Wheeler v. Foster

• Decision Date: 25 February 1997
• Docket Number: No. 14422,14422
• Citation: 44 Conn.App. 331,689 A.2d 523
• Court: Connecticut Court of Appeals
• Parties: Clifford M. WHEELER v. Brian M. FOSTER et al.

Page 523

689 A.2d 523

44 Conn.App. 331

Clifford M. WHEELER v. Brian M. FOSTER et al.

No. 14422.

Appellate Court of Connecticut.

Argued Nov. 5, 1996.

Decided Feb. 25, 1997.

Brian McCormick, Torrington, with whom, on the brief, was Michael D. Ryback, for appellant (plaintiff).

Robert L. Fisher, Jr., for appellee (named defendant).

Before EDWARD Y. O'CONNELL, LANDAU and DALY, JJ.

LANDAU, Judge.

The plaintiff, Clifford M. Wheeler, appeals from the judgment rendered after a trial to the court finding record title to a parcel of real property in the defendant Brian M. Foster. ¹ On appeal, the plaintiff claims that the trial court improperly (1) found that the defendant possessed record title to the disputed parcel of real property, (2) rendered a conflicting judgment, and (3) failed to dispose of all the issues of record title. We affirm the judgment of the trial court. ²

The trial court could reasonably have found the following facts. In 1938, Golda Rylander Balch (Golda) acquired approximately sixty-seven acres of land in Morris. Prior to her death on August 24, 1980, Golda made five separate conveyances, four of which are relevant to this appeal. The four conveyances are summarized as follows. In 1938, she conveyed approximately twenty-six acres by warranty deed to Charles E. Balch and Pauline K. Balch (Charles and Pauline). At trial, the parties referred to this deed as the "divisional deed," and we will do the same. In 1961, Golda conveyed 4.1 acres by warranty deed to Carl L. Gartner and Betty S. Gartner, which the plaintiff acquired in 1968. In 1964, she conveyed 1.5 acres by warranty deed to James F. Butler and Nellie F. Butler, which the plaintiff acquired in 1986. The final relevant conveyance by Golda was of approximately twenty-six acres by quit claim deed to the city of Waterbury in 1968.

The parties agree that the central deed in this case is the 1938 conveyance from Golda to Charles and Pauline. The plaintiff's claim of ownership to the disputed parcel by record title is predicated on his claim that Golda still owned a portion of the original sixty-seven acre parcel at the time of her death. He contends that the area in dispute was not included in any conveyance by Golda and that he acquired record title by quit claim deeds from Golda's heirs in 1993. ³ The defendant contends that the disputed parcel of land was contained within the property conveyed by Golda to Charles and Pauline, and subsequently conveyed to the defendant's predecessor in title, Sylvia M. Foster. ⁴

I

In his first claim, the plaintiff contends that the trial court improperly found that the defendant possessed record title. The plaintiff argues that the trial court's interpretation of the "divisional deed" and its finding of record title in the defendant were clearly erroneous. We disagree.

As a threshold matter, the parties disagree as to the scope of our review. The plaintiff cites Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982), for the proposition that the interpretation of the language in a deed presents a question of law on which our scope of review is plenary. Conversely, the defendant argues that because the trial court considered, in addition to the 1938 deed, all the documentary evidence and the conflicting testimony of the parties' experts, issues of fact were determined and the appropriate scope of review is whether the findings of fact were clearly erroneous. "[W]here the testimony of witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely on the opinions of experts to resolve the problem and it is the court's duty to accept that testimony or evidence which appears more credible." Feuer v. Henderson, 181 Conn. 454, 458, 435 A.2d 1011 (1980); Ball v. Branford, 142 Conn. 13, 17, 110 A.2d 459 (1954). Thus, we conclude that the appropriate scope of review is whether the trial court's findings were clearly erroneous.

"[W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980)." (Internal quotation marks omitted.) Groton v. Yankee Gas Services Co., 224 Conn. 675, 691, 620 A.2d 771 (1993).

The issue on appeal concerns the trial court's role as fact finder. The trial court thoroughly examined the various deeds and maps and considered the conflicting expert testimony. The parties' experts testified at length as to the meaning and interpretation of the "divisional deed" along with the location of certain points and the calculation of distances. A thorough review of the record does not support the conclusion that the trial court's findings of fact were clearly erroneous and did not leave us with a definite and firm conviction that a mistake had been committed. The thrust of the plaintiff's argument is no more than an assertion that the trial court should have credited the plaintiff's evidence and found in his favor. Moreover, in cases such as this, in which there is conflicting testimony, a great degree of deference to the trial court's factual findings is appropriate. See United Components, Inc. v. Wdowiak, 239 Conn. 259, 262-63, 684 A.2d 693 (1996). We conclude, therefore, that the trial court's factual findings were not clearly erroneous. ⁵

II

The plaintiff next claims that the trial court improperly rendered a conflicting judgment on the issue of record title in its memorandum of decision. ⁶ The plaintiff, relying on Marrin v. Spearow, 35 Conn.App. 398, 403, 646 A.2d 254 (1994), argues that because the trial court has rendered a judgment containing inconsistencies it cannot be sustained. The defendant contends that the trial court's judgment is consistent.

In its memorandum of decision, the trial court found for the defendant on the complaint and for the plaintiff on the counterclaim. The plaintiff argues, therefore, that the trial court found record title in both parties. The plaintiff concedes, however, that an entire reading of the memorandum of decision would lead one to conclude that the trial court found in favor of the defendant on the issue of record title.

It is clear that the trial court found in favor of the defendant on the complaint, but the trial court's rulings on the counterclaim are not as clear. In his counterclaim, the defendant averred that he possessed record title, that the plaintiff trespassed on his land and that as a result of this dispute he was unable to sell his property. A careful reading of the memorandum of decision reveals that the trial court expressly ruled in favor of the plaintiff on the defendant's counterclaim seeking damages for the lost sale of his property. The defendant's first counterclaim, alleging record title, is a "mirror image" of the complaint and, thus, is deemed decided for purposes of appeal. See Martin v. Martin's News Service, Inc., 9 Conn.App. 304, 306 n. 2, 518 A.2d 951 (1986), cert. denied, 202 Conn. 807, 520 A.2d 1287 (1987). While it is true that the defendant's trespass cause of action was not addressed, it is not necessary for the resolution of this appeal where there is a judgment on an entire complaint. Practice Book § 4002A. We conclude, therefore, that the trial court's memorandum of decision is consistent.

III

The plaintiff's final claim is that the trial court improperly failed to address the issue of record title as to all the property claimed by the parties in their pleadings. The plaintiff claims ownership to a small triangular piece of land northeast of the disputed parcel. The defendant's response is twofold. First, the defendant contends, and the...