Justia.com Opinion Summary: This was the first of two appeals arising from a property dispute between members of a local parish of the Episcopal church and several present or former officers or vestry members of the parish. An unincorporated voluntary association attempted unsuccessfully to intervene in the action to protect its alleged ownership interest in the property. The association appealed to the Supreme Court, claiming that the trial court improperly denied its motion to intervene and its request for an evidentiary hearing. The Supreme Court affirmed, holding that the trial court did not err in denying the motion because (1) the issues raised by the association were fully and fairly raised by the present pleadings, and (2) the association did not seek to intervene to assert a claim against Defendants. In addition, the Court held that there was a presumption of adequate representation because the record demonstrated that the identities of the association members and Defendants were overlapping and that they had the same ultimate objective.
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THE EPISCOPAL CHURCH IN THE DIOCESE
OF CONNECTICUT ET AL. v. RONALD
S. GAUSS ET AL.
(SC 18718)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan and Eveleigh, Js.
Argued February 9—officially released October 11, 2011
James H. Howard, with whom was Howard M. Wood
III, for the appellant (prospective intervenor Bishop
Seabury Church).
Alan Robert Baker, with whom were Michelle M.
Seery and, on the brief, David Booth Beers, and Mary
E. Kostel, pro hac vice, for the appellees (plaintiffs).
Opinion
ZARELLA, J. This is the first of two appeals arising
from a property dispute between members of a local
parish and the church with which they were affiliated.
The plaintiffs, The Episcopal Church in the Diocese
of Connecticut (Diocese), the Reverend Canon David
Cannon,1 Bishop Seabury Church2 (Parish), and The
Protestant Episcopal Church in the United States of
America (Episcopal Church),3 brought this action
against the defendants, Ronald S. Gauss4 and twelve
present or former officers or vestry members of the
Parish who hold themselves out as continuing to serve
in that capacity,5 alleging breach of trust for the wrongful failure to relinquish to the plaintiffs all of the real
and personal property of the Parish following a decision
by a majority of the voting members of the Parish,
including the defendants, to withdraw from the Diocese
and to affiliate the Parish with the Convocation of Anglicans of North America (CANA), an ecclesiastical society that is not part of the Episcopal Church or the
Diocese. The plaintiffs sought a declaration that the
disputed property was held in trust for the Episcopal
Church and the Diocese and an order enjoining the
defendants and all those acting in concert with them
or at their direction from their continued use of, or
assertion of any rights to, the property. Thereafter, an
unincorporated voluntary association describing itself
as ‘‘Bishop Seabury Church’’ or, alternatively, as Bishop
Seabury Memorial Church or Bishop Seabury Episcopal
Church (association), attempted unsuccessfully to
intervene in the action to protect its alleged ownership
interest in the property. The association now appeals
to this court, claiming that the trial court improperly
denied its motion to intervene and its request for an
evidentiary hearing. The plaintiffs respond that the trial
court properly denied the association’s motion and
request. We agree with the plaintiffs and, accordingly,
affirm the decision of the trial court.
The following facts are relevant to our resolution of
this appeal. The plaintiffs filed their complaint on May
20, 2008. One of the plaintiffs is ‘‘Bishop Seabury
Church,’’ that is, the Parish. On July 11, 2008, the defendants filed a motion to dismiss the complaint on the
ground that the Parish was not an authorized plaintiff.
The defendants argued, inter alia, that the Parish did
not have standing because (1) the real Bishop Seabury
Church is an entity, or association, separate and distinct
from any of the entities or persons identified as plaintiffs in the complaint, (2) the vast majority of its members are not parties to this action, (3) it existed as
an independent entity before becoming a parish, (4) it
retained its independence after becoming a parish, and
(5) it never authorized the present action. In their argument in support of the motion, the defendants similarly
contended that the Parish had ‘‘co-opt[ed] the identity
of Bishop Seabury Church,’’ which, they claimed, was
an independent entity governed by its own bylaws that
never had authorized the present action. On February
4, 2009, the trial court determined that the Parish had
standing and denied the motion to dismiss.
On April 9, 2009, the defendants filed a motion to
strike the complaint, arguing that the plaintiffs had
failed to join an indispensable party, namely, ‘‘the voluntary association known as Bishop Seabury Church Society, an association of approximately 290 members
located [in the town of Groton].’’ The defendants specifically argued that the complaint included allegations
against, and that the plaintiffs sought to wrest control
from, a society or congregation composed of lay members in possession and control of the property who
were ‘‘acting in concert’’ with the defendants and that,
because those members were not parties to the present
action, they were not receiving ‘‘due process’’ sufficient
to bind them to any future court decree. (Internal quotation marks omitted.)
