138 Conn. App. 278
Conn. App. Ct.2012Background
- 1975 land swap between defendant’s and plaintiffs’ predecessors; Perry prepared the Pine Brook Manor survey
- Pine Brook Manor survey dated June 23, 1975, with map; the description is ambiguous and does not form a closed geometric shape
- Deeds to both parcels have referred to the Pine Brook Manor survey since completion
- Plaintiffs took title in 1994; defendant took title in 2006; litigation under § 47-31 to quiet title
- Clarke (plaintiffs’ surveyor) and Stefanik (defendant’s surveyor) presented conflicting methods; court adopted Clarke’s boundary
- Appeal challenges (1) trial findings of fact, (2) evidentiary rulings regarding Clarke’s testimony and the survey; the trial court’s judgment for plaintiffs was affirmed
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standards for reviewing boundary findings | Chebro-Curtin asserts Clarke’s method supported boundary | Audette claims findings favor Clarke are erroneous | Findings upheld; not clearly erroneous |
| Admission of Clarke’s survey as a business record | Clarke’s survey admissible as business record | Objection was not properly preserved | Claim not preserved; no reversal |
| Clarke’s qualification to testify about the survey | Clarke qualified; resume admitted without objection | Clarke lacked firsthand knowledge | Court did not abuse discretion; expert qualifications established |
| Admissibility of Clarke’s testimony about a survey signed by another (Peterson) | Testimony based on Clarke’s firm’s work; admissible as expert | Clarke not qualified to testify about third-party survey | Testimony permissible; weight for the court to decide |
| Weight given to competing surveys and monuments | Clarke relied on known monuments and map; credible | Stefanik relied on different data; should be preferred | Court's adoption of Clarke’s line affirmed |
Key Cases Cited
- Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750 (1996) (standard for factual findings binding unless clearly erroneous)
- Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769 (1997) (deed interpretation when ambiguity exists is factual for trial court)
- Schwartz v. Murphy, 74 Conn. App. 286 (2002) (map incorporated by reference into deed)
- Riscica v. Riscica, 101 Conn. App. 199 (2007) (credibility and weighing of witnesses; limits on retrial on appeal)
- Palmieri v. Cirino, 90 Conn. App. 841 (2005) (expert testimony credibility; weight versus admissibility)
- Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48 (1998) (expert testimony qualifications; weight determinate)
- State v. Bush, 249 Conn. 423 (1999) (preservation of evidentiary objections; reviewing standard)
- Dooley v. Leo, 184 Conn. 583 (1981) (trial court credibility and fact-finding; not reviewable on appeal)
- Frank Towers Corp. v. Laviana, 140 Conn. 45 (1953) (monuments prevail over courses and distances)
- Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503 (1971) (boundary description interpretations; deference to trial court)