Provenzano v. Provenzano

• Decision Date: 29 March 2005
• Docket Number: (AC 24758).
• Citation: 88 Conn. App. 217,870 A.2d 1085
• Court: Connecticut Court of Appeals
• Parties: PAUL PROVENZANO ET AL., v. MARK PROVENZANO.

88 Conn. App. 217

870 A.2d 1085

PAUL PROVENZANO ET AL., v.MARK PROVENZANO.

(AC 24758).

Appellate Court of Connecticut.

Argued October 12, 2004.

Officially released March 29, 2005.

West, McLachlan and Mihalakos, Js.

Noel R. Newman, for the appellant(defendant).

Neil R. Marcus, with whom, on the brief, was Marnie J. Rubin, for the appellees(plaintiffs).

Opinion

MIHALAKOS, J.

The defendant, Mark Provenzano, appeals from the judgment, rendered after a trial to the court, declaring that the plaintiffs, Paul Provenzano and Dorothy Provenzano, had gained title to a portion of his property through adverse possession.The defendant contends that the court improperly (1) found that the plaintiffs had acquired title to a portion of his land through adverse possession and (2) awarded the plaintiffs a larger portion of his property than had been requested in the pleadings.We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant's appeal.The parties are the owners of adjoining parcels of land on Broadway in Trumbull.The plaintiffs are the record owners of the parcel at 147 Broadway (lot C).On July 6, 1959, the plaintiffs acquired title to lot C by deed from Anna Provenzano.The deed indicated a frontage of 125 feet.Sometime before 1967, after acquiring the property, the plaintiffs discovered a mistake in the deed.Lot C had a frontage of only 112.5 feet.The plaintiffs offered to purchase a piece of property with 12.5 feet of frontage from Anthony Varisco, who then was the owner of 167 Broadway (lot A), in order to correct the deed.Varisco declined the plaintiffs' offer.

In or about 1960, shortly after purchasing the property, the plaintiffs constructed a house that was centered on the property.The plaintiffs then asked their father¹ about the location of the property line between lot C and lot A.Relying on their father's representations, the plaintiffs built a split rail fence along the line he had indicated.In 1977, the plaintiffs constructed a patio, built a retaining wall and planted shrubbery in the area south of the fence line.The area south of the fence line was used exclusively by the plaintiffs until 2001.

The defendant is the record owner of lot A, which adjoins the northern boundary of lot C.On February 14, 2000, he acquired title to lot A by deed from his father, Hugo Provenzano.Beginning in 1991, prior to acquiring title to the property, the defendant had lived at 167 Broadway as a tenant.Hugo Provenzano never, himself, lived on the property, but had acquired title to lot A in 1967.Shortly thereafter, in 1972, Hugo Provenzano conveyed a small, triangular twelve and one-half foot portion of land to the plaintiffs.The plaintiffs were able to correct the defect in the deed to lot C after their previous attempts to purchase the land from Varisco had failed.

In the spring of 1989, the plaintiffs asked Hugo Provenzano if he was interested in selling lot A. Hugo Provenzano declined the plaintiffs' offer to purchase the lot.Shortly after the plaintiffs' inquiry, the defendant and a friend took a transit and attempted to define the property line between lot C and lot A.He testified that he determined that the plaintiffs' patio was encroaching thirteen feet on lot A.Although the defendant, at the time, was neither a tenant nor an owner of the property, he positioned a rope, unbeknownst to the plaintiffs, approximately one foot off the ground, across the patio, to demonstrate the correct property line and to show that the plaintiffs' patio was protruding onto lot A. Hugo Provenzano ordered the defendant to remove the rope.

In 1996, after planning to build an addition to their home, the plaintiffs had their property surveyed and learned that their patio encroached on lot A.The plaintiffs did not alert Hugo Provenzano to this mistake until 1998, when they asked him to convey the land to them.Hugo Provenzano declined.

In November, 2001, the defendant had the property surveyed and determined that the patio did, in fact, encroach on lot A.In response, the defendant placed a 100 foot chain-link fence running from the street to the patio.In addition, he removed the shrubs, bushes and concrete wall that the plaintiffs had installed.The defendant also poured mulch onto the patio so that the plaintiffs could not use it.

By complaint, dated April 2, 2002, the plaintiffs commenced this action to quiet title on the basis of a claim of adverse possession.The complaint referred to the disputed property as a rectangular parcel, approximately 100 by 20 feet in dimension, across the southern boundary of lot A.The plaintiffs added a count of trespass, claiming that because they owned the property through adverse possession, the defendant had entered the property unlawfully and damaged the plaintiffs' property.The complaint was later amended on May 29, 2003, repeating, however, the same initial claims.

After a trial to the court, the court rendered judgment in favor of the plaintiffs on both counts, but did not award damages on the claim of trespass.This appeal followed.Additional facts will be provided as necessary.

I

The defendant's first claim is that the court improperly determined that the plaintiffs had acquired title to the parcel in question by adverse possession."[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner."(Internal quotation marks omitted.)1525 Highland Associates, LLC v. Fohl,62 Conn. App. 612, 622, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137(2001).

"A finding of adverse possession is to be made out by clear and positive proof. . . .[C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . .[The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . .The burden of proof is on the party claiming adverse possession. . . .

"Despite that exacting standard, our scope of review is limited.Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion."(Internal quotation marks omitted.)Allen v. Johnson,79 Conn. App. 740, 745, 831 A.2d 282, cert. denied, 266 Conn. 929, 837 A.2d 802(2003).With that standard in mind, we address the defendant's claims.

The defendant argues that the court improperly determined that the plaintiffs had fulfilled the claim of right requirement² for adverse possession because (1) the owner gave them permission to use the land and (2)the plaintiffs asked to purchase the property, thereby acknowledging the superior title of the defendant's predecessor.We disagree.

The defendants' claim requires us to review a finding of fact."Factual findings . . . are reviewed under the clearly erroneous standard of review. . . .A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . .Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses."(Citation omitted; internal quotation marks omitted.)Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc.,79 Conn. App. 22, 31-32, 830 A.2d 240(2003).

The court properly found that the plaintiffs satisfied the "claim of right" requirement and acquired title to the property through adverse possession.First, the court determined that this was not a situation in which the plaintiffs had been given a license to use the property."[A] license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property . . . ."(Internal quotation marks omitted.)Top of the Town, LLC v. Somers Sportsmen's Assn., Inc.,69 Conn. App. 839, 845, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058(2002).Although the defendant is correct that Hugo Provenzano gave the plaintiffs permission to use some land along the southern boundary of...