96 Conn. App. 369 | Conn. App. Ct. | 2006
Opinion
This is an action to enforce certain deed restrictions on property owned by the defendants, Brian Foster and Stephanie Foster. The plaintiffs, Andrew Moss and Sharon Moss, appeal from the judgment of the trial court rendered following the granting of the defendants’ oral motion to dismiss for failure to make out a prima facie case. Specifically, the plaintiffs claim that the court (1) applied an incorrect legal standard in granting the defendants’ motion to dismiss under Practice Book § 15-8
The following evidence was submitted at trial.
The plaintiffs’ lot and the defendants’ lot have views of Long Island Sound. The restrictions referenced in the parties’ deeds are the restrictions that the plaintiffs seek to enforce in the present action.
In addition to the deeds in the parties’ chains of title and the restrictions at issue, the plaintiffs submitted aerial photographs from 1934, 1958, 1975 and 1990, a 2004 assessor’s map, photographs of the view from the deck on the plaintiffs’ house, deeds to other lots in the Bluewater Hill subdivision that also are encumbered by planting restrictions and a survey of the parties’ properties prepared by Raymond Redniss, a professional land surveyor. Redniss testified that he plotted every tree in the restricted area in his survey, showing all of the trees that exceeded the applicable height limitations. Redniss also marked the 1934, 1958, 1975 and 1990 aerial map exhibits to show the restricted area as set forth in his survey. Andrew Moss testified that the trees in the restricted area on the defendants’ property obstructed his view of Long Island Sound from the deck of his house. Photographs were submitted into evidence to support that testimony.
At the close of the plaintiffs’ case, the defendants moved to dismiss the case. Ruling orally, the court concluded that “[t]he case has not been proven by a preponderance of the evidence” and granted the defendants’ motion. This appeal followed.
I
Ordinarily, we would consider the defendants’ alternate grounds for affirmance only after finding merit in the claim raised on appeal. “[0]nce the question of lack of jurisdiction of a court is raised, [however, it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). We therefore consider as a threshold
“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he 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.” (Internal quotation marks omitted.) Fleet National Bank v. Nazareth, 75 Conn. App. 791, 793, 818 A.2d 69 (2003).
The plaintiffs claim that their standing to seek injunc-tive relief and monetary damages is not appropriately determined at this stage of the proceedings. They argue that it is sufficient that (1) they have alleged that the restrictions at issue benefit their property, (2) the restrictions are referenced in exhibit nine, which is the deed to their property, (3) they have alleged that the defendants’ property is subject to the restrictions that benefit the plaintiffs’ property and (4) the deed to the defendants’ property, admitted into evidence as exhibit eight, indicates that the defendants’ property is subject to those restrictions. The defendants, in their answer, have admitted that the deeds to the parties’ properties referenced in the complaint contain the language as to the restrictions as alleged by the plaintiffs. Furthermore, the plaintiffs claim that their right to enforce the restrictions is one of the ultimate issues to be resolved after all of the facts have been determined and that the right of enforcement is not an issue of standing implicating the jurisdiction of this court.
We agree that, for purposes of a motion to dismiss for failure to make out a prima facie case, the plaintiffs
II
We next turn to the plaintiffs’ first claim on appeal, which is that the court applied an incorrect legal standard in granting the defendants’ motion to dismiss under Practice Book § 15-8. Specifically, the plaintiffs argue that the court dismissed their case because it concluded that they failed to prove their allegations by a preponderance of the evidence. They assert that the court was obligated to apply a different legal standard, namely, whether they had provided sufficient evidence to establish a prima facie case. We agree.
A court’s determination of the proper legal standard is a question of law subject to plenary review. Fish v. Fish, 90 Conn. App. 744, 754, 881 A.2d 342, cert. granted on other grounds, 275 Conn. 924, 883 A.2d 1243 (2005). Practice Book § 15-8 clearly provides in relevant part that a court may grant a motion to dismiss after the close of a plaintiffs case-in-chief if “the plaintiff has failed to make out a prima facie case. . . .” If a court applies a different standard, its judgment is subject to reversal. See Thomas v. West Haven, 249 Conn. 385, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000); Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842, 863 A.2d 735 (2005).
A review of the entire decision reveals that the court improperly applied a preponderance of the evidence standard rather than making a determination as to whether the plaintiffs failed to establish a prima facie case. The defendants do not argue to the contrary. Instead, they claim that the plaintiffs failed to raise this issue at trial and are, therefore, precluded from raising it for the first time on appeal. The defendants cite Practice Book § 60-5
The defendants, by oral motion made at the close of the plaintiffs’ case-in-chief, moved to dismiss the case. In ruling on that motion, after the plaintiffs had presented their evidence, the court employed an improper
Moreover, in determining the plaintiffs’ second claim that they had submitted sufficient evidence to withstand a motion to dismiss pursuant to Practice Book § 15-8, we are obligated to employ the correct standard. See Fish v. Fish, supra, 90 Conn. App. 754. That standard, clearly, is to determine whether the plaintiffs failed to make out a prima facie case. Regardless of the legal standard used by the court in ruling on the motion, we will apply the appropriate standard as set forth in Practice Book § 15-8. We conclude that the court incorrectly applied the preponderance of the evidence standard in granting the defendants’ motion to dismiss and that the court should have determined whether the plaintiffs failed to make out a prima facie case.
Ill
The plaintiffs next claim that the court improperly failed to conclude that they presented sufficient evidence to establish a prima facie case. We agree.
