Gil Gilbert v. Beaver Dam Association of Stratford, Inc., et al.

The plaintiff, Gil Gilbert, appeals and
the defendants, Beaver Dam Association of Stratford,
Inc. (association), and all the owners of property that
abuts the Beaver Dam Lake, cross appeal from the judgment
of the trial court rendered after a trial to the court.

On appeal, the plaintiff claims that the court improperly
held that (1) he could not rely on the Common Interest
Ownership Act, General Statutes § 47-200 et seq., (2)
the association did not slander the plaintiff's title to his
property and (3) the association's bylaws were properly
authorized. On cross appeal, the defendants claim that
the court improperly (1) precluded them from recovering
attorney's fees when they had not placed the issue
of attorney's fees before the court, (2) held that the
statute of frauds negated their right of first refusal to
purchase the plaintiff's property and (3) held that the
association could not place a lien on the plaintiff's property.

We affirm in part and reverse in part the judgment
of the trial court.

The court found the following facts. ‘‘Beaver Dam
Lake is a fifty-eight acre lake in Stratford. In the 1930s,
the lake and the surrounding area, which forms the
watershed of the lake, were owned by The Loch Lenidow
Realty Company (Loch Lenidow). That entity sold
off some lots around the lake and, in 1944, it deeded
to the association the property on which an earthen
dam was located and the lake and lake bed below the
dam. In this deed, the grantor reserved the right to
permit six docks at specified locations on the lake from
lots still owned by Loch Lenidow and obligated itself
to include in the deeds of its remaining lots provisions
that would prevent access by the public and reserve
use of the lake to the members of the association. It
further obligated itself to sell its remaining lots ‘subject
. . . to all reasonable rules and regulations now in
effect or such as may be generally imposed from time
to time upon all the owners having the use of Beaver
Dam Lake, by [the association], its successors or
assigns.' This deed stated that the conveyance of the
lake and dam to the association were subject to ‘[g]rants
to the use of the waters of Beaver Dam Lake contained
in deeds of conveyance' set forth in various conveyances
of lots.

‘‘One of the conveyances contained in this list was the
conveyance in 1933, of two tracts to Jesse E. Langsdorf.

That property, which was eventually purchased by the
plaintiff, passed to Martha K. Langsdorf, who sold it,
with a house and outbuildings, to Frances L.
Greenebaum in May, 1972. Frances Greenebaum conveyed
the property to herself and her husband, Henry
Greenebaum. Together, the Greenebaums conveyed the
property, which was known as 3260 Huntington Road,
to [the plaintiff] and [his wife] Ruth Gilbert on April
21, 1999.

‘‘The deed by which the Greenebaums conveyed the
property to the Gilberts in 1999, stated that the conveyance
was subject to a number of conditions and restrictions
including ‘[c]ovenants, agreements, rights,
reservations and conditions as set forth in deeds to
Jesse E. Langsdorf dated July 10, 1933, and recorded
in Volume 148 at Page 308 and dated February 13, 1934,
and recorded in Volume 150 at Page 91 . . . of the . . .
Stratford Land Records.'

‘‘The first deed referred to in this provision of the
Gilberts' deed provided [among other things] that . . .
‘said premises shall be subject to such other reasonable
restrictions or limitations as the grantor or any such
association may impose thereon.' The second deed
whose restrictions to title were incorporated in the deed
that the Greenebaums conveyed to the Gilberts includes
the same provision that has been set forth above, along
with other restrictions.

These deed restrictions clearly provide that the
grantee took the property in question with restrictions
and limitations on developing it. . . .

* * *

‘‘In 1991, the grant from Loch Lenidow to the association
was entered into the land records of Stratford, and
the [then newly enacted] bylaws [dealing with membership
and use of the lake] were entered in those records,
indexed under the association's name both as grantor
and grantee.

