Starke v. Goodwin Estate Ass'n, Inc.

203 Conn.App. 607

249 A.3d 72

Daryl L. STARKE

v.The GOODWIN ESTATE ASSOCIATION, INC.

AC 42736

Appellate Court of Connecticut.

Argued January 19, 2021

Officially released March 30, 2021

Keith Yagaloff, South Windsor, for the appellant (plaintiff).

Anita M. Varunes, with whom was Christopher S. Young, for the appellee (defendant).

Bright, C. J., and Alvord and DiPentima, Js.

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 Goodwin Estate Association, Inc., brought pursuant to the Common Interest Ownership Act (act), General Statutes § 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 foreclosure proceeding, because the damages he claimed included damages for personal property, namely, window 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 Statutes] § 47-255 (h) (1)"; in count two, "material noncompliance 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 dismiss the complaint as moot because the plaintiff no longer owned the condominium unit due to a foreclosure 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 defendant's motion to dismiss, concluding that the case had become moot once the plaintiff lost title to the condominium 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 mentioned 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 controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability 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 adjudicated by judicial power ... and (4) that the determination 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 controversy 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 jurisdiction, 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 circumstance 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 circumstances 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 jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... [O]ur...