Paul Turcotte et al. v. Michael Soriero et al. (2011)

MEMORANDUM OF DECISION

The plaintiffs, Paul Turcotte and Michelle Turcotte, commenced this action against the defendants, Michael Soriero and Patricia Soriero, by complaint dated February 20, 2009.   The plaintiffs claim:  trespass by the defendants in Count One, ejectment by the defendants in Count Two, and private nuisance by the defendants in Count Three.   The defendants cited in Slade's Ferry and Trust Company, the plaintiffs' mortgagee, and filed a cross complaint on May 5, 2009, seeking to quiet title (First Count) and claiming adverse possession (Second Count).   By a Third–Party Complaint dated July 22, 2009, the plaintiffs brought claims against third-party defendants, Kenneth and Alexa Dziadul, from whom they purchased the property for breach of warranty deed pursuant to Connecticut General Statutes § 47–36d (First Count) and breach of implied warranty (Second Count);  trial on the merit of the parties' claims took place on April 28, 2011, and April 29, 2011.   At the close of the defendants' evidence, the plaintiffs moved to dismiss the defendants' claim for legal title.   The court granted the motion stating that the defendants had “not established a sufficient case to prove that [they] had legal title by virtue of their deed of any portion of the disputed land or disputed part of the Turcotte land.”   The matter closed on July 28, 2011 when the last brief was filed.   This memorandum of decision addresses the remaining claims.

FINDINGS OF FACTS

The court's findings of facts are derived from the pleadings, testimony and other evidence presented at trial.   The plaintiffs acquired title in fee simple to the property located at 238 Harris Road in Sterling from Kenneth and Alexa Dziadul by warranty deed on June 14, 2007.   The defendants live at 238 Harris Road in Sterling.   The defendants' property abuts the plaintiffs' property to the north and west.   The boundaries of the plaintiffs' property are clearly defined and are not in dispute.

The plaintiffs moved into their new home in June 2007.   In November 2007, the plaintiff, Paul Turcotte, walked the boundaries of their property and discovered what appeared to him to be a trespass by the defendants.   In the rear of the plaintiffs' property, he saw an area of his property that had been cleared and that boats and campers were being stored there.   In addition, he discovered two oil tanks on their property.

The defendants admit that they entered the plaintiffs' property.   Michael Soriero testified that he put the oil tanks and conducted business on the parties' property.   Michael Soriero admitted also that he (1) cleared the area;  (2) stored vehicles, campers, boats, construction equipment there;  and (3) buried stumps, building materials, scrap metal and “junk” there over a period of time.

The plaintiffs confronted the defendants in the spring of 2008.   Michael Soriero claimed to own part of the plaintiffs' property.   Afterward, Soriero parked another vehicle on the plaintiffs' property and began to store mulch and manure there.

The plaintiffs spent $1,450 to have the oil tanks removed.   Afterward, Michael Soriero put a third oil tank on the plaintiffs' property.   At trial, Michael Soriero testified that the third oil tank was still on the plaintiffs' property.   Michael Soriero testified that his activities on the plaintiffs' lot were “ongoing.”   Further, he testified that he did not own the contiguous property but that he was granted permission by his wife, the defendant, Patricia Soriero.

Patricia Soriero testified that he had given her husband, Michael Soriero permission to conduct a business on the plaintiffs' lot and that there was at least one vehicle parked there every month.   At trial, the plaintiff, Paul Turcotte confirmed that at the time of trial other items belonging to the defendants were still on the plaintiffs' property and that the defendants had dumped a tree there and parked a Ford Explorer there for two years.   The plaintiffs assert that the defendants' continued activities on their land has caused the plaintiffs significant economic and emotional injuries and prevented the plaintiffs from using a large portion of their property.

The defendants, Michael Soriero and Patricia Soriero, first acquired their property adjacent to what is now the plaintiffs' lot in 1974.   The defendants did not read their deed and did not have their property surveyed.   The defendant, Michael Soriero, relied on what a realtor had told him as to where the boundaries of the property were and he was unsure of the exact boundaries.

