98 Lords Highway, LLC v. One Hundred Lords Highway, LLC

• Decision Date: 23 October 2012
• Docket Number: No. 33192.,33192.
• Citation: 138 Conn.App. 776,54 A.3d 232
• Court: Connecticut Court of Appeals
• Parties: 98 LORDS HIGHWAY, LLC v. ONE HUNDRED LORDS HIGHWAY, LLC, et al.

138 Conn.App. 776

54 A.3d 232

98 LORDS HIGHWAY, LLC

v.ONE HUNDRED LORDS HIGHWAY, LLC, et al.

No. 33192.

Appellate Court of Connecticut.

Argued Feb. 6, 2012.

Decided Oct. 23, 2012.

Thomas L. Kanasky, Jr., Bridgeport, for the appellants-cross appellees (plaintiff and counterclaim defendant Alexander Klokus).

Edward T. Krumeich, Greenwich, for the appellee-appellant (defendant Gary J. Gubner).

Mark J. Kovack, Westport, for the appellees-appellants (substitute defendant Victoria R. Fash Living Trust et al.).

BEACH, SHELDON and FLYNN, Js.

FLYNN, J.

The counterclaim defendants, 98 Lords Highway, LLC (the LLC), and Alexander Klokus, appeal from the judgment of the trial court, rendered after a court trial, in favor of the counterclaim plaintiffs, Gary J. Gubner, ¹ Victoria R. Fash ² and Katherine DeSousa,³ in an action to quiet title under General Statutes § 47–31. On appeal, the counterclaim defendants claim that the trial court erred in (1) quieting title in the absence of a necessary party; (2) allowing Fash and DeSousa to continue as counterclaim plaintiffs based only on their answers to the withdrawn complaint; and (3) not requiring the counterclaim plaintiffs to amend their pleading after Klokus was joined as a counterclaim defendant. Gubner also cross appeals, claiming that the court improperly denied his claim of title by adverse possession to land that lies fifteen feet beyond the fence line opening shown on the survey done by Richard Meehan. We affirm in part and reverse in part the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant on appeal. The counterclaim plaintiffs are neighbors, each owning in fee simple a separate lot that abuts the LLC's property.⁴ The LLC, in part, claimed to own a portion of each counterclaim plaintiff's lot, specifically, the portions of the properties that are located in an area along the western side of the LLC's property, each ranging from between twenty and forty feet in width.

On April 7, 2006, the LLC filed the initial action to quiet title under General Statutes § 47–31(b) against the then defendants, Gubner, Fash, DeSousa, William N. Derraugh, Angelo DeCaro, Mortgage Electronic Registration Systems, Inc., One Hundred Lords Highway, LLC, and 102 Lords Highway, LLC. ⁵ The LLC claimed ownership in fee simple and possession of 98 Lords Highway, Weston, by virtue of a quitclaim deed recorded on April 15, 2003 at volume 343, page 750, of the Weston land records, absolute title in fee simple to the woodland lot, recorded in volume 29, page 660, and volume 28, page 401, of the Weston land records, and title to and ownership of a parcel of land on a map entitled “Perimeter Survey Prepared for Ranald McNeil, Formerly the Estate of Edith Gifford, Lords Highway, Weston, Connecticut,” dated January 7, 2003, record map number 3640 in the Weston land records, which were adverse to the title of the named defendants, including the counterclaim plaintiffs. The LLC filed an amended complaint on June 22, 2006, which subsequently was amended further.

Gubner filed his answer, denying the allegations of the plaintiff's complaint and raising eleven special defenses, two counterclaims, and one cross claim. Specifically relevant to his appeal, Gubner filed a counterclaim under § 47–31 seeking to quiet title to the portion of his lot that abutted the LLC's land, and he also claimed ownership by adverse possession of an area of land that lies fifteen feet beyond the opening of the fence line shown on the Meehan survey. The LLC specifically denied all of Gubner's special defenses, as well as the counterclaims set forth in his answer and reply.

Fash filed her answer on November 2, 2006, which contained specific denials of the allegations of the plaintiff's complaint and ten special defenses. She subsequently filed an amended answer on November 28, 2006, to add three additional special defenses. Fash's responsive pleading did not contain any specifically identified counterclaims, but Fash's ad damnum clause “pray[ed] that judgment enter on the Second Amended Complaint in her favor, upholding and/or quieting all of her titles, rights and/or interests to and in the real property identified in paragraph nos. ‘5’ and ‘6,’ above, pursuant to ... [§] 47–31....” The LLC replied by generally denying Fash's special defenses on January 5, 2007.