On June 11, 2009, the trial court denied the motion
to strike. The court explained that it had taken the
allegations in the complaint as true, as it had done when
considering the defendants’ motion to dismiss, and that
the defendants’ claim that there was a ‘‘Bishop Seabury
Church Society’’ separate and distinct from the Parish
was in conflict with the allegations in the complaint.
The court observed that the defendants had pointed to
no evidence that any other association had been formed
by the alleged 280 members of the Bishop Seabury
Church Society, and that the members of this society
were not indispensable parties because there was nothing in the record indicating that they had a legal interest
in the property or that the court could not resolve all
of the disputed matters concerning the property without
their participation.
On July 1, 2009, the defendants filed an answer, fifteen
special defenses and a counterclaim. In their answer,
the defendants denied any ‘‘characterization of the
property as belonging to an entity other than the entities
identified in the deeds . . . .’’ In their counterclaim
directed against the Episcopal Church, the defendants
alleged that they were ‘‘the vestry of Bishop Seabury
Church’’ and that, ‘‘[i]n [their] capacity as members of
the [Bishop Seabury] Church Society identified in the
deeds attached to the plaintiffs’ [c]omplaint, they [did]
not believe that the Diocese or [t]he Episcopal Church
[could] unilaterally control the real [property] occupied
by the [Church] Society . . . .’’
That same day, the association, represented by the
same attorneys who were representing the defendants
in the pending litigation, sought to intervene in the
action as of right or, in the alternative, permissively,
under General Statutes § 52-107 and Practice Book § 918.6 The association described itself as a religious asso-
ciation that had existed since the 1870s, consisting of
approximately 700 individuals, of whom approximately
280 were voting members, and that it was moving to
intervene to ‘‘defend its title to the property . . . .’’ The
association specifically alleged that the entity identified
by the plaintiffs as ‘‘Bishop Seabury Church’’ was not
the entity identified in the deeds to the property but
was a fictional entity created for the purpose of participating in the present litigation. The association also
alleged that no current party to the litigation had title
to the property in its name and that, because the association was the record owner of the property, it was an
indispensable party. Furthermore, because the association was in possession and control of the property but
was not currently under the court’s jurisdiction, the
association and its members could not be bound by
any court orders connected with the litigation. Claiming
that the case, as currently framed, could not resolve
any issues involving title, possession or control of the
property, the association requested permission to intervene as the entity identified in the deeds to the property
so that it could assert a counterclaim for the purpose
of quieting title and pursuing damages against the plaintiffs. A resolution that had been adopted the previous
day by the elected officers of ‘‘Bishop Seabury Church
Society’’ containing similar allegations was attached to
the motion as ‘‘[e]xhibit A’’7 and was authenticated by
the affidavit of Kathy Tallardy in her capacity as ‘‘[s]ecretary’’ of ‘‘Bishop Seabury Church,’’ the same Kathy
Tallardy named as one of the defendants by the plaintiffs in the action. Also attached to the motion, as
‘‘[e]xhibit B,’’ was a copy of the association’s most
recent bylaws, dated January 20, 2008, reflecting its
decision to become a parish under CANA and its selfdescribed independence.
The plaintiffs opposed the motion to intervene on
several grounds, including that the Parish was not a
fictional entity created for the purpose of the litigation
but had long existed as a subordinate unit of the Episcopal Church and, in that capacity, held title to the disputed property.
At the hearing on the motion, the attorney for the
association, James H. Howard, introduced himself as
representing the defendants as well as the association.
Howard distinguished the defendants from the association by noting that the defendants had not asserted a
claim of title because they were not identified individually in the deeds to the property, whereas the association was claiming title to the property as ‘‘Bishop
Seabury Church,’’ which was named in the deeds and
thus was a necessary party. Howard explained that,
because the plaintiffs were seeking possession of the
property and there were hundreds of association members, but only thirteen defendants, it was ‘‘appropriate
to have the people who are actually in possession’’ be
involved in the litigation. In other words, simply issuing
an order relating to twelve or thirteen individuals would
not resolve the dispute. Howard further argued that
the plaintiffs’ claim of an implied trust could not be
adequately litigated without consideration of the association’s claim of record title to the property. He concluded with a request for an evidentiary hearing on the
motion to explore these issues more fully. The plaintiffs’
attorney responded that there was no dispute regarding
title because there was only one entity that held title
to the property, namely, the Parish, and that the issue
came down to what entity had possession and the right
to hold and control the assets of the Parish.