The ownership of the defendants' property did not remain in both of their names.   In 1986 the defendant, Michael Soriero, transferred his interest in all of the property to his wife Patricia.   In 1994, Patricia Soriero transferred a one-half interest in her property to Michael.   Finally, Michael Soriero transferred his interest back to his wife in 1999.   The disputed parcel was not referenced in any of the deeds used to transfer their interests back and forth to each other.

Michael Soriero testified that he found a pin located along the easterly border of the plaintiffs' property, southerly from the actual corner, and assumed it was the corner of the property when he first inspected it in the 1970s but he was not sure of its location.

Charles Normandin, a licensed land surveyor who surveyed the plaintiffs' property placed a pin in that location in 1989 when he and his crew surveyed the property.   There was no other pin in that location prior to his placing the one depicted on his survey.

The defendants' driveway originally traversed the disputed area and came to an end at the cottage.   The defendant, Patricia Soriero, testified that the original driveway ended at the cottage which had burned and the current driveway was located to the north of the boundary line approximately one inch off it.   The scale is one inch equals 40 feet, placing the Soriero driveway approximately forty feet from the boundary.   Ex. L. The defendants later straightened the driveway and moved it off the disputed area.

The defendant, Michael Soriero, testified that he brought in fill in 1980 which was deposited in the disputed area.   During this time, in the 1980s, the defendant, Michael Soriero, gave Mr. Colello permission to place two oil tanks on the property in dispute.

A cottage on the property burned down in 1974, and the remains were bulldozed into the area in dispute according to the defendant, Patricia Soriero.   The defendants also had a pond on their lot cleaned, and the dredging materials were deposited on the disputed area.   The defendants also cleared brush and had wood cut in the area in dispute on various occasions in 1974, 1975 and 1986.

The only use the defendant, Patricia Soriero, made of the disputed property was walking on it occasionally and picking greenery there.   The defendants never paid real estate property taxes on the disputed area.

In 1990, property adjacent to the defendants' was subdivided.   Charles Normandin, a duly licensed surveyor, surveyed the plaintiffs' property in 1989 to prepare the subdivision map, and saw no indicia that the disputed parcel was being used.   He saw no vehicles or any indication of any logging.   The area in question looked to him like a field that had been cleared and was overgrown with brush 4–5 feet high.   He described this as second growth and underbrush.   He saw no indication of any filling in the area in dispute.   Normandin found a flush pin in the northeast corner of what is now the plaintiffs' parcel and he used this pin to establish that corner.

The defendant, Patricia Soriero, was the sole title holder of the defendants' property at the time of the subdivision that included the plaintiffs' lot.   The defendant, Patricia Soriero was on the Planning and Zoning Commission and was aware of the subdivision.   Attorney Anderson sent a letter to the Planning and Zoning Commission on behalf of the defendants which was read into the record at the July 1990 meeting.   The defendant, Patricia Soriero, did not raise the issue at the Planning and Zoning Commission as to the boundaries of either the plaintiffs' parcel or the defendants' land.

The subdivision plan was approved by the Planning and Zoning Commission.   Afterward, a deed was executed that transferred the plaintiffs' lot to the defendants, Kenneth and Alexa Dziadul.   The Defendants never did anything to dispute the transfer of what is now the plaintiffs' lot from the sub divider to the first owner.

The deeds to the plaintiffs' parcel and the defendants' land are consistent and there is no overlap.   They agree on all of the mutual lot line locations.   The defendants never asserted ownership of the disputed parcel to the town of Sterling.

The defendants never discussed a boundary dispute or ownership of the contested area with plaintiffs' predecessor in title, Mr. Dziadul or any owner prior to the Dziaduls.   Mr. Dziadul was not aware that the defendants had made any use of any portion of his lot, including the disputed parcel, either the encroachment area or the maintained area, during the period he owned it from 2001 to 2007.   He did not see any vehicles on any of the area he inspected, including the disputed area.   When he sold his property, Mr. Dziadul signed an affidavit that he was not aware of any use of his property by anyone.

