Cortes-Prete v. Ghiroli
| Decision Date | 26 September 2019 |
| Docket Number | NNHCV155037703S |
| Parties | Marlena CORTES-PRETE, Trustee v. Anna GHIROLI et al. |
| Court | Connecticut Superior Court |
UNPUBLISHED OPINION
Despite filing a twelve-count complaint that contains various allegations against multiple defendants, the gravamen of this action filed by the plaintiff is essentially a quiet title action at its most fundamental level. Based upon the relevant and credible evidence presented at the bench trial, including the court’s observation of the credibility and demeanor of the witnesses, the court begins with an overview of its factual findings and may interject such other facts as it deems appropriate or necessary.
The plaintiff, Marlena Cortes-Prete, is the Trustee of the John F. Cortes and Gloria J. Cortes Irrevocable Trust dated July 10, 2009 (Trust/plaintiff). In the complaint, the plaintiff alleges, inter alia, that the Trust is the owner of certain real property located in North Branford, Connecticut known as 681 and 681B Totoket Road (Trust property), bounded on the north by a strip of land designated as a 50 feet right of way (ROW), which it received by deed a quit claim that contains language along with the right to use the ROW "for all purposes for which a public highway may be used." (Emphasis added.)
The plaintiff’s first count is a quiet title action against multiple defendants who may have an interest in this matter. However, in this case, the court’s determination will focus primarily on two central, opposing parties with the first being the defendants, Anna Ghiroli and her son Gregory Ghiroli (Anna Ghiroli/Gregory Ghiroli/Ghiroli(s)). Anna Ghiroli is the owner of several pieces of real property located in North Branford, Connecticut known as 685, 687 and 689 Totoket Road (Anna Ghiroli property), which is bounded on the south by the ROW. The Anna Ghiroli property deed also contains the identical, above mentioned ROW wording. The plaintiff further alleges in count one that the Ghirolis refuse to recognize the Trust’s ability to use the ROW and have exercised certain superior rights to the exclusion of the plaintiff. In response, Anna Ghiroli filed an amended answer and special defenses in which she denied the plaintiff’s allegations, inter alia, and asserted three special defenses: Title in Oneself, Truth and the Marketable Record Title Act (Act).[1]
The second set of main, opposing parties comprise of the defendants Leah Davenport and Scott Davenport (Davenports), who are the record owners of the property known as 32 Augur Road, North Branford, Connecticut (Davenport property). As a visual point of reference, Totoket Road and Augur Road run perpendicular to each other with the Trust’s property and Anna Ghiroli’s property at issue abutting one another and the Davenport property being situated across the street to the southern portion of the Anna Ghiroli property. Like the other quit claim deeds, the same ROW provision is included in the Davenport property’s quit claim deed. The Davenports filed a cross complaint against Anna Ghiroli to quiet title to any interest that Anna Ghiroli may claim to have in the Davenport property and to have the court declare that the Act extinguished any interest Anna Ghiroli may have in the Davenport property. Anna Ghiroli replied by filing an answer and a special defense in which she denied that the Davenport property’s ROW is 50 feet wide and asserted that the Act extinguished any ROW the Davenports may claim to have over the southern portion of her property.
With respect to the remaining counts and subsequent claims filed by the parties, the court will address each of the parties’ various claims, motions and defenses separately later in this decision as much of the emphasis of the court’s initial determination in resolving the parties’ respective quiet title claims will be focused on the issue of the width of the ROW as claimed by some of the central parties.
Specifically, the court is tasked with settling this property dispute regarding, in broad terms, the southern boundary line of the Anna Ghiroli property and, in particular, resolving the question of whether a driveway and utility poles at issue are located within the legal boundaries of the Anna Ghiroli property or within the ROW as shown on a certain 1961 subdivision map, which the plaintiff claims a legal right to access.
