Opinion
No. FST CV 09-4016796S
December 29, 2009
MEMORANDUM OF DECISION RE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY OR PERMANENT INJUNCTION
PROCEDURAL BACKGROUND
By way of verified complaint, the plaintiff, Jerome Rapoport, has filed an action seeking relief against the defendant, Robert Cox. Contemporaneously, the plaintiff filed an application for a temporary restraining order and/or a preliminary or permanent injunction against the defendant. The complaint consists of three counts for relief. The plaintiff has included two separate orders for relief. The first addresses the temporary restraining order and the second addresses the preliminary and/or permanent injunction. Both orders are identical in their request for relief.
The three counts in the verified complaint assert claims for injunctive relief, declaratory judgment and tortious interference with a business contract.
In the application for the injunctive relief, the plaintiff contends that the "preliminary injunction must be granted to prevent the continued unlawful activity currently being perpetrated by the respondent through his conduct and interference with the applicant's property rights." The plaintiff further relates that there is no adequate remedy at law and the granting of injunctive relief will prevent irreparable harm to the applicant, which will occur unless the respondent is enjoined from continuing to interfere with the applicant's rights.
On August 17, 2009 and September 14, 2009, the court conducted evidentiary hearings regarding the request for injunctive relief. The plaintiff indicated, at the conclusion of the testimony and evidence, that they were requesting that the court grant a preliminary injunction as requested in his attached order. Thereafter, counsel submitted post-hearing briefs dated September 21 and September 28, 2009.
FACTUAL BACKGROUND
The plaintiff purchased the property at 122 Davenport Drive, Stamford, Connecticut on November 18, 1992. The property at issue is one of eighty-seven properties that make up an association known as the Southfield Point Association. At the time of the purchase of the property, the plaintiff had knowledge of the shared easement for a sixty-foot right of way abutting his property at 122 Davenport Drive. The warranty deed to the property contains a Schedule A that includes a "right of way as appurtenant to said premises, in common with others, over all streets, roads and ways as laid out on the above map, and to the waters of Stamford Harbor, over Birch Road as shown on said map, now known as Cook Road, and an extension thereof sixty (60) feet in width Easterly to the waters of Stamford Harbor . . ." The attached schedule also contains restrictions that include: "Littoral rights and easements of others in and to the waters of the Stamford Harbor," and "Rights of the United States Government, the State of Connecticut and the City of Stamford or any of their departments or agencies to regulate and control the use of the piers, bulkheads, land under water and land adjacent thereto." This sixty-foot right of way is owned by Southfield Point Association. The plaintiff's easement is similar to the easement granted to each member of the association. At some time in August 2000, there was an agreement to allow members of the Davenport Point Association to share in the use and access to the water. This agreement included a "Cooperation and Maintenance Agreement" that set forth certain rules and regulations that applied to the sixty-foot easement. The defendant's property at 107 Davenport Drive is part of the Davenport Point Association. Combining the Southfield Point Association and the Davenport Point Association allowed eighty-seven separate homeowners, including the plaintiff, to have access to the water from the sixty-foot easement. The easement property is used for access to the dock for launching boats, gaining access to the boat slips in the harbor and enjoyment of the water views. The cooperation and maintenance agreement (the agreement), dated August 10, 2000, describes the area as the "so-called Plaza." The agreement sets forth the rules and responsibilities of the members who use the right of way or the moorings located in Stamford Harbor. In December 2003, the plaintiff, as a property owner with easement rights to "use the eastern end of Cook Road to access the waters of Stamford Harbor," filed a legal action for injunctive relief challenging the development of the dock and the increase of use of the easement area. The plaintiff's affidavit in support of his 2003 action referred to his specific objection to the August 2000 agreement. The plaintiff claimed an impairment of his easement rights because the additional slips would create a substantial increase in pedestrian traffic and also he has "encountered unwanted litter and debris, including illegal drug vials and used contraceptives, left by passersby." He further claimed that the road surface has deteriorated, and complained that the association's contractors were "using the [e]asement to park multiple vehicles, and to store construction equipment and an aluminum ramp ladder."
The notation of the utilization of the sixty-foot easement as a plaza was noted prior to the cooperation and maintenance agreement entered into in 2000. A 1904 map, which is part of the land records, shows the easement as a "plaza." The same notation and description was also referred to in the 2003 litigation filed by the plaintiff.
The purpose of the property right of way is to give all members of the Southfield Point Association and the Davenport Point Association the benefit of equal access to the water. The 2000 agreement established guidelines and rules for the easement that applied to all of the homeowners who were members of the Southfield Point Association and the Davenport Point Association.