On October 13, 2009, the trial court denied the association’s motion to intervene and request for an evidentiary hearing. The court first concluded that the issues
raised by the association appeared to have been fully
and fairly raised in the pleadings in light of the defendants’ position that the Parish was a fictional entity
without title or any right to possession of the property.
The court further concluded that the association was
not seeking to intervene to assert a claim against the
defendants or to defend against the claims of the plaintiffs but to assert a counterclaim against the plaintiffs
and to ‘‘defend its title.’’ (Internal quotation marks omitted.) According to the court, that purpose did not make
the association a necessary party to the action, and,
therefore, upon consideration of the parties’ positions,
the court was not inclined to allow permissive intervention. The court denied the request for an evidentiary
hearing without further explanation. The association
appealed from the trial court’s decision to the Appellate
Court on October 29, 2009.
On November 12, 2009, the defendants filed a ‘‘motion
for continuance due to automatic stay.’’ The defendants
sought to stay further proceedings on the parties’
respective motions for summary judgment and motions
to strike the affidavits of their expert witnesses, which
previously had been filed and were scheduled for argument.8 The defendants contended that the association’s
appeal triggered an automatic stay pursuant to Practice
Book § 61-11 (a)9 and that any court orders during the
period of the automatic stay would be vacated if the
stay was not granted. The plaintiffs opposed the motion
on the ground that Practice Book § 61-11 (a) did not
apply to a nonparty’s appeal from the denial of a motion
to intervene. The trial court nonetheless denied the
defendants’ motion in an oral ruling on November 16,
2009, and the Appellate Court denied the defendants’
motion for review of that ruling on February 3, 2010.
Proceedings continued on the summary judgment
motions without participation by the association. The
plaintiffs argued that there was no genuine issue of
material fact as to whether the Parish was a subordinate
unit within the hierarchy of the Episcopal Church,
whether the property was held by the Parish in trust
for the mission of the Episcopal Church and the Diocese
and whether the property should have been relinquished when members of the Parish chose to affiliate
with a different religious organization. The defendants
responded that a genuine issue of fact existed with
respect to all of the plaintiffs’ claims and submitted as
exhibits the same documents that the association had
attached to its motion to intervene. In the defendants’
motion for summary judgment, they reiterated the arguments asserted in their first and second special
defenses, namely, that the plaintiffs’ claims failed as a
matter of law because the court was without the authority to adjudicate matters of church polity and because
the claims were barred by the Marketable Title Act,
General Statutes § 47-33b et seq. The defendants also
made many of the same arguments that the association
had made in its motion to intervene. These arguments
included that the Diocese could not divest the local
church of property in which it had record title and that
the property was not held in trust for any other entity.
On March 15, 2010, the trial court rejected the defendants’ special defenses, granted the plaintiffs’ motion
for summary judgment as to their complaint and the
defendants’ counterclaim, denied the defendants’
motion for summary judgment and concluded that the
Parish property was held in trust for the Episcopal
Church and the Diocese. In addressing the defendants’
second special defense, the court determined that the
Marketable Title Act was inapplicable as a matter of
law because ‘‘[w]hether a parish holds record title . . .
is not dispositive of whether a trust agreement exists.’’
(Internal quotation marks omitted.) The court further
noted that ‘‘[t]he plaintiffs do not seek to change the
record title to the subject property but, rather, seek to
obtain declaratory and injunctive relief regarding their
right to possess this property premised on the relationship between the Parish . . . the Episcopal Church
and [the] Diocese.’’ The court also granted the plaintiffs
injunctive relief, ordering the defendants to turn over
possession, custody and control of the disputed property to the plaintiffs immediately, prohibiting the defendants from the continued use of and assertion of any
rights to the property, ordering the defendants and all
others acting under their control or direction not to
interfere with the plaintiffs’ right to immediate possession, custody and control of the property, and prohibiting the defendants and all others acting under their
control or direction from wasting, selling, transferring,
conveying or encumbering the property. The court also
granted the plaintiffs permission to move for an order of
accounting within sixty days. The court then rendered
judgment for the plaintiffs in accordance with its decision on the motions.
On June 18, 2010, the defendants appealed from the
trial court’s judgment to the Appellate Court. On
December 1, 2010, the defendants’ appeal and the asso-
ciation’s appeal from the denial of the motion to intervene were transferred to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1. The
appeals were consolidated for the purpose of creating
a single record and for oral argument but not for purposes of briefing. With this factual background in mind,
we proceed to consider the association’s appeal.