The case was tried to the court on four, non-consecutive days, January 25, 2018, February 6, 2018, March 14, 2018 and September 7, 2018. During the trial, the court heard testimony and admitted evidence. At the conclusion of the trial, the Ghirolis filed a motion for a directed verdict pursuant to Practice Book § 16-37 as to counts two through twelve on the grounds that the Trust failed to plead or introduce any proof of elements essential to the maintenance of such claims under Connecticut law. In response, the Trust filed an objection on the grounds that the motion was procedurally improper and that the plaintiff satisfied its burden of proof in connection with each count. The court reserved its ruling on the motion pending this decision. The court ordered the parties to submit briefs, which briefs were reviewed and considered by the court.[2]
On June 18, 1961, various members of the Calabrese family (including John Calabrese and Ann Ghiroli) collectively conveyed to Vera Gagliardi, via a warranty deed, multiple contiguous parcels of land (Calabrese property) in North Branford, Connecticut (Calabrese subdivision), along with a 50-feet ROW that is designated as the "Right of Way of James Calabrese et al." On the very same day, Vera Gagliardi conveyed multiple parcels[3] in the Calabrese subdivision, via a quit claim deed, to the instant parties for an ownership interest in their respective lots.
Yet, these seemingly simple real estate transactions by Vera Gagliardi will turn out to be anything but due to some unusual attempt at wordsmithing in the ROW language used in each quit claim deed. Unlike the Calabrese property transactions, the quit claim deed conveyances transferred from Vera Gagliardi to the multiple grantees, including the plaintiff here, do not include any exact language that designates the ROW as a 50-feet ROW as alleged by the plaintiff in its complaint or as any dimension at all. It reads, in relevant part, as follows: "
Later, as it will be shown how this particular choice of wording by Vera Gagliardi in 1961 makes a crucial impact in the instant case, these series of conveyances will serve as the pivotal point for the court’s ultimate adjudication of the quiet title and other disputes pending before it.
Another Vera Gagliardi conveyance that occurred on June 18, 1961 was made to the defendant Anna Ghiroli via a quit claim deed, regarding lot #8 as shown on the Calabrese Subdivision Map.[4] Many years later, on May 8, 1975, John Calabrese, by quit claim deed, conveyed his land, lot #2 (which John Calabrese acquired from Vera Gagliardi via a quit claim deed on June 18, 1961), to John and Gloria Cortes (John Cortes/Gloria Cortes/Cortes) together with all of the rights to the ROW. On May 10, 2013, the Cortes transferred the Trust property to the plaintiff. For the sake of clarity, the court will continue by separately describing the factual history of the Anna Ghiroli property and the Trust property to put the instant, complex controversy in its proper context beginning with the Anna Ghiroli property.
Although Anna Ghiroli acquired title to lot #8 in 1961, it was not until 1973 that she began the process of constructing a house on it. Before the commencement of construction, she sought subdivision approval for the creation of two lots[5] by filing a map for the subdivision that is entitled "Ann’s Estate" and is dated May 29, 1973 (1973 Subdivision Map). One of the two subdivided parcels consists of the property known as 687 Totoket Road which has a house on it and 689 Totoket Road, which has frontage on said road. The other subdivided parcel comprises of the property known as 685 Totoket Road, which is not a building lot.
In 1974-1975, Anna Ghiroli commenced constructing a house on the property known as 687 Totoket Road, in the middle portion of the land, and paid for the installation of utility poles in 1975 and the construction of a gravel driveway in 1975-1976. Prior to construction of the Anna Ghiroli driveway, there was a large drop from Totoket Road on to the property. In order to construct the driveway, Anna Ghiroli needed to put in fill to have a gradual descent so it would not be unsafe, and flatten it out in order to create a turn onto Totoket Road from a flat level area at the top of the hill. On both the north and south sides of the driveway, the land drops down in a bank. Gregory Ghiroli testified that when the driveway was built, its measurements were based upon the Calabrese subdivision map.
In 2012, a decision was made to construct a house on one of the Trust subdivision lots that abutted the ROW and John Cortes one of the then owners of the Trust property, [6] hired David L. Nafis of the engineering and land surveying firm of Nafis & Young (Nafis) to work on site construction and septic plans for the house. As a noteworthy aside, Nafis’ father, also a surveyor, previously worked with John Cortes in the 1990s, and informed him that the ROW was 50 feet wide. Nafis identified a...
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