Iron Shields Investment, LLC v. Miller

• Decision Date: 05 June 2019
• Docket Number: FBTCV166059810S
• Court: Connecticut Superior Court
• Parties: IRON SHIELDS INVESTMENT, LLC v. A. Elizabeth MILLER et al.

IRON SHIELDS INVESTMENT, LLC v. A. Elizabeth MILLER et al.

No. FBTCV166059810S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

June 5, 2019

UNPUBLISHED OPINION

OPINION

STEWART, J.

The plaintiff, Iron Shields Investment, LLC, has sued the defendant, Fred D’Amico d/b/a D’Amico Associates ("D’Amico" or "the defendant"), for professional negligence for his conduct of a survey and his later certification of a map to the plaintiff for undeveloped land in Weston, Connecticut.

The present case was initiated by complaint dated September 13 2016, which originally named D’Amico, A. Elizabeth Miller and Beck & Beck, LLC, as defendants. Prior to evidence being presented at trial, the plaintiff withdrew its complaint as to the other defendants, leaving D’Amico as the sole defendant for trial. The court heard evidence on December 13 and 14, 2018. After trial, the parties submitted post-trial briefs; the final brief was filed on March 4, 2019.

FINDINGS OF FACT

2006 Survey Work

1. From sometime prior to August 7, 2006 until 2014, two adjacent parcels of real property in Weston, Connecticut were owned by Lawrence and Carol Pelligrini and by A. Elizabeth Miller and Lester F. Miller, Jr. The Pellegrini property was to the north and the Miller property was to the south. Plaintiff’s Exhibit 5 .

2. On or about August 7, 2006, D’Amico prepared an A-2 survey for the Pellegrinis and the Millers depicting the total area of each lot, as well as the wetlands on each. Plaintiff’s Exhibit 5 .

3. According to the survey, the Pellegrini parcel was 3.95 acres, and the Miller parcel was 9.87 acres. Plaintiff’s Exhibit 5 .

4. D’Amico researched the Weston Land Records by preparing a title search and by reviewing the tax assessor field cards and maps for the Miller property, the Pellegrini property and the adjoining Weston Gun Club property. Defendant’s Exhibit C .

5. The Miller deed description states "in quantity ten (10 acres) more or less bounded and described as follows ..." It also states it is the same premises as the second tract in a warranty deed to Buckley dated September 30, 1918. Plaintiff’s Exhibit 9 .

6. D’Amico researched the maps and found recorded Map 3528 for the Pellegrini property, showing 3.9477 acres. That map contained a reference to "[d]ata as shown on an old S.W Hoyt Co., Inc. detail obtained from Wake, Lee & Dimes Attorneys was used to reestablish the boundaries of the parcel to the south. Deeds of record show Pellegrini parcel and parcel to the south as being 14 acres +/- field survey and Old Hoyt Co. data show combined area of 13.816 acres so in lieu of an apparent senior deed giving a definitive fixed area to one parcel, each parcel was prorated mathematically for the difference between the area called in the deeds of record and area obtained in the field." Plaintiff’s Exhibit 13 .

7. D’Amico researched the S.W. Hoyt map, which showed the southern tract as ten acres with boundary lines of two stone bounds along the boundary of property belonging to Stephen Godfrey. Defendant’s Exhibit C .

8. D’Amico went to the field and found two stone bounds in the field that lined up with the boundary between the Miller property and the Godfrey property on the S.W. Hoyt map. Based on this finding, the Pellegrini map, and the prior deeds containing references to ten acres, D’Amico determined that the southerly boundary line- now, the borderline with the Weston Gun Club- was between those two stone bounds, and that the Miller property was approximately ten acres. Tr. 12/13/18, 66:6-72:12; Defendant’s Exhibit C, Plaintiff’s Exhibit 5 .

9. In 1960, the Weston Gun Club performed a survey of its twenty-four acres and recorded a map known as Map No. 1482.

Plaintiff’s Exhibit 16 .

10. The surveyor for the Weston Gun Club showed several different possible boundary lines with the Miller property on his worksheet, but he selected a boundary line that gave the Weston Gun Club twenty-four acres. Defendant’s Exhibits G and H .

11. D’Amico saw that the 1960 Weston Gun Club map showed all five-stone bounds within its property, and from his visit to the field, he knew of five-stone bounds in the vicinity of the boundary between the Miller property and the Weston Gun Club property. Tr. 12/13/18, 21:26-22:3, 22:19-24:1, 87:14-88:27 .

12. D’Amico’s line on the survey of the Miller property was drawn between two of the five-stone bounds that matched the S.W. Hoyt map. The line on the 1960 Weston Gun Club map, however, showed a line from two different stone bounds. Plaintiff’s Exhibits 5 and 16; Defendant’s Exhibit C; Tr. 12/13/18, 21:8-21:20 .