The association claims that the trial court improperly
denied its motion to intervene as of right10 because the
motion was timely filed, the association has a direct and
substantial interest in the litigation, its interest would
be impaired by disposition of the litigation without its
involvement and its interest was not adequately represented by any other party to the litigation. The plaintiffs
respond that the motion fails on all four grounds and
that the trial court properly denied the motion. We agree
with the plaintiffs that the trial court properly denied
the motion.11
We begin with the governing legal principles. In moving to intervene as of right, the intervenor must satisfy
four requirements. See, e.g., Kerrigan v. Commissioner
of Public Health, 279 Conn. 447, 456–57, 904 A.2d 137
(2006). The motion to intervene must be timely, the
moving party must have a direct and substantial interest
in the subject matter of the litigation, the moving party’s
interest must be impaired by disposition of the litigation
without that party’s involvement and the moving party’s
interest must not be represented adequately by any
other party to the litigation. Id. If any one of these four
requirements is not satisfied, intervention will not be
granted. Id., 456, 458–59 (referring to ‘‘four element,
conjunctive inquiry’’ and concluding that trial court
properly denied intervention as of right because intervenor failed to establish direct and substantial interest in
subject matter of litigation); see also Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App.
134, 146, 148, 758 A.2d 916 (2000) (referring to fact that
‘‘test for intervention as of right is conjunctive’’ and
that, if any one of four requirements is not met, motion
to intervene must be denied).
‘‘For purposes of judging the satisfaction of [the]
conditions [for intervention] we look to the pleadings,
that is, 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 petition to intervene is whether a
well-pleaded defense or claim is asserted. Its merits are
not to be determined. The defense or claim is assumed
to be true on [a] motion to intervene, at least in the
absence of sham, frivolity, and other similar objections.
. . . Thus, 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.’’ (Citation omitted; internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health,
supra, 279 Conn. 457. The trial court’s decision on a
motion for intervention as of right is subject to our
plenary review.12 Id., 454.
Mindful of these principles, we conclude that the trial
court properly denied the motion to intervene because
the stated interests of the association were adequately
represented by the defendants. Thus, we need not consider whether the remaining three requirements for
intervention as of right were satisfied. See, e.g., BNY
Western Trust v. Roman, 295 Conn. 194, 207 n.11, 990
A.2d 853 (2010) (‘‘[b]ecause the applicable test for intervention as of right is conjunctive . . . and [the prospective intervenor] has failed to satisfy [one of the
requirements to establish intervention as of right], we
need not consider whether [it] has satisfied the
remaining three [requirements]’’ [citation omitted]).
With respect to the requirement of adequate representation, we have explained that ‘‘[t]he 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 wouldbe intervenors’ burden varies accordingly. If, for
instance, the interests are identical13 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.’’ (Citation omitted.) Rosado
v. Bridgeport Roman Catholic Diocesan Corp., supra,
60 Conn. App. 148–49, citing Edwards v. Houston, 78
F.3d 983, 1005 (5th Cir. 1996). Thus, to overcome the
presumption of adequate representation, ‘‘the applicant
for intervention must show adversity of interest, collusion, or nonfeasance on the part of the existing party
. . . .’’ Edwards v. Houston, supra, 1005.
In the present case, the trial court, in denying the
motion to intervene, stated that ‘‘the issues raised by
the [association] appear to be fully and fairly raised
. . . by the present pleadings based on the defendants’
position that the [Parish] is a fictional entity without
title or any right to possession [of the property in question]. Moreover, the [association] does not seek to intervene in order to assert a claim against the defendants.’’
We agree with the trial court and further conclude that
there is a presumption of adequate representation
because the record demonstrates that the identities of
the association members and the defendants are over-
lapping and that they have the same ultimate objective.
With respect to the issue of identity, it is clear that
the defendants are members of the self-described ‘‘association’’ that moved to intervene in the pending litigation because the motion states that the defendants are
association members.14 Moreover, the resolution establishing the association was adopted by the ‘‘elected
officers and vestry’’ of the Parish on behalf of its approximately 700 individual and 280 voting members, and it
is undisputed that all of the defendants are present or
former officers or vestry members of the Parish. In
addition, the resolution attached to the motion to intervene is signed by Tallardy as secretary of ‘‘Bishop Seabury Church,’’ the same person who is a defendant in
the action. Finally, the defendants in their counterclaim,
like the association in its motion, described themselves
as members of the entity identified in the deeds to the
property. Accordingly, there is no question that the
defendants and the association share an identity of
interests that gives rise to a presumption that the association is adequately represented by the defendants
merely on the basis that they are present or former
officers or vestry members of the Parish.
