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Caldarella v. Manafort

Connecticut Superior Court Judicial District of Middlesex at Middletown
Oct 13, 2011
2011 Ct. Sup. 21782 (Conn. Super. Ct. 2011)

Opinion

No. MMX CV 10 6003501

October 13, 2011


MEMORANDUM OF DECISION RE MOTION TO STRIKE NO. 116


I. PROCEDURAL HISTORY

This action arises out of a conflict regarding title to a parcel of real property. In the second amended complaint filed on April 8, 2011, the plaintiff, L.D. Caldarella, alleges the following facts. On June 9, 1994, the plaintiff and one of the defendants, Jon A. Manafort, entered into a note purchase agreement concerning the Hmielewski parcel in Old Saybrook. The plaintiff owned the property at the time, but it was subject to a foreclosure action. A second note purchase agreement was entered into on August 29, 1994, concerning another parcel of land in Old Saybrook. The second agreement contained essentially the same terms as the first agreement. Pursuant to the first agreement (the agreement), Manafort would purchase the mortgage and the note on the Hmielewski parcel. Manafort would then proceed to acquire title to the property through the foreclosure action. Under the agreement, Manafort could compel the plaintiff to buy the property on certain terms and conditions. The plaintiff had the right to purchase the property on certain terms, exercisable five years after the date of the agreement, with a right of first refusal. The parties agreed that the plaintiff "could continue to occupy the Hmielewski Parcel consistent with [the plaintiff's] current occupation until either Manafort or [the plaintiff] exercised either of their rights to sell or purchase." The plaintiff would also pay rent to Manafort. From the date of the agreement, the plaintiff "occupied the Hmielewski parcel and made improvements thereto." Manafort made no claims for rental payment. Manafort subsequently acquired title to both properties.

The operative complaint consists of six counts alleging breach of contract (counts one and three), breach of the covenant of good faith and fair dealing (counts two and four), breach of fiduciary duty (count five) and adverse possession (count six) against the defendants, Jon A. Manafort and Island Cove Marina, LLC. On May 25, 2011, the defendants filed a motion to strike count six and paragraph five of the prayer for relief. The defendants seek to strike count six on the grounds that the plaintiff failed to plead a legally sufficient adverse possession claim; the claim for quiet title is improperly joined with the other causes; and the sixth count is legally inconsistent with the other counts. In addition, the defendants seek to strike paragraph five of the plaintiff's prayer for relief on the ground that the plaintiff has not alleged any proper cause of action that would support a claim for quiet title relief. The motion is accompanied by a memorandum of law. The plaintiff filed a memorandum of law in opposition to the motion to strike on June 15, 2011. The defendants filed a reply memorandum on June 23, 2011.

II DISCUSSION A. Count Six — Adverse Possession

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). When deciding a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "In Connecticut, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006).

The defendants argue that count six is legally insufficient to state a quiet title claim based on adverse possession on three grounds. First, the defendants argue that the plaintiff has failed to satisfy the pleading requirements for a quiet title claim brought pursuant to General Statutes § 47-31 under a theory of adverse possession. Specifically, they contend that the plaintiff has failed to allege his claim, interest or title in the property, and has failed to sufficiently allege adverse possession as the manner in which he acquired such claim, interest or title. Second, the defendants argue that the claim for quiet title is improperly joined pursuant to General Statutes §§ 47-32 and 52-97. Third, they maintain that the sixth count is legally inconsistent with the other five counts.

The plaintiff counters that the quiet title claim is based upon the fact that the plaintiff has occupied the property openly, notoriously, exclusively and under a claim of right for an uninterrupted period of at least fifteen years. The plaintiff's theory is that the defendants' breach of the agreement forms the basis of the plaintiff's adverse possession claim. He maintains that a contract for purchase was never formed due to Manafort's refusals to accept the plaintiff's offers and the plaintiff's possession was therefore hostile. Secondly, the plaintiff argues that the adverse possession claim is not improperly joined with the other causes of action because the claim is "not only incidental to the rest of the complaint, it is at the heart of the entire legal action." Lastly, the plaintiff argues that his claim is not inconsistent with the other counts because the adverse possession period was not interrupted by his exercise of his first right of refusal.