‘‘Henry Greenebaum, who was deceased at the time
of trial, was deeply involved in the association's effort
to preserve the quality of the lake and the environment
around it. He provided the association's president, Jay
Esposito, with a steady stream of newspaper clippings
and messages noting dangers to lakes from development
in their watersheds, including the danger that
the state department of environmental protection might
require onerous and expensive procedures, such as
draining the lake, if the association failed to be vigorous
in its protection of water quality. In 1991, Henry
Greenebaum wrote a history of the lake and the association
that concluded with the statement ‘[i]t is advisable
that no new construction adjacent to the lake be started
without regard to the By-laws and Lake Association
Rules . . . .'

‘‘In late March or early April, 1999, in negotiations
conducted without an attorney, the plaintiff entered
into a contract to buy the Greenebaums' 7.8 acre property.

Though the plaintiff did not enter this contract
into evidence, he testified that the purchase was subject
to the results of percolation tests and deep test holes
to determine whether the property could be developed
by subdividing and building additional residences.

Though the plaintiff asserted that he did not learn that
there was an association that regulated use and development
of all the lakefront properties, the [trial] court
[did] not find this testimony credible in light of Henry
Greenebaum's long history of commitment to the association's
efforts to regulate development around the
lake. It seem[ed] most unlikely that Greenebaum failed
to mention such regulation to the plaintiff. . . . [T]he
board of managers for the association met on May 10,
1999, to discuss, among other things, the need to enact
an explicit provision that all plans for subdivision, construction
or development of the properties around the
lake be submitted to the association for approval by
three quarters of the association's members. The board
noted in its minutes that landowners had in the past
submitted such plans to the association on the basis of
an understanding that their deeds required such submission
and approval. Six of the seven members of the
board of managers voted in favor of the provision. Pursuant
to the requirements of its bylaws, which require
that amendments receive a three-fourths majority of
the total number of votes cast at any special meeting,
the association held a special meeting of the members
on June 11, 1999, and presented the proposed new
amendments to the bylaws for ratification. No evidence
was presented concerning the number of association
members who cast votes at the June 11, 1999 meeting
or thereafter. Of the twenty-four properties listed on
the proposed amendment, nineteen signed.

* * *

‘‘The amended bylaws provided, at article VI, § 4, that
‘[n]o property abutting on the water of Beaver Dam
Lake, whether now owned by a non-member of the
Association or formerly owned by any member of the
Association, shall be subdivided, built upon or otherwise
developed without the prior consent of a threequarter
(3/4) a [sic] majority vote of the members of
the Association.' ''

Although the plaintiff attended several functions
open only to members, he did not pay the membership
dues bill that was issued on July 1, 1999. ‘‘In his pleadings,
[however] he asserted that he was not a member
of the association and took the position that because
he was not a member he was not subject to the association's
bylaws and regulations. The association filed a
lien against the plaintiff's property for the dues for the
1999-2000 year. The association did not seek to recover
dues from the plaintiff for any year other than 1999.

The association had begun using such liens to collect
unpaid dues in February, 1999.

‘‘The association also filed on the land records of
each owner of property abutting Beaver Dam Lake,
including the plaintiff's, the bylaws that the town clerk
had indexed under the association's name in 1991. Additionally,
it filed on the land records the amendment to
the bylaws bearing the signatures of six of the seven
members of the board of managers and the amendments
to the bylaws voted on at the association meeting on
June 11, 1999. The plaintiff did not authorize the
recording of any of these documents.''

After the pleadings were closed, the plaintiff filed a
motion for partial summary judgment claiming that the
association's purported right of first refusal as contained
in the association's amended regulations and
bylaws was invalid. The court granted the motion, finding
that the ‘‘regulation that purported to give the association
and its various members a right of first refusal in
the event that an owner of property around the lake
contracted to sell it'' was unenforceable for failure to
satisfy the statute of frauds because the identity of the
holder of the right was not sufficiently stated. After
trial, the court found for the defendants on all of the
plaintiff's remaining claims except his claim that the
defendants improperly had placed a lien on his property.

This appeal followed. Additional facts will be set
forth as necessary.

