Stephen Benjamin v. City of Norwalk (2011)

Memorandum of Decision on Motion to Strike (No. 143)

Procedural/Factual Background

The plaintiffs, Stephen D. Benjamin and Helen Z. Benjamin, have brought this lawsuit seeking an adjudication of title and establishment of the boundary between their property located at 40 Quintard Avenue in Norwalk and a road known as Shorefront Park. In the operative pleading, which is the plaintiffs' second amended complaint dated March 18, 2011,¹ the plaintiffs allege the following facts relevant to the disposition of the motion that is presently before the court.   The plaintiffs acquired title to the 40 Quintard Avenue property on June 18, 1992.   This property has a driveway that can be accessed through two stone pillars.   The subject driveway circles in front of 40 Quintard Avenue and connects back to itself and then proceeds back to Quintard Avenue.   As alleged by the plaintiffs, “[i]f a vehicle enters [or exits] the area known as Shorefront Park from Quintard Avenue to traverse Shorefront Park, which is also the name of the road, it does not go through the aforesaid stone pillars because there is a much more convenient turn through a much wider opening located immediately south of the stone pillars.”   Additionally, the plaintiffs allege that the city of Norwalk does not maintain or plow this driveway because the area is too small for the city's snow plows or maintenance trucks to enter.   In contrast, the plaintiffs allege that they have openly, notoriously, continuously, adversely and exclusively possessed this driveway for more than fifteen years.   Consequently, the plaintiffs claim that they now own this property under the doctrine of adverse possession.

The plaintiffs have named numerous individuals and entities as defendants in this action.²  According to the operative complaint, each of these defendants may have an interest in the area of land that the plaintiffs are attempting to adversely possess.   The only defendants that are relevant to this motion are the city of Norwalk, the Shorefront Park Improvement Association, Inc. (Shorefront Park Association) and Urban S. Mulvehill and Diane K. Mulvehill (the Mulvehills).   The plaintiffs allege that Mulvehills own property at 50 Quintard Avenue and that the Mulvehills “rear yard bounds on Shorefront Park where the aforesaid road is 16 [feet] wide ․” Additionally, the plaintiffs allege the Shorefront Park Association owns real property at 74 Shorefront Park “which bounds Shorefront Park where the aforesaid road is 16 [feet] wide ․

According to the Norwalk land records, the Shorefront Park road is still owned by the Shorefront Park Company,³ which was the original developer of the Shorefront Park area.   On April 21, 1930, the Shorefront Park Company petitioned the city of Norwalk for the acceptance of all the highways in Shorefront Park that were fifty feet in width as they appeared on map 592 of the Norwalk land records.⁴  The Norwalk common council then resolved that “the highways in Shorefront Park as designated on the map entitled ‘Map of the Shorefront Park Company, Norwalk, CT, August 24, 1924’ be accepted.”   This resolution was seconded and passed by the Norwalk common council.   As a result, the city of Norwalk purportedly accepted all of the roads in Shorefront Park, not just the roads that were more than fifty feet wide.   In paragraph thirty-seven of the operative complaint, the plaintiffs allege that the area they are seeking to adversely possess could not have been accepted by the city of Norwalk because it is only sixteen feet wide.   By virtue of an instrument dated February 5, 1958, the majority of the directors of the Shorefront Park Company resolved that the corporation was to end on June 30, 1958.   Furthermore, the Shorefront Park Company's assets were distributed to unknown stockholders on January 9, 1959.   Consequently, the Shorefront Park Company no longer exists.

In response to the plaintiffs' original complaint dated December 17, 2009, the Shorefront Park Association filed an answer on March 9, 2010.   The Mulvehills each filed separate answers and special defenses on March 18, 2010.   Since the filing of the Shorefront Park Association and the Mulvehills' answers, the plaintiffs have filed two amended complaints on April 12, 2010 ⁵ and March 18, 2011, respectively.   Neither the Shorefront Park Association nor the Mulvehills have filed an amended answer in response to these amended complaints.   Although the subsequent iterations of the plaintiffs' complaint have changed the numbering of the relevant paragraphs and added some allegations regarding the defendants that the plaintiffs seek to implead into to the case, the substance of the allegations in all of the complaints is the same.   Consequently, the court is faced with the confusing situation where the answers filed by the Shorefront Park Association and the Mulvehills are not directed toward the operative complaint.   Nevertheless, Practice Book § 10–61, which governs pleading after amendment, provides in relevant part that:  “If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”   As the gravamen of the plaintiffs' allegations have not changed in the various versions of their complaint, the court can treat the answers that have already been filed in this case as being directed toward the operative complaint dated March 18, 2011.

