PETER GAUGHAN ET AL.
September 13, 2018
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.
Muska, for the appellant-cross appellee (defendant).
K. Tougas, for the appellees-cross appellants (plaintiffs).
DiPentima, C. J., and Elgo and Bear, Js.
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
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.
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. 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.
1991, Peter Gaughan and his father, David Gaughan, purchased
the undeveloped 8 White Road property from the
defendant. 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.
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.
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.
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.
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. 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
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.
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
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.
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.
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.
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.
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.
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).
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.
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 ...