landscaping equipment, and the parking of several employee vehicles on her property or in front of her home. The defendant put forth arguments and testimony that some of these activities are for personal use as she operates a farm at a separate location. This testimony conflicts with other testimony provided by the defendant and other witnesses, which described the expansion of the landscaping business and the increasing number of clients the defendant serves with her business. In addition, the plaintiff[s] provided testimony and a letter addressed to a neighbor from the defendant that indicated [that] the defendant was in possession of a large delivery of mulch and that she could provide mulch in conjunction with other landscaping services. These violations have taken place in the three years before this suit was brought.''

         After the court referred to some of the photographic evidence submitted by the plaintiffs concerning the activities that took place and equipment that was present on the defendant's property, the court stated: ‘‘The exhibits and photographs clearly show that the premises are not being solely used for residential purposes, but rather a landscaping business. The only use for the property outside of residential is for professional use by a member of a profession.

         ‘‘Within the past three years, the defendant's new and expanding uses of her property in relation to her home business continue to increase beyond the simple founding of a business and operation from the home. Since these new violations of the restrictive covenant have been occurring in pursuit of expanding her home business, and continue to increase since the time that the plaintiffs originally knew about the business, their action is not time barred by § 52-575a. It would not be in the interest of justice to find that once a person violates a restrictive covenant in a minor way, and the other party does not bring suit, they can continue violating it in progressively larger ways once the statute of limitations expires. For this reason, the court does not find that the defendant has [satisfied her] burden of showing that it would be inequitable to enforce the covenant against her. Therefore, the statute of limitations special defense has not been proven.

         ‘‘The plaintiff[s] [argue] that the defendant's vehicles used in connection with the landscaping business are commercial vehicles and subject to the restrictive covenant prohibiting commercial [vehicles] from being parked outside of a closed garage. The defendant argues that the vehicles are her and her husband's private vehicles that are sometimes used in connection with the business and not a commercial vehicle for the purposes of any restrictive covenant or rules of the Saw Mill Association.''

         Thereafter, the court found in light of the evidence and relevant law that a Dodge pickup truck that the defendant admitted was used in conjunction with her landscaping business was a commercial vehicle for purposes of the restrictive covenants.

         The court found that the plaintiffs had proven the allegations set forth in their complaint and that the defendant had failed to prove her special defenses. The court ordered the following injunctive relief:

‘‘(1) An injunction ordering the defendant to immediately cease and desist from violating the restrictive covenants;

‘‘(2) An injunction ordering the defendant from keeping any chickens or roosters upon the defendant's property; (the defendant is not ordered to remove the chicken coops);

‘‘(3) An injunction ordering the [Dodge pickup truck] to be kept within a garage with the doors closed except for brief periods required for loading or unloading;

‘‘(4) An injunction ordering the defendant not to receive and/or store supplies such as mulch and sod at the defendant's property for resale to customers of the landscaping business;

‘‘(5) An injunction ordering the defendant not to allow parking of employees or independent contractor vehicles upon the defendant's property while the employee or independent contractor is working for the landscaping business;

‘‘(6) An injunction ordering the defendant to stop performing chipping of tree branches from the landscaping business upon the defendant's property;

‘‘(7) An injunction ordering the defendant to stop performing repairs of equipment used in connection with the landscaping business upon the defendant's property.''^[3] This appeal followed.

         I

         First, we address the defendant's claim that the court erred in its determination that the plaintiffs had standing to enforce a restrictive covenant that appears in the 1956 deed that was executed by the original ...