216 Conn.App. 530
Conn. App. Ct.2022Background
- Plaintiff (Atlantic St. Heritage Assocs., LLC) owns 184 Atlantic St. (acquired 1982) and for decades its members, employees, tenants, and invitees used a 12-foot alley and a portion of a paved area behind neighboring properties to reach its gated parking lot.
- Defendants (family-controlled entities owning parcels to the south) acquired their properties 1988–2014; in 2015 they installed a street-facing gate and an interior chain across the alley and periodically locked/closed access when their retail tenant was closed.
- Plaintiff sued alleging a prescriptive easement (operative complaint alleges continuous, open, adverse use since 1997) and sought declaratory and injunctive relief; defendants asserted multiple special defenses (waiver, estoppel, unclean hands, laches, public-use defense, etc.).
- The parties filed cross motions for summary judgment; after oral argument defendants filed an amended answer and ten special defenses (five new) without leave and after the Practice Book filing window had passed.
- Trial court granted plaintiff's summary judgment and denied defendants’ cross motion, rejecting the new special defenses as procedurally improper but discussing all defenses on the merits. Defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether trial court could grant plaintiff's summary judgment when plaintiff did not address all pending special defenses | Plaintiff relied on its submissions to show no genuine issue as to prescriptive easement; need not address defenses added after oral argument | Court lacked authority to grant SJ as to special defenses that were properly before it but unaddressed by plaintiff (sua sponte adjudication improper) | Reversed in part: trial court improperly adjudicated four original special defenses (waiver, estoppel, unclean hands, laches) sua sponte; new defenses were procedurally improper and properly rejected. |
| 2. Whether the trial court properly excluded parts of Michael’s affidavit as incompetent under Practice Book §17-46 | Plaintiff: Michael’s presence/management of premises supports inferences about frequency of observations and is unreliable/factual shortcoming | Defendants: Michael’s longtime presence and management gave him personal knowledge to testify about frequency of plaintiff’s use | Affirmed: court properly rejected Michael’s frequency averments as conclusory/lacking foundational facts and therefore incompetent under §17-46. |
| 3. Whether there are genuine issues about the claim-of-right element (adverse vs. permissive use) | Plaintiff: belief in deeded rights and long uninterrupted use show use was under a claim of right | Defendants: intermittent closures, neighborly permissions, and shared parking show implied permission/subordination | Affirmed: intermittent, limited closures and friendly/occasional sharing did not create a genuine issue; court correctly found use adverse and under claim of right. |
| 4. Whether plaintiff may be precluded from asserting a prescriptive easement because it previously alleged deeded easement rights (defendants’ cross SJ) | Plaintiff: withdrew deeded-easement counts and proceeded on prescriptive theory; prior allegations only reflect belief and are germane to claim-of-right | Defendants: prior/deeded allegations negate adversity and therefore bar prescriptive claim | Rejected: issue not properly raised below; in any event plaintiff abandoned deeded-easement claims and may pursue prescriptive claim; denial of defendants’ cross SJ was affirmed. |
Key Cases Cited
- Nationstar Mortgage, LLC v. Mollo, 180 Conn. App. 782 (2018) (trial court may not sua sponte resolve unbriefed special defenses on summary judgment)
- Kinity v. US Bancorp, 212 Conn. App. 791 (2022) (summary judgment standards and movant's burden)
- Crandall v. Gould, 244 Conn. 583 (1998) (claim-of-right/adversity requirement for prescriptive easement)
- Gallo-Mure v. Tomchik, 78 Conn. App. 699 (2003) (distinguishing permissive use from passive acquiescence in prescriptive easement context)
- Faught v. Edgewood Corners, Inc., 63 Conn. App. 164 (2001) (statutory elements for prescriptive easement under § 47-37)
- Barrett v. Danbury Hospital, 232 Conn. 242 (1995) (Practice Book § 17-46 affidavit requirements)
- Stuart v. Freiberg, 316 Conn. 809 (2015) (conclusory affidavit averments insufficient to defeat summary judgment)