Dowling v. Heirs of Bond

• Decision Date: 18 October 2022
• Docket Number: SC 20665
• Citation: 345 Conn. 119,282 A.3d 1201
• Parties: Jane C. DOWLING v. HEIRS OF Norman J. BOND et al.
• Court: Connecticut Supreme Court

345 Conn. 119

282 A.3d 1201

Jane C. DOWLING

v.HEIRS OF Norman J. BOND et al.

SC 20665

Supreme Court of Connecticut.

Argued March 30, 2022

Officially Released October 18, 2022

Wesley W. Horton, with whom were Louis B. Blumenfeld and, on the brief, Brendon P. Levesque and Lorinda S. Coon, Hartford, for the appellant (plaintiff).

Timothy D. Bleasdale, with whom were Edward B. O'Connell and Tracy M. Collins, New London, for the appellee (defendant The Old Black Point Association, Inc.).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

ECKER, J.

This appeal arises from a dispute over the ownership of a parcel of land that abuts property owned by the plaintiff, Jane C. Dowling, and to which the defendant The Old Black Point Association, Inc.,¹ holds record title. The plaintiff brought this quiet title action against the defendant, contending that her predecessors in title had acquired fee ownership of the disputed parcel by adverse possession. The defendant filed a counterclaim, alleging, among other things, that the plaintiff had slandered its title to the parcel under General Statutes § 47-33j by filing a notice of her claim of adverse possession on the land records. Following a bench trial, the trial court concluded that the plaintiff had failed to establish her claim of adverse possession and that the defendant had prevailed on its counterclaim and rendered judgment accordingly. After a subsequent hearing in damages, the trial court awarded $338,542.50 in attorney's fees and $44,876.33 in costs to the defendant. This appeal followed.²

We conclude that the trial court correctly determined that the plaintiff had failed to establish ownership of the parcel by adverse possession but that it incorrectly determined that the defendant had established its counterclaim for slander of title. Accordingly, we affirm the judgment in favor of the defendant on the plaintiff's quiet title action and reverse the judgment in favor of the defendant on its counterclaim for slander of title.

The following facts were found by the trial court or are undisputed. In 2006, the plaintiff purchased property located at 287 Old Black Point Road in East Lyme (property) from John M. Bradley, Scott Bradley and Anne Bradley Davis (collectively, Bradley siblings) for $2.6 million. The deed to the property, which is located on a peninsula protruding into Long Island Sound known as Old Black Point, indicates that it is bounded on the north by Avenue A, on the east by "a [right of way forty] feet wide," on the south by Long Island Sound and on the west by "land now or formerly of Annette Hills Olds ...."

The defendant is a nonprofit organization formed "[t]o promote social, recreational, cultural and athletic activities of owners and occupants of property in Old Black Point ...." During negotiations for the sale of the property by the Bradley siblings to the plaintiff, representatives of the defendant met with the plaintiff's son, Vincent Dowling, Jr. (Dowling Jr.), to discuss the forty foot right of way that forms the easterly boundary of the property (parcel).³ The defendant's representatives advised Dowling Jr. that the defendant had acquired title to the parcel in the 1970s, along with other rights of way running from Avenue A to the shoreline, several of which ran through a seventy-five foot right of way or "reservation" running along the shoreline.⁴ The defendant was interested in enforcing a parking ban on all of the rights of way and, to this end, wanted Dowling Jr. to reconfigure a gravel parking area for the property that encroached on the parcel. The defendant and Dowling Jr. also had a discussion about removing some trees that had been planted along the northern boundary of the parcel and who would be responsible for maintaining the parcel, including the portion of a seawall that runs along the parcel's southern boundary.⁵ Dowling Jr. informed Scott Bradley of the substance of the meeting and requested that the Bradley siblings reduce the price of the property to cover any costs associated with the reconfiguration of the driveway.

On January 16, 2006, Scott Bradley sent an email to the defendant's board of governors asking the defendant to "consider less drastic measures" than those discussed with Dowling Jr.⁶ He pointed out that the Bradley family had owned the property for almost seventy-five years and had always used a portion of the parcel for parking; that, in 1998, it had split the cost to repair the portion of seawall abutting the parcel with the owner of the adjoining property; and that the trees had been on the parcel for thirty years. Scott Bradley suggested that, in light of his family's historic use of the parcel, the doctrine of adverse possession might present "legal issues ... not favorable to the approach [that the defendant] is currently pursuing."