The pleadings also indicate that the defendants and
the association share the same stated objectives.15 The
association, which claimed to be the record owner of
the property, an indispensable party, and an entity separate and apart from the Parish, moved to intervene in
the action to defend its purported title to the property
and to pursue a counterclaim against the plaintiffs. For
all intents and purposes, however, the association’s
underlying objective in defending its purported title was
to retain possession and control of the property and to
preclude the plaintiffs or any other entity from being
granted possession and control. This is evident from
language in the motion to intervene repeatedly referring
to the fact that the association was in possession and
control of the property, that the Parish was not in possession and control of the property, and that, without
the association’s participation in the case, the trial court
would be unable to resolve issues related to title, possession or control of the property.16 See Dixon v.
Edwards, 290 F.3d 699, 713 (4th Cir. 2002) (noting in
similar action that injunction at issue ‘‘does not concern
property ownership . . . but only the rights of access
and control over the Parish property—that is, the question of who is in charge, not who owns the land’’).
The defendants have articulated the same objective.
From the outset of this litigation, the defendants have
made allegations almost identical to those of the association by claiming that the Parish was not the entity
identified in the deeds to the property, that ‘‘Bishop
Seabury Church’’ was an indispensable party and that
the plaintiffs did not have an implied trust interest in the
property. Specifically, the defendants alleged in their
motion to dismiss and in their memorandum of law in
support thereof that the Parish did not have standing
because the real ‘‘Bishop Seabury Church’’ was an independent entity separate and distinct from the Parish
and had not authorized initiation of the litigation. The
defendants further alleged in their motion to strike and
supporting memorandum of law that ‘‘Bishop Seabury
Church Society,’’ as distinguished from the Parish, was
an indispensable party because the plaintiffs were seeking to wrest possession and control of the property
from ‘‘Bishop Seabury Church Society,’’ which was not
represented in the litigation and thus could not be
bound by any future orders of the court. In their answer
to the plaintiffs’ complaint, the defendants also denied
any ‘‘characterization of the property as belonging to
an entity other than the entities identified in the deeds,’’
and, in their counterclaim directed against the Episcopal Church, they alleged that they represented ‘‘the vestry of Bishop Seabury Church’’ and, ‘‘[i]n [their] capacity
as members of the [Bishop Seabury] Church Society
identified in the deeds attached to the plaintiffs’ [c]omplaint, they [did] not believe that the Diocese or [t]he
Episcopal Church [could] unilaterally control the real
[property] occupied by the [Church] Society . . . .’’
(Emphasis added.) Thereafter, the defendants sought
an automatic stay of the proceedings during the association’s appeal of the trial court’s ruling on the motion
to intervene, an action that clearly was intended to
benefit the association. Lastly, in documentation filed
in connection with their motion for summary judgment,
the defendants argued, inter alia, that the Diocese could
not divest ‘‘Bishop Seabury Church’’ of property in
which it had record title and that the property was not
held in trust for the plaintiffs or any other entity.
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. Edwards v. Houston, supra, 78 F.3d 1005.
We conclude that the association has failed to meet
this burden.
The association argues that the defendants cannot
adequately represent its interests because the association is the only entity that can (1) seek to quiet title in
its name, (2) prove the entitlement of its officers and
vestry members to hold their respective seats, (3)
invoke the Marketable Title Act as a defense to the
plaintiffs’ implied trust claim, and (4) pursue an alternative claim against the plaintiffs under the ejectment
statute, General Statutes § 47-30. We conclude that none
of these arguments suggests an adversity of interest,
collusion or nonfeasance by the defendants.
The association first argues that, because the defendants do not, and cannot, claim to have record title in
their names, the association is the only entity that can
seek to quiet title to the property. This argument is
apparently based on a belief that the association may
retain possession and control of the property if the
court determines that it holds record title. In Rector,
Wardens & Vestrymen of Trinity-St. Michael’s Parish,
Inc. v. Episcopal Church in the Diocese of Connecticut,
224 Conn. 797, 620 A.2d 1280 (1993), however, we stated
that ‘‘[w]hether a parish holds record title . . . is not
dispositive of whether a trust agreement exists.’’ Id.,
819–20 n.21; see also Dixon v. Edwards, supra, 290
F.3d 713 (injunction at issue did ‘‘not concern property
ownership . . . but only the rights of access and control over the Parish property—that is, the question of
who is in charge, not who owns the land’’). Accordingly,
the question of who holds title to the property is irrelevant in this context. Moreover, to the extent the association’s underlying objective in seeking to quiet title is
to retain possession and control of the property, the
defendants have aggressively pursued this objective
throughout the litigation. For example, as previously
explained, the defendants effectively alleged in their
answer and counterclaim that the Parish was not the
entity identified in the deeds to the property and thus
had no right to possession or control. An objective
reading of all of the pleadings therefore indicates that
the defendants have consistently represented the interests of the association on the issue of who holds title
to the property.