The disputed property was at times used to store vehicles related to Michael Soriero's business.   This business began in the 1990s and continued until 2000 when he lost his license.   Patricia Soriero had no interest in Michael Soriero's businesses.   Michael Soriero removed many vehicles from the property in 2005 after losing his motor vehicle license.   Michael Soriero was arrested for insurance fraud and served 20 months in federal detention.   In 2000, Michael Soriero was convicted of forgery, larceny and witness tampering.   Michael Soriero also had to surrender his dealer's and repairer's license due to forgery charges.

Additional facts will be discussed as necessary.

DISCUSSION

Trespass

In order to prove an action for trespass, the plaintiffs must prove, (1) ownership or possessory interest in land by the plaintiff;  (2) invasion, intrusion or entry by the defendants affecting the plaintiffs' exclusive possessory interest, (3) that the trespass is intentional, and that the trespass caused a direct injury to the plaintiffs.  City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87 (2007).  “In order to be liable for a trespass on land ․ it is necessary only that the actor intentionally be upon any part of the land in question.   It is not necessary that he intend to invade the possessor's interest in the exclusive possession of his land, and therefore that he know his entry to be an intrusion.   If the actor is and intends to be upon the particular piece of land in question, it is immaterial that he honestly and reasonably believes that ․ that he himself is its possessor.”   State v. Lamar Adver. of Hartford, 2010 Conn.Super.   LEXIS 2713, at *29 (Conn.Super.Ct. Oct. 21, 2010).

“There is no fixed, inflexible rule for determining the measure of damages for injury to ․ property resulting from a trespass.   The measure of damages differs according to the nature of the injury ․ Damages for the dispossession of property are regarded as an award of compensatory damages for the violation of a recognized property right and encompass more than actual pecuniary loss ․ If one is entitled to a judgment for detention of or preventing the use of ․ land ․ the damages include compensation for ․ the value of the use during the period of detention ․ and ․ the harm to the property or other harm of which the detention is the legal cause.”  Robert v. Scarlata, 96 Conn.App. 19, 24–25 (Conn.App.Ct.2006).  “In the absence of proof of actual damages, the plaintiff is entitled to an award of nominal damages.”   Zirinsky v. Carnegie Hill Capital Asset Mgmt., LLC, 2011 Conn.Super. LEXIS 924, at *17 (Conn.Super.Ct. Apr. 12, 2011) [51 Conn. L. Rptr. 769];  see also Marks v. Matuelvich, 2005 Conn.Super. LEXIS 258, at *34 (Conn.Super.Ct. Jan. 31, 2005) [38 Conn. L. Rptr. 724] (awarding $500.00 in nominal damages).

The defendants admit to trespassing upon the plaintiffs' land.   The plaintiffs own and possess the property located at 238 Harris Road in Sterling described in Appendix A to the Complaint and on Exhibits 7 and 8. The defendants admit that the plaintiffs' property belongs to them in fee simple to the plaintiffs.   The defendants were aware of the boundaries to the plaintiffs' property.   Firstly, the defendants' attorney sent a letter in 1990 to the planning committee on the defendants' behalf regarding the boundaries of the proposed subdivision including the boundaries of the plaintiffs' lot.   Secondly, Kenneth Dzialdul, the owner of the lot at issue sent letters to all abutting property owners prior to purchasing the property.   Lastly, the defendant, Patricia Soriero acknowledged that she was aware that an application for subdivision approval had been presented to the town of Sterling.

The defendants intentionally entered the plaintiffs' property.   From at least November 2007, through the date of trial, Michael Soriero entered the plaintiffs' property without their consent to park cars, trucks, boats, campers and construction equipment;  dump oil cans;  bury metal scrap and “junk”;  store mulch and manure and to conduct his business.   Michael Soriero's activities were conducted with the permission of Patricia Soriero.

Adverse Possession

To prevail on a claim of adverse possession, the claimants, here, Michael and Patricia Soriero, must oust the owner, here Paul and Michelle Turcotte, from possession and kept them out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant's land without license or consent of the owner.  Whitney v. Turmel, 180 Conn. 147, 148 (1980);  Stevens v. Smoker, 84 Conn. 569 (1911).   The claimant must prove each element of his case by clear and convincing evidence.  Roche v. Fairfield, 186 Conn. 490, 498 (1982);  Loewenberg v. Wallace, 147 Conn. 689, 699 (1960).   This standard has also been described as “clear and positive proof.”

