Falker v. Samperi

• Citation: 190 Conn. 412,461 A.2d 681
• Decision Date: 21 June 1983
• Docket Number: No. 10335,10335
• Parties: I. David FALKER, Trustee v. Anthony SAMPERI et al.
• Court: Supreme Court of Connecticut

Page 681

461 A.2d 681

190 Conn. 412

I. David FALKER, Trustee v. Anthony SAMPERI et al.

No. 10335.

Supreme Court of Connecticut.

Argued February 10, 1983.

Decision Released June 21, 1983.

Daniel Green, Bridgeport, for appellant (plaintiff).

Louis I. Gladstone, Bridgeport, with whom, on brief, was Matthew B. Woods, Bridgeport, for appellees (defendants).

Before HEALEY, PARSKEY, SHEA, GRILLO and COVELLO, JJ.

ARTHUR H. HEALEY, Justice.

The plaintiff has appealed from the trial court's judgment granting the defendants' motion for judgment of dismissal for failure to make out a prima facie case under Practice Book § 302. ¹

This action is one for damages, tried to the court, Ford, J., in which the plaintiff, David Falker, trustee, claims that the defendants Anthony Samperi and Pasquale Puglio converted certain of his property in violation of a written agreement ² between them. The plaintiff's amended complaint alleges essentially that the plaintiff was the title owner of certain real property on the westerly side of Route 25 in Newtown which is situated immediately north of real property belonging to the defendant Samperi; ³ that Samperi, acting either directly or through his agent, the defendant Puglio, was conducting a gravel mining operation on the property owned by him; and that on November 2, 1977, the parties to the action entered into a written agreement pursuant to which the defendants entered and remained upon the plaintiff's property to grade the property pursuant to their written agreement. It is also alleged that Puglio, acting directly, and Samperi, either acting directly or through Puglio as his agent, have converted to their own use and removed from Falker's premises material which belonged to the plaintiff. The amount of material is alleged, subject to exact survey, to be in excess of 20,000 cubic yards and was supposed to be used upon the plaintiff's property in accordance with the written agreement. It is further alleged that the plaintiff's lands have depreciated in value as the result of the defendants' actions and that the plaintiff's cost of replacing the removed material will be not less than $3 per yard. The defendants deny all the allegations of the amended complaint or plead no knowledge, admitting only that Puglio conducted a gravel mining operation on the Samperi property.

Initially, we note that the trial court's finding of facts, in part, includes the following: In 1975, Samperi and Puglio orally agreed that Puglio was to remove earth materials from Samperi's property. During 1975 and subsequently Puglio did complete substantial excavations of earth materials from Samperi's property. As a result of these excavations by Puglio and excavations that had been completed on the plaintiff's property when it was controlled and owned by the plaintiff's grantor, ⁴ one Capozziello, ⁵ there remained "in the general vicinity of the land between the properties of the plaintiff and the defendant Samperi an unexcavated portion of land at a grade substantially higher than that of the excavated areas to both the north and the south which was generally defined and understood to be an area known as 'the gore.' " It became "obvious" to the parties that in order to excavate the area known as the gore, it would be necessary for Puglio to enter "in and upon" the plaintiff's property to complete the leveling and excavating of the gore area. Accordingly, the parties executed the written agreement pursuant to which Puglio was permitted to enter the plaintiff's property "for the purpose of leveling and excavating the gore area." Thereafter, Puglio did enter the plaintiff's property and excavated and leveled "the entire gore." It was as a result of this excavation that the plaintiff instituted this action claiming in part that the defendants removed in excess of 20,000 cubic yards of material "that was part of the gore and which was to remain on the plaintiff's property."

The trial court found that the parties were in "substantial agreement" as to the eastern, western and northern boundaries of the plaintiff's property. It further declared, however, that the "crucial disagreement concerns the southern boundary of the plaintiff's land and, conversely, the northern boundary of the defendants' land, since it is that boundary which intersects the gore." After the plaintiff presented his case, the court reserved decision ⁶ on the defendants' motion for a judgment of dismissal then made under Practice Book § 302. Sometime thereafter, the court filed its memorandum of decision in which it granted the defendants' motion. In its memorandum, it held that, even viewing the evidence in the light most favorable to the plaintiff, it could not "find that the plaintiff has made out a prima facie case with respect to the threshold issue of the location of the southern boundary."