During the years, the easement has been the gathering point for homeowners to watch fireworks on the 4th of July, to launch their boats or sit on the bench by the water to enjoy water access.
During the years prior to this action, the plaintiff made several exterior changes and additions to his property. One of the additions was condensers for his air conditioning units. This project eliminated side yard for access to his house. Some of the renovations, additions or changes limited the available open space for his property and thus may have affected the ease of use and access to this property for even minor work such as bringing lawncutting machinery onto his property.
In November 2008, the plaintiff began a project at 122 Davenport Drive that involved construction with several workers, deliveries of materials and use of machinery. Part of the project consisted of an addition to the home, replacing exterior stone and building a pool enclosure with a deck above it. Mr. Reategui provided services for this construction. Mr. Reategui was aware of various uses of the property abutting the plaintiff's yard including parking of some trucks, the use of a dumpster that was loaded with trash and thereafter removed, a cement truck using the easement to park and provide material for the construction, scaffolding and the use of the access gate for varied supplies to be brought onto the site.
The defendant lives at 107 Davenport Drive in Stamford. His home is diagonally across the street from the plaintiff. He became aware of work in the fall of 2008 and continuing until July 2009. The defendant serves in the position of fleet captain for the Southfield Point Association. This is a voluntary position. In this capacity, he is responsible for the enforcement of the regulations of the association, as noted in the 2000 Agreement, as well as obligations established by the Department of Environmental Protection (DEP) including those set forth in the December 12, 2002 permit from the DEP. One of the defendant's responsibilities as the fleet captain is to oversee the use of the sixty-foot easement area which leads to the harbor. The defendant gives anyone who parks in the right of way area, which is the sixty-foot easement, notice that they need to move. The defendant is not on speaking terms with the plaintiff but he believes that the association contacted the plaintiff about the improper use of the easement area. Mr. John Gage, who is a member of the Southfield Point Association, spoke to the plaintiff about the use of the easement area because in addition to the concern about the improper use, there was physical damage to the property from trucks parked and the staging at the site. Mr. Gage walked by the property on a regular basis from November 2008 until the summer months of 2009 and would observe trucks not just stopping to deliver supplies but remaining for the entire day. In March of 2009, the defendant was unable to launch a boat because there were trucks on the easement and he could not get around the trucks. Photographs were submitted as exhibits showing trucks parked and blocking the entrance to the ramp and blocking a portion of the easement giving access to the boat ramp. The defendant did not write down all of the dates that he was impeded from using the property but testified as to the conditions.
As fleet captain, the defendant is aware that every home in the association has access to the easement for purposes of enjoying the harbor and use of the dock. The defendant, as the fleet captain, testified that it was his responsibility to keep the easement area open for any member of the association to either launch a boat or enjoy the harbor. The defendant testified that the placement of work apparatus and work vehicles on the easement detracted and prevented the use intended for all of the members as well as violated some of the rules and regulations for the use and care of the easement. Because of this, in his capacity as the fleet captain for the association, the defendant requested that the vehicles be removed. The defendant did not call the police to tow any cars. Likewise, during the course of the work at the plaintiff's property, the plaintiff did not complain about the requests of the defendant to the workers. The plaintiff did not address the need to access his property with the defendant, although, there was a discussion with Mr. Gage about the use of the property.
The work was completed in the early summer of 2009. There is presently no construction work planned for the property at 122 Davenport Drive.
This action for temporary restraining order and preliminary injunction was filed on or about June 24, 2009.
At the conclusion of the hearing in this matter, the plaintiff requested that the court rule upon his motion for a preliminary injunction regarding the defendant, Robert Cox. Particularly, the plaintiff in his order for preliminary injunction requests that the court enjoin the defendant from interfering with the plaintiff's right, title, interest and enjoyment in a certain sixty-foot right of way as more particularly delineated in deed from Cecil A. Keller and Jeni D. Koller to Jerome Rapoport dated November 18, 1992 and recorded on the Stamford Land Records; and enjoin the defendant from threatening, harassing, intimidating, confronting, or otherwise contacting Plaintiff, his guests, workers, and/or visitors relating to a certain sixty-foot right of way as more particularly delineated in deed from Cecil A. Koller and Jeni D. Koller to Jerome Rapoport dated November 18, 1992 and recorded on the Stamford Land Records.
