Starke v. Goodwind Estate Assn., Inc.

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           DARYL L. STARKE v. THE GOODWIN
              ESTATE ASSOCIATION, INC.
                      (AC 42736)
                Bright, C. J., and Alvord and DiPentima, Js.

                                   Syllabus

The plaintiff sought to recover damages from the defendant pursuant to the
   Common Interest Ownership Act (§ 47-200 et seq.), for its alleged failure
   to repair water damage to the floor, walls, ceilings, and window treat-
   ments of his condominium unit. The trial court granted the defendant’s
   motion to dismiss the plaintiff’s complaint as moot because the plaintiff
   no longer owned the condominium unit, having lost title in a foreclosure
   action. Thereafter, the court rendered judgment dismissing the plaintiff’s
   complaint and the plaintiff appealed to this court. Held that there was
   no merit to the plaintiff’s claim that the trial court erred in dismissing the
   negligence count of his complaint because it alleged personal property
   damage that was not contingent on his continued ownership interest in
   the unit; the plaintiff’s complaint was based entirely on the defendant’s
   alleged violations of the act and his rights as a unit owner pursuant to
   the act, and the plaintiff did not argue before the trial court that his
   claim for damages to the window treatments was a claim for damages
   to personal property.
          Argued January 19—officially released March 30, 2021

                             Procedural History

  Action to recover damages for, inter alia, violations
of the Common Interest Ownership Act, brought to the
Superior Court in the judicial district of Hartford, where
the court, Dubay, J., granted the defendant’s motion
to dismiss and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
   Keith Yagaloff, for the appellant (plaintiff).
  Anita M. Varunes, with whom was Christopher S.
Young, for the appellee (defendant).
                          Opinion

   BRIGHT, C. J. The plaintiff, Daryl L. Starke, appeals
from the judgment of dismissal rendered by the trial
court of his complaint against the defendant, The Good-
win Estate Association, Inc., brought pursuant to the
Common Interest Ownership Act (act), General Stat-
utes § 47-200 et seq. On appeal, the plaintiff claims that
the court improperly dismissed his complaint as moot,
after he lost title to his condominium unit in a foreclo-
sure proceeding, because the damages he claimed
included damages for personal property, namely, win-
dow treatments, which, he alleges are not contingent
on his ownership of the condominium unit. We affirm
the judgment of the trial court.
    The following facts and procedural history, as
reflected in the record, are relevant to our analysis. On
February 12, 2016, the plaintiff, pursuant to the act,
brought a five count complaint against the defendant
for its alleged failure to repair water damage to his
‘‘floor, walls, ceilings and window treatments’’ caused
by ice damming. He alleged in count one a cause of
action for ‘‘material noncompliance with [General Stat-
utes] § 47-255 (h) (1)’’; in count two, ‘‘material noncom-
pliance with [General Statutes] § 47-245 (a)’’; in count
three, ‘‘breach of obligation of good faith [in violation
of General Statutes] § 47-211’’; in count four, ‘‘breach
of fiduciary duty’’ to a ‘‘unit owner’’; and, in count five,
‘‘negligence’’ for the defendant’s alleged failure to repair
damages in accordance with § 6.6 of the defendant’s
declaration on the ground that the ‘‘association has a
duty of care . . . to the plaintiff as [a] unit owner.’’
   On May 5, 2017, the defendant filed a motion to dis-
miss the complaint as moot because the plaintiff no
longer owned the condominium unit due to a foreclo-
sure judgment. The plaintiff, however, had appealed
from the foreclosure judgment and, therefore, the court
denied the motion because the plaintiff still possessed
a right of redemption. Following the affirmance of the
foreclosure judgment by this court; see Goodwin Estate
Assn., Inc. v. Starke, 

184 Conn. App. 92

, 

194 A.3d 351

(2018); the defendant filed another motion to dismiss
on the ground that the complaint was moot because
the plaintiff no longer owned the condominium unit.
The plaintiff opposed the motion on the grounds that
the ‘‘law of the case’’ doctrine controlled and that he
owned the condominium unit when the complaint
was filed.
   On January 17, 2019, the court granted the defen-
dant’s motion to dismiss, concluding that the case had
become moot once the plaintiff lost title to the condo-
minium unit. The plaintiff then filed a motion to reargue,
alleging that the court had failed to consider the ‘‘law
of the case’’ doctrine and the defendant’s answer to his
complaint in which it admitted that the plaintiff owned
his condominium unit. The defendant objected to the
motion to reargue, and the court sustained the objection
and denied the motion to reargue. This appeal followed.
   On appeal, the plaintiff claims that the court erred
in dismissing count five of his complaint on mootness
grounds because he had ‘‘alleged personal property
damage whose redressability was not contingent on
[his] continued ownership interest in the unit.’’ He
argues that ‘‘[t]he only portions of [his] complaint that
may have been mooted by [his] loss of ownership in
the unit were those that sought to redress the damage
to the floor, walls, and ceiling.’’ He contends that count
five sought damages for personal property, namely,
‘‘window treatments.’’
   The defendant argues that the plaintiff never men-
tioned a claim for personal property in his opposition
to the motion to dismiss, during oral argument on the
motion to dismiss,1 or in his motion to reargue the
granting of the motion to dismiss, and that he should
be prohibited from raising such an argument on appeal.
   ‘‘Mootness is a question of justiciability. . . .
Because courts are established to resolve actual contro-
versies, before a claimed controversy is entitled to a
resolution on the merits it must be justiciable. Justicia-
bility requires (1) that there be an actual controversy
between or among the parties to the dispute . . . (2)
that the interests of the parties be adverse . . . (3) that
the matter in controversy be capable of being adjudi-
cated by judicial power . . . and (4) that the determi-
nation of the controversy will result in practical relief
to the complainant. . . . Mootness is connected to the
first factor of justiciability, that there be a live contro-
versy at all stages of the litigation.’’ (Citations omitted;
internal quotation marks omitted.) Russo v. Common
Council, 

80 Conn. App. 100

, 104–105, 

832 A.2d 1227

(2003). ‘‘Mootness . . . implicates subject matter juris-
diction, which imposes a duty on the [trial] court to
dismiss a case if the court can no longer grant practical
relief to the parties. . . . Mootness presents a circum-
stance wherein the issue before the court has been
resolved or had lost its significance because of a change
in the condition of affairs between the parties. . . . A
case becomes moot when due to intervening circum-
stances a controversy between the parties no longer
exists.’’ (Citations omitted; internal quotation marks
omitted.) We the People of Connecticut, Inc. v. Malloy,

150 Conn. App. 576

, 581, 

92 A.3d 961

(2014).
   ‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court, essentially asserting that the plain-
tiff cannot as a matter of law and fact state a cause of
action that should be heard by the court. . . . [O]ur
review of the trial court’s ultimate legal conclusion and
resulting [decision to] grant . . . the motion to dismiss
will be de novo.’’ (Internal quotation marks omitted.)
Gerlt v. South Windsor, 

284 Conn. 178

, 188–89, 

931 A.2d
907

(2007).
   In his complaint, the plaintiff, in count one, alleged
that he was a condominium unit owner within the ‘‘com-
mon interest community known as the Goodwin Estate
. . . .’’ He further alleged that the Goodwin Estate was
formed as The Goodwin Estate Association, Inc., under
the act. The plaintiff further alleged that the defendant
was in violation of its duties under specific portions of
the act, which duties they owed to the plaintiff because
he was a condominium unit owner in the Goodwin
Estate. In count five of his complaint, sounding in negli-
gence, which is the only count he claims on appeal
to be viable still, the plaintiff specifically incorporated
most of the allegations from count one. Additionally,
he alleged that, pursuant to the defendant’s declaration,
the defendant was ‘‘responsible for damage to the plain-
tiff’s unit’’ because it ‘‘has a duty of care . . . to the
plaintiff as [a] unit owner,’’ and that ‘‘[t]he plaintiff
incurred damages to [the unit’s] walls, ceilings, floors,
and window treatments’’ as a result of the defendant’s
negligence.
   Although the plaintiff, on appeal, argues that in count
five of his complaint he, in part, was seeking damages
for loss of ‘‘personal property,’’ a review of the plead-
ings, including the complaint, the plaintiff’s opposition
to the defendant’s motion to dismiss, his supplemental
opposition to the defendant’s motion to dismiss, and
the plaintiff’s motion to reargue, reveals no indication
that he ever argued that to the trial court. Furthermore,
there is nothing in his complaint that would indicate
that ‘‘window treatments’’ was referring to personal
property rather than to fixtures,2 or that he was proceed-
ing on that count in his capacity as the owner of dam-
aged personal property rather than as a unit owner.
To the contrary, the plaintiff’s complaint was based
entirely on the defendant’s alleged violations of the act
and his rights of action, as a unit owner, pursuant to
the act. Whether his negligence claim, seeking damages
for, inter alia, the loss of ‘‘window treatments,’’ was a
claim for damaged personalty was neither raised before
nor decided by the trial court, nor was any argument
made by the plaintiff that he was seeking damages on
that count as a former unit owner or as the owner of
those window treatments, which he considered to be
personal property; he clearly alleged in count five only
that the defendant had a duty to him because he was
a unit owner. We, therefore, conclude that the plaintiff’s
claim, raised for the first time on appeal, is without
merit.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    The plaintiff has failed to provide this court with a transcript of the oral
argument. Because we are able to consider this appeal on the basis of the
pleadings, we conclude that it is not essential to our decision.
  2
    ‘‘Property is divided into two great divisions, things personal and things
real, and fixtures may be found along the dividing line. They are composed
of articles that were once chattels, or such in their nature, and by physical
annexation to real property have become accessory to it and parcel of it.’’
Capen v. Peckham, 

35 Conn. 88

, 93 (1868). At least one Connecticut court,
when distributing marital property in a dissolution action, included window
treatments among the ‘‘fixtures’’ to ‘‘go with the home.’’ Jendraszek v. Jen-
draszek, Superior Court, judicial district of New London, Docket No. FA-
XX-XXXXXXX-S (October 4, 1999).

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