Opinion
FSTCV176032612S
02-21-2018
BINNEY POINT, LLC v. 66 BINNEY LANE, LLC
UNPUBLISHED OPINION
OPINION
Jacobs, J.
FACTS
On July 5, 2017, the plaintiff, Binney Point, LLC, instituted this action to quiet title against multiple defendants (66 Binney Lane, LLC, The Lauridsen Family Limited Partnership, Susan Olivier, and Michael J. Geraghty), seeking to extinguish the defendants’ easement for a right of way across real property. On September 26, 2017, the movants, David and Patricia Nelson and Cleft Rock Realty Holdings of Connecticut, LLC, filed the current motion to intervene as defendants and a supporting memorandum of law [# 110.00]. The plaintiff filed an objection on October 12, 2017 [# 111.00], along with affidavits in opposition to the motion [# 112.00]. The motion to intervene was heard by the court at short calendar on October 30, 2017.
In its November 7, 2017 amended complaint [# 115.00] filed on November 7, 2017, the plaintiff alleges the following facts. On November 5, 2014, the plaintiff acquired title to a portion of a right of way known as 68 Binney Lane a/k/a 68 Ford Lane. The plaintiff and its predecessors placed a large permanent structure that obstructs use of the easement (" the structure" ) and have used the structure in an open and notorious manner for over fifteen years. The defendant 66 Binney Lane, LLC has recognized that its rights to the easement have been extinguished. The defendant The Lauridsen Family Limited Partnership has never acquired any right, title, or interest in or to the subject property. The defendants Olivier and Geraghty still assert rights to the easement that are recorded in their respective deeds. In addition to requesting that this court issue a judgment quieting title, the plaintiff also requests that this court declare it the sole owner of the easement.
In their motion to intervene, the movants allege the following facts. 68 Binney Lane is part of a larger easement formerly known as Oak Grove Avenue. The movants own property that has rights to access Oak Grove Avenue. As the easement is a part of Oak Grove Avenue, the movants have an interest in whether the plaintiff is successful in retaining sole ownership of the easement. The court is asked to determine whether the movants satisfy the criteria for intervention as of right, or in the alternative, be given permission to intervene.
DISCUSSION
Intervention as of Right
" It is well established that a party seeking to intervene in a matter as of right must satisfy a four-part test: (1) [t]he motion to intervene must be timely; (2) the proposed intervenor must have a direct and substantial interest in the subject matter of the litigation; (3) the proposed intervenor’s interest must be impaired by disposition of the litigation without the [proposed intervenor’s] involvement; and (4) the proposed intervenor’s interest must not be represented adequately by any other party to the litigation." (Internal quotation marks omitted.) Austin-Casares v. Safeco Ins. Co. of America, 310 Conn. 640, 648 (2013). " For the purposes of judging satisfaction of [the] conditions [for intervention] we look to the ... motion ... to intervene and to the proposed complaint or defense in intervention, and ... we accept the allegations in those pleadings as true. The question on a [motion] to intervene is whether a well pleaded defense or claim is asserted. Its merits are not to be determined ... Neither testimony, nor other evidence is required to justify intervention, and [a prospective] intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the [prospective] intervenor has a direct and immediate interest that will be affected by the judgment." (Internal quotation marks omitted.) Id., 648-49. " Failure to meet any one of the four elements, however, will preclude intervention as of right." Litwin v. Ryan, 131 Conn.App. 558, 563-64 (2011).
Timeliness
" Although the point to which the suit has progressed is one factor in the determination of timeliness, it is not solely dispositive. Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court’s ruling will not be disturbed on review." Austin-Casares v. Safeco Ins. Co. of America, supra, 310 Conn. 651. The movants filed their motion slightly over two months after the return date. This case has not yet been scheduled for trial. The court finds that the motion has been timely filed.
Direct and Substantial Interest
The movants argue that they have a direct and substantial interest in this matter because the easement at issue is part of their right to access a portion of Oak Grove Avenue. The plaintiff argues that the movants have provided no supporting evidence to support these allegations, and that the movants do not own property adjacent to the easement at issue. " An applicant for intervention has a right to intervene ... where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment ... [A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another." (Citation omitted, internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 457-58 (2006).