LEGAL DISCUSSION
The standard for granting a temporary injunction is well settled. "In general, a court may, in its discretion exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted he or she will suffer irreparable harm for which there is no adequate remedy at law." Moore v. Ganim, 283 Conn. 557, 569 n. 25, 660 A.2d 742 (1995). The primary purpose of a temporary injunction is to maintain the status quo until the rights of the various parties can be sorted out, after a hearing on the merits. Clinton v. Middlesex Assurance Co., 37 Conn.App. 269, 270, 685 A.2d 814 (1995). The temporary injunction is a preliminary order, granted at the outset or during the pendency of an action, forbidding the performance of matters such as threatened act . . . until the rights of the parties can be finally determined by the court. Deming v. Bradstreet, 85 Conn. 650, 659, 84 A. 116 (1912). A party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm absent an injunction; (3) it will likely prevail on the merits; and (4) the balance of equities tip in its favor. Waterbury Teacher's Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994), Danso v. University of Connecticut, 50 Conn.Sup. 256 (2007).
The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm and the lack of adequate remedy at law. Kelo v. New London, 268 Conn. 1, 89, 843 A.2d 500 (2004), aff'd. 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), Schlichting v. Cotter, 109 Conn.App. 361, 952 A.2d 73 (2008). Moreover, "[t]he extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." Karls v. Alexandra Realty Corp., 179 Conn. 390, 402, 426 A.2d 784 (1980). Whether or not the plaintiff is entitled to relief is determined, not by the situation existing at the time of the alleged violations, but by that which has developed at the time of trial. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 419, 17 A.2d 525 (1941), Edson v. Griffin Hospital, 21 Conn.Sup. 55, 63-64, 144 A.2d 341 (1958).
As noted below, the plaintiff has not satisfied his burden as to the elements necessary for this court to enter a preliminary injunction restricting actions related to the defendant. The court will address each of the four elements separately, although there may be some overlap as to the evidence and testimony in regard to each element.
A. ADEQUATE REMEDY AT LAW
The plaintiff has not demonstrated either through the testimony and/or evidence or his pleadings that there is not an adequate remedy at law. The plaintiff has alleged that the use of the right of way or easement area that abuts his property permits him to utilize without any restriction, the area for access and work on his property at 122 Davenport Drive. This allegation is the subject of the declaratory judgment count of the plaintiff's complaint and is open to diverse opinions and direction from each of the parties. The success of the broad and unconditional use of the property is highly questionable at this stage. It is not a matter for injunctive relief to determine this legal issue as to the reasonable interpretation of the rights available not only to the plaintiff but to each of the other eighty-six homeowners who are affected by use of the easement. The plaintiff has the opportunity to pursue this claim and have the court rule as to the final interpretation of the easement that will affect the scope and applicability of the regulations for all shared easement homeowners. Thus this court cannot grant injunctive relief that will be more appropriately and completely resolved through the declaratory judgment action which the plaintiff seeks in the second count of his complaint.
In addition and more importantly, the plaintiff argues that the specific conduct that he now seeks to enjoin was related to the workers on his property in the spring and summer of 2009. The allegations are that the defendant approached and asked the workers to move their vehicles from the easement area or that some workers had a note placed on their motor vehicles informing them that parking was prohibited and could subject their vehicles to towing. This action was taken by the defendant in accordance with his responsibilities to enforce the rules that are part of the cooperation and maintenance agreement. The plaintiff claims that these actions caused delay and/or increase in cost. Not only is there no definitive evidence to support this claim but the very claim of monetary damages leads to a determination that the plaintiff, if successful, has an adequate remedy for monetary damages.
B. IRREPARABLE HARM
The second element for injunctive relief is the irreparable harm to the plaintiff. In his memorandum in support of this injunction, the plaintiff contends that irreparable harm is not an element for consideration in this matter. The plaintiff cites the case of Manley v. Pfeiffer, 176 Conn. 540, 409 A.2d 1009 (1979), in support of this proposition. However, the holding of Manley combined with the strong factual distinctions and the plaintiff's further legal argument supports a finding by this court that irreparable harm is a consideration in this request for relief. Manley v. Pfeiffer, supra, 176 Conn. 540. In Manley, the court addressed a restrictive covenant that provided more than access to the waterfront. Id. There were very specific conditions including the condition that no improvements were to be made on the property just access with a driveway but also encompassed and area for septic. The court ruled that the restrictive covenant precluded the necessity of making a finding of irreparable harm. Id.
