138 Conn. App. 304
Conn. App. Ct.2012Background
- Plaintiffs Americo D’Appollonio, Jr. and Carmela D’Appollonio own Lot 4; Griffo-Brandao owns Lot 13; an easement area runs across Lot 13 for Lots 2–4.
- Easement allows mutual driveway, utilities, and improvements; Lot 13 is now subject to covenants and amendments incorporating it into the subdivision.
- Walls were constructed within the easement area along the Lot 4–Lot 13 boundary, with one wall on Lot 13 and footings for a parallel wall on the other side of the easement; paving partial, unpaved portion remains.
- May 4, 2009 letter signed by Americo indicated consent to easement construction; town permits were obtained; Rosa Langolis testified permits issued with plaintiffs’ consent evidenced by the May 4 letter.
- Court trial proceeded without closed pleadings; trial court found plaintiffs consented to both walls and that the walls complied with easement covenants and benefited Lot 13.
- Counterclaim alleged plaintiffs’ plantings within the easement obstructed Griffo-Brandao’s title; court found plantings violated the easement declaration and ordered removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject matter jurisdiction despite nonjoinder | Sideriadis and Hughes indispensable; lack of joinder invalidates jurisdiction | No jurisdictional defect; nonjoinder not fatal to injunctive/declaratory relief | Jurisdiction proper; nonjoinder did not defeat subject matter jurisdiction |
| Whether court erred by not joining indispensable parties | Sideriadis and Hughes must be joined | Nonjoinder does not defeat subject matter jurisdiction absent statutory mandate | No error; nonjoinder did not deprive court of jurisdiction or due process rights |
| Consent to construction of retaining walls | Plaintiffs did not consent to first wall or second wall; evidence insufficient | Court properly found consent to both walls based on May 4 letter and testimony | Plaintiffs consented to construction of both walls |
| Consistency with easement covenants | Construction may not align with covenants | Construction was permitted and consistent with covenants | Not necessary to review; consent for walls resolved issue |
| Whether neighbors’ consent was prerequisite | Consent of others (Lot 2 and 3 owners) required | Consent not required for this declaratory/injunctive context given findings | No requirement to join or obtain those consents for the ruling |
| Plantings violating Griffo-Brandao’s rights | Plantings encroach but do not impair easement rights | Plantings obstruct the easement area and violate paragraph 5 | Plantings violated the easement declaration; removal required |
Key Cases Cited
- Serrani v. Board of Ethics, 225 Conn. 305 (1993) (subject matter jurisdiction can be raised on appeal)
- Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277 (2007) (joinder and due process considerations in injunctive/declaratory relief)
- Bauer v. Souto, 277 Conn. 829 (2006) (nonjoinder generally permissible; exception for statutes mandated parties)
- Swenson v. Dittner, 183 Conn. 289 (1981) (quiet title joinder exception to full joining requirement)
- Cappo v. Suda, 126 Conn. App. 1 (2011) (nonjoinder for declaratory/injunctive relief not error)
- AvalonBay Communities, Inc. v. Orange, 256 Conn. 557 (2001) (standing and joinder considerations in broad context)
- Crews v. Crews, 295 Conn. 153 (2010) (mixed questions of fact and law require plenary review)