13 Conn. App. 101 | Conn. App. Ct. | 1987
This is an action to quiet title to a three and one-half acre parcel of land, which is surrounded in part by land owned by the plaintiff and in part by land owned by the defendant’s decedents. The defendant is the administrator of the estates of his deceased parents. The plaintiff’s revised complaint alleged that he had record title.
On appeal, the plaintiff claims that the trial court erred (1) in failing to comply with the provisions of General Statutes § 47-31 in its determination of record title, (2) in concluding that the defendant had sufficiently shown all the elements necessary to find adverse possession, (3) in rendering an inconsistent judgment of record title and title by adverse possession, and (4) in admitting certain hearsay statements. We find error.
I
The defendant argues, as a preliminary matter, that the plaintiff’s claims based upon the application of General Statutes § 47-31
There is, however, a significant difference between the quiet title action involved here and the action involved in Gionfriddo. In all actions to quiet title, there is a single statute, General Statutes § 47-31, which is
Also, the relief afforded by the action to quiet title is a full determination of the rights of the parties in the land. Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967). Therefore, despite the plaintiff’s failure to plead § 47-31 of the General Statutes, the defendant was given clear notice by the allegations as stated in the complaint and by the relief requested in it, that the plaintiff’s suit was an action to quiet title to the land in question. Moreover, the defendant admitted at oral argument that at all times throughout the proceedings he was aware that the action was one to quiet title.
We conclude that when the plaintiff filed his complaint seeking a judgment settling the title to the land in dispute, he invoked the remedy provided in General Statutes § 47-31. See Foote v. Brown, 78 Conn. 369, 377, 62 A. 667 (1905) (referring to then General Statutes § 4053, which is now § 47-31 of the General Statutes). In Rowe v. Godou, 12 Conn. App. 538, 542, 532 A.2d 978 (1987), this court held that “the requirement of Practice Book § 109A is directory, rather than mandatory.” As a result, the plaintiff’s failure to plead specifically the statute will not, in this case, bar his claims under § 47-31 from effective appellate review.
II
We next address the plaintiff’s claim that the trial court’s judgment for the defendant on counts one and
The defendant argues that the plaintiff may not now complain of the trial court’s judgment for the defendant on both counts since the plaintiff did not move to strike either count of the counterclaim on the ground of inconsistency nor did he make a motion to compel an election by the defendant at trial. The defendant’s argument is flawed, however, because of our liberal rules of practice. Even if either motion had been made, the plaintiff would not have succeeded in having either of them granted. At common law, pleadings had to be direct and certain and, therefore, alternative allegations in a single pleading were not allowed. In Connecticut, however, a party may plead in the alternative, both sets of allegations appearing in the same pleading. Under Practice Book §§94 and 137, a plaintiff is allowed to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint. Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985). Similarly, a defendant may advance alternative and even inconsistent theories of liability against the plaintiff in a counterclaim made pursuant to Practice Book § 116.
While alternative and inconsistent pleading is permitted, there is a limitation of good faith upon its use. Case law suggests that alternative pleading is justified only when the pleader does not know all the facts necessary to make an election. Dreier v. Upjohn Co., supra, 246. In the present case, although the defendant had only a single right to recover on his counterclaim, he was apparently uncertain, at the time he drafted his
The defendant next argues that since there is nothing inconsistent with the claims that his decedents had record title and also had adversely possessed the property, there is nothing wrong with the trial court’s ruling in favor of the defendant on both counts of the counterclaim. We disagree and hold that the judgment of title by deed and title by adverse possession is inherently inconsistent.
A person who claims title by deed is claiming that he has good record title which entitles him, in an action to quiet title, to a judgment of ownership. Loewenberg v. Wallace, 147 Conn. 689, 698, 166 A.2d 150 (1960). Conversely, a person who claims title by adverse possession is claiming that although he does not have record title, his proof of possession which is adverse, open, notorious and continuous for the entire statutory period entitles him, in an action to quiet title, to a judgment of ownership. Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976); Schlough v. Ruley, 1 Conn. App. 119, 120, 468 A.2d 1272 (1983).
A duty of construction is placed upon the trial court whenever a party pleads inconsistent theories of recovery. Dreier v. Upjohn Co., supra, 246. Although a party may plead, in good faith, inconsistent facts and theories, a court may not award a judgment on inconsistent facts and conclusions. A judgment, read in its entirety, must admit of a consistent construction. Riley v. Liquor Control Commission, 153 Conn. 242, 245, 215 A.2d 402 (1965); Harrison v. Union & New Haven Trust Co., 147 Conn. 435, 439, 162 A.2d 182 (1960). Where a party is entitled to only a single right to recover, it is the responsibility of the trial court to determine which of the inapposite sets of facts the party has proved, and then to render judgment accordingly.
The trial court found for the defendant on count one of the counterclaim, which means that the court must have found record title to be in the defendant’s decedents. The court also found for the defendant on count two of the counterclaim, which means that the court must not have found record title to be in the defendant’s decedents. As a result, the trial court’s judgments on the defendant’s counterclaims are inconsistent.
