Gaughan v. Higgins

          Argued September 13, 2018

         Procedural History

         Action seeking, inter alia, to quiet title to certain real property, and for other relief, brought to the Superior Court in the judicial district of Tolland, where the defendant filed a counterclaim; thereafter, the matter was tried to the court, Cobb, J.; judgment for the plaintiffs on the complaint in part and on the counterclaim in part, from which the defendant appealed and the plaintiffs cross appealed to this court. Reversed in part; further proceedings.

          Edward Muska, for the appellant-cross appellee (defendant).

          Maria K. Tougas, for the appellees-cross appellants (plaintiffs).

          DiPentima, C. J., and Elgo and Bear, Js.

          OPINION

          ELGO, J.

         This quiet title action concerns a triangular strip of land between the parties' properties. The defendant, Peter J. Higgins, appeals from the judgment of the trial court, rendered after a bench trial, in favor of the plaintiffs, Peter P. Gaughan and Jacqueline McGann. On appeal, the defendant claims that the court improperly (1) credited the testimony of the plaintiffs' expert witness, (2) found facts not supported by the record, (3) found that the defendant trespassed on the plaintiffs' property, and (4) awarded the plaintiffs the fees of their expert witness as an element of the bill of costs. The plaintiffs cross appeal, claiming that the court improperly (1) denied their request for punitive damages and (2) determined that the defendant did not slander the plaintiffs' title. We reverse the judgment of the trial court with respect to the defendant's fourth claim and affirm the judgment in all other respects.

         The record reveals the following facts and procedural history. The plaintiffs are the owners of real property known as 8 White Road in Ellington. The defendant is the owner of real property known as 51 South Road in Ellington, an abutting property to the north.

         In 1969, the defendant's parents owned both the plaintiffs' and the defendant's parcels and subdivided the land into two parcels in order to convey the property at 8 White Road to the defendant.^[1] The defendant's mother later deeded the property at 51 South Road to the defendant. Prior to the subdivision of the property in 1969, the defendant witnessed his father and an unidentified gentleman walk the boundaries of what became the 8 White Road property and place iron pins in three of the property's four corners.

         In 1991, Peter Gaughan and his father, David Gaughan, purchased the undeveloped 8 White Road property from the defendant.^[2] Prior to purchasing the property, Peter Gaughan walked the property with the defendant, and the defendant pointed out the parcel's boundaries, including the three iron pins that were located in the southeast, northeast, and northwest corners of the parcel.^[3]

         The disputed triangular strip of land between the parties' properties is approximately thirty-three feet wide where it abuts South Road at the northwest boundary corner to the plaintiffs' property and decreases in width to roughly five feet at the northeast boundary corner of their property. The disputed strip includes a hedgerow that runs almost all the way across the boundary, which the defendant's father planted in the 1940s. The plaintiffs believed that they owned the land to the south of the hedgerow.

         In 1997, after Peter Gaughan started clearing the 8 White Road property in order to construct a residence, the defendant began to experience surface water flowing onto his property. In response, the defendant constructed a drainage swale just south of the hedgerow, which alleviated the water issue. The plaintiffs did not object to the defendant's construction of the swale, which the defendant maintained.

         Years later, the defendant began to dispute the plaintiff's ownership of the triangular strip of land that runs along the boundary of their properties to the south of the hedgerow. That dispute precipitated this quiet title action commenced by the plaintiffs in 2016. Their complaint contained four counts: quiet title, trespass, slander to title, and adverse possession. In response, the defendant asserted two counterclaims: quiet title and water damage.^[4]

         In its June 12, 2017 memorandum of decision, the court found in favor of the plaintiffs on their claims for quiet title and trespass and on the defendant's claims for quiet title and water damage. The court found in favor of the defendant on the plaintiffs' claim for slander of title. Specifically, the court found that the 1991 warranty deed from the defendant to Peter Gaughan, granting him the 8 White Road parcel, is clear and unambiguous, and includes the disputed area as defined by the iron pins referenced in the deed that demarcate three of the four corners of the property.^[5] As for the plaintiffs' trespass claim, the court found that, although the defendant had trespassed on the plaintiffs' property, the plaintiffs did not provide the court with any evidence of costs associated with remedying the alleged injuries therefrom. The court therefore found that the plaintiffs were entitled to $100 in nominal damages for the defendant's trespass but declined to award them any punitive damages or attorney's fees. From that judgment, the defendant now appeals and the plaintiffs cross appeal. Additional facts will be set forth as necessary.