The party claiming adverse possession, unlike the burden of proof in a quiet title action, must prove each of these elements by clear and convincing evidence.   Robinson v. Aubin, 120 Conn.App. 72, 74 (2010), Rudder v. Manasasco Lake Park Ass'n, Inc., 93 Conn.App. 759, 780–81 (2006).   That burden is satisfied if the evidence:  “ ․ induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist ․” Schlichting v. Cotter, 109 Conn.App. 361, 365, cert. denied, 289 Conn. 944, 959 A.2d 1009 (2008) (emphasis added).  “Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion.”  (Citation omitted;  internal quotation marks omitted.)  Provenzano v. Provenzano, 88 Conn.App. 217, 221–22 (2005);  Roche v. Fairfield, 186 Conn. at 498;  Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 462–63 (1973).

Adverse possession claims are “highly fact and context specific.”  Rudder v. Mamanasco Lake Park Assoc., 93 Conn.App. 759 (2006).  “The location and condition of the land at issue must be taken into consideration and the alleged acts of ownership must be understood as directed towards those conditions.”   Id. citing Roche v. Fairfield, 186 Conn. at 501 n.11. The defendants have failed in several mandatory elements of their proof.

The analysis of an adverse possession claim requires that the claimant prove exclusive and adverse possession of the subject property for a period of 15 years.  Arcari v. Dellaripa, 164 Conn. 532, 536 (1973).   The instant action was filed in 2009 after the defendant Michael Soriero told the plaintiff Paul Turcotte that he owned the property in question in 2008.   The adverse possession claim was pled in May 2009.   Then, the relevant “look back” period would be 15 years prior to the claim.   Here, the defendants' proof of open, notorious, exclusive and uninterrupted use during this time fails.

The evidence offered at trial concerning the defendants' adverse possession claim involved work done to their property after the defendants bought it in 1974 and before they moved their driveway.   It also predates the 1990 subdivision.   This work allegedly involved cutting trees, clearing, dredging the pond, acquiring and spreading fill, and other work related to improving the driveway and to convert raw land into a home site.   Very little of the defendants' proof involves uses after the driveway was moved and after the subdivision.   After moving the driveway, the only continuous use claimed by the defendants was parking and storing vehicles and equipment somewhere on the disputed area for times that were not clearly established.   The testimony and photographs of the disputed parcel establish that while there may at one time have been an encroachment, it was not continuous and had long since been abandoned as the area had substantial regrowth.   The defendants have failed to demonstrate a continuous, adverse and exclusive use after 1994.

To sustain his burden of proving an adverse possession claim, the claimant must prove that his use of the property has been open, notorious and visible.   “These requirements give the true owner actual notice that a claim is being made to his property or, at least they create the foundation for establishing constructive notice of the same.  Schlichting v. Cotter, 109 Conn.App. 361, 368 (2008).   The fact that the possession is open, visible and notorious tells the true owner that a trespass is occurring and informs him that his property rights are in jeopardy.  Id. The possession and use must ‘be sufficiently apparent to put the true owner on notice that the [claimant] is making an adverse possession claim.’ supra (quoting 2 C.J.S. 482, Adverse Possession § 53 (2003)).”  Secord v. Purkey, 2011 WL 590856, *2 (Jan. 24, 2011).

The legal significance of the open and visible element of adverse possession requires a fact finder to examine the extent and visibility of the claimant's use of the record owner's property so as to determine whether a reasonable owner would believe that the claimant was using that property as his or her own.   Hence, a claimant will fail to satisfy these requirements unless the possession and use were sufficiently apparent to put the true owner on notice that the claimant was making an adverse claim of ownership.  Schlichting v. Cotter, 109 Conn.App. at 368–69.   The plaintiffs' property was secluded, and the area in dispute was vacant land until Dzaidul built on it in 2001.