"In all actions to quiet title, there is a single statute, General Statutes § 47-31 which is applicable to a plaintiff's claim . . ." (Citation omitted.) DeVita v. Esposito, 13 Conn.App. 101, 103-04, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988). "[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 `claim of right' does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it has the intent to disregard the true owner's right to possession." (Citations omitted.) Top of the Town, LLC v. Somers Sportsmen's Assn., Inc., 69 Conn.App. 839, 843, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).

Section 47-31(a) provides in relevant part: "An action may be brought by any person claiming title to, or any interest in, real . . . property . . . against any person who may claim to own the property . . . for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property."

To acquire title by adverse possession, the possession must be hostile from its inception. Kramer v. Petisi, 53 Conn.App. 62, 71, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999). To show hostility, a claimant must establish that his possession of the disputed land was "without permission, license or consent of the owner . . ." Mulle v. McCauley, 102 Conn.App. 803, 813-14, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007). Hostility does not "imply animosity, ill will or bad faith." (Internal quotation marks omitted.) Id. Rather, hostile possession is "possession that is opposed and antagonistic to all other claims, and that conveys the clear message that the possessor intends to possess the land as his or her own." (Internal quotation marks omitted.) Id.

"[A] party taking possession of premises under a contract of sale, and in expectation of a conveyance under the contract, is not holding adversely to the owner, and . . . he can change his licensed possession into an adverse one only by explicit acts on his part which give the owner notice of such adverse holding." Harral v. Leverty, 50 Conn. 46, 50 (1882). "Possession that is permissive in its inception may become hostile . . . If the original entry on land is by permission of the owner or under some right or authority derived from the owner, the possession does not become hostile until the permission or authority has been clearly repudiated by the occupant. To change the character of the possession from permissive to hostile, the disavowal of the record owner's title and the assertion of an adverse claim must be shown by some clear, positive, and unequivocal act brought home to the owner, such as an explicit disclaimer." (Internal quotation marks omitted.) Woodhouse v. McKee, 90 Conn.App. 662, 675, 879 A.2d 486 (2005).

Here, the plaintiff argues that his possession was hostile despite his allegations that indicate the plaintiff's use of the land was initially permissive. The plaintiff alleges, in count six, that he and the defendant entered into an agreement where by the plaintiff would continue to occupy the Hmielewski parcel. The allegations additionally state that Manafort could require the plaintiff to purchase the property and the plaintiff had the option to purchase the property at a later date. These allegations outline the fact that there was an option contract for the sale and/or purchase of the land and that the plaintiff had Manafort's permission to occupy the property. In other words, the plaintiff had Manafort's consent to be on the property, which is not hostile possession. See Grody v. Bailey, 106 Conn. 300, 301-02 (1927) (finding that a verbal contract for the purchase of the property meant the occupant's use of the land was not hostile). Indeed, in his opposition memorandum, the plaintiff acknowledged that "he did not initially believe the possession to be hostile."

Moreover, according to the allegations contained in the common facts of the second amended complaint but not incorporated into count six, the plaintiff attempted to exercise his option to purchase the property. See Emerick v. Kuhn, 52 Conn.App. 724, 742, 742 n. 15, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied, 528 U.S. 1005, 120 S.Ct. 500, 145 L.Ed.2d 386 (1999) (noting, in determining that the plaintiff was not exercising a right enjoyed by general citizenry but was exercising a privilege granted him by his employer, that the plaintiff "admits, by way of allegation, that his speech was employee related in other counts of his complaint"). "An adverse possessor may interrupt his or her continuous possession by acting in a way that acknowledges the superiority of the real owner's title . . . [A]n offer to purchase the legal title . . . is a recognition of that title . . . [E]fforts to buy the property from the record owner constitute an acknowledgment of the record owner's superior title, and thus disprove the adverse holding, because there has been no claim of right." (Citation omitted; internal quotation marks omitted.) Provenzano v. Provenzano, 88 Conn.App. 217, 224, 870 A.2d 1085 (2005). Accordingly, to the extent that the plaintiff's possession was ever adverse, the plaintiff's allegations concerning the offer to purchase demonstrate that such possession was interrupted and, therefore, was not continuous for the requisite fifteen-year period. Moreover, as the plaintiff's possession was alleged to be initially permissive, it could only have become hostile if the permission or authority to use the property had been "clearly repudiated by the occupant," i.e. the plaintiff. Woodhouse v. McKee, supra, 90 Conn.App. 675. The plaintiff has not alleged such repudiation explicitly nor has he alleged any facts from which the court could infer such repudiation.

