191 Conn.App. 767
Conn. App. Ct.2019Background
- Peter White (unit 23) sued Latimer Point Condominium Association and neighbors Gennaro and Elizabeth Modugno (unit 7) after the Modugnos sought to rebuild a storm‑damaged unit elevated to meet FEMA and town regulations.
- Association bylaws limit diminution of a member’s water view to 10% (Article XIV) and empower the Architectural Control Committee and board to regulate vegetation to preserve views.
- The committee hired licensed surveyor Arthur Hayward, who concluded the proposed house would reduce White’s view by 15.4% without vegetation work but would increase it (net +41.2%) with comprehensive trimming/removal; with the committee’s limited trimming order (one tree trimmed), Hayward recalculated a net +2.1% increase.
- The committee approved the application; the board upheld that approval on appeal; Stonington planning & zoning later approved the plans and the Modugnos built the house.
- White sued under Conn. Gen. Stat. § 47‑278 alleging the association violated the bylaws (10% rule) and failed to follow a tree‑trimming schedule; the trial court (bench trial) found for defendants after five days of testimony; White appealed claiming legal error and lack of factual findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of the bylaws’ 10% water‑view rule | White: committee/board violated the 10% limit; Hayward’s and committee’s reliance on anticipated trimming unlawfully allowed compliance | Defendants: Hayward’s professional survey showed compliance with trimming; committee acted within authority | Court: Affirmed judgment for defendants; record supports finding plaintiff failed to prove violation (no clear error) |
| Credibility and weighing of conflicting view‑loss calculations | White: his lay calculation showing >10% loss should control / trial court failed to analyze | Defendants: Hayward’s licensed‑surveyor methodology was more reliable and persuasive | Court: Trial court could credit expert over lay testimony; appellate court will not reweigh credibility absent clear error |
| Compliance with tree‑trimming schedule | White: association ignored its trimming schedule, undermining reliance on vegetation removal | Defendants: trimming has occurred and further trimming ensured view maintenance; committee’s process was proper | Court: Record permissibly supports conclusion of substantial compliance; plaintiff did not prove breach |
| Trial court factual findings / failure to articulate decision | White: court issued no detailed findings or legal analysis, making review impossible | Defendants: plaintiff failed to seek articulation or rectification; appellate presumptions favor trial court correctness | Court: Because White did not request articulation/rectification, appellate court presumes the trial court acted correctly and declines to find reversible error |
Key Cases Cited
- Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387 (2000) (plenary review when facts undisputed; appellate court need not rely on trial court’s precise analysis)
- MJM Landscaping, Inc. v. Lorant, 268 Conn. 429 (2004) (clearly erroneous standard and deference to trial court credibility determinations)
- Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 308 Conn. 719 (2013) (trial court as factfinder assesses credibility by observing witnesses)
- Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476 (1991) (where record ambiguous and appellant did not seek articulation, courts read record to support trial court judgment)
- State v. Milner, 325 Conn. 1 (2017) (appellate courts will not presume trial court error in absence of record demonstrating it)