DeVita v. Esposito

• Decision Date: 29 December 1987
• Docket Number: No. 5651,5651
• Parties: Frederick C. DeVITA v. Pasquale F. ESPOSITO, Jr., Administrator (ESTATES OF Pasquale F. ESPOSITO, Sr., et al.)
• Court: Connecticut Court of Appeals

Page 364

535 A.2d 364

13 Conn.App. 101

Frederick C. DeVITA v. Pasquale F. ESPOSITO, Jr., Administrator (ESTATES OF

Pasquale F. ESPOSITO, Sr., et al.)

No. 5651.

Appellate Court of Connecticut.

Argued Sept. 29, 1987.

Decided Dec. 29, 1987.

Thomas E. Crosby, New Haven, for appellant (plaintiff).

David M. Reilly, New Haven, for appellee (defendant).

Before DUPONT, C.J., and BIELUCH and NORCOTT, JJ.

DUPONT, Chief Judge.

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. ¹ The trial court found that the plaintiff had not proven ownership of the property by record title and, accordingly, rendered judgment for the defendant on the plaintiff's complaint. The defendant's two count counterclaim alleged record title and title by adverse possession. The trial court found that the defendant's decedents had record title to the land in question and found further that they had acquired the land by adverse possession. It rendered judgment for the defendant on both counts of his counterclaim.

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 ² are barred from appellate review because the plaintiff failed to raise these claims in the trial court. In support of his argument, the defendant emphasizes the fact that the plaintiff did not specifically plead the application of the statute in his complaint, as required by Practice Book § 109A. ³ Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984). In that case, the parties and the trial court characterized the plaintiff's claims at trial as arising under the wrongful death statute. On appeal, the plaintiff argued that he had intended to rely instead upon the survival of actions statute. The court concluded that the plaintiff's argument came "too late" and noted further that "the confusion about the basis for the plaintiff's cause of action could have been avoided had the complaint stated, as Practice Book § 109A requires, the statute upon which the complaint relied." Gionfriddo v. Avis Rent A Car System, Inc., supra at 290-91 n. 10, 472 A.2d 306.

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 applicable to a plaintiff's claims; Brill v. Ulrey, 159 Conn. 371, 372-74, 269 A.2d 262 (1970); and which, in fact, supersedes any common law actions brought to determine record title or to claim any interest in real property. Id. As a result, there can be no confusion about the basis for the plaintiff's cause of action, and there can be no doubt that General Statutes § 47-31 served as the basis for the plaintiff's action to quiet title.

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 two of his counterclaim must be set aside as inconsistent. ⁴

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, at 246, 492 A.2d 164. 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 pleading and throughout the trial proceedings, as to which of two opposing sets of facts, title by deed or title by adverse possession, caused title to rest in the defendant's decedents. ⁵ Since the defendant could not, in good faith, determine the ultimate facts in advance, it would have been improper to require him to make an election at trial between the claim of record title and the claim of adverse possession. Id.

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).

One who has record title also has the accompanying right to possession of the property in the absence of a lease agreement with another. See Berger v. Guilford, 136 Conn. 71, 80, 68 A.2d 371 (1949). Contrary to the view expressed in the defendant's brief, one who has record title and, concomitantly also possesses the property does not thereby acquire title to the property by adverse possession. Rather, possession of property in an open and continuous manner, is a possession and a use of property which is consistent with and incident to ownership by one who has record title to the property.

A duty of construction is placed upon the trial court whenever a party pleads inconsistent theories of recovery. Dreier v. Upjohn Co., supra, 196 Conn. at 246, 492 A.2d 164. 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. ⁶

Furthermore, the judgment for the defendant on the plaintiff's complaint is inconsistent with the judgment for the defendant on the...