The Bradley siblings ultimately agreed to reduce the purchase price of the property by $68,000 "in lieu of resolving the issues relating to ... [the location of] the driveway and the [condition of the] seawall ...." In a "comprehensive title affidavit" provided to the plaintiff at the closing, the Bradley siblings' representative by power of attorney asserted that "a portion of a gravel drive and parking area [located on the property] ... encroaches onto a right of way owned by another." The property was conveyed to the plaintiff by a warranty deed that was recorded in the East Lyme land records on March 24, 2006.

Thereafter, the plaintiff and her husband, Vincent Dowling, Sr. (Dowling Sr.), made plans to renovate and expand the house on the property. Their architect informed them that they could not expand the house in an easterly direction because of its close proximity to the parcel's western boundary.

After searching the East Lyme land records, probate records, and other records pertaining to the ownership of the property, Dowling Sr., who is a retired attorney, sent an email to Dowling Jr. on January 8, 2007, stating that there was "no basis for the assertion that the [defendant] has a legal interest in the [parcel]." Rather, Dowling Sr. believed that the activities of the plaintiff's predecessors in title over the preceding seventy-five years had resulted in the acquisition of title by adverse possession. Those activities included (1) the restoration of the portion of the seawall abutting the parcel after the 1938 hurricane, (2) the installation of the driveway and parking area that encroached on the parcel, (3) the installation of a birdbath on the parcel, (4) the installation of a septic system, part of which was located under the parcel, (5) the planting of trees across a portion of the parcel's northern boundary, and (6) the mowing and maintenance of the parcel.

Apparently, after conducting additional research, Dowling Sr. learned that attorney Robert W. Marrion had conveyed certain ownership interests in the rights of way on Old Black Point to the defendant by way of a deed dated December 22, 1977. On February 8, 2007, Dowling Sr. sent Dowling Jr. an email stating that, for a variety of reasons, the defendant's position that it owned the parcel by virtue of this deed "border[ed] on the ludicrous."⁷

In February, 2007, Dowling Sr. retained Attorney Clifford J. Grandjean to investigate whether the plaintiff's predecessors in title had acquired title to the property by adverse possession. After researching the issue, on June 6, 2007, Grandjean sent a letter to the defendant indicating that he was "aware of a flurry of [quitclaim] deeds involving rights of way in the mid-1970s" from the former record title owners to Marrion. Grandjean indicated that he did not believe that these quitclaim deeds established the defendant's ownership of the parcel because, among other reasons, title to the parcel had passed to the plaintiff's predecessors in title long before the quitclaim deeds were recorded. Grandjean also asked the defendant "to desist from any entry upon the [parcel] without specific permission of [the plaintiff]" and indicated that "to do so without permission will constitute an act of trespass."

On September 14, 2007, Grandjean sent a letter to Dowling Sr. regarding a meeting that he had had with the defendant's attorney, Granville Morris. Grandjean indicated that Morris had provided a packet containing some of the defendant's meeting minutes and correspondence referring to the parcel. The packet included what Grandjean characterized as "some troubling correspondence signed by both Stephen Bradley and Anne Bradley in the early 1970s regarding trees they erected on the [parcel]."⁸ It also included minutes showing that Anne Bradley, who had been on the defendant's board of governors, had participated in discussions regarding the rights of way in the 1970s.

Several months later, Grandjean wrote another letter to Dowling Sr., inquiring whether he should commence litigation over the ownership of the parcel. He indicated that he would be willing to do so if Dowling Sr. had "a realistic view of the factual ‘warts’ [that] exist in the case ...." In response to a request by Dowling Sr. that he identify the "potential stumbling blocks" to a successful resolution of the dispute over ownership of the parcel, Grandjean sent another letter indicating that he had concerns about whether the "adverse" element of adverse possession could be established when it was clear that, at the time that the land was initially subdivided in 1886, "the original landowner intended to convey, in perpetuity, a limited right to the [parcel] to [the plaintiff's] predecessor in title." Grandjean was also concerned that the court would impute knowledge of the defendant's ownership of the parcel to Anne Bradley as the result of her membership in the defendant's board of governors in the 1970s, when the defendant was acquiring title to the rights of way. Grandjean further stated that the Bradley siblings had indicated "that they knew the strip [containing the right of way] was there—they...