2007 Ct. Sup. 21447
No. CV 04 4000003SConnecticut Superior Court Judicial District of Litchfield at Litchfield
December 12, 2007
MEMORANDUM OF DECISION
JOHN W. PICKARD, JUDGE.
The plaintiff, Roger Simon, has brought this action against the defendant, Harold E. Cole, to quiet title to property in Woodbury, Connecticut, a portion of which both parties claim to own. This case is companion to John A. Lovetere et al. v. Harold Cole, Docket No. CV 04-009254S which is also a quiet title action by adjoining property owners against the same defendant. The plaintiffs have moved for summary judgment on their complaint. The parties have submitted documents and affidavits in support of their positions. Based on this information, there remains a genuine issue of material fact. For this reason, and the reasons that follow, I conclude that the plaintiffs’ motion for summary judgment must be denied.
“The rule for granting motions for summary judgment is set forth in Practice Book § 17-49. Summary judgment is to be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” Barlow v. Palmer, 96 Conn.App. 88, 90 (2006).
“All actions to determine record title of and interest in real property are governed by General Statutes § 47-31. The statute requires that the complaint in such action describe the property in question, state the plaintiff’s claim, interest or title and the manner in which the plaintiff acquired the interest, title or claim, and it must also name the person or persons who may claim the adverse interest or estate. General Statutes § 47-31. The burden of proof in this case is on the plaintiff to prove that the boundary is where he claims it to be. The plaintiff is required to prevail on the strength of his title and not on the weakness of his adversary’s claim.” Koennicke v. Maiorano, 43 Conn.App. 1, 9-10 (1996) (citations omitted).
The plaintiffs’ complaint alleges that in 1986 they acquired an 86.128-acre parcel of land in Woodbury which is described in the deed CT Page 21448 attached to the complaint. The plaintiffs allege that the defendant claims estates or interests in the Cole property which are adverse to the plaintiffs’ record title and possession. The defendant’s answer states that in 1984 he acquired a 56.29-acre parcel of land in Woodbury from the estate of Ralph Talarico which was shown on a survey prepared by Henry Hart, LRS, which inaccurately described the westerly boundary. The defendant further alleges that in 2003, presumably to correct the allegedly inaccurate map, he obtained from the estate of Ralph Talarico an adjoining parcel of land in Woodbury which encompasses a 39.9-acre portion of the land claimed by the plaintiffs (“disputed parcel”). The defendant also claims an interest in a right of way across the plaintiff’s property.
The plaintiffs have supported their motion for summary judgment with their own affidavit and with affidavits from two expert witnesses: 1) Robert R. Moran, an attorney title searcher who has searched the chains of title to the Cole and Talarico properties; 2) Henry W. Hart, a surveyor and civil engineer who has surveyed the property of both parties as well as several surrounding properties; and 3) Robert C. Sterling, a surveyor who surveyed the plaintiffs’ property in 2003. These affidavits establish the following facts, none of which are challenged by the defendant.
Ralph Talarico acquired, between approximately 1945 and 1957, several parcels of land totaling approximately 135 acres (“Talarico Farm”). During his life Mr. Talarico conveyed a number of small lots from the Talarico Farm to family members and other individuals who built residences primarily along Quanopaug Trail and Route 6, the two highways that bordered the Talarico Farm. After the death of Mr. Talarico, his estate continued to sell additional parts of the Talarico Farm. In 1980 the Estate of Ralph Talarico caused a survey to be made of the unsold portions of the Talarico Farm. The survey was made by Henry W. Hart, the same surveyor who provided the affidavit to the plaintiffs. That survey depicts a large portion of the farm to be contained in Lot 1 containing 72.80 acres. The westerly boundary of Lot 1 along properties of James F. Bragg, Helen F. Pesents, and Genevra F. Bragg is shown as based upon a class D assessor’s map survey. The Estate of Talarico was attempting to save money on surveying costs and did not authorize an A-2 survey of the western boundary of the farm.
This survey was redrawn in 1983 after the sale of another lot and showed the acreage of Lot 1 to now be 68.30 acres. The westerly boundary is unchanged. By contract dated June 26, 1984, the defendant contracted to purchase from the Estate of Talarico the 68.30 acres shown on this map. CT Page 21449
After execution of the real estate contract, but before closing, it came to the attention of the defendant that the parcel he was acquiring might not, in fact, be 68.2 acres in size. Accordingly, the defendant reached agreement with the estate of Talarico that the western boundary of the property would be surveyed to A-2 standards and the acreage adjusted if necessary. The Estate of Talarico hired Henry W. Hart to perform the survey. Mr. Hart completed the survey and drew a new map which reflected the A-2 western boundary and that the property in fact consisted of 56.29 acres.
