Mannweiler v. LaFlamme 232 Conn. 27

Norcott, J.

In this action for a declaratory judgment and for other relief, the plaintiffs appeal from the judgment of the trial court rendered in favor of the defendants. The plaintiffs claim that the trial court improperly: *28(1) found that there was a common scheme of development; (2) concluded that a purported revocation of the right to restrict certain development was valid; and (3) concluded that the plaintiffs were not entitled to enforce certain restrictive covenants. We conclude that the trial court lacked subject matter jurisdiction because certain indispensable parties had not been given notice pursuant to Practice Book § 350 (d). Accordingly, we reverse the judgment of the trial court and remand the case to that court for further proceedings.

In 1927, the J. H. Whittemore Company (Whittemore) had recorded in the Naugatuck land records a subdivision map of a tract of land known as the Hop Brook development (Hop Brook), which consisted of six sections divided into fifty-two lots that were delineated on the subdivision map. The parties1 in the present case are all owners of property within the development and all derive their title from Whittemore, the common grantor. In May, 1991, the defendants received approval from the Naugatuck planning and zoning commission to subdivide their property and to construct two additional homes in addition to the single residence that already existed on their lot.

Thereafter, the plaintiffs instituted this action seeking injunctive and declaratory relief to prevent the defendants from constructing additional dwellings on their resubdivided parcel. In commencing their action, the plaintiffs served only the defendants and sought no order of notice. The plaintiffs alleged that Whittemore had created, by restrictive covenant, a uniform plan of development, or “common scheme,” limiting any development within Hop Brook to one residential *29dwelling per lot,2 to which all subsequent conveyances were subject. The plaintiffs claimed that the restrictive covenant precluded any further subdivision and the erection of additional houses on the defendants’ parcel.

At trial, the defendants contended that the language of the covenant relied on by the plaintiffs does not prohibit the resubdivision of their lot but, rather, expressly permits it. In support of this argument, the defendants pointed to their own deed that contains, in addition to the restrictions in footnote 2, language that evinces Whittemore’s 1937 attempt to revoke or amend Hop Brook’s restrictive covenants in a deed to Lewis A. Dibble. Dibble is the defendants’ predecessor in title.3 Fur*30ther, they cited a 1946 warranty deed from Whittemore to Dibble, wherein Whittemore attempted to revoke completely the restrictive covenants and to permit resubdivision by the grantee of four lots in section E of the subdivision.4

After a trial, the court concluded that the original grantor’s intention as to the general plan or common scheme was to develop a residential area of single-family homes. The court also found, however, that the plan did not restrict the resubdivision of the defendants’ lot. Accordingly, the court rendered judgment for the defendants. The plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The substantive issues in this appeal are whether the trial court properly: (1) concluded that, although a common scheme of development exists, the language of the restrictive covenant does not constitute an enforceable restriction on the number of dwellings that may be constructed on any one lot; (2) declined to declare that the attempted reservation of the right to revoke the restrictive covenants by the original grantor in 1937, and the subsequent revocation in 1946, without consent of all the prior grantees, was void and of no effect; and (3) concluded that the plaintiffs were not entitled to enforce the terms of the restrictive covenants. Because *31we conclude that the record discloses a fundamental flaw in the proceedings that deprived the trial court of subject matter jurisdiction, we reverse the trial court’s judgment and do not reach the merits of the appeal. See Serrani v. Board of Ethics, 225 Conn. 305, 306, 622 A.2d 1009 (1993).

The parties concede that the plaintiffs’ amended complaint sought both injunctive and declaratory relief.5 Although the plaintiffs assert that the case was tried to and resolved by the trial court only on the basis of an injunction and that the claim for declaratory judgment was only “ancillary” to the proceedings, our review of the record does not support their contention. Neither the trial court’s memorandum of decision nor the judgment file indicates that the declaratory judgment aspect of this case was not determined by the trial court.6 Indeed, the pertinent part of the trial court’s memorandum of decision sounds very much like the resolution of the declaratory judgment issue regarding a common scheme.7 We conclude, therefore, that the trial court considered and denied the declaratory relief sought.

