O'Connor v. Larocque, SC18648
| Decision Date | 01 November 2011 |
| Docket Number | SC18648 |
| Court | Connecticut Supreme Court |
| Parties | O'CONNOR v. LAROCQUE—DISSENT |
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ROGERS, C. J., with whom PALMER and EVELEIGH, Js., join, dissenting. I respectfully dissent. Although the majority properly reviews the trial court's factual finding that the named plaintiff, Theresa P. O'Connor,1 satisfied each element of adverse possession according to a sufficiency of the evidence standard, I believe the majority fails to afford the trial court the degree of deference that this court routinely affords in sufficiency challenges. Specifically, I cannot agree with the majority's conclusion that the record contains ''absolutely no evidence'' that the plaintiff intended to hold a parcel of land (lot) as the exclusive owner prior to 1997, and that the defendant, Dorothy Larocque, was on notice thereof, given the plaintiff's express testimony to that effect. Accordingly, I would affirm the judgment of the trial court.
I begin by noting that, were this an adverse possession case not involving cotenants, it is clear that the standard for adverse possession would be satisfied. Even setting aside the various uses to which the plaintiff and her husband, John J. O'Connor, have put the lot over the past several decades—planting trees, mowing the lawn, clearing brush, leasing it for parking—the fact that the plaintiff paid the property taxes, insured the property and was listed, with her husband, as the sole taxpayer of record provides '' 'powerful evidence' '' of adverse possession. Wren v. Parker, 57 Conn. 529, 531, 18 A. 790 (1889); Porter v. Morrill, 108 Conn. App. 652, 666-67, 949 A.2d 526, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008).2 Accordingly, the sole issue raised by this appeal is the extent to which the fact that the parties are cotenants impacts the adverse possession analysis.
Considering first the standard of review, I agree with the majority that adverse possession presents a mixed question of law and fact. Because it is not entirely clear what degree of deference the majority would afford to the trial court's findings,3 however, I review what I believe to be the well established governing law. First, I agree with the majority that the definition of adverse possession, and the legal standards governing a finding of adverse possession, are questions of law over which this court exercises plenary review. It is the proper province of an appellate court, then, to identify the constituent elements of adverse possession,4 to define those elements, and to impose any rules or restrictions as to the circumstances under which those elements may be satisfied. Second, I agree with the majority that the finding of basic evidentiary facts is the proper province of the trier of fact, and that such findings are reviewable by an appellate court only for clear error.
Third, and of particular importance for the present case, I believe it is well settled that the trier of fact isalso tasked with applying those basic evidentiary facts to the elements of adverse possession, and with finding whether each of those elements is satisfied.5 Because the party seeking to possess adversely against a cotenant must establish those elements by clear and convincing evidence; Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36,42, 557 A.2d 1241 (1989); the trier's finding that an element of adverse possession is satisfied is reviewable under a sufficiency of the evidence standard. See Caminis v. Troy, 300 Conn. 297, 306, 12 A.3d 984 (2011). This is also a deferential standard of review. ' Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 645-46, 904 A.2d 149 (2006); see also Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006) (); Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 778, 687 A.2d 1270 (1997) (). Accordingly, this court has explained that ''[a] trial court's findings in an adverse possession case, if supported by sufficient evidence [in the pleadings and the record as a whole], are binding on a reviewing court . . . .'' (Internal quotation marks omitted.) Caminis v. Troy, supra, 306; see also 2 C.J.S. 219-20, Adverse Possession § 292 (2003) ().6
I believe that the record here contained sufficient evidence for the trier of fact to have found that the plaintiff ousted7 the defendant, and I further believe that nothing in the law precluded that factual finding. Accordingly, I would conclude that the trial court's decision was not clearly erroneous.
I now turn to the specific legal principles governing adverse possession between cotenants, and the various means through which such possession may be proven. I agree with the majority that any party seeking to establish adverse possession must demonstrate by clear and convincing evidence that her use of the land was ''actual, [open] and notorious, exclusive, continuousand hostile'' throughout the statutory period. Ahern v. Travelers Ins. Co., 108 Conn. 1, 4-5, 142 A. 400 (1928). I further agree that, in the cotenant context, the would-be adverse possessor bears the additional burden of proving not only that she intended to hold the land adversely, but also that the cotenant was on notice of this intent. Ruick v. Twarkins, 171 Conn. 149, 158-59, 367 A.2d 1380 (1976). These dual elements of intent and notice, which may collectively be termed ''ouster,'' are necessary in light of the default assumption that any action by a cotenant as to common land is performed with the consent and for the benefit of all cotenants. Id., 157; Bryan v. Atwater, 5 Day (Conn.) 181, 191 (1811); annot., 82 A.L.R.2d 23-24, § 2 (1962). Lastly, I share the majority's view that there is no express notification requirement; notice to the ousted cotenant may be either actual or constructive. See generally, annot., supra, 82 A.L.R.2d § 50.
I would emphasize, however, that ''[n]otice of the hostility of the possession resulting from acts or conduct of [a cotenant] possessor may appear in so many ways that judges and text writers have not undertaken an enumeration.'' Id., p. 235. The only requirement is that the trier of fact find, by clear and convincing evidence, that the possessory cotenant intended to hold the common land exclusively, and that the ousted cotenant was on notice thereof. Id. Although the majority, relying on some dicta in the case law, appears to believe that there can be adequate notice of a cotenant's intent to dispossess only when there is either an express notification or something closely akin to it, a thorough review of the cases reveals that there is no such requirement.8 In his authoritative, 300 page annotation of the legal requirements for adverse possession among cotenants, W. W. Allen reviewed more than 1100 American cases on the subject;9 id.; and concluded that, notwithstanding any dicta to the contrary, the dominant view in this country ''is that outward or notorious acts of exclusive ownership . . . are not essential in any instance in which the hostile character of the possession is otherwise distinctly manifested and the fact thereof brought home to the possessor's cotenants.'' Id., p. 24. Allen further explains in the annotation that ''the conclusion to be drawn from the cases as a whole, and which [follows] in reason as well, is that where the possession is in fact hostile and adverse, it is adverse in law if its adverse character is in any manner . . . plainly manifested to the possessor's cotenants.'' (Emphasis added.) Id., p. 69.10
Bearing out Allen's analysis, this court has...
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