On March 9, 2011, the plaintiffs filed a motion to strike the answers filed by the Shorefront Park Association and the Mulvehills.   The plaintiffs have also filed a memorandum of law in support of their motion.   On March 24, 2011, the Shorefront Park Association filed a memorandum of law in opposition to the plaintiffs' motion.   Counsel for the plaintiffs and the Shorefront Park Association appeared before the court and argued this matter at short calendar on March 28, 2011.   The Mulvehills, who are self-represented parties, have not filed any opposition papers and they did not appear at short calendar to argue the merits of the plaintiffs' motion.

Discussion

Practice Book § 10–39 provides:  “(a) Whenever any party wishes to contest ․ (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”   Consequently, although it may appear to be somewhat procedurally irregular, the Practice Book does authorize a motion to strike to test the legal sufficiency of a party's answer.   In a motion to strike, “the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   As a result, the general rule is that when ruling on a motion to strike, the court must “construe the [challenged pleading] in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

In their memorandum of law, the plaintiffs argue that the answers filed by the Shorefront Park Association and the Mulvehills are legally insufficient because they fail to adhere to the pleading requirements of General Statutes § 47–31(d).  The plaintiffs argue that § 47–31(d) sets forth a mandatory obligation for defendants to plead in their answer whether they have any legal claim to the property in question, as well as the nature of extent of such claims.   According to the plaintiffs, both the Shorefront Park Association and the Mulvehills have failed to plead accordingly, and, as a result, their answers should be stricken.   In response, the Shorefront Park Association argues that they have satisfied all of the requirements of § 47–31(d) because they admit in their answer that the city of Norwalk has accepted all of the roads in Shorefront Park. Therefore, the Shorefront Park Association contends that “[t]he roads within Shorefront Park are therefore owned by the [c]ity of Norwalk.”   As stated previously, the Mulvehills have offered no argument in opposition to the plaintiffs' motion to strike.

Under Connecticut law, “[i]n all actions to quiet title, there is a single statute, General Statutes § 47–31, which is applicable to a plaintiff's claims ․ and which ․ supersedes any common law actions brought to determine record title or to claim any interest in real property.”  (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).  “An action to quiet title is one quasi in rem, and it lies against those who, at the time it is instituted, are the present claimants to the land under the instrument which creates the cloud ․ When a party seeks to quiet title pursuant to § 47–31, the court should first determine in which party record title lies, and then determine whether adverse possession has divested the record owner of title ․ The initial question is whether record title is in one party or the other and, if so, the question becomes whether the record owner was divested of title by clear and positive proof of adverse possession of the other.”  (Citation omitted;  internal quotation marks omitted.)  Har v. Boreiko, 118 Conn.App. 787, 794, 986 A.2d 1072 (2010).

Section 47–31(d) sets forth the following pleading requirements for defendants in actions that are brought under the statute:  “Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived.”   Although § 47–31(d) has not been recently interpreted by our appellate courts, the Connecticut Supreme Court did examine the scope of § 47–31(d) in a case decided over ninety years ago.   As stated by the Supreme Court when interpreting General Statutes § 5113,⁶ which was the previous codification of § 47–31(d):  “A claim that the defendant be required to state the nature of his interests, etc., cannot properly be included in the prayer for relief.   Any obligation of the defendant in this respect is determined by the requirements of the statute relating to his answer.   Where the defendant has made no claim, he may deny the plaintiff's allegation that he claims an adverse interest, but ordinarily in such case he would answer by disclaiming any interest ․ Where the complaint states truly the plaintiff's ownership and defendant's claim based on admitted facts showing the nature and extent of his title, the defendant's answer should simply admit the allegations of the complaint, and thereupon the question of law determinative of the conflicting claims of title would be in issue.   In other cases the defendant must comply with the statute in stating the nature of the interest which he claims.”  (Emphasis added;  internal quotation marks omitted.)  Hartford–Connecticut Trust Co. v. Cambell, 95 Conn. 399, 402–03, 111 A. 864 (1920); ⁷  see also Foote v. Brown, 78 Conn. 369, 377, 62 A. 667 (1905) (same).   Consequently, pursuant to the Hartford–Connecticut Trust Co. case, a defendant need not affirmatively set forth its claim to the property in its answer so long as the defendant can rely on the allegations of the plaintiffs' complaint.   See, e.g., Groobert v. Revitch, Superior Court, judicial district of New Haven, Docket No. CV 89 290216 (June 24, 1993, Hodgson, J.) (stating that although “the plaintiffs characterize the defendant's failure to file a statement of her claim as a fatal noncompliance with § 47–31(d) ․ it has been held that where the complaint itself describes the facts on which the defendant's claim is based, no further statement of a claim is necessary”).