13. D’Amico researched the Weston Gun Club’s claim of twenty-four acres and found that in July 1934, Samuel Shether deeded the Weston Gun Club property that was originally part of a seventy-five-acre parcel from Stephen Godfrey to Shether in June 1928. Defendant’s Exhibit C . It was the Stephen Godfrey parcel that appeared in the S.W. Hoyt Map the map with the two stone bounds on which D’Amico relied.

14. D’Amico testified that he saw the overlap between the bounds that the Weston Gun Club claimed marked the boundary and the bounds he relied upon, but he decided his line was accurate. Tr. 12/13/18, 60:14-62:12 .

15. D’Amico’s survey of the Miller Property does not indicate any stone bounds. Plaintiff’s Exhibit 5 .

16. D’Amico did not notate on his survey any discrepancy raised by the Weston Gun Club map from 1960. Plaintiff’s Exhibit 5; Tr. 12/13/18, 24:21-25:15, 44:7-44:21 .

2014 Certification to Iron Shields

17. On February 24, 2014, the plaintiff purchased the four-acre Pellegrini parcel for $325, 000. Plaintiff’s Exhibit 11 .

18. On March 7, 2014, the plaintiff contacted D’Amico and bought a copy of the survey of the Miller property, which the plaintiff was considering purchasing from the Millers. Plaintiff’s Exhibits 2 .

19. Walid Cherfane is a construction manager who has worked with the plaintiff for eleven years. He testified to a discussion he had with D’Amico before the plaintiff signed the contract to buy the Miller property as follows:

Q Okay. And describe the discussion you had with Mr. D’Amico at that time about subdivision of the Miller property?

A I told him that we are looking into purchase that property. And since we are buying it in cash, I need to make sure that we can subdivide it into many lots. Now, I asked Mr. D’Amico if he was also an engineer, and he mentioned that he was. And he showed me a copy of some work that he had done for the Millers regarding that ten-acre lot where he’s subbed it, you know, not subdivide maybe, but he put a house with a septic field and some engineering work on that property for the Millers. Then I told him then we go from there, you know, we might retain you for other work, but for now what I need is to make sure that I have an A-2 survey of the property so I can make a- you know, make the closing for that property. And this is what we did.

Tr. 12/14/18, 52:19-53:9 .

20. The plaintiff entered into the contract to purchase the Miller property on March 10, 2014, three days after D’Amico and Cherfane met to discuss the development possibilities for the Miller property. Defendant’s Exhibit D .

21. That contract contained a Zoning Contingency clause that stated in relevant part: "[t]his Contract is contingent upon the Buyer determining that the premises is suitable for division into two building lots, each capable of supporting a five-bedroom house." Defendant’s Exhibit D, ¶36 .

22. On March 31, 2014, Lester Miller sold the plaintiff the Miller property by warranty deed for $350, 000. Plaintiff’s Exhibit 9 .

23. On October 1, 2014, D’Amico prepared, issued, and certified to the plaintiff a map ("Map") of the Miller property. Plaintiff’s Exhibit 3 and Tr. 12/13/18, 43:25, 44:1-44:6 .

24. The Map was prepared to an A-2 accuracy standard. Tr. 12/13/18, 9:1-9:27 .

25. The Map certified that the Miller property contained 9.917 acres. Plaintiff’s Exhibit 3 .

26. On November 3, 2014, the plaintiff obtained zoning approval for a three-lot subdivision for the 9.917 acres. Plaintiff’s Exhibit 14 .

27. The 2014 approval was based upon the Map as follows:

Notice is hereby given that, at a regular meeting of the Weston Planning & Zoning Commission held on Monday, November 3, 2014, the Commission approved with conditions, the application of owner Iron Shields Investment, LLC, to subdivide Map 10 Block 1 Lot 5, Hidden Spring Drive into 3 lots, consisting of approximately 9.917 acres of land located off Hidden Spring Drive, Weston, Connecticut.

Reference is hereby made to the following (collectively, the "Supporting Documents "):

1. Subdivision Plan prepared by D’Amico Associates dated October 1, 2014, with a date of last revision of November 3, 2012.

Plaintiff’s Exhibit 14, p. 1 (the reference to "last revision of November 3, 2012" is a scrivener’s error, as the Map has a revision date of November 3, 2014. Subsequent revisions were done after subdivision approval.)

28. On August 24, 2015, the subdivision map was signed by Weston Planning and Zoning and recorded as Map 3829. Plaintiff’s Exhibit 3 .

Weston Gun Club Lawsuit

29. After the 2014 approval, the Weston Gun Club contacted the plaintiff’s engineer and advised him that a portion of the Miller Property upon which trees were cleared by the plaintiff was owned by the Weston Gun Club. Plaintiff’s Exhibit 12 .

30. Thereafter, the plaintiff and the Weston Gun Club agreed to a standstill. Tr. 12/14/18, 6:2-6:8 . The plaintiff and the Weston Gun Club then undertook an extensive review of the existing conditions and land records, employing surveyors, engineers and title searchers as part of that review. They exchanged information on an "open file" basis...