On March 19, 2007, DeSousa filed her answer, along with fourteen special defenses, one counterclaim alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., against the LLC, as well as one cross claim for a violation of CUTPA against One Hundred Lords Highway, LLC, and 102 Lords Highway, LLC. The LLC filed its reply and answer to DeSousa's answer, denying all allegations related to her special defenses, as well as specifically denying the allegations of her counterclaim.

On August 31, 2010, the LLC filed a withdrawal of its complaint without prejudice with respect to all of the defendants.⁶ The withdrawal was filed only two days before trial was to commence. Robert Walpuck, the sole member of the LLC, filed a release of lis pendens on the counterclaim plaintiffs' properties. Gubner's counterclaim to quiet title survived the withdrawal as a pending counterclaim and, over the LLC's objection, the trial court construed the answers and special defenses filed by Fash and DeSousa as counterclaims as well, and those counterclaims also survived the withdrawal of the complaint.

On September 1, 2010, the LLC conveyed by warranty deed all of its interest in 98 Lords Highway to Klokus.⁷ The court learned of this transfer on September 8, 2010, approximately one week after evidence was slated to begin. The court subsequently ordered notice of this case to the new titleholder, Klokus. On approximately September 15, 2010, Klokus was added as a counterclaim defendant, and the trial then proceeded to its conclusion. On September 30, 2010, DeSousa filed a withdrawal of her cross claim and her CUTPA counterclaim, noting, however, that she was not withdrawing her quiet title counterclaim. That same day, Gubner filed a withdrawal of his CUTPA cross claim and counterclaim.

The court specifically found that each of the three counterclaim plaintiffs had satisfied the elements of the Marketable Record Title Act by credible evidence and, as such, had good and marketable title in fee simple to their respective lots, including the areas originally claimed by the LLC. Furthermore, the court found in favor of the counterclaim defendants on Gubner's claim of adverse possession as to fifteen feet of land beyond the fence line. The counterclaim defendants appeal from the court's judgment quieting title in the counterclaim plaintiffs, and Gubner cross appeals from the judgment denying his claim of adverse possession as to fifteen feet of land beyond the fence line of his deeded property. Additional facts will be set forth as necessary.

I

The counterclaim defendants first claim that the trial court lacked subject matter jurisdiction to quiet title in the land of the three counterclaim plaintiffs in the absence of a necessary party, Robert Muller. We disagree with the counterclaim defendants and conclude that the court had subject matter jurisdiction to adjudicate the matter brought before it.

We begin by setting forth our well established standard of review. “A determination regarding a trial court's subject matter jurisdiction is a question of law. When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 127–28, 836 A.2d 414 (2003). “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it....[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction....” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003).

A

The counterclaim defendants argue that the court lacked subject matter jurisdiction because the counterclaim plaintiffs never joined Muller, whom the counterclaim defendants describe as a party in interest to this action. We disagree.

The allegation that Muller is a party in interest to this action stems from a deed recorded October 18, 1988, which lists Muller as the recipient of a parcel of land from the Gifford family with the same metes and bounds, excepting one portion of the premises previously separately conveyed, as the parcel that the LLC claims in fee simple. The counterclaim plaintiffs also presented testimony from their expert witness, Marc Shakin, a title searcher, who testified that in his opinion the LLC never received an interest in the woodland lot because it previously was deeded to Muller. Shakin specifically testified that, in his opinion, “98 Lords Highway claimed through a Ranald McNeil, who purchased the property—who got a deed—two deeds, actually—2002 and 2003—from a Deborah Green. It's—I told—I testified that Deborah Green did not own any realty in Weston.... I believe that Deborah Green conveyed nothing to this Ranald McNeil, who, in turn, had conveyed nothing to 98 Lords Highway, LLC, because the woodland lot was—was never owned by the parties....”

Although it is clear that Muller was never joined as a party to the action, it is well established that the nonjoinder or misjoinder of parties or a failure to notify or join indispensable parties generally does not deprive a court of subject matter jurisdiction. General Statutes § 52–108 (“[a]n action shall not be defeated by the non-joinder or misjoinder of parties”); Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 288–89, 914 A.2d 996 (2007); Yellow Cab...