The facts and the easement in this case are not of the same nature. There are many distinctions between the facts in the present case and the Manley findings. Here, the easement is in common with others and actually involves eighty-six other property owners as compared to the one property owner in Manley. The easement in Manley involved one dominant and one servient estate, the change in use completely eliminated access to the easement for that plaintiff, and there was a very specific direction to the parties that clearly required agreement before any changes were made that affected the use. The nature of the present easement is very distinct from Manley. It is not restrictive and does not give direction for any change in the use. The easement provides simply for the ability of all homeowners to gain access to the water and provides water related use. The plaintiff's reliance upon Manley in this factual scenario is misguided. There is no such restriction in the present easement. Therefore, irreparable harm is an element of consideration in this action.
In viewing the claim of irreparable harm, this court has examined all of the testimony and evidence presented. There is no testimony alone or combined that reaches the threshold of irreparable harm. Of great significance is the uncontroverted testimony that at the present time there is no longer any construction activity at the plaintiff's residence. The plaintiff admitted that but for some lawn work, he is no longer involved in construction or repairs at his property. Additionally, the plaintiff testified, there is no work contemplated in the near future. Since nothing is to be done, there could not be a present disruption caused by threatening, harassing, intimidating, or confronting anyone. Simply put, this testimony contradicts a claim of irreparable harm.
Consideration of the reasonable use of the property is necessary to determine if the plaintiff has suffered irreparable harm. What constitutes reasonable use "is a question of fact to be determined on a case by case basis, considering all the relevant circumstances, including such factors such as the amount of harm caused, its foreseeability, the purpose or motive with which the act was done, and the consideration of whether the utility of the use of the land outweighed the gravity of the harm resulting." Hagist v. Washburn, 16 Conn.App. 83, 86, 546 A.2d 947 (1988), Peterson v. Oxford, 189 Conn. 740, 745, 459 A.2d 100 (1983). In order to resolve ambiguities in the language, the situation and circumstances existing at the time the easement was created may also be considered. Russo v. Stepp, 2 Conn.App. 4, 6, 475 A.2d 331 (1984).
In Hagist, contrary to the position espoused by the plaintiff here, the court determined that the parking of a vehicle in the driveway that was shared though an easement created an interference with the rights of the servient estate because they could not pass to their property. Hagist v. Washburn, supra, 16 Conn.App. 83. Thus the court found that the owner of the dominant estate, did not acquire a right to obstruct the driveway which was situated between the homes of the parties. Id. The court also determined that it was not practical to permit the defendant to park his vehicle with the understanding of moving it when the plaintiff arrived because it would be "tremendously burdensome for the plaintiff to sit in her car while this was being accomplished." Id., 86. Given this finding, it is reasonable to find that asking an owner of a boat about to be launched to remain waiting until vehicles or equipment could be moved is even more onerous.
In Russo v. Stepp, the court stated that the language in the deed is not the only criterion in the analysis and it "must be considered with reference to the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties." Russo v. Stepp, supra, 2 Conn.App. 6.
It is telling that none of the other eighty-six members of the association utilize the property as an extended parking area or as a site to stage work for their property or workers to their own property. The only testimony in relation to use of the property by others is that they use it to gain access to the water and utilize the dock to launch a boat or gain access to a slip.
The photographs submitted by the defendant speaks volumes as to what was happening on the right of way during what appears to be an extended time. The photographs support the position that the parking was not just one time nor one vehicle. The appearance of the right of way noted in defendant's exhibit D1 with a new fence and no trucks, cement mixers, stacks of supplies, hose and bucket, planks, parking of one to four trucks is much more accessible to the property owners with the common interest. Many of the other photographs submitted by the defendant clearly show the obstruction of the launching ramp more than once while the plaintiff had workers at his property utilizing the easement. The easement gives the plaintiff a right to utilize the property of another in a certain manner. It is a privilege and not a domination of the property because of his proximity. Lastly, the plaintiff has not demonstrated that he will suffer any continuing harm because his addition or other projects have been completed at the site. The plaintiff by his own acts and deeds created the situation on his property, which gives him little space to maneuver various pieces of equipment. The plaintiff has extended the building or various structures to such an extent that there is no available space. The plaintiff has chosen how to develop his parcel. The court cannot find that he is irreparably harmed because of his own actions. The plaintiff cannot use all of his property and then look to use the easement as an extension of his own parcel. That was clearly never intended and would create an unworkable situation if all members of the Southfield Point Association took the same position. Clearly, such an overuse is not a reasonable use that would support an irreparable harm. Lastly, the plaintiff's speculation that at some time in the future he may need access from the easement removes the urgency of the request to prevent some future irreversible act. The completion of the work, along with the speculative nature of future use and the impact to all of the homeowners negates any finding that there is irreparable harm to this plaintiff. Therefore, this court finds that the testimony and evidence does not support a finding of irreparable harm that requires injunctive relief.