The plaintiff argues that his possession became hostile when Manafort allegedly breached the agreement by transferring title of the property to Island Cove Marina, LLC without first offering to sell the land to the plaintiff. The plaintiff's memorandum, relying on facts not alleged in count six, states that the plaintiff realized that Manafort never intended to effectuate the transfer when Manafort evaded the plaintiff's attempt to exercise his option. The plaintiff claims his realization was confirmed when he learned that Manafort had transferred title without notifying him. According to the plaintiff, this means that Manafort repudiated the agreement, changing the plaintiff's possession from permissive to hostile when Manafort transferred the property to Island Cove Marina, LLC. The plaintiff does not cite any legal authority for this proposition.

The plaintiff's argument fails under well established law in Connecticut, which only allows the occupying party to turn permissive possession into hostile possession. See Harral v. Leverty, supra, 50 Conn. 50 ("a party taking possession . . . can change his licensed possession into an adverse one only by explicit acts on his part which give the owner notice of such adverse holding"); Grody v. Bailey, supra, 106 Conn. 301-02 ("Until [the possessor of the land] does some unequivocal act to manifest a repudiation of the contract and brings this home to the knowledge of the other party, he cannot be considered as holding adversely to the person under whom he took possession." (Internal quotation marks omitted).); Woodhouse v. McKee, supra, 90 Conn.App. 675 (holding that permissive possession "does not become hostile until the permission or authority has been clearly repudiated by the occupant"). In order for permissive possession to become hostile possession, the permission to occupy the land must be clearly repudiated by the occupant. The repudiation must be shown by some clear, positive, and unequivocal act brought home to the owner. In other words, the occupier must do something in order for his permissive possession to become hostile as illustrated in Top of the Town, LLC v. Somers Sportsmen's Assn., Inc., supra, 69 Conn.App. 839.

In Top of the Town, LLC v. Somers Sportsmen's Assn., Inc., the issue was whether the defendant's use of the property after the licensor's death in 1967 was under a claim of right. The trial court found that the licensor's oral license was revoked upon his death in 1967 and the defendant's possession thereafter was under a claim of right because the trustees of Galbraith's property failed to give the defendant express permission to occupy. In overturning the trial court, the Appellate Court held that "[a]lthough the license terminated in 1967, the [trial] court improperly concluded that the defendant's occupation automatically converted to a claim of right." Id., 845. According to the Appellate Court, these findings were inconsistent with the law because the burden is on the claimant to prove that the possession was under a claim of right, not on the true owner to show that it was permitted. The burden is allocated to the claimant because "[a]lthough possession that is originally permissive may become hostile, it does so only if [the permission] is clearly repudiated by the occupant." (Internal quotation marks omitted.) Id.

In support of its conclusion, the Appellate Court distinguished the Top of the Town matter from the landlord-tenant cases relied on by the trial court to support the principle that a long occupation may raise a presumption that the occupant holds adversely to the true owner. See Camp v. Camp, 5 Conn. 291 (1824); Hanford v. Fitch, 41 Conn. 486, 499-500 (1874). In these cases, the Appellate Court noted that the adverse possessor gave notice that it was holding under a claim of right, and the title owner had not been on the property for many decades. In contrast, in Top of the Town, "the [owners] continued to occupy the land and to interact with the defendant [claiming adverse possession] without any notice that [the defendant] was occupying under a claim of right." Id., 847. The Appellate Court noted that "the defendant seemed to recognize expressly that it was occupying the land with permission" when it offered to purchase the entire property and that at no point did the defendant "note that [it] had the right to remain on the property by way of adverse possession." Id., 849-50.