In paragraph thirty-four of its answer, the Shorefront Park Association admits that “the [c]ity of Norwalk accepted all roads in Shorefront Park.” This admission was in response to the allegation set forth in paragraph thirty-four of the plaintiffs' complaint dated December 17, 2009, in which the plaintiffs alleged that “[i]t appears from the acceptance that the [c]ity of Norwalk may have accepted all roads on the aforesaid map, despite the fact that the Shorefront Park Company only offered its 50 [foot] wide roads.” ⁸  (Emphasis in original.)   The Shorefront Park Association also admits, in paragraph thirty-one of its answer, that the “Shorefront Park Company petitioned the [c]ity of Norwalk for acceptance of all highways in Shorefront Park.” Accordingly, after reading its answer, it is apparent that the Shorefront Park Association believes that the city of Norwalk accepted all of the roads in Shorefront Park. This position is also made clear in the Shorefront Park Association's memorandum of law in opposition, in which it argues that “[t]he Norwalk Common Council accepted these public roads.   The roads within Shorefront Park are therefore owned by the [c]ity of Norwalk.”   As the plaintiffs' complaint alleges that the city of Norwalk accepted all of the roads in Shorefront Park, pursuant to the Hartford–Connecticut Trust Co. case, the Shorefront Park Association can rely on those allegations and need not affirmatively plead as such in order to be compliance with § 47–31(d).  The Shorefront Park Association's claim to the roads in question has already been alleged in the plaintiffs' complaint.   Simply put, the Shorefront Park Association believes that it has no claim to the property in question because the city of Norwalk has already accepted ownership of all of the roads in Shorefront Park. Accordingly, the Shorefront Park Association's answer meets the pleading requirements of § 47–31(d).

In contrast, the Mulvehills, who filed separate answers admitting and denying the same allegations, take no position on whether the city of Norwalk accepted all of the roads in Shorefront Park. In fact, the Mulvehills' answers fail to respond to any of the allegations made in paragraphs thirty-one through thirty-five of the plaintiffs' complaint dated December 17, 2009.   These are the relevant paragraphs where the plaintiffs allege the facts surrounding the city of Norwalk's purported acceptance of the roads in Shorefront Park. The Mulvehills also make no affirmative statement of their claim to the subject property in their answer.   Consequently, the Mulvehills have not complied with § 47–31(d), and, as a result, their answers should be stricken.

Order

For all of the reasons stated above, the plaintiffs' motion to strike the Mulvehill defendants' answers is granted, but the plaintiff's motion to strike the defendant Shorefront Park Association's answer is denied.

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. The plaintiffs' motion to strike was argued at short calendar on March 28, 2011.   At that time, the operative complaint was the amended complaint dated April 9, 2010.   Nevertheless, on March 18, 2011, the plaintiffs filed a request for leave to amend their complaint with a proposed amended complaint attached.  Practice Book § 10–60 provides in relevant part that “a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section ․ (3) By filing a request for leave to file such amendment, with the amendment appended ․ If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.”   As none of the defendants filed an objection to the plaintiffs' request to amend their complaint, the second amended complaint became the operative complaint in this case by operation of law on April 2, 2011..  FN1. The plaintiffs' motion to strike was argued at short calendar on March 28, 2011.   At that time, the operative complaint was the amended complaint dated April 9, 2010.   Nevertheless, on March 18, 2011, the plaintiffs filed a request for leave to amend their complaint with a proposed amended complaint attached.  Practice Book § 10–60 provides in relevant part that “a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section ․ (3) By filing a request for leave to file such amendment, with the amendment appended ․ If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.”   As none of the defendants filed an objection to the plaintiffs' request to amend their complaint, the second amended complaint became the operative complaint in this case by operation of law on April 2, 2011.

FN2. At the time of the filing of this case, the following individuals and entities were named as defendants:  the city of Norwalk, Thursa June Merritt, Mary Merritt, Urban S. Mulvehill, Diane K. Mulvehill (the Mulvehills), James A. Smith, Joanne C. Smith, the Shorefront Park Improvement Association, Inc. (Shorefront Park Association), William Faulkenstein, Kaori O'Brien, John Keogh, III, M. Douglas Keogh, William Allen Keogh, Stephen B. Keogh, Tara Quinn–Siegel and Jacqueline F. Quinn.   The plaintiffs allege that each of these individuals and entities own property that is near the area that the plaintiffs seek to adversely possess.   Morever, the plaintiffs also named themselves as defendants because they own an additional parcel of the land that is in the area.   In the second amended complaint dated March 18, 2011, the plaintiffs also sought to implead the following individuals as defendants:  Harold Haut, Ruth Fiore, Alyce M. Huntington, Lee Corbin, David C. Corbin and Philip E. Corbin.   To date, only the city of Norwalk, the Mulvehills, Thursa June Merritt and the plaintiffs have appeared..  FN2. At the time of the filing of this case, the following individuals and entities were named as defendants:  the city of Norwalk, Thursa June Merritt, Mary Merritt, Urban S. Mulvehill, Diane K. Mulvehill (the Mulvehills), James A. Smith, Joanne C. Smith, the Shorefront Park Improvement Association, Inc. (Shorefront Park Association), William Faulkenstein, Kaori O'Brien, John Keogh, III, M. Douglas Keogh, William Allen Keogh, Stephen B. Keogh, Tara Quinn–Siegel and Jacqueline F. Quinn.   The plaintiffs allege that each of these individuals and entities own property that is near the area that the plaintiffs seek to adversely possess.   Morever, the plaintiffs also named themselves as defendants because they own an additional parcel of the land that is in the area.   In the second amended complaint dated March 18, 2011, the plaintiffs also sought to implead the following individuals as defendants:  Harold Haut, Ruth Fiore, Alyce M. Huntington, Lee Corbin, David C. Corbin and Philip E. Corbin.   To date, only the city of Norwalk, the Mulvehills, Thursa June Merritt and the plaintiffs have appeared.