*32In order for a trial court to have jurisdiction over declaratory judgment actions, however, it must comply with the notice requirement of Practice Book § 390 (d), which provides: “The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” After a thorough examination of the record, we are persuaded that the presence of all of the lot owners in Hop Brook is indispensable to a determination of the issues upon the merits and that they were entitled to notice of the underlying action.8

“Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience.9 Sturman v. Socha, 191 Conn. 1, 6, *33463 A.2d 527 (1983); Standard Mattress Co. v. Hartford, 31 Conn. Sup. 279, 288, 329 A.2d 613 (1974).” Gaudio v. Gaudio, 23 Conn. App. 287, 305-306, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990); see also Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 439, 572 A.2d 951 (1990). Joinder of indispensable parties is mandated because due process principles make it “essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action].” Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 634, 563 A.2d 293 (1989). The unnoticed lot owners within Hop Brook are classic “indispensable parties” because the resolution of the questions regarding the restrictive covenants and the alleged common scheme of development are relevant to all deeds within the development. See Tri-Mor Bowl, Inc. v. Brunswick Corp., 366 N.E.2d 941 (Ill. App. 1977); Garnick v. Serewitch, 39 N.J. Super. 486, 121 A.2d 423 (Ch. Div. 1956); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 621-24.

“The purpose of a declaratory judgment action . . . is to ‘secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties’ ”; Wilson v. Kelley, 224 Conn. 110, 115, 617 A.2d 433 (1992), quoting Connecticut Assn, of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743 (1986); and to make certain that the declaration will conclusively settle the whole controversy. See National Transportation Co. v. Toquet, 123 Conn. 468, 481-84, 196 A. 344 (1937). “ ‘This rule is not merely a procedural regulation. It is in recognition and implementa*34tion of the basic principle that due process of law requires that the rights of no [person] shall be judicially determined without affording him [or her] a day in court and an opportunity to be heard.’ ” Kolenberg v. Board of Education, 206 Conn. 113, 124, 536 A.2d 577, cert. denied, 487 U.S. 1236,108 S. Ct. 2903, 101 L. Ed. 2d 935 (1988). Disposition of this case without the presence of all of the lot owners could lead to unacceptable results. For example, the question of whether a common scheme exists could be relitigated in multiple actions by persons not bound by the first declaration. See E. Borchard, Declaratory Judgments (2d Ed. 1941) p. 256. Thus, because adjudication of the declaratory judgment claim necessarily implicates the interests of every other lot owner within the development, each must be given notice and an opportunity to be heard.

This case is analogous to Sloane-Wheeler Corp. v. Odiseos, 154 Conn. 705, 226 A.2d 508 (1967), in which this court dismissed an action for declaratory judgment for lack of jurisdiction because not all of the landowners in a forty acre tract were represented in the action to adjudicate whether building and use restrictions contained in each parcel’s deed were enforceable. The court concluded that “[t]he record fails to disclose that the plaintiffs sustained their burden of proving that all persons having any interest in the removal of the deed restrictions on the lots [in the tract] either were made parties to the action or have had reasonable notice thereof.” Id., 707.

Since, in this case, the plaintiffs, in their prayer for relief, invoked the declaratory judgment provision of General Statutes § 52-29, as implemented by Practice Book §§ 389 and 390, a proper order of notice to all parties having an interest in the subject matter of the complaint was mandatory. See Serrani v. Board of Ethics, supra, 225 Conn. 308. “Failure to comply with § 390 (d) deprives the trial court of subject matter juris*35diction to render a declaratory judgment. See, e.g., Connecticut Ins. Guaranty Assn. v. Raymark Cory., 215 Conn. 224, 229, 575 A.2d 693 (1990); Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 (1966). [Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. . . . Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon. . . .In re Judicial Inquiry No. 85-01, 221 Conn. 625, 629, 605 A.2d 545 (1992); Practice Book §§ 143, 145.” (Internal quotation marks omitted.) Serrani v. Board of Ethics, supra, 308. “We have consistently stressed that strict observance of this jurisdictional requirement is necessary.” Sloane-Wheeler Corp. v. Odiseos, supra, 154 Conn. 707. Accordingly, the lack of notice, pursuant to Practice Book § 390 (d), to the other owners in the subdivision is a fatal flaw that deprived the trial court of jurisdiction. Kolenberg v. Board of Education, supra, 206 Conn. 124.