"In Camp, both parties agreed that the defendant occupied under a claim of right for fifty-seven years without any interference from or interaction with the lessor's family and that the original lessor never owned or occupied the land . . . Likewise, in Hanford, the plaintiff had `ample notice from the acts of the parties holding the land' that they were doing so under a claim of right and that the plaintiff abandoned the property when she left Connecticut nearly fifty years earlier." (Citation omitted.). Top of the Town, LLC v. Somers Sportsmen's Assn., Inc., supra, 69 Conn.App. 847.

Here, as in Top of the Town, the alleged adverse possessor, the plaintiff, fails to allege that he gave any notice that he was occupying the property under a claim of right or hostile to the defendants' interest, i.e. "without permission, license or consent of" the defendant. See Mulle v. McCauley, supra, 102 Conn.App. 814. Rather, the allegations demonstrate that the plaintiff, like the defendant in Top of the Town, recognized that he did have permission from the true owner to occupy the land. The allegations of count six fail to allege that the plaintiff repudiated Manafort's consent for the plaintiff to occupy the land. Nor has the plaintiff alleged that he made any other clear, positive, and unequivocal act of disavowal. Therefore, the plaintiff has failed to allege that his possession became hostile or under a claim of right because he never repudiated his permission to occupy the property. Accordingly, the hostile element of adverse possession is not met and thereby the plaintiff has failed to state a legally sufficient claim to quiet title based on adverse possession.

In count six, the plaintiff only incorporates paragraphs one through thirty-five of the common facts. In paragraphs thirty-six through sixty-six, the plaintiff alleges a breach of contract by Manafort.

Even if the court were to accept the plaintiff's argument that Manafort's breach turned the plaintiff's occupation into hostile possession, the plaintiff's claim would fail because he has not alleged facts to support its allegation that he has "occupied and used a portion of the Hmielewski Parcel . . . openly, visibly, and exclusively for an uninterrupted period exceeding fifteen (15) years . . ." The plaintiff alleges that on January 13, 1999, Manafort transferred the parcel to Island Cove Marina, LLC. Even if the court were to find that the plaintiff's possession became adverse on that date, the earliest the plaintiff could bring a legally sufficient claim to quiet title based on adverse possession would be January of 2014, fifteen years from the date when the plaintiff's possession would allegedly have become hostile. This day has yet to arrive, so the plaintiff has not alleged his continued and hostile possession of the Hmeilewski parcel for the requisite fifteen years. Therefore, for this reason as well, the plaintiff has failed to state a legally sufficient claim to quiet title based on adverse possession. Accordingly, the court grants the defendants' motion to strike count six of the plaintiff's second amended complaint.

B. Prayer for Relief

The defendants' motion to strike also addresses paragraph five of the plaintiff's prayer for relief on the ground that the plaintiff has not alleged any proper cause of action that would support a claim for quiet title relief. "A motion to strike may be used to contest the legal sufficiency of any prayer for relief in any complaint." Dean v. Nowacki, Superior Court, judicial district of Litchfield, Docket No. CV 99 0091044 (January 2, 2001, Cremins, J.). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). "If the relief requested in a prayer for relief does not correspond to the allegations contained in the complaint, a motion to strike a prayer for relief should be granted." Dean v. Nowacki, supra, Superior Court, Docket No. CV 99 0081044.

In light of the court's ruling, it need not address the plaintiff's additional claims made in support of the Motion to Strike.

The plaintiff does not allege any other claim that would allow for the relief of quieting title. Therefore, the court also grants the defendants' motion to strike paragraph five of the plaintiff's prayer for relief.

III CONCLUSION CT Page 21790

For the reasons stated the court grants the motion to strike.

So ordered,


Summaries of

Caldarella v. Manafort

Connecticut Superior Court Judicial District of Middlesex at Middletown
Oct 13, 2011
2011 Ct. Sup. 21782 (Conn. Super. Ct. 2011)
Case details for

Caldarella v. Manafort

Case Details

Full title:L.D. CALDARELLA v. JON A. MANAFORT

Court:Connecticut Superior Court Judicial District of Middlesex at Middletown

Date published: Oct 13, 2011

Citations

2011 Ct. Sup. 21782 (Conn. Super. Ct. 2011)