FN3. It is unclear from the pleadings whether there is any relationship between the similarly named Shorefront Park Company and the Shorefront Park Association..  FN3. It is unclear from the pleadings whether there is any relationship between the similarly named Shorefront Park Company and the Shorefront Park Association.

FN4. Pursuant to Connecticut law, “[f]rom early times, under the common law, highways have been established in this state by dedication and acceptance by the public ․ Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public ․ Both the owner's intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public ․ Thus, two elements are essential to a valid dedication:  (1) a manifested intent by the owner to dedicate the land involved for the use of the public;  and (2) an acceptance by the proper authorities or by the general public ․ No particular formality is required in order to dedicate a parcel of land to a public use;  dedication may be express or implied.”  (Citation omitted;  internal quotation marks omitted.)  Kores v. Calo, 126 Conn.App. 609, 617, (2011)..  FN4. Pursuant to Connecticut law, “[f]rom early times, under the common law, highways have been established in this state by dedication and acceptance by the public ․ Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public ․ Both the owner's intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public ․ Thus, two elements are essential to a valid dedication:  (1) a manifested intent by the owner to dedicate the land involved for the use of the public;  and (2) an acceptance by the proper authorities or by the general public ․ No particular formality is required in order to dedicate a parcel of land to a public use;  dedication may be express or implied.”  (Citation omitted;  internal quotation marks omitted.)  Kores v. Calo, 126 Conn.App. 609, 617, (2011).

FN5. The first amended complaint filed on April 12, 2010, is dated April 9, 2010..  FN5. The first amended complaint filed on April 12, 2010, is dated April 9, 2010.

FN6. General Statutes (Rev. to 1918) § 5113 provided in relevant part:  “Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or incumbrance on, such property, or any part thereof, and, if so, the nature and extent of the estate, interest or incumbrance which he claims, and he shall set out the manner in which and the sources through which such estate, interest or incumbrance is claimed to be derived.”   Other than the change of the spelling of the word “incumbrance” to “encumbrance,” and some slight modifications in the statutory language, the 1918 version of § 5113 has exactly the same wording as the present day § 47–31(d)..  FN6. General Statutes (Rev. to 1918) § 5113 provided in relevant part:  “Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or incumbrance on, such property, or any part thereof, and, if so, the nature and extent of the estate, interest or incumbrance which he claims, and he shall set out the manner in which and the sources through which such estate, interest or incumbrance is claimed to be derived.”   Other than the change of the spelling of the word “incumbrance” to “encumbrance,” and some slight modifications in the statutory language, the 1918 version of § 5113 has exactly the same wording as the present day § 47–31(d).

FN7. Although the Hartford–Connecticut Trust Co. case is rather old, it is still good law and it was cited by the Appellate Court for another proposition of law as recently as 1996.   See Venture Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn.App. 109, 118, 679 A.2d 372 (1996)..  FN7. Although the Hartford–Connecticut Trust Co. case is rather old, it is still good law and it was cited by the Appellate Court for another proposition of law as recently as 1996.   See Venture Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn.App. 109, 118, 679 A.2d 372 (1996).

FN8. In the latest version of the complaint, which is the second amended complaint dated March 18, 2011, the plaintiffs have changed this allegation to read:  “It appears from the language in the aforesaid motion that the [c]ity of Norwalk purported to accept all roads on Map # 592, but it could not accept more than the fifty (50) foot wide roads which were offered.”.  FN8. In the latest version of the complaint, which is the second amended complaint dated March 18, 2011, the plaintiffs have changed this allegation to read:  “It appears from the language in the aforesaid motion that the [c]ity of Norwalk purported to accept all roads on Map # 592, but it could not accept more than the fifty (50) foot wide roads which were offered.”

Jennings, Alfred J., J.T.R.