The trial court issued a lengthy memorandum of decision. It found that the deeds and probate certificates introduced by the plaintiff only established the fact that the plaintiff's southern boundary was on "land now or formerly of Samperi" with no other references to marks, monuments, courses or distances. The court found these documents were inadequate, even when considered along with the testimony of witnesses, including land surveyors and the parties themselves, and a number of maps. ⁷ Particular emphasis was laid by the court and the parties on the "Goodman" map made in 1954 for Capozziello. The court rejected the claim based upon the plaintiff's evidence, including that of Stuart Somers, ⁸ his expert, that the southerly boundary of his property was what is shown as an old barbed wire fence ⁹ shown on the "Goodman" map. In doing so, it rejected considerable evidence adduced to demonstrate the validity of the Goodman line in its depiction of the plaintiff's southerly boundary. Explicit in its rejection of the evidence directed to the "Goodman" map so offered was the court's view that each and every one of the numerous other topographical or photogrammetric maps were based "in whole or in large part" on the "Goodman" map in establishing the common boundary. Fairly read, its decision indicates that it found this defect in all the map evidence directed to establishing the plaintiff's southern boundary. The court noted the absence of any evidence from the plaintiff's predecessor in title or neighboring landowners as well as the plaintiff's failure to produce any testimony by the plaintiff or defendant as to the exact location of their common boundary. It said that while Samperi testified that he "thought" the boundary lay ten to twelve feet north of the old barbed wire fence (shown on the "Goodman" map) such testimony was "worthless" as there was no competent evidence as to the "exact location" of the fence. William H. Laws, one of the principals with Falker in this property, also testified. He was a builder, developer and excavator in Newtown, lived close to this property and was familiar with it. The court, after examining all his testimony, concluded that it was not "able to afford it any degree of credibility." It concluded that the determination of the southerly boundary of the property of the plaintiff, in the present case, on the court's part, "would be totally the result of speculation, surmise, or guess." It then granted the defendants' motion to dismiss and this appeal followed.

On appeal, the plaintiff claims that the trial court erred: (1) in granting the defendants' motion to dismiss for failure to make out a prima facie case because he had offered significant competent evidence on every material allegation of his complaint; and (2) in excluding from evidence the offer of certain surveys showing Samperi's northerly boundary which the plaintiff claimed were admissible as admissions against Samperi's interest.

" 'A motion for judgment of dismissal has replaced the former motion for nonsuit for failure to make out a prima facie case. Compare Practice Book § 302 with Practice Book, 1963, § 278; see Lukas v. New Haven, 184 Conn. 205, ---, --- (42 CLJ 46, pp. 25, 27 n. 3) 439 A.2d 949 (1981). When such a motion has been granted, the question is whether sufficient facts were proved to make out a prima facie case. Pignatario v. Meyers, 100 Conn. 234, 239-40, 123 A. 263 (1924). To state it another way, a judgment of dismissal is only proper "when the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff." Minicozzi v. Atlantic Refining Co., 143 Conn. 226, 230, 120 A.2d 924 (1956). The evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to him, and every reasonable inference is to be drawn in his favor. Ace-High Dresses, Inc. v. J.C. Trucking Co., 122 Conn. 578, 579, 191 A. 536 (1937). A party has the same right to submit a weak case as he has to submit a strong one. Fritz v. Gaudet, 101 Conn. 52, 53, 124 A. 841 (1924). See Lukas v. New Haven, supra, 184 Conn. --- - ---, 42 CLJ 26-27, 439 A.2d 949; Crowell v. Palmer, 134 Conn. 502, 505, 58 A.2d 729 (1948); Maltbie, Conn.App.Proc. §§ 215 and 217; Stephenson, Conn.Civ.Proc. (2d Ed.) § 192f.' Hinchliffe v. American Motors Corporation, 184 Conn. ---, ---, --- (43 CLJ 3, pp. 14, 15) 440 A.2d 810 (1981)." Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 547-48, 447 A.2d 406 (1982); see Logan v. O'Neill, 187 Conn. 721, 728-29, 448 A.2d 1306 (1982). Whether the plaintiff made out a prima facie case presented a question of law for the court. Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 187 Conn. 561, 440 A.2d 810.

In examining the plaintiff's first claim of error, we initially turn to the trial court's determination that the plaintiff's action sought recovery of money damages for the conversion by the defendants of a stated amount of his land. " 'Conversion is usually defined to be an...