C. LIKELIHOOD OF SUCCESS
The last issues that require some discussion by the court, are whether there is a likelihood of success on the merits of the action and whether the balance of equities weigh in favor of the plaintiff.
In the plaintiff's action, he alleges that the defendant has illegally or improperly restricted his use of the easement. This legal action will require that the court make a determination as to whether the plaintiff correctly espouses his position that the easement may be used by him in at least the manner and to the degree that he has done in the past, over protests of the Southfield Point Association and the Davenport Point Association through its fleet captain. Based on a number of factors, the plaintiff has not demonstrated his likelihood of success. This opinion is based not only upon a review and preliminary interpretation of the provisions in the deeds to the court but also upon the history of the use of the property and the affidavit filed by the plaintiff in another civil action involving this very same property.
The plaintiff for a number of years has utilized this easement in much the same manner as the other eighty-six homeowners. In fact, the plaintiff objected and brought a legal action to challenge what he saw as an extension or enlargement of the use when the state proposed the installation of additional boat slips at the end of the access ramp on this property. His complaints that were enunciated in an affidavit in support of his legal action objected to the additional pedestrian and/or motor vehicle traffic to the easement area. Although in this action, the plaintiff takes the position that he can use the easement to park cars, trucks or whatever, this position is the polar opposite of his concerns expressed in his December 11, 2003 affidavit. In the affidavit, the plaintiff complained about the use of the easement to "park multiple vehicles, and to store construction equipment and an aluminum ladder." The plaintiff contends in his affidavit that this use interfered and affected his easement rights. The inconsistent positions of the plaintiff defeat a finding that now the use can be extended for him. In effect, the plaintiff is requesting not the same right of access to utilize the property for access to the water but for a use greater than any of the other eighty-six owners. Thus, the likelihood of success has not been satisfied and the balancing of the equities that in this instance would give the plaintiff greater access does not weigh favorably for this plaintiff as noted below.
D. BALANCING THE EQUITIES
The court can exercise discretion in determining the appropriateness of issuing an injunction. Berin v. Olson, 183 Conn. 337, 361, 439 A.2d 357 (1981). In this regard, the court balances the equities to determine the effect of the requested injunction on the parties. In the instant action, after extensive testimony and a review of the evidence, this court has determined that the issuance of a preliminary injunction would not provide equitable relief to all of the parties including the defendant. The plaintiff has named only Mr. Cox and not the Southfield Point Association as the defendant. The defendant has testified that he was following the rules and regulations of the Southfield Point Association for the benefit of all eighty-seven members. There is nothing in his testimony that would indicate that his actions were anything more than following the rules. Mr. Gage, who also testified, offered testimony that supports the continued use by all and enforcement of the rules to guarantee continued shared use of the sixty-foot easement by all members. The actions taken by the defendant were nothing more than notifying the individuals, who were apparently not aware of the regulations, that they were violating regulations adopted as part of the cooperation and maintenance agreement of the Southfield Point Association. Nothing in this conduct is viewed by this court as threatening, intimidating, harassing or otherwise improper. Mr. Reatgui, who testified that he became aware of the warnings, was obviously unaffected because he continued in the use of the property as is demonstrated by the photographs admitted into evidence. Additionally, the work was completed without any incident. No one contacted the Southfield Point Association to complain or request a clarification.
To enter a preliminary injunction at this time to address the past conduct of the defendant will open a pandora's box and possibly create free for all as to the access to the easement. If each of the eighty-seven members decided to utilize the right of way to park their car, or to use as a staging site to prepare their boat for the summer season, or to store their boat during the winter season, or for some other use, the entire purpose of providing a means of access to the water would be eliminated. The access to the water would be frustrated and possibly eliminated, which is contrary to the language of the easement. Additionally, access to the slips installed by the State of Connecticut with the intent of access could be denied and other consequences may follow.
Therefore, in balancing the equities, there is no overwhelming finding that tips the scales in favor of the plaintiff. It cannot be said that at this stage of the proceedings that the scales even slightly tip in favor of the issuance of an injunction as requested by the plaintiff.
Lastly, the plaintiff has filed this action naming only Mr. Cox, who was acting on behalf of the association. There is no testimony or evidence that demonstrates the defendant will act in a manner that will not permit the plaintiff to have the same access as every other member of the association. Therefore, the equities support leaving the status quo at this juncture.
CONCLUSION
Based on the above, the court denies the request for a preliminary injunction as to the defendant Robert Cox.