Furthermore, our concern with the provision of proper notice to all parties with an interest in property subject to the deed restrictions at issue applies with equal force to the plaintiffs’ claim for injunctive relief, at least in a case such as this where it is accompanied by a claim for a declaratory judgment. The plaintiffs’ claims for injunctive and declaratory relief both rise or fall on the interpretation of the deeds at issue in the case and are, therefore, inexorably intertwined.10 *36Because to decide one claim is to decide the other, reaching the merits of the claim for injunctive relief— which in this case is essentially just the procedural method for enforcement of the declaratory judgment-through an artificial severance of the claim for declaratory relief would lead to the same multiplicity of litigation that would arise were we to address the declaratory judgment on its merits. The interests of judicial economy and fairness that require the plaintiffs in a declaratory judgment action to give notice to all interested parties militate against our deciding the fundamental issue underlying that cause of action under another name.

The trial court’s lack of subject matter jurisdiction here, however, does not require a dismissal on remand. We have recently held that “[ujnlike other jurisdictional defects implicating the trial court’s subject matter jurisdiction . . . the bringing of a declaratory judgment action is not itself precluded by a failure to comply with the notice requirement.” Serrani v. Board of Ethics, supra, 225 Conn. 309 n.5; Connecticut Ins. Guaranty Assn. v. Raymark Corp., supra, 215 Conn. 230. On remand, the plaintiffs may pursue further procedural efforts to cure the jurisdictional defect regarding the notice requirement. Serrani v. Board of Ethics, supra, 309. 11

*37The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

In this opinion Callahan, Borden and Palmer, Js., concurred.

Berdon, J.,

dissenting. I agree that if this case were simply one in which the plaintiffs had sought only a declaratory judgment, this court could dispose of it in a one page per curiam decision because the plaintiffs failed to give notice to all interested parties pursuant to Practice Book § 390 (d).1 The failure of interested parties to have notice of such litigation, of course, deprives this court of subject matter jurisdiction to rule on that form of relief. In this case, however, the plaintiffs did not seek only declaratory relief. Rather, the plaintiffs sought primarily injunctive relief, and this court should recognize that fact and issue a ruling on the substantive merits of the plaintiffs’ case.

The plaintiffs brought this action to enforce restrictive covenants in their property deeds and to prevent the resubdivision of the original subdivision. In their original seven paragraph prayer for relief, dated July 18, 1990, the plaintiffs asked the court for three different temporary and permanent injunctions, monetary damages, punitive damages and attorney’s fees. During the next thirteen months, the plaintiffs amended their complaint three times. Only in the final *38amended complaint, dated August 12, 1991, did the plaintiffs amend their prayer for relief to add a request for a declaratory judgment.2

This court has considered the availability of both injunctions and declaratory judgments as a means of enforcing restrictive covenants in a deed. We have recognized that a trial court may issue an injunction in order to enforce such restrictions. Manley v. Pfeiffer, 176 Conn. 540, 544, 409 A.2d 1009 (1979); Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22, 376 A.2d 381 (1977). Similarly, we have held that a trial court may grant a declaratory judgment to determine the validity of these restrictions; Fidelity Title & Trust Co. v. Lomas & Nettleton Co., 125 Conn. 373, 375, 5 A.2d 700 (1925); provided, however, that the party seeking the declaratory judgment has complied with the Prac*39tice Book requirements for obtaining it,3 including joining as parties or providing notice of the litigation to all interested persons. Sloane-Wheeler Corp. v. Odiseos, 154 Conn. 705, 707, 226 A.2d 508 (1967). Where a plaintiff seeks both types of relief, the trial court may rule on the request for an injunction even if the plaintiffs request for a declaratory judgment must be rejected because the plaintiff failed to comply with the Practice Book requirements. Manley v. Pfeiffer, supra, 544-45.4 In other words, the defects in a plaintiffs request for a declaratory judgment do not deprive the court of its authority or its jurisdiction to rule on his or her request for equitable relief.