         I

         THE DEFENDANT'S APPEAL

         A

         In his first claim on appeal, the defendant essentially challenges the court's credibility determination. He claims that the court improperly credited the testimony of the plaintiffs' surveyor expert witness in construing the language of the plaintiffs' deed. We do not agree.

         ‘‘[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 upon 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. . . . In determining credibility of the experts, the court as the trier of fact could believe all, some or none of the testimony. . . . Moreover, credibility determinations are beyond the reach of an appellate court.'' (Citations omitted; footnote omitted; internal quotation marks omitted.) Har v. Boreiko, 118 Conn.App. 787, 796-97, 986 A.2d 1072 (2010). Nonetheless, the trial court cannot ‘‘arbitrarily disregard, disbelieve or reject an expert's testimony in the first instance. . . . Where the trial court rejects the testimony of [an] expert, there must be some basis in the record to support the conclusion that the evidence of the [expert witness] is unworthy of belief.'' (Citations omitted; internal quotation marks omitted.) Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 294, 545 A.2d 530 (1988).

         The court heard extensive testimony from the defendant's surveyor expert witness, Robert Saunders, who explained in detail the basis for his conclusion that the plaintiffs' deed did not convey title of the disputed area to the plaintiffs. The defendant argues that although the court mentioned at closing arguments that Saunders' testimony was ‘‘good'' and ‘‘thorough, '' it did not address Saunders' evidence and reasoning in its memorandum of decision.^[6]

         We conclude that the court did not arbitrarily disregard Saunders' testimony. It is clear on the basis of the record and the court's memorandum of decision that, after considering all of the evidence before it, the court chose to credit the conclusions of the plaintiffs' expert witness regarding the plaintiffs' ownership of the disputed area over that of Saunders. Making such a credibility determination is the responsibility and exclusive province of the trial court as the fact finder. Accordingly, we reject the defendant's claim.

         B

         The defendant next claims that certain factual findings were not supported by the evidence in the record and were clearly erroneous. We address each claim in turn.

         The following additional facts are relevant to the defendant's claims. The plaintiffs presented the expert testimony of Russell Heintz, a licensed land surveyor. Heintz testified that he began working with the plaintiffs in 1997, when Peter Gaughan was constructing his home on the 8 White Road property. In order to create his own survey, Heintz utilized a 1996 survey certified by land surveyor Barry Clarke to locate the pins referenced in the 1991 warranty deed. Heintz testified that in 1997 he saw all three pins referenced in the 1991 warranty deed, though he could not say which pins he used to create his survey. Heintz also testified that in 1997 he saw the northwest corner pin, but that it was gone when he returned to the property in 2013. Additionally, Heintz testified as to the methodology he used in coming to the opinion that the disputed area was part of the land deeded to the plaintiffs. He explained that he determined the area of land included in the deed description by starting at the first pin called for in the deed and working his way around the measurements of the property from that point, following the deed description.

         As part of his case, the defendant called Saunders, a licensed land surveyor, as his expert witness. Saunders testified as to his methodology, explaining that in order to confirm that the pins in the ground were the pins described in the deed, he had to establish the right of way on White Road as the basis for the survey and apply the deed distances from that point. On the basis of this method, Saunders first established the southerly line of the plaintiffs' property based on research indicating that there had been a stone wall south of White Road, across the street from the plaintiffs' property. From there, Saunders established that the southern property line was thirty-three feet north of where the stone wall had been, based on his research that White Road was thirty-three feet wide.

         Our review of the trial court's factual findings is well established. ‘‘[W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact. . . . [An appellate] court does not try issues of fact or pass upon the credibility of witnesses.'' (Citation omitted; internal quotation marks omitted.) Har v. Boreiko, supra, 118 Conn.App. 795. ‘‘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. . . . Because it is the trial court's function to weigh the evidence and determine credibility, we give great deference to its findings.'' (Internal quotation marks omitted.) Lacic v. Tomas, 78 Conn.App. 406, 410-11, 829 A.2d 1, cert. denied, 266 Conn. 922, 835 A.2d 472 (2003).

         1

         The defendant first argues that the court's factual finding as to the location of the plaintiffs' property was not supported by the evidence in the record and was clearly erroneous. We disagree.

         In its memorandum of decision, the court settled and quieted title ‘‘in favor of the plaintiffs and against the defendant [regarding] the property located at 8 White Road, which includes the area in dispute in this case, and is described in the 1991 warranty deed that is filed in the Ellington land records at Volume 186, page 124.'' Heintz' testimony and the surveys admitted into evidence as completed by Clarke and Heintz indicate that the location of the plaintiffs' property correlates with the deed description and the pins described therein. The ...