The association next argues that the defendants cannot adequately represent its interest in proving the entitlement of its officers and vestry members to hold their
respective seats. The record indicates, however, that
the defendants have vociferously represented the association’s interests from the outset of the litigation, and
the association provides no explanation, beyond its conclusory statement that it is not adequately represented,
as to why the defendants, as members of the association, are not well qualified to represent this interest.
The association further argues that, because the trial
court determined that the defendants could not invoke
the Marketable Title Act (act) as a defense to the plaintiffs’ implied trust claim, the association, which, it
claims, has held title to the property in its name since
1966, is the only entity that can raise such a defense.
We first observe that the association made no reference
to the act in its motion to intervene, and the trial court
did not rule on the applicability of the act until more
than nine months later, as part of its decision on the
parties’ motions for summary judgment. Accordingly,
the court could not have considered this argument when
it denied the motion to intervene. Furthermore, the
argument is premised on a faulty understanding of the
trial court’s decision. The trial court concluded that the
act was ‘‘inapplicable’’ because the recording of the
trust interest was ‘‘not a prerequisite to establishing the
existence of an implied trust’’ and because the plaintiffs
did ‘‘not seek to change the record title to the subject
property but, rather, [sought] declaratory and injunctive
relief regarding their right to possess [the] property
premised on the relationship between the Parish . . .
the Episcopal Church and [the] Diocese.’’ The trial
court’s conclusion thus did not rest on the defendants’
status as individuals but on general considerations relating to the plaintiffs’ claims, which would not have
changed if the association had raised the same defense.
The association’s final argument is that the defendants could not provide adequate representation in the
event that the association brings a future claim that,
if the plaintiffs prevent the association from retaining
possession of the property, it would be entitled to compensation pursuant to § 47-30,17 the ejectment statute.
We decline to review this argument because the association failed to raise it in its motion to intervene. As we
previously noted, in ‘‘judging the satisfaction of [the]
conditions [for intervention] we look to the pleadings,
that is, to the motion . . . to intervene and to the proposed complaint or defense in intervention, and . . .
we accept the allegations in those pleadings as true.’’
(Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, supra, 279 Conn. 457. Having examined the pleadings, we conclude that the
association made no allegations of this nature in its
motion to intervene. Moreover, even if the association
had raised this argument in its motion, it is irrelevant
because the plaintiffs have not brought an ejectment
action, and there are no grounds for considering any
argument premised on such an action. Thus, the argument fails to demonstrate the required adversity of
interest, collusion or nonfeasance on the part of the
defendants. Edwards v. Houston, supra, 78 F.3d 1005.
For all of the foregoing reasons, the association has
not overcome the presumption that its interests are
being adequately represented by the defendants, and
we conclude that the trial court properly denied the
association’s motion to intervene.
The association also claims that the trial court
improperly denied its request for an evidentiary hearing
so that it could prove its right to possession of the
property and its right to intervene. It further claims
that, instead of taking the association’s allegations as
true, as the court was required to do, the court stated
that it had considered the ‘‘totality of the [movant’s]
and the parties’ positions . . . .’’ The association thus
claims that it was deprived of the opportunity to prove
its allegations that, among other things, the property is
not held in trust for the plaintiffs or any other entity
and that the Parish is not the real ‘‘Bishop Seabury
Church.’’ The plaintiffs respond that the association
‘‘inaccurately characterizes the trial court’s decision
and improperly conflates the court’s consideration of
the ‘totality of the parties’ positions’ with the unrelated
concept of the ‘merits’ of the [association’s] allegations.’’ We conclude that the trial court properly denied
the association’s request for an evidentiary hearing.
