Llc v. Arnold
Decision Date | 21 September 2010 |
Docket Number | No. 30573.,30573. |
Court | Connecticut Court of Appeals |
Parties | SHEPARD GROUP, LLC v. Jeffrey ARNOLD et al. |
OPINION TEXT STARTS HERE
Christopher M. Licari, New Haven, with whom was Alinor C. Sterling, Branford, for the appellants (defendants).
David R. Schaefer, with whom was Sean M. Fisher, New Haven, for the appellee (plaintiff).
BEACH, ALVORD and WEST, Js.
The defendants, Jeffrey Arnold and Johanna Arnold, appeal from the judgment of the trial court rendered in favor of the plaintiff, the Shepard Group, LLC. The defendants claim that the court (1) erred in finding that the defendants failed to establish their counterclaim that alleged adverse possession and (2) applied an incorrect burden of proof as to their counterclaim that alleged that they had acquired the right to use the real property at issue as a result of a prescriptive easement. We affirm the judgment of the trial court.
The following facts and procedural history are relevant. The plaintiff is the record owner of a parcel of real property located in Hamden known as 410 and 336 Denslow Hill Road (Shepard parcel). The plaintiff took title to the Shepard parcel in 1997 by virtue of a quitclaim deed from Howard Raccio, a member of the plaintiff, who had purchased the land in 1976. The portion of the Shepard parcel known as 410 Denslow Hill Road is an approximately eleven and a half acre parcel situated behind homes fronting on Denslow Hill Road. It includes a fifty foot access strip, linking the rear portion to Denslow Hill Road. 1 The defendants are the owners of a parcel of land in Hamden known as 400 Denslow Hill Road (Arnold parcel). 2 In 2001, the defendants took title to their property by virtue of a warranty deed from the prior owners. The Arnold parcel abuts the access strip owned by the plaintiff.
In June, 2007, the plaintiff filed a multiple count complaint against the defendants, seeking, inter alia, to determine the rights of the parties with respect to an “area of encroachment” that consisted of a portion of the plaintiff's access strip the defendants used. The defendants thereafter filed special defenses and a counterclaim that alleged that they had acquired title to the area of encroachment by adverse possession or, in the alternative, by means of a prescriptive easement.
Following a trial, the court found that the plaintiff is the title owner of the access strip free and clear of any claim by the defendants of adverse possession or a prescriptive easement. 3 The court found in favor of the plaintiff on the defendants' counterclaim. This appeal followed.
The defendants first claim that the court's finding that they failed to establish their counterclaim that alleged adverse possession was clearly erroneous. We disagree.
(Internal quotation marks omitted.) Har v. Boreiko, 118 Conn.App. 787, 798-99, 986 A.2d 1072 (2010).
The court found that the defendants had not sustained their burden of proving that they had acquired title by adverse possession to the area of encroachment. In support of their claim that this finding is clearly erroneous, the defendants refer to certain evidence elicited at trial which they purport proves their adverse possession claim. They argue that the testimony of Gloria Mongillo, who lived with her husband on the Arnold parcel from 1957 to 1992, demonstrates that the Mongillos paved the driveway portion of the access strip in 1957 and that the Mongillos thought they owned the driveway. 4 The fact that there was evidence in support of the defendants' claim of adverse possession does not establish that the court's finding that they had not proven their claim is clearly erroneous.
The court, as the trier of fact in this case, determined that the defendants had not met their burden of proof, and its conclusion in that regard is not clearly erroneous. 5 (Citations omitted; internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn.App. 813, 878-79, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).
The defendants next claim that the court applied an incorrect burden of proof as to their prescriptive easement counterclaim regarding the driveway portion of the area of encroachment. We disagree.
We first set forth the requirements for establishing a prescriptive easement. (Internal quotation marks omitted.) Slack v. Greene, 294 Conn. 418, 427, 984 A.2d 734 (2009).
“The burden is on the party claiming a prescriptive easement to prove all of the elements by a preponderance of the evidence.” Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 125, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006). “When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007).
In their principal brief, the defendants claim that the court did not apply the preponderance of the evidence standard to their prescriptive easement claim but, rather, applied an incorrect standard, that of clear and convincing evidence. They claim that the court's memorandum of decision indicates that the court used an improper standard as to this claim and that the existence of that error was reinforced by a June 24, 2009 articulation by the trial court on a different issue in which it, sua sponte, stated that it found that certain portions “of the driveway of the defendants and the circumstances under which it was created did not warrant a finding by clear and convincing evidence that any ... prescriptive easement [was] created....”
Following oral argument before this court, we, sua sponte, ordered the trial court to articulate “what burden of proof it applied to the defendants' claim of prescriptive easement” and permitted the parties to file simultaneous supplemental briefs limited to that issue if they chose to do so. In a May 28, 2010 artic...
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