In order for the majority to reverse the trial court without reaching the merits of this case, therefore, it is not sufficient to show merely that the trial court ruled on the issue of the declaratory judgment. The majority must also demonstrate that the trial court did not rule on the plaintiffs’ request for injunctive relief. This the majority cannot do. The pleadings, the procedural history of this case, and the trial court’s memorandum of *40decision all indicate that the plaintiffs’ requests for injunctions were before the trial court and that the trial court predicated its ruling only on them.5

First, there is nothing in the complaint or in the prayers for relief that would narrow the plaintiffs’ claims solely to a request for a declaratory judgment. On the contrary, the complaint makes perfectly clear that the plaintiffs sought primarily equitable relief, rather than a declaratory judgment. As I previously indicated, three paragraphs in the prayer for relief requested the court to grant “[a]n injunction, both temporary and permanent,” to restrain the defendants in the use of their property. The plaintiffs’ decision to amend their complaint to include a request for declaratory judgment does not alter the fact that the complaint sought primarily injunctive relief.

*41Second, the trial court previously had granted the plaintiffs’ motion for a temporary injunction. The issue of whether to convert that temporary injunction into a permanent one therefore was ripe for review and before the court.

Third, the trial court’s own memorandum of decision and the judgment file indicate that the court was deciding the issue of injunctive relief. On the first page of its memorandum of decision, the trial court stated that it understood the central issue to be whether provisions in the deeds of the defendants are “void and subject to injunction by the court.” (Emphasis added.) Indeed, the trial court never once mentioned declaratory relief or declaratory judgment or used any language that can be connected even tangentially to the grant or denial of a declaratory judgment. Furthermore, one of the principal cases relied on by the trial court involved a property owner who sought injunctive relief rather than a declaratory judgment. See Contegni v. Payne, 18 Conn. App. 47, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989). Finally, the judgment file indicates that the trial court had ruled on an “action, by writ and complaint claiming damages and injunctive relief, and later a declaratory judgment . . . .” (Emphasis added.) Importantly, neither the plaintiffs nor the defendants claim that the trial court limited its ruling to the request for a declaratory judgment.6

Given these undisputed facts, the majority cannot rationally conclude that the trial court’s decision did not concern the plaintiffs’ request for injunctive relief. Furthermore, even if the trial court’s decision can be *42construed as denying both injunctive and declaratory relief, we would still have jurisdiction to determine the validity of the trial court’s denial of the injunctive relief. Accordingly, the majority cannot simply remand this case to the trial court without first reaching the merits of that court’s decision and ruling on the substantive issues, which have been fully briefed by the parties.

Finally, the majority’s veiled suggestion that the notice requirements of Practice Book § 390 (d) apply “with equal force to the plaintiffs’ claim for injunctive relief” muddles not only the remand in this case, but also the state of the law on the proper means to enforce restrictive covenants.7 The plaintiffs in such a case would, on remand, simply withdraw their request for a declaratory judgment and then, if the parties agreed, the appeal could be refiled. See Serrani v. Board of Ethics, 225 Conn. 305, 310-14, 622 A.2d 1009 (1993) (Berdon, J., dissenting).8 The majority’s comments, however, greatly confuse the issue. If the majority is now layering a notice requirement on an action brought for injunctive relief, the opinion should say so. If the majority is overruling Hartford Electric Light Co. v. Levitz, supra, 173 Conn. 15, in which this court held that a property owner may enforce a restrictive covenant by seeking an injunction, the opinion should say so. If the majority is overruling Manley v. Pfeiffer, supra, 176 Conn. 540, in which this court held that a trial court may rule on a request for an injunction even *43if the plaintiff:’s request for a declaratory judgment fails for want of proper notice to interested parties, the opinion should say so.9 Finally, if the majority is now holding that, when more than one property owner is affected, the validity of a restrictive covenant can be determined only by a declaratory judgment, the opinion should say so. This court has an obligation to the practicing attorneys in this state to explain what the law is when we have an issue squarely before us.

Accordingly, I would reach the substantive issues in this case. I, therefore, respectfully dissent.