A review of the evidence admitted is necessary to determine whether the plaintiffs’ evidence “met the relatively low standard . . . necessary to withstand the defendants’ [Practice Book § 15-8] motion.” (Citation omitted; internal quotation marks omitted.) Falker v. Samperi, 190 Conn. 412, 420, 461 A.2d 681 (1983). We
The deeds, aerial maps, admissions to various allegations of the plaintiffs in the defendants’ answer and testimony of the witnesses at trial clearly provided sufficient evidence to withstand a motion to dismiss as to ownership, location of the properties, the benefit and burden of the restrictions on the plaintiffs’ lot and the defendants’ lot, respectively, and the obstruction of the plaintiffs’ view of Long Island Sound. The dispositive issue therefore is whether sufficient evidence was presented to establish a prima facie case as to the violation of those restrictions by the defendants.
In its decision, the court focused on the language of the restrictions and the difficulty of proving a violation of those restrictions. The court noted that the restrictions were unclear and poorly drafted. The restrictions involve the height of trees, bushes and shrubs in different view corridors in the restricted area, and include the possibility that certain trees, bushes and shrubs could be planted in substitution for trees, bushes and shrubs existing in 1951. Given the difficulty in proving the date that each planting was in existence and which plantings were substituted for previously existing plantings, the court concluded that the evidence admitted was insufficient to demonstrate a violation of those restrictions.
In considering the evidence submitted, the court was obligated to construe the language of the restrictions
Construing the restrictions at issue, in light of the relevant principles of law, the evidence presented by the plaintiffs permitted the inference that the purpose of the planting restrictions was to protect their lot’s view of Long Island Sound from obstruction by the uncontrolled growth of trees, bushes and shrubs.
The judgment is reversed and the case is remanded for further proceedings in accordance with law.
In this opinion the other judges concurred.
Practice Book § 15-8 provides: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”
We note that the trial exhibits have been lost, through no fault of counsel. The parties attempted to reconstruct the exhibits for our review. Despite their best efforts, some of the original exhibits could not be duplicated. Trial witnesses made markings on certain maps and aerial photographs to identify areas in question. Those markings are not depicted in the re-created exhibits. Although the original exhibits undoubtedly would have been helpful, we conclude that their availability did not make a material difference in the outcome of the appeal due to the other exhibits and the transcript. See Neiditz v. Morton S. Fine & Associates, Inc., 2 Conn. App. 322, 325 n.5, 479 A.2d 249 (1984), rev’d in part on other grounds, 199 Conn. 683, 508 A 2d 438 (1986); sec also Stern & Co. v. International Harvester Co., 146 Conn. 42, 46-47, 147 A.2d 490 (1958).
The restrictions recorded in volume 105 at page 359 of the Westport land records are as follows:
“1. That for a distance of seventy (70) feet Southerly of my Northerly line, there shall be no planting restrictions.
“2. That from a point seventy (70) feet Southerly of my Northerly line to apoint one hundred (100) feet Southerly of my Northerly line existing shrubs and bushes or others that may be planted in substitution for the existing shrubs and bushes may be maintained at their present height or may be allowed to grow to a height of seven (7) feet above the ground level of my Westerly line, whichever shall in each instance be greater; and that existing trees or others that may be planted in substitution for the existing trees may be maintained; that the willow trees along my westerly line shall be removed by me on or before June 1, 1952; and that no other trees, shrubs or bushes shall be planted and allowed to grow higher than seven (7) feet above the ground level of my Westerly line.
“3. That from a point one hundred (100) feet Southerly of my Northerly line to apoint one hundred thirty-three (133) feet Southerly of my Northerly line, existing shrubs or bushes or others that may be planted in substitution for the existing shrubs and bushes may be maintained at their present height or may be allowed to grow to [the] height of the floor of the second story of the house on the premises whichever shall in each instance be greater; and that existing trees or others that may be planted in substitution for the existing trees may be maintained; that the willow trees along my Westerly line shall be removed by me on or before June 1, 1952; and that no other trees, shrubs or bushes shall be planted and allowed to grow higher than the floor of the second story of the house on the premises.”
Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”
We note that the plaintiffs did not request plain error review under Practice Book § 60-5 in their principal brief on appeal. The defendants argue that the plain error doctrine should not be considered by this court under those circumstances. It was not necessary to engage in plain error review in deciding the issue.
A court’s denial of a motion to dismiss does not mean that the plaintiff is entitled to a judgment in its favor, even if the defendant does not submit any evidence. The effect of denying the motion gives the plaintiff the opportunity to have the fact finder pass on the merits of the case. “Once a case is ultimately presented to the factfinder for final decision, an entirely different analysis is applied. Rather than being required to take as true the evidence offered by the plaintiff, the trier of fact can disbelieve any evidence, even if uncontradicted.” Berchtold v. Maggi, 191 Conn. 266, 272, 464 A.2d 1 (1983).
The case of Weeks v. Kramer, 45 Conn. App. 319, 696 A.2d 361 (1997), appeal dismissed, 244 Conn. 203, 707 A.2d 30 (1998), involved similar, but not identical, restrictions on other lots in the Bluewater Hill subdivision. In that case, this court stated: “Although the defendants’ deed may represent an inartful way of accomplishing the purpose of protecting the higher lots’ view from interference by the growth of plant life and structures on the lower lots, we find that this purpose is obvious and clear.” Id., 323. The court in the present case also noted that the restrictions were “poorly drafted . . . .” Nevertheless, it is obvious and clear that the purpose of restricting plant growth on the defendants’ downhill lot was to protect the plaintiffs’ uphill lot’s view of Long Island Sound.
The plaintiffs attempted to introduce the report of the defendants’ expert with respect to the core borings of trees in the restricted area, which would be indicative of 1he age of those trees. The plaintiffs’ counsel indicated to the court that the plaintiffs had agreed not to conduct their own tests on the defendants’ trees because 1he defendants already had an expert who was going to perform those tests. The defendants objected to the admission of that report on the ground that their expert was not present at that time to authenticate the report. The court sustained the objection.