The parcel in dispute is deep in a heavily wooded area northerly of the plaintiffs' home.   Kenneth Dziadul, the predecessor in title to the plaintiffs, testified that he never saw any use of the property behind his house during the six years he owned the property.   Neither did the plaintiff, Paul Turcotte.   Charles Normandin saw no active use of the property when he located the boundaries for the purpose of creating the subdivision map.   It was not until the plaintiff, Paul Turcotte, went to find his property boundaries in 2007 that he came upon the cleared or “maintained” area and found the vehicles, boats and camper.   Adverse possession requires proof of open and notorious use.   A secret use will not support such a claim.   As the defendants have the burden of proof in this regard, and they have shown no proof that their use was open and visible to anyone.

In their cross-claim for adverse possession, the defendants have included a “legal” or “metes and bounds” description for the part of the plaintiffs' land that they claim title to.   At trial they never proved exclusive use of this entire parcel.   The defendant, Patricia Soriero, testified that the only use of the property by her was that she occasionally walked upon and picked some greenery such as princess pine.

The defendant, Michael Soriero, testified that all of the alleged work upon or improvements to the land were done by him.   After improving the property, his testimony was that he used some of the property to store vehicles, tractors, trucks, bulldozers, backhoes and other equipment related to his business.   He testified that his wife had no involvement in his business.   After the driveway was constructed the storage seems to have been only in the maintained area.   This area was only approximately 100 feet square.   He was unable to describe the location of the area on the map.   Neither defendant offered proof that they had used the entire parcel they described in their complaint as having acquired title to, nor did they offer any proof as to the exact location or description of the parcel they claimed adverse possession to.

As with the other elements of their claim, Defendants have the burden of proof with regard to identifying, locating and proving exclusive and adverse use of the land they are claiming.   They have failed.  DeVita v. Esposito, 13 Conn.App. 101, 111 (1987) (failure by claimants to prove use of entire parcel an element in finding that they failed to meet their burden);  Smith v. Muellner, 2004 WL 614631, *5 (Feb. 9, 2004) [36 Conn. L. Rptr. 658] (adverse possession claim fails where claimant could not prove use of entire parcel during required time period);  Moutinho v. Trumpold, 1994 WL 613460, *3 (1994) (adverse possession claim fails where insufficient proof of use of entire parcel claimed for requisite time).   Much of their proof relies solely on the testimony of Michael Soriero, a man who has been convicted of multiple felonies, including falsifying evidence and insurance fraud and who had to surrender his motor vehicle sales license due to forgery.   Contrast his sometimes contradictory and confused testimony both at trial and in his deposition with the assertions of Dziadul at trial that there was never any use on his property as described by Mr. Soriero.   The defendants' proof is lacking as to their use of the parcel they claim title to and certainly not sufficient to meet the “clear and positive” standard.   The defendants have failed to meet their burden and this issue, as with the others, should be decided in favor of the Plaintiffs.

Where the hostile acts are infrequent and done at irregular intervals, adverse possession will not be found.  Id. At 706 (citing Bridgeport Hydraulic Co. v. Sciortino, 138 Conn. 690, (1952).[T]he possession [however] must be connected and continuous.”  Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 650–51 (2006).   Where the hostile acts are infrequent and done at irregular intervals, adverse possession will not be found.  Sciortino at 706.   The defendants have failed to demonstrate, evening the area Mr. Scanlon marked as maintained, that the activity was continuous and uninterrupted.

The defendant, Michael Soriero, has not held the title he claims was initially deeded to him and his wife, continuously for fifteen years having deeded his interest to his wife in 1999.   Patricia Soriero claimed she had done nothing on the disputed parcel and as such cannot assert a claim by way of adverse possession.   In 1986 the defendant Michael Soriero transferred his interest in all of the property to his wife Patricia.   In 1994, Patricia Soriero transferred a one-half interest in her property to Michael.   Testimony Patricia Soriero, Michael Soriero transferred his interest back to his wife in 1999.   The disputed parcel was not any of the deeds used to transfer their interests back and forth to each other.