I

APPEAL

A

The plaintiff claims that the court improperly held
that he could not rely on the Common Interest Ownership
Act (act) to support his claim that the association
was not valid. The plaintiff argues that Practice Book
§ 10-3 (a) is directory rather than mandatory and that,
because the defendants were apprised of his reliance
on the act at various points in the litigation, it was not
necessary for the plaintiff to plead the statute.

The following additional facts are necessary to
resolve the plaintiff's claim. The plaintiff did not state
the act by name in his operative complaint, which, notably,
was his fourth amended complaint. The plaintiff's
expert and the defendants' expert discussed the applicability
of the act during a hearing for a temporary injunction.

The plaintiff also discussed the act in his
preliminary trial brief, providing citations and analysis
of its application to the case. Further, the act and its
effects were also discussed during the course of trial.

The court refused to consider any claim based on the act
because the plaintiff had failed to comply with Practice
Book § 10-3 (a).

The interpretation of the rules of practice presents
a question of law, over which our review is plenary.
Practice Book § 10-3 (a) provides: ‘‘When any claim
made in a complaint, cross complaint, special defense,
or other pleading is grounded on a statute, the statute
shall be specifically identified by its number.'' This section
is directory rather than mandatory, and its primary
purpose is to ensure that a defendant is sufficiently
apprised of the applicable statute during the proceedings.
Spears v. Garcia, 66 Conn. App. 669, 676, 785 A.2d
1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003);
Krevis v. Bridgeport, 80 Conn. App. 432, 435, 835 A.2d
123 (2003), cert. denied, 267 Conn. 914, 841 A.2d 219
(2004); see also Egri v. Foisie, 83 Conn. App. 243, 245
n.1, 848 A.2d 1266 (2004) (applying same rational outside
governmental immunity context).

In Krevis v. Bridgeport, supra, 80 Conn. App. 435–36,
we held that when a statute, or the concepts embodied
therein, was mentioned several times prior to trial, the
opposing party was sufficiently apprised of the statute.
Here, although the plaintiff mentioned the act in closing
arguments and in his posttrial brief, these references
would not have given the defendants notice at the relevant
time, i.e., when they could have responded to the
allegations. The defendants, however, did receive
notice from the plaintiff's preliminary trial brief, in
which the plaintiff referred to the act, gave its citation
from the General Statutes and argued that it provided
a basis for relief. Because the defendants were sufficiently
apprised of the statutory basis of the plaintiff's
claim, the court improperly refused to consider the
claim.

The defendants argue that because the plaintiff successfully
objected to the defendants' attempt to introduce
evidence regarding the act at trial, the court
properly refused to consider the plaintiff's claim under
the act. Implicit in this argument is the notion that the
plaintiff should not have been able to rely on the act
because the defendants were precluded from arguing
it at trial. Notwithstanding the fact the court did not
decide this issue on that ground, the defendants' argument
is premised on a inaccurate view of the events at
trial. At trial, the defendants sought to elicit testimony
from their expert as to the ultimate issue, i.e., whether
the association was valid under the act. The plaintiff
objected on the basis of relevance and argued that this
testimony was improper because it invaded the province
of the fact finder. The court sustained the plaintiff's
objection, as well as several others in the same line,
stating that this was a issue for the court to decide.
Neither the court nor the plaintiff prevented the defendants
from presenting testimony regarding the act, they
prevented the defendants only from presenting testimony
regarding the ultimate issue of whether the association
was valid under the act. As such, the defendants'
argument fails. The plaintiff is entitled to a hearing and
resolution of his claim based on the act.

B

The plaintiff next claims that the court improperly
concluded that the association did not slander the plaintiff's
title to his property. The plaintiff argues that the
court improperly concluded that filing the lien and
recording the bylaws in his chain of title on the Stratford
land records did not constitute slander of title.

