Bozelko v. Statewide Construction, Inc. , 189 Conn. App. 469 ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
RONALD F. BOZELKO v. STATEWIDE
CONSTRUCTION, INC., ET AL.
(AC 40459)
DiPentima, C. J., and Moll and Sullivan, Js.
Syllabus
The plaintiff, who owned property that abutted property of the defendants,
sought to quiet title to a triangular strip of land to which all of the
parties claimed title. Following a trial to the court, at which the parties
submitted evidence of their chains of title, the trial court found in favor
of the defendants, concluding that the defendants are the owners of the
parcel and that the plaintiff had no right, title or interest in the disputed
parcel. From the judgment of the trial court quieting title in favor of
the defendants, the plaintiff appealed to this court. Held that the trial
court’s factual finding that there was a break in the plaintiff’s chain of
title and, thus, that the plaintiff had no right, title or interest in the
disputed parcel was not clearly erroneous; in making that determination,
the court credited the conclusions of the defendants’ expert witness
that the disputed parcel was outside the plaintiff’s chain of title, it was
not for this court to pass on the credibility of the witnesses, the court’s
factual finding was supported by the evidence in the record, and the
plaintiff, having failed to establish that he has title to the disputed parcel,
was not entitled to challenge the court’s conclusion that the defendants
own the parcel.
Argued November 29, 2018–officially released April 23, 2019
Procedural History
Action to quiet title to certain real property, brought
to the Superior Court in the judicial district of New
Haven and tried to the court, Hon. Richard E. Burke,
judge trial referee; judgment for the defendants, from
which the plaintiff appealed to this court. Affirmed.
Ronald F. Bozelko, self-represented, with whom, on
the brief, was Ira B. Grudberg, for the appellant
(plaintiff).
Michael E. Burt, for the appellees (defendants).
Opinion
DiPENTIMA, C. J. The plaintiff, Ronald F. Bozelko,
appeals from the judgment of the trial court, rendered
following a trial to the court, in favor of the defendants,
Statewide Construction, Inc., and Robert Pesapane, in
an action to quiet title under General Statutes § 47-31.
On appeal, the plaintiff claims that the court’s conclu-
sions with respect to his quiet title claim are improper.
We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. In 2011, the plaintiff
commenced an action against the defendants seeking
to quiet title to property known as 105 McLay Avenue
in East Haven. In their amended answer, the defendants
admitted the allegation in the operative complaint that
they may claim an interest in whole or in part in 105
McLay Avenue. The defendants denied the remainder
of the allegations in the complaint and did not assert
any special defenses or counterclaims, but made a state-
ment in their amended answer, pursuant to § 47-31 (d),
that they each owned a portion of 105 McLay Avenue.
At trial, the parties submitted evidence of their chains
of title. Following trial, the court found in its memoran-
dum of decision that the defendants are the owners
of 105 McLay Avenue ‘‘in various proportions.’’ This
appeal followed.
On appeal, the plaintiff contends that the court erred
in its conclusion as to the ownership of 105 McLay
Avenue. Specifically, he argues that the evidence he
submitted at trial established that he has title to 105
McLay Avenue. We disagree.
We first set forth our standard of review. Section 47-
31 (a) provides in relevant part: ‘‘An action may be
brought by any person claiming title to . . . real . . .
property . . . against any person who may claim to
own the property, or any part of it . . . adverse to the
plaintiff . . . 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 prop-
erty.’’ In Har v. Boreiko, 118 Conn. App. 787, 986 A.2d
1072 (2010), we stated: ‘‘Under § 47-31, the claim for
relief calls for a full determination of the rights of the
parties in the land. . . . To prevail, the plaintiff must
do so on the strength of [his] own title, not on the
weakness of the defendants’ . . . and by the prepon-
derance of the evidence.’’ (Citations omitted; internal
quotation marks omitted.) Id., 795.
‘‘Whether a disputed parcel of land should be
included in one or another chain of title is a question
of fact for the court to decide. . . . In such a determina-
tion, it is the court’s duty to accept the testimony or
evidence that appears more credible. . . . It is well
settled that we review the court’s findings of fact under
the clearly erroneous standard. We cannot retry the
facts or pass on the credibility of the witnesses. . . .
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
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Highstead Foundation, Inc. v. Fahan, 105
Conn. App. 754, 758–59, 941 A.2d 341 (2008).
At trial, both parties agreed that the first deed in the
plaintiff’s chain of title, a warranty deed recorded in
July, 1924, by which Lyman A. Granniss transferred a
thirty acre parcel of land known as ‘‘Pond Lot’’ to John
H. Howe, included a parcel that would later become
known as 105 McLay Avenue. The next deed in the
plaintiff’s chain of title is an October, 1924 warranty
deed by which Howe transferred to Gertrude H. LaBell
and Emma G. McLay the parcel of land referenced on a
1924 McLay Heights subdivision map (1924 subdivision
map), with the exception of lots one through forty. The
plaintiff claimed that the deed from Howe to LaBell
and McLay included 105 McLay Avenue, and the defen-
dants disagreed.
The 1924 subdivision map included a street named
McLay Avenue. It is not disputed that 105 McLay Avenue
is a triangular portion of land that comprises a portion
of McLay Avenue as shown on the 1924 subdivision
map, and that 105 McLay Avenue appears to have been
created in the late 1980s when McLay Avenue was
reconfigured. See footnote 2 of this opinion.
The remaining conveyances in the plaintiff’s chain of
title are as follows. By a judgment of strict foreclosure
in 1972, the town of East Haven obtained LaBell and
McLay’s property. By a quitclaim deed dated January
24, 1985, East Haven conveyed the parcel, which the
plaintiff claims included 105 McLay Avenue, to Joseph
J. Farricielli, who then transferred that same parcel to
Laurelwood Associates, Inc., by warranty deed dated
February 22, 1985. In 1985, Laurelwood Associates, Inc.,
transferred the parcel by quitclaim deed to Edward
Coventry and Walter T. Nichols, who conveyed the
property back to Laurelwood Associates, Inc., by quit-
claim deed in 1986. Laurelwood Associates, Inc., then
conveyed 105 McLay Avenue to Chalja, LLC, by a 2005
warranty deed, which company then transferred 105
McLay Avenue to the plaintiff by quitclaim deed in 2010.
The defendants submitted evidence of a number of
breaks in the plaintiff’s chain of title and contended
that East Haven had conveyed 105 McLay Avenue to
Statewide Construction, Inc., in August, 2005, by quit-
claim deed, and Statewide Construction, Inc., subse-
quently conveyed a portion of 105 McLay Avenue to
Pesapane in October, 2005.1
In its memorandum of decision, the court found that
the plaintiff has no right, title, or interest in 105 McLay
Avenue. The court found that the defendants had ‘‘con-
vincingly assert[ed] that the metes and bounds of the
plaintiff’s deeds do not reach the triangle known as 105
McLay [Avenue].’’ Specifically, the court stated that ‘‘the
map appended to the deed from [Farricielli] to Lau-
relwood Associates [Inc.] . . . known as map showing
property to be acquired by . . . Farricielli from the
town of East Haven . . . completely destroys the plain-
tiff’s argument that he is the owner of 105 McLay Ave-
nue,’’ and noted that this finding is supported by the
testimony of Attorney Daniel C. Ioime, an expert wit-
ness who testified on behalf of the defendants. (Internal
quotation marks omitted.)
The deