1525 Highland Associates, LLC v. Fohl, (AC 19990)

Decision Date10 April 2001
Docket Number(AC 19990)
Citation62 Conn. App. 612,772 A.2d 1128
CourtConnecticut Court of Appeals
Parties1525 HIGHLAND ASSOCIATES, LLC v. GEORGE FOHL ET AL.

Landau, Spear and Daly, JS. John J. Resnik, with whom were Michael C. Forte, and, on the brief, Emily Resnik Conn, for the appellant (plaintiff).

Kevin J. Hecht, with whom, on the brief, was Jeffrey J. Holley, for the appellee (named defendant).

Opinion

LANDAU, J.

The plaintiff, 1525 Highland Associates, LLC, appeals from a judgment rendered by the trial court, following the jury's consideration of interrogatories,1 in favor of the defendant George Fohl.2 In this action, the plaintiff sought equitable relief enjoining the defendant from occupying the subject land, an affirmative injunction requiring the defendant to remove certain structures from the land and a judgment of possession. In its appeal, the plaintiff claims that the court improperly (1) exercised its discretion by (a) permitting the defendant to amend his first special defense of ouster3 and (b) denying the plaintiffs motion to cite in additional parties, (2) charged the jury on the issue of ouster, (3) submitted inappropriate interrogatories to the jury and (4) failed to grant the plaintiffs posttrial motions. We affirm the trial court's judgment.

In its well reasoned memorandum of decision, the court set forth the following facts and procedural posture, which are at the center of the controversy. In the operative complaint, the plaintiff alleged that it was the owner of a parcel of land located in the town of Cheshire, described as parcel A on a certain map, having received title to the land by virtue of a quitclaim deed from Fairfield Clearing Company (Fairfield) dated December 31, 1993. The plaintiff further alleged that the defendant, the owner of adjoining premises, had encroached on a portion of the plaintiffs land. In his special defense, the defendant alleged that the deed conveying the land to the plaintiff was void as to the subject portion of parcel A because the defendant had entered on and possessed the land in such a fashion as to constitute an ouster of the plaintiffs predecessors in title pursuant to General Statutes § 47-21.4

Following the presentation of evidence, the jury found by means of interrogatories that the plaintiff's predecessors in title had been ousted of possession of the portion of parcel A on which the defendant had constructed, in part, a building, a driveway, a parking area, dry wells and underground utilities, and had run overhead utility lines, and that the deed to the plaintiff was void pursuant to § 47-21. The court rendered judgment in favor of the defendant. Following the denial of its posttrial motions, the plaintiff appealed.

I

The plaintiffs first claim is that the court improperly exercised its discretion by (1) permitting the defendant to amend his special defense of ouster on the morning trial commenced and (2) denying the plaintiffs motion to cite in additional parties that was filed in response to the amended special defense. We disagree with the plaintiff.

The following additional facts are necessary for our resolution of this claim. In his initial responsive pleading to the plaintiffs complaint, the defendant alleged the following special defense: "All claims of the plaintiff... are without any right whatever and were and are extinguished and barred pursuant to [General Statutes §] 47-21." Pursuant to the plaintiffs request to revise, the defendant amended the special defense by a pleading dated November 7, 1995, alleging that "[a]ll claims of the plaintiff ... are without any right whatever and were and are extinguished and barred pursuant to ... § 47-21, in that the plaintiffs immediate predecessor in title was ousted of possession by the plaintiffs further predecessor in title, Rodney R. Reinhard, by virtue of a contract for sale and subsequent conveyance between... Reinhard and the defendant herein, all of which occurred on and prior to February 1, 1985, and as such the conveyance to the plaintiff subsequent thereto was void."

On July 16, 1999, as the trial was beginning, but before jury selection had begun, the defendant filed a request for leave to file a second revised answer, special defenses and counterclaim.5 The defendant's amended special defense alleged in pertinent part that "[a]ll claims of the plaintiff ... are without any right whatever and were and are extinguished and barred pursuant to ... § 47-21, in that the plaintiffs immediate predecessor in title Fairfield Clearing Company, and the plaintiffs further predecessors in title Rodney R. Reinhard and Marion F. Reinhard, had been ousted of possession of a portion of the premises in question by the possession thereof by the defendant from April, 1985, through December 31, 1993, and continuing, and as such the purported conveyance to the plaintiff as to the portion of the premises occupied by the defendant was void."

A

The plaintiff claims that the court improperly permitted the defendant to amend his special defense. The plaintiff had objected to the request to amend the special defense on the ground that it would be prejudiced because the amendment interjected new facts into the case, and, therefore, additional parties would have to be cited in if the amendment were allowed. The court overruled the objection and permitted the amendment, concluding that the issue of ouster had been in the case from the beginning and did not come as a surprise to the plaintiff.6 We agree with the trial court. "Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court's ruling on a proposed amendment unless there has been a clear abuse of that discretion.... But unless there is some sound reason for denying permission to amend in order to remedy mispleading, [a request to do so] should be granted." (Internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 369, 659 A.2d 172 (1995).

In this case, the court reviewed the proposed amendment, heard argument and was knowledgeable about the standard applicable to the granting of requests to amend. Although the request contained additional factual information, allowing the amendment did not prejudice the plaintiff. See Goodrich v. Diodato, 48 Conn. App. 436, 443, 710 A.2d 818 (1998) (defendant sufficiently apprised court of special defense of ouster even though statute not alleged). The court also was aware that during the four years that the litigation had been pending, the plaintiff had deposed the defendant and Reinhard, their common grantor. In ruling to allow the amendment, the court properly noted that although the defense of ouster need not be specially pleaded; see Stevens v. Smoker, 84 Conn. 569, 573, 80 A. 788 (1911); evidence of ouster may be admitted to defeat the plaintiffs claim. We therefore conclude that the court properly exercised its discretion in granting the defendant's request to amend.

B

The plaintiff next claims that the court abused its discretion by denying its motion to cite in additional parties following the court's granting of the defendant's request to amend the special defense. The plaintiff sought to cite in Reinhard, Marion Reinhard, Fairfield Clearing Company and the successor to Union Trust Company (Union Trust) as "necessary or indispensable parties." "Parties are considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be ... inconsistent with equity and good conscience.... Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action].... Necessary parties, in contrast, are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it.... [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties." (Internal quotation marks omitted.) Raph v. Vogeler, 45 Conn. App. 56, 59, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997).

On appeal, the plaintiff does not contend that the parties it sought to cite in were indispensable parties. The plaintiff argues, however, that they are necessary parties under Morehouse v. Wood, 93 Conn. 113, 105 A. 349 (1918), because they were the ousted grantors and still had a possessory interest in the land.7 The plaintiff misapprehends Morehouse. In Morehouse, our Supreme Court stated: "In this State, and elsewhere, it is a recognized principle of law that the grantee under such a void deed may, in the name of his grantor, sue for and recover possession of land from one who unlawfully ousted his grantor, or such grantor may sue and recover possession upon his own motion." Id., 115-16. The plaintiff here, as the grantee of the deed in question, was fully empowered under the law to recover possession of the portion of the land in question as if it stood in the shoes of all the parties it claimed were necessary. Thus, there was no need for the trial court to cite in the Reinhards, Union Trust or Fairfield Clearing Company to assert possessory rights that the plaintiff was legally empowered to assert.8

"The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court. ...

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