Because the plaintiff seeks review of an issue of law,
our review of the court's decision is plenary. Elm Street
Builders, Inc. v. Enterprise Park Condominium Assn.,
Inc., 63 Conn. App. 657, 669, 778 A.2d 237 (2001). ‘‘A
cause of action for slander of title consists of the
uttering or publication of a false statement derogatory
to the plaintiff's title, with malice, causing special damages
as a result of diminished value of the plaintiff's
property in the eyes of third parties. The publication
must be false, and the plaintiff must have an estate or
interest in the property slandered. Pecuniary damages
must be shown in order to prevail on such a claim.''
(Internal quotation marks omitted.) Id., 669–70.

1

The plaintiff argues that the court improperly determined
that the association did not slander his title to
his property by filing a lien related to association dues
because the court incorrectly found that the association
did not act with malice and that he suffered no damages.

In its memorandum of decision, the court stated: ‘‘The
recordation of the lien for unpaid dues for the year
in which the association believed the plaintiff [was] a
member is not authorized by any statute nor by the
restrictions in the plaintiff's deed, and the association
therefore had no basis for recording the lien. The association
acted from a mistaken belief that it could enhance
its ability to collect unpaid dues in this manner, but the
plaintiff did not establish . . . that the association
acted with malice. The plaintiff adduced no convincing
evidence to establish that the presence of this purported
lien, which required payment of dues in an amount of
$1000 or less, diminished the value of the property in
the eyes of third parties.''

The plaintiff argues that, by filing the lien, the association
clouded his title to his property, and, because his
title was clouded, he has established that he was actually
damaged. In essence, the plaintiff asserts that proof
of a clouded title is damages per se. The plaintiff's
assertion, however, does not comport with the law. Our
jurisprudence indicates that a clouded title, alone, does
not constitute damages per se. Rather, a plaintiff must
present evidence of how the clouded title resulted in
some pecuniary loss. Elm Street Builders, Inc. v. Enterprise
Park Condominium Assn., Inc., supra, 63 Conn.
App. 670. ‘‘Injuries, in the sense of wrongful invasions
of a right, may be considered as of two kinds: (1) pecuniary,
and (2) non-pecuniary. Pecuniary injuries are such
as can be, and usually are, without difficulty estimated
by a money standard. Loss of real or personal property,
or of its use, loss of time, and loss of services, are
examples of this class of injuries. Non-pecuniary injuries
are those for the measurement of which no money
standard is or can be applicable. As the books phrase
it, damages in such cases are ‘at large.' Bodily and
mental pain and suffering are familiar examples of this
class.'' Broughel v. Southern New England Telephone
Co., 73 Conn. 614, 621, 48 A. 751 (1901). The plaintiff
did not present evidence of monetary loss caused by
the clouded title. We need not address whether the
court's conclusion regarding the absence of malice was
correct because we conclude that the court's determination
regarding the plaintiff's failure to prove pecuniary
damages was correct. Because the plaintiff failed to
prove such damages, he failed to prove slander of title.

2

The plaintiff also argues that the association slandered
title to his property by recording its bylaws in
his chain of title on the Stratford land records. The
court found that, because the plaintiff's property was
subject to the restrictions and regulations embodied in
the association's bylaws, the recording did not constitute
slander of title. Our resolution of the plaintiff's
claim under the act in part I A, however, leaves unresolved
the question of whether the plaintiff's property
is subject to those restrictions and regulations. If, on
remand, the court determines that the plaintiff's property
is not subject to the bylaws, the association's
recording of those bylaws in the plaintiff's chain of title
could meet the elements of slander of title. Accordingly,
this issue must be determined by the court only if it
resolves the plaintiff's claim under the act in his favor.

C

The plaintiff's final claim is that the court improperly
determined that the association's bylaws were properly
authorized under the association's internal rules. This
claim may become moot, however, depending on the
court's resolution of the plaintiff's claim under the act
on remand. If the bylaws were not properly authorized
under the relevant statutory scheme, i.e., the act, then
whether they were properly authorized under the association's
internal rules would be irrelevant. Only if the
bylaws were properly authorized under the act will the
plaintiff's challenge based on the association's alleged
failure to follow its own regulations need to be
addressed. We retain jurisdiction over this appeal in
that eventuality.