We repeatedly have stated in this opinion that, in
‘‘judging the satisfaction of [the] conditions [for intervention] we look to the pleadings, that is, to the motion
. . . to intervene and to the proposed complaint or
defense in intervention, and . . . we accept the allegations in those pleadings as true.’’ (Internal quotation
marks omitted.) Kerrigan v. Commissioner of Public
Health, supra, 279 Conn. 457. The trial court’s analysis,
however, was not complete after it considered the allegations in the motion to intervene and took them as
true. It also was required to consider whether the association’s interests were adequately represented by
another party to the litigation. See id., 456–57. In making
this determination, the trial court examined all of the
pleadings in order to reach a decision as to whether
the defendants could adequately represent the interests
of the association. Accordingly, the trial court’s conclusions that ‘‘[t]he issues raised by the [association]
appear to be fully and fairly raised in this case by the
present pleadings based on the defendants’ position
that the [Parish] is a fictional entity without title or any
right to possession’’ and that the association did ‘‘not
seek to intervene in order to assert a claim against the
defendants’’ were entirely proper. In other words, the
court correctly considered the ‘‘totality’’ of the parties’
positions, as expressed in their pleadings, to determine
whether the association’s interests could be adequately
represented by the defendants.18
Finally, insofar as the association claims that an evidentiary hearing was required so that it could have the
opportunity to prove its claims on their merits, the trial
court’s conclusion that the association’s interests were
adequately represented by the defendants rendered
such a hearing unnecessary. Accordingly, we conclude
that the trial court properly denied the association’s
request for an evidentiary hearing.
The decision of the trial court is affirmed.
In this opinion the other justices concurred.
1
Reverend Cannon was appointed ‘‘[p]riest in [c]harge’’ of Bishop Seabury
Church by the Bishop of the Diocese of Connecticut on February 29, 2008.
2
Bishop Seabury Church is a parish of the Diocese.
3
The Episcopal Church joined this action as a plaintiff by way of a motion
to intervene filed on June 6, 2008, which was granted on June 24, 2008.
4
Reverend Gauss served as an active, ordained priest of the Episcopal
Church and as rector of the Parish prior to his retirement on December
1, 2007.
5
The twelve present or former officers or vestry members are Richard
Vanderslice, Arthur H. Hayward, Jr., Stanley Price, Deborah Gaudette, Kathy
Tallardy, Barbara Stiles, Marion Ostaszewski, Shelley Steendam, Amy
Ganolli, Debra Salomonson, James Conover and Everett Munro. Former
Attorney General Richard Blumenthal also was named as a defendant
because of his ‘‘interest in the protection of any gifts, legacies or devises
intended for public or charitable purposes’’; General Statutes § 3-125; and
he appeared in the case, but neither he nor his successor has participated
in the litigation to date. In the interest of simplicity, we refer to the twelve
officers or vestry members and Gauss collectively as the defendants throughout this opinion.
6
In BNY Western Trust v. Roman, 295 Conn. 194, 203–204, 990 A.2d 853
(2010), we stated that ‘‘General Statutes §§ 52-102 and 52-107 govern the
intervention of nonparties to an action and provide for both permissive
intervention and intervention as a matter of right.’’
General Statutes § 52-107 provides: ‘‘The court may determine the controversy as between the parties before it, if it can do so without prejudice to
the rights of others; but, if a complete determination cannot be had without
the presence of other parties, the court may direct that such other parties
be brought in. If a person not a party has an interest or title which the
judgment will affect, the court, on his application, shall direct him to be
made a party.’’
Practice Book § 9-18 provides in relevant part: ‘‘The judicial authority
may determine the controversy as between the parties before it, if it can do
so without prejudice to the rights of others; but, if a complete determination
cannot be had without the presence of other parties, the judicial authority
may direct that they be brought in. If a person not a party has an interest
or title which the judgment will affect, the judicial authority, on its motion,
shall direct that person to be made a party. . . .’’
7
Apparently, in response to the trial court’s decision denying the defendants’ motion to strike, in which it stated that there was no evidence in the
record that any association had been formed with a legal interest in the
property separate from that of the Parish, the defendants, among others,
unanimously resolved on June 30, 2009, as ‘‘the elected officers and vestry
of . . . Bishop Seabury Church Society’’ that ‘‘Bishop Seabury Church’’ was
a ‘‘religious association’’ established in the 1870s. The resolution further
stated that the association, which consisted of 700 individuals and approximately 280 voting members or adult communicants, was in possession and
control of the ‘‘[c]hurch building and property,’’ was not currently under
the jurisdiction of the court or a party to the ongoing litigation and, because
it was the owner, did not intend to relinquish possession and control of the
property. The resolution also declared that record title was in the name of
the association, there always has been, and there continues to be, only one
religious association known as ‘‘Bishop Seabury Church,’’ the property was
not held in trust for any other entity, including the plaintiffs in the pending
litigation, the entity identified in the litigation as the plaintiff ‘‘Bishop Seabury
Church’’ was not Bishop Seabury Church, neither the members nor officers
of ‘‘Bishop Seabury Church’’ had authorized any other person or entity to
pursue a claim on its behalf as a plaintiff, and the entity identified by the
plaintiffs as ‘‘Bishop Seabury Church Parish’’ was not the entity identified
in the deeds to the property.