On December 5, 1984 the defendant acquired the 56.29 acres by Executor’s Deed. This deed describes the property in reference to the survey and recites a metes and bounds description including the line marking the westerly boundary running along the boundary now or formerly with Helen Pesents, James F. Bragg and Genevra F. Pesents. The defendant accepted this deed and recorded it and the survey on the Woodbury land records.
At some point in time after the 1984 closing, the defendant became concerned with the accuracy of the western boundary of the property he had acquired. The defendant believed that the western boundary should have been located by the surveyor, Henry W. Hart, further west than it is shown on the survey described in his deed. In 1992 the defendant retained Bradford E. Smith Son, a surveying company in Woodbury, to research the land records and do field work to locate the western line of the property the defendant had purchased from the Estate of Talarico. In January 1993 Bradford E. Smith Son presented to the defendant a written report which concluded that the western boundary line of the parcel acquired from the Estate of Talarico in 1984 “appears to be a reasonable depiction of your western boundary line.”
Apparently the defendant remained unconvinced that surveyors Hart and Bradford were correct about the location of the westerly boundary of the Talarico Farm. In 2002 the defendant retained the services of: 1) Robert Bolte, a non-lawyer title searcher: 2) Meyers Associates, P.C., a surveying firm from Waterbury; and 3) Walter Robillard, a Georgia lawyer and surveyor. On April 10, 2002, the Estate of Ralph Talarico and the defendant entered into a contract to purchase 12 acres, more or less, which the defendant believed the Estate continued to own along the westerly line of the 56.29-acre parcel purchased by the defendant in 1984. The contract provided that the property to be sold would be further described pursuant to a survey being prepared by Myers Associates, P.C. CT Page 21450
After completion of the Meyers survey, the Estate of Talarico purported to sell by Executor’s Deed dated June 24, 2003, not 12 acres, but 37.9 acres as shown on a map prepared by Meyers Associates, P.C. This map shows the easterly line of the 37.9 acres as identical to the western boundary of the 56.29-acre parcel acquired by the defendant in 1984. The entire 37.9 acres is shown as lying westerly of the 56.29-acre parcel. It is this 37.9 acres which constitutes the “disputed parcel” because it encroaches on the property of the plaintiffs and the property of John A. Lovetere and Nancy D. Lovetere, the plaintiffs in the companion case.
The affidavit of Attorney Robert R. Moran, Jr. sets forth the chains of title of the plaintiffs and the defendant. They are entirely separate chains of title until the purported receipt by the defendant of the 37.9-acre “disputed parcel” in 2004. Attorney Moran’s affidavit sets forth each conveyance to Ralph Talarico which formed the Talarico Farm consisting of approximately 134.5 acres. The affidavit also sets, in laborious detail, each conveyance from Mr. Talarico and from his estate, most of which have A-2 surveys. The total acreage shown on these deeds is 135.6 acres. It is Attorney Moran’s opinion that by 2003, before the purported conveyance of the “disputed parcel” to the defendant, the entire Talarico Farm had been conveyed. Attorney Moran is of the “firm and certain opinion that neither Ralph Talarico nor his Estate ever owned” the disputed parcel. Attorney Moran continues: “Accordingly, the Talarico Estate’s purported conveyance of the Disputed Property in 2003 is a nullity, and Harold Cole acquired no record title in the Disputed Property by virtue of that purported conveyance.”
The affidavit of Henry W. Hart affirms the opinions of Attorney Moran. Mr. Hart adds the information that he has surveyed all of the parcels that were sold by Ralph Talarico or his estate and that they have a total acreage of 135.6 acres.
Both of the plaintiffs’ experts opine that the defendant does not have record title to the disputed parcel, and that the plaintiffs do have record title to the disputed parcel. The defendant does not have an expert opinion that he has record title to the disputed parcel. He concedes the accuracy of all of the title search work offered by the plaintiffs. The defendant argues that it is the location of common boundary line “on the ground” which he disputes. He argues that there remains a genuine issue of fact as to the location of the boundary line based upon his affidavits and supporting documents. In summary, his argument is that the westerly boundary of the Talarico Farm runs generally along a “trail” and that the maps drawn by Mr. Hart mistakenly show it running along the wrong trail. The defendant argues that the CT Page 21451 boundary actually ran along a trail which is located a substantial distance westerly of the trail depicted on the Hart maps.