II

CROSS APPEAL

A

The defendants claim that the court improperly precluded
them from recovering attorney's fees when they
had not placed the issue of attorney's fees before the
court. We are not persuaded.
In his pleadings, the plaintiff sought relief including,
inter alia, attorney's fees. The defendants did not seek
attorney's fees at trial. The court, in its memorandum
of decision, simply stated that ‘‘[t]he parties shall bear
their own fees.''

We review the court's decision whether to award
attorney's fees only to determine if it abused its broad
discretion. Schoonmaker v. Lawrence Brunoli, Inc., 265
Conn. 210, 252, 828 A.2d 64 (2003). The court did not
abuse its discretion when it directed that each party
should pay its own fees. The issue of the plaintiff's
attorney's fees was placed before the court; the issue
of the defendants' fees was not placed before the court.

The court's ruling that all parties should pay their own
fees constituted a determination of the plaintiff's
request for relief. The defendants' attempt to interpret
the court's language as a denial of their attorney's fees
is unavailing. Accordingly, the court did not abuse its
discretion when it ordered that all parties should pay
their own fees.

B

The defendants next claim that the court improperly
held that the statute of frauds negated their right of
first refusal to purchase the plaintiff's property. We
decline to review this claim because the defendants
have failed to brief this issue adequately. ‘‘[W]e are not
required to review issues that have been improperly
presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly.'' (Internal quotation marks
omitted.) Mattson v. Mattson, 74 Conn. App. 242, 247,
811 A.2d 256 (2002). The defendants' briefing of this
issue consists of no more than a recitation of some of
the association bylaws and a citation to a Florida case
containing a terse explanation of a right of first refusal
for a condominium. The defendants' brief fails to
explain how the statute of frauds applies, fails to provide
the law of this jurisdiction and fails to address the
issue. We decline to review this claim.

C

The defendants' final claim is that the court improperly
held that the association could not place a lien on
the plaintiff's property. We disagree.

In its memorandum of decision, the court found that
‘‘the plaintiff was a member of the association for the
dues period that commenced on July 1, 1999. He used
the lake, which was the association's property, he
attended a social event sponsored by the association
and a meeting of the association, and his wife sought
and obtained membership on an association committee.

Though there was no formal procedure for becoming
an association member, the plaintiff knew from [an
association member] that an association existed and
that the events he attended after meeting [that association
member] were association events; and he acted in
ways that signified his agreement to be a member for
the 1999-2000 term. The plaintiff did not, however, agree
to entry of a lien against his land . . . .''
The court went on to conclude that the lien was
not authorized by statute. The court stated: ‘‘The sole
authority the association claims for the lien in the
amount of the 1999-2000 dues is the bylaw . . . which
provides for the filing of liens to collect dues. That
bylaw does not concern ‘reasonable restrictions and
limitations' on the use of the plaintiff's land, but only
a means of collecting a debt. Restrictive covenants are
not to be extended by implication. . . . The restrictive
language in the plaintiff's deed does not make his title
subject to a power by the association to impose such
a lien, and the reference to the association's bylaws
does not make the property subject to any and all
bylaws the association may choose to enact, but only
to those that constitute ‘such other reasonable restrictions
or limitations as . . . any such association may
impose thereon.' ‘Thereon' is a reference to the ‘said
premises,' and is reasonably understood in its context
to apply to restrictions on use of the premises, not
regulations concerning the payment of dues or other
matters not related to the use of the premises.'' (Citation
omitted.)

The court also noted that ‘‘[t]he association takes
the position that because the plaintiff's grantor, Henry
Greenebaum, signed the bylaw agreeing to allow a lien
for unpaid association dues, such a lien can be filed
against the plaintiff. Because this bylaw was not within
the scope of the restrictive covenant, Greenebaum's
agreement was personal to him and did not bind the
plaintiff.''