The movants are not required to provide supporting affidavits and evidence for a motion to intervene. See Austin-Casares v. Safeco Ins. Co. of America, supra, 310 Conn. 648-49. Instead, the court must determine " whether the claims contained in the motion, if true, establish that the [prospective] intervenor has a direct and immediate interest that will be affected by the judgment." Id., 649. The movants allege that both of their deeds contain rights to Oak Grove Avenue. Further, they allege that Oak Grove Avenue contains the 68 Binney Lane right of way at issue in this case. A judgment quieting title to the disputed easement in favor of the plaintiff would necessarily affect the rights of the movants. If the plaintiff were to succeed, then their rights to use the easement may be extinguished. The movants have established that they have a direct and substantial interest in this litigation.
Interest Impaired by Disposition of Litigation
As discussed above, the movants have satisfied their burden of pleading that they have an interest in this litigation. A decision in favor of the plaintiff could negatively the movants’ use of the easement. Thus, the movants have adequately pleaded that their interest would be impaired by the outcome of this litigation.
Interest not Represented by Other Parties
The movants argue that their interests are not adequately represented by the defendants because the movants’ interest in the easement were not obtained through the same conveyances as the defendants, and therefore, they cannot be defended in the same manner during trial. " [T]he would-be intervenor bears the burden of demonstrating inadequate representation by an existing party ... The most significant factor in assessing the adequacy of representation is how the interests of the absentees compare with the interests of the present parties; the weight of the would-be intervenors’ burden varies accordingly. If, for instance, the interests are identical or there is a party charged by law with representing a proposed intervenor’s interest, a presumption of adequate representation arises that the would-be intervenor can overcome only through a compelling showing of why this representation is not adequate ... At the other end of the spectrum, a presumption of inadequacy arises when an absentee must rely on his opponent or one whose interests are adverse to his." (Internal quotation marks omitted.) Litwin v. Ryan, supra, 131 Conn.App. 564.
In the present case, both the defendants and movants assert their rights to access the easement and argue that the plaintiff should not be allowed to extinguish their use of the easement. The movants argue that the key difference between their and the defendants’ interest is the fact that the movants’ interests in the easement were derived differently from the defendants’ interests; therefore, the movants’ interests must be defended differently during the course of litigation.
In Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 386 (2011), a prospective intervenor was not allowed to enter the case because, in large part, it had the same objectives as the defendants already present in the case. The court stated: " In light of the fact that the association and the defendants have the same ultimate objective of retaining possession and control of the property and of precluding the plaintiffs from establishing possession and control, there is a presumption of adequate representation that the association can overcome only by showing an adversity of interest, collusion or nonfeasance by the defendants ... We conclude that the association has failed to meet this burden." (Citation omitted.) Id., 403.
In the present case, the movants have the same stated objective as the defendants, which is to prevent the plaintiff from retaining possession and control of the easement and extinguishing the rights of the other users of the easement. The movants have not alleged any form of adversity of interest, collusion, or nonfeasance by the defendants. Therefore, the movants have not met their burden of demonstrating that their interests are not represented by the defendants. The court concludes that the movants cannot intervene as of right.
Permissive Intervention
" Permissive intervention means that, although the person may not have the legal right to intervene, the court may, in its sound discretion, permit him or her to intervene, depending on the circumstances." Austin-Casares v. Safeco Ins. Co. of America, supra, 310 Conn. 663. " In deciding whether to grant a request for permissive intervention, a trial court should consider: the timeliness of the intervention; the [prospective] intervenor’s interest in the controversy; the adequacy of the representation of such interest by other parties; the delay in the proceedings or other prejudice to the existing parties the intervention may cause; and the necessity for or value of the intervention in resolving the controversy." Id. " Unlike intervention as of right which is governed by a " four-element, conjunctive inquiry." Episcopal Church in The Diocese of Connecticut v. Gauss, 302 Conn. 386, 397 (2011), permissive intervention is governed by additional inquiries of factors which relate to delay and prejudice to the existing parties and value in resolving the controversy and by balancing those factors.
In addition to its application of the four-part test to the facts of this case, the court has considered the additional inquiries which relate to delay and prejudice to the existing parties and value in resolving the controversy, particularly the necessity for or value of the intervention in resolving the controversy. Even though the movants and defendants have similar objectives, in balancing the additional factors in its consideration of the motion for permissive intervention, the court finds that permitting the movants to intervene as defendants would be of value in resolving the controversy regarding this easement.
CONCLUSION
For the foregoing reasons, the court denies the motion to intervene as of right. The court grants the motion for permissive intervention.