The tacking doctrine permits those who have owned property for less than fifteen years to tack on the time the property was held in adverse possession by their predecessors in title.   See, Marguis v. Drost, 155 Conn. 327, 331, 231 (1967).   To qualify under the tacking doctrine, the claimant must show that their predecessors in title intended to convey the disputed parcel to them.   Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. at 651–52.   It requires however that the prior owner use the property adversely during that owner's title.   Here, the defendant, Patricia Soriero said she had no interest in her husband's business which was the entity other than Michael Soriero himself had used the disputed area.   Because Patricia put the property to no adverse use there is nothing to tack on to and the defendant, Michael Soriero, has failed to demonstrate by clear and convincing evidence that he has continuously used the property for fifteen years.   Patricia Soriero is the only one who owned the adjacent property for a period long enough to establish an adverse use based solely on time and she has testified she had no involvement in the alleged hostile acts.

The defendants, Michael Soriero Patricia Soriero, have failed to demonstrate by clear and convincing evidence that any alleged occupation was open and notorious, continuous and uninterrupted, as to the entire area claimed, the entire claim must fail.   The defendants, Michael and Patricia Soriero's claim to a portion of the plaintiffs' property through adverse possession is without merit.   The testimony of Michael Soriero is not credible.   He acknowledged that he had been convicted of forgery, larceny, tampering with evidence and conducting insurance fraud.

Michael Soriero's understanding of the boundary lines is not credible.   He testified that he relied on his realtor regarding his boundary with the lot at issue.   He testified that his realtor showed him a pin approximately half way between Harris Road and the rear of the plaintiffs' property, indicating where the Soriero property started.   However, Charles Normandin, whom the court credits, testified that the pin relied on by Michael Soriero was a T-bar put there by his survey team fifteen years later in 1989 when the subdivision was being sought for the tract of land.

Judgment is entered for the plaintiffs, Paul Turcotte and Michelle Turcotte on their complaint, on Count One (Trespass) against the defendants, Michael Soriero and Patricia Soriero.   The plaintiffs failed to prove Count Two (Ejectment) and Count three (Private Nuisance) of their complaint.   Judgment is entered for the defendants, Michael Soriero and Patricia Soriero, on Counts Two and Three of the plaintiffs' complaint.   Judgment is entered for Slade's Ferry and Trust Company, the plaintiffs' mortgagee.

Judgment is entered for the plaintiffs, Paul Turcotte and Michelle Turcotte, on the cross complaint brought on May 5, 2009, by the defendants, Michael Soriero and Patricia Soriero, seeking to quiet title (First Count) and claiming adverse possession (Second Count).   Judgment is entered for the defendants, Kenneth and Alexa Dziadul, on the Third–Party Complaint dated July 22, 2009, brought by the plaintiffs, Paul Turcotte and Michelle Turcotte, who claimed a breach of the warranty deed pursuant to Connecticut General Statutes § 47–36d (First Count) and breach of implied warranty (Second Count).

ORDERS

1. The plaintiffs, Paul Turcotte and Michelle Turcotte, are granted a permanent injunction restraining the defendants, Michael Soriero and Patricia Soriero, from trespassing on the plaintiffs' property and the defendants shall pay fines if they violate this order.

2. The defendants, Michael and Patricia Soriero, shall remove all materials deposited onto the plaintiffs' property including but not limited to vehicles, boats, oil tanks, scrap, etc. in accordance with state, federal, and local law within 60 days from the date of this judgment.   The defendants and their agents are allowed on the property to comply with this order.   Should the defendants fail to remove said items within 60 days, they shall pay the plaintiffs the cost of removing the said items and the sum of $150 per day.

3. The defendants, Michael and Patricia Soriero, shall reimburse the plaintiffs, $1,450.00, or the cost of the removal of the oil tanks.

4. The defendants shall pay the plaintiffs the sum of $15,000 for their trespass on the plaintiffs' land since November 2007 within 3 months from the date of this judgment.

5. This court shall retain jurisdiction to ensure that the defendants have fully complied with the court's order and fully remedied the trespass and to enable the court to enter such additional orders as needed to effectuate these orders.

The Court,

Angelo L. dos Santos, Sr. J.

dos Santos, Angelo L., S.J.