First, the defendant offers an affidavit from Robert Bolte, an experienced non-lawyer title searcher. Mr. Bolte performed title searches of the southerly and westerly portion of the Talarico Farm, first to determine if those chains were good chains, and second to discover such monumentation, descriptions, and other relevant references in the deeds which could then be used by a surveyor to locate the western boundary in the field. He never performed a full search of the entire Talarico Farm. He provided his work to the defendant for use by other professional engaged by the defendant.
The next affidavit is from James Terrence Meyers, a surveyor with Meyers Associates. Mr. Meyers was engaged by the defendant to utilize Mr. Bolte’s title work to locate monuments referred to in the various deeds in order to prepare a survey. Mr. Meyers prepared an A-2 survey which shows the 39.9 acres constituting the disputed parcel. The map identifies the property as “Property claimed by Harold Cole as part of Talarico Farm.” (Emphasis added). Neither the map nor the affidavit of Mr. Meyers contains an opinion that the defendant is the owner of the disputed parcel.
The defendant’s final affidavit is from Walter G. Robillard, who is an attorney admitted to practice in Georgia, as well as a surveyor registered in North Carolina, South Carolina and Florida. He has nearly 60 years of surveying and legal experience. Attorney Robillard does not express an opinion about who owns the disputed parcel. He does, however, opine that there is a genuine issue of fact as to the location of the boundary.
The explanation of the defendant’s claim that there is a genuine issue of fact is set forth in his brief as supplemented by deposition transcripts from R. Frank Talarico and various deeds. R. Frank Talarico is the son of Ralph Talarico and is his executor. The portions of the transcript of his deposition provided to the court are far from clear. But, it does appear that he believes that the westerly boundary of the Talarico Farm was farther west than it is shown on Mr. Hart’s map of the 56.29 acres which he sold to the plaintiffs in 1984. He also said that he thought the boundary was near where there was a “spring,” “pond,” or “little spring hole.” The defendant refers to deeds in the chain of an adjoining property which Mr. Bolte says adjoined the southwesterly corner of the Talarico Farm. These deeds contain a reference to it being the “Pond lot so-called.” The defendant asks that the court draw the conclusion that this reference to a Pond lot is the same “pond” or CT Page 21452 “spring” referred to by Mr. Talarico. The defendant also refers to a 1948 survey of a portion of an adjoining property line which shows a “dam” near the boundary line for support for his position that the westerly boundary of the Talarico Farm was near a pond with a dam. Mr. Bolte’s affidavit states that there is a stream which is located slightly west of the trail which the defendant claims as his westerly boundary. From these references the defendant asks the court to conclude that there is evidence supporting his theory that the westerly boundary on the Talarico Farm is inaccurately shown of Mr. Hart’s map which was used as the basis for his 1984 purchase of 56.29 acres.
The evidence produced by the plaintiffs is extensive and is more than sufficient to satisfy their initial burden: opinions from three experts plus documentation of confirmation by a fourth. “[W]here the testimony of witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely on the opinions of experts to resolve the problem and it is the court’s duty to accept that testimony or evidence which appears more credible.” Matthews v. Magy Bros. Construction Co., 88 Conn.App. 787, 793 (2005).
The defendant, on the other hand, has no expert opinion. The title documentation submitted by the defendant requires the court to use inference to reach the conclusion suggested. But, expert opinion is not necessary in an action to quiet title. Summary judgment cannot be granted if the opposing party brings forward evidentiary facts or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can be inferred. Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn.App. 162, 168-69 (1992) (citations omitted). Here, the facts submitted by the defendant are sufficient to entitle the trier of fact to conclude that the boundary line drawn by Mr. Hart in 1984 was in error and that the Estate of Talarico unknowingly retained property which was conveyed to the defendant in 2003. The defendant has met his burden of demonstrating the existence of a genuine issue of material fact.
The test for granting summary judgment is whether a trial court would grant a directed verdict on the same evidence. Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 588, n. 10 (1996). Here, there is a genuine issue of material fact, which only the trier of fact can weigh, and the court would be unable to granted a directed verdict on the same evidence. A motion for summary judgment is not the proper place to weigh the evidence.
Although the motion for summary judgment must be denied, the issue in CT Page 21453 dispute is extremely limited. The trial of this case need not be lengthy. The parties will be assigned a date for a status conference at which time a prompt trial date will be selected. CT Page 21454