8
The plaintiffs filed their motion for summary judgment on July 31, 2009.
The defendants filed their motion for summary judgment on October 15,
2009.
9
Practice Book § 61-11 (a) provides in relevant part: ‘‘Except where otherwise provided by statute or other law, proceedings to enforce or carry out
the judgment or order shall be automatically stayed until the time to take
an appeal has expired. If an appeal is filed, such proceedings shall be stayed
until the final determination of the cause. . . .’’
10
‘‘Intervention as of right provides a legal right to be a party to the
proceeding that may not be properly denied by the exercise of judicial
discretion.’’ BNY Western Trust v. Roman, 295 Conn. 194, 204 n.8, 990 A.2d
853 (2010).
11
We note that, although the association requested permissive intervention
and intervention as of right pursuant to General Statutes § 52-107 and Practice Book § 9-18, the only claim that the association raises on appeal is
that the trial court improperly denied its request to intervene as of right.
Accordingly, we do not consider whether the trial court improperly denied
the motion insofar as the association was seeking permissive intervention.
See, e.g., Rector, Wardens & Vestrymen of Trinity-St. Michael’s Parish,
Inc. v. Episcopal Church in the Diocese of Connecticut, 224 Conn. 797, 808
n.12, 620 A.2d 1280 (1993) (issue not briefed is deemed to be waived).
We also note that the trial court referred only to permissive intervention
in stating in its decision on the motion to intervene that it was ‘‘not inclined’’
to allow intervention. We nonetheless conclude that the trial court’s decision
provided a sufficient basis for the association’s claim on appeal because,
despite the court’s omission of any explicit reference to intervention as of
right, its order denying the ‘‘foregoing motion to intervene by [the association]’’ implicitly refers to intervention as of right as well as permissive
intervention because both were presented by the association as alternative
grounds for the granting of the motion by virtue of its reference to § 52-107
and Practice Book § 9-18, and the plaintiffs do not claim on appeal that the
trial court did not address the association’s request for intervention as
of right.
12
In BNY Western Trust v. Roman, 295 Conn. 194, 207–208 n.12, 990 A.2d
853 (2010), we observed that the court in Kerrigan had determined that
plenary review should be applied to three of the four prongs of the test for
intervention but that Kerrigan had left open the question of which standard
of review should apply to the timeliness prong because that element was
not at issue in Kerrigan. We then stated in BNY Western Trust that, although
we were not required in that case to determine the applicable standard of
review regarding the merits of the trial court’s decision on timeliness, that
prong was central to the final judgment question, and, therefore, plenary
review should be applied to the timeliness prong ‘‘for purposes of the threshold jurisdictional inquiry.’’ Id. Because, as in Kerrigan, we do not reach the
element of timeliness in the present case, we also refrain from addressing
the appropriate standard of review regarding the timeliness prong.
13
In Edwards v. Houston, 78 F.3d 983 (5th Cir. 1996), the Fifth Circuit
Court of Appeals explained that this presumption arises ‘‘when the wouldbe intervenor has the same ultimate objective as a party to the lawsuit.’’
Id., 1005.
14
The association specifically alleged in its motion to intervene: ‘‘The
[a]ssociation and its members (other than those named as defendants) are
not bound by any orders of [the trial] [c]ourt.’’
15
The fact that some of the defendants may no longer hold elected positions in the Parish does not change the fact that their pleadings reflect the
same interests expressed by the association.
16
The association must attack the status of the Parish because it may not
otherwise claim possession and control of the property on behalf of its
members, whose interests they claim are not represented by the Parish.
17
General Statutes § 47-30 provides in relevant part: ‘‘Final judgment shall
not be rendered, in any action to recover the possession of land, against
any defendant who has, in good faith, believing his title to the land in question
absolute, made improvements on the land before the commencement of
the action, or whose grantors or ancestors have made the improvements,
until the court has ascertained the present value of the improvements and
the amount reasonably due the plaintiff from the defendant for the use and
occupation of the land. . . .’’
18
The plaintiffs note that the trial court referred to the ‘‘totality’’ of the
parties’ positions immediately before concluding that it was ‘‘not inclined
to allow permissive intervention,’’ and, accordingly, the court’s use of that
term had nothing to do with its decision regarding intervention as of right.
We take the broader view, however, because we construe the decision as
applying to both types of intervention.
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