The essence of the court's decision was that the association
lacked the authority to record the lien. ‘‘Generally
a lien can only be created with the owner's consent;
that is, by a contract express or implied with the owner
of the property or with some one by him duly authorized,
or without his consent by the operation of some
positive rule of law, as by statute.'' (Internal quotation
marks omitted.) Paton v. Robinson, 81 Conn. 547, 554,
71 A. 730 (1909). The defendants make three arguments
in support of the proposition that the association had
the authority to file the lien. We address each argument
in turn.

1

The defendants argue that the ‘‘subject to'' provision
of the plaintiff's deed provided authority for the association
to file the lien. We are not persuaded.

‘‘[T]he determination of the intent behind language
in a deed, considered in the light of all the surrounding
circumstances, presents a question of law on which our
scope of review is plenary. . . . Thus, when faced with
a question regarding the construction of language in
deeds, the reviewing court does not give the customary
deference to the trial court's factual inferences. . . .
Intent is determined by the language of the particular
conveyance in light of all the circumstances and is a
question of law.'' (Citation omitted; internal quotation
marks omitted.) DaSilva v. Barone, 83 Conn. App. 365,
370, 849 A.2d 902 (2004).

On the basis of our plenary review, we find persuasive
the court's reasoning that the bylaw that the association
relied on to impose the lien was not within the purview
of the limitation contained in the plaintiff's deed
because it was not a ‘‘reasonable restriction or limitation''
related to the plaintiff's premises. Indeed, we conclude
that it was not a restriction or limitation at all;
rather, it was a debt collection method. The restriction
contained in the plaintiff's deed did not give the association
the authority to place the lien on the plaintiff's
property.

2

The defendants also argue that, because Henry
Greenebaum, the plaintiff's predecessor in interest,
signed the bylaws of the association, which contained
the provision concerning liens, the plaintiff was bound
by this signature, and the association had the authority
to file the lien. We disagree.

Whether Henry Greenebaum's signature gave the
association the authority to file the lien is a question
of law over which our review is plenary. Elm Street
Builders, Inc. v. Enterprise Park Condominium Assn.,
Inc., supra, 63 Conn. App. 669. The defendants provide
no authority for the proposition that the signature of a
predecessor in interest, recorded in a document outside
the relevant chain of title, binds the property owner to
the obligation set forth in that document. Further, even
if Henry Greenebaum's agreement to allow the lien was
recorded within the plaintiff's chain of title, we note
that ‘‘[i]t is well settled that a covenant personal in its
nature and relating to something collateral to the land
cannot be made to run with the land so as to charge
the assignee by the fact that the covenantor covenanted
on behalf of himself and his assigns.'' Pulver v. Mascolo,
155 Conn. 644, 651, 237 A.2d 97 (1967). We agree with
the court that Henry Greenebaum's signature did not
provide the association with the authority to file the
lien.

3

The defendants' final argument is that the association
had statutory authority to file the lien under General
Statutes § 33-1057. Notwithstanding the verisimilitude
of this argument, we decline to review it because the
defendants did not present this theory to the trial court.
Indeed, the court, in its memorandum of decision, specifically
stated that ‘‘the association has identified no
statute that authorized such liens.'' (Emphasis added.)
‘‘This court has stated that [t]he theory upon which a
case is tried in the trial court cannot be changed on
review, and an issue not presented to or considered
by the trial court cannot be raised for the first time
on review. Moreover, an appellate court should not
consider different theories or new questions if proof
might have been offered to refute or overcome them
had they been presented at trial. . . . For this court to
now consider [the defendants'] claim on the basis of a
specific legal ground not raised during trial would
amount to trial by ambuscade, unfair both to the [court]
and to the opposing party.'' (Citations omitted; emphasis
added; internal quotation marks omitted.) Rinaldi
v. Enfield, 82 Conn. App. 505, 517, 844 A.2d 949 (2004).

We decline to consider this argument.