Ill
The defendant argues that even if the judgment on both counts of the counterclaim was inconsistent, reversible error did not occur. The defendant’s argument is based upon his theory that the “general verdict rule” should apply. He claims that judgment on both counts requires that it be sustained if either count
In his brief, the defendant further argues that “the concept and principles of the general verdict are equally appropriate to this trial,” because a decision by the trial court without a jury may be a “verdict,” citing Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 306, 472 A.2d 316 (1984). We disagree. In Gionfriddo, the trial court’s determination that the proper interpretation of a state statute necessitated the
There are several reasons why we must hold the trial court’s rendering of the inconsistent judgments to be harmful error. Probably the most persuasive reason for finding reversible error is that the mere fact that the trial court found record title and title by adverse possession to be in the defendant’s decedents, brings to our attention the fact that the trial court failed to apply General Statutes § 47-31 and the relevant interpretive case law to the facts before it. In its memorandum of decision, the trial court stated that for the same reasons for not finding the plaintiff to have record title, the defendant’s decedents were found to have record title. Under General Statutes § 47-31, the party attempting to prove record title must prevail on the strength of his own title and not upon the weaknesses of his adversary. Pepe v. Aceto, 119 Conn. 282, 288, 175 A. 775 (1934). The memorandum of decision merely recites that record title is in the defendant “for the reasons that I have already given.” Such reasons cannot form both the basis for finding against the plaintiff on his complaint and in favor of the defendant on the first count of the counterclaim.
Also, the lack of finding of subordinate facts which will support a claim of record title in the defendant’s decedents is contrary to the mandate of General Statutes § 47-31 (f) that the court “shall . . . render judgment determining the questions and disputes and
Furthermore, the trial court did not find that the defendant’s decedents had adversely possessed the property by “clear and convincing evidence.” Sands Associates v. Kios, 6 Conn. App. 84, 503 A.2d 179 (1986). There also was no evidence that the defendant’s decedents had continuously possessed the property for any uninterrupted fifteen-year period, nor any evidence that they had occupied the entire parcel of the property. Such proof is necessary. Roche v. Fairfield, 186 Conn. 490, 442 A.2d 911 (1982). Therefore, the evidence as to the circumstances and conduct of the parties falls short of a standard required by our courts for adverse possession. The trial court’s conclusion of adverse possession violates the law and cannot stand. See Boland v. Catalano, 202 Conn. 333, 337, 521 A.2d 142 (1987); Delfino v. Vealencis, 181 Conn. 533, 543, 436 A.2d 27 (1980).
Where a decision ignores a clearly applicable statute, as it does here, it is contrary to the law and cannot stand. Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert, denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980); Pelletier v. White, 33 Conn. Sup. 769, 772, 371 A.2d 1068 (1976). Moreover, the erroneous failure to apply relevant law was material to the case. See Johnson v. Zoning Board of Appeals, 156 Conn. 622, 624, 238 A.2d 413 (1968).
IV
Although a new trial is necessary, we will discuss the evidentiary issue of the admission of claimed hearsay statements because it is likely to arise at the new trial. State v. Vinal, 198 Conn. 644, 652-53, 504 A.2d 1364 (1986).
The plaintiff claims that the trial court erred in admitting four hearsay statements into evidence. The hearsay statements objected to were: (1) the testimony of Robert Esposito that his father, Pasquale Esposito, Sr., now deceased, showed him the boundaries of the property when Robert Esposito was a boy; (2) the testimony of Robert Esposito that his father and mother told him of the historical use of the travelway which led to a bar-way in a stonewall; (3) the further testimony of Robert Esposito as to what his father told him of the use of land to the north of the stonewall; and (4) the testimony of Pasquale Esposito, Jr., and Robert Esposito that their father told them that the plaintiff and a third person came to the premises approximately thirty years ago and asked if they could buy “that triangle to straighten their boundary out.” The plaintiff argues that under General Statutes § 52-172 and interpretive case law, these statements were inadmissible. We agree.
General Statutes § 52-172 governs the admissibility of a deceased party’s statements. Section 52-172 provides in pertinent part: “In actions by or against the representatives of deceased persons . . . declarations
Although the first three factors are present here, the fourth factor concerning lack of interest in misrepresenting the truth is not present. “ ‘By “no interest to misrepresent” is meant freedom from selfish motive or self-interest, or personal advantage; disinterested not merely in the sense of having no pecuniary interest, but in the broader sense of being absolutely impartial and indifferent to the controversy on trial. . . . From earliest times we have excluded the declaration of the deceased owner of land as to his own boundary, for the reason that he was interested, and so the source of his title would forbid confidence to be placed in it. . . . For like reason, we have held similar declarations of one from whom the claimant derives title, to be inadmissible.’ Turgeon v. Woodward, supra, 542.” Putnam, Coffin & Burr, Inc. v. Halpern, supra. Each of the statements of Pasquale Esposito, Sr., deceased, to his sons Robert Esposito and Pasquale
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.
A second count of the plaintiffs revised complaint alleged title by adverse possession. That count was withdrawn.
General Statutes § 47-31 provides in pertinent part: “action to settle TITLE OR CLAIM INTEREST IN REAL OR PERSONAL PROPERTY, (a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff,
Practice Book § 109A provides: “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.”
Although it is unclear from the trial court’s memorandum of decision whether or not it had specifically found for the defendant on the claim of adverse possession, the judgment file, which the trial court personally signed, made it clear that the court ruled in favor of the defendant on the second count of the counterclaim as well as on the first count.
In Dreier v. Upjohn Co., 196 Conn. 242, 246, 492 A.2d 164 (1985), our Supreme Court stated: “ ‘Our laws formerly cast on the plaintiff the duty of construing his rights with respect to the form in which they ought to be brought before the court, and the relief to which he might be entitled, at the risk of losing everything if he mistook his remedy. The Practice Act enables him, in a case like the present, to throw this duty of construction upon the court. It is enough for him to tell his story as plainly and concisely as may be, and to state the different kinds of relief, one of which he thinks he may fairly claim.’ Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 564, 29 A. 76 (1893).”
In Bond v. Benning, 175 Conn. 308, 398 A.2d 1158 (1978), a trial court’s finding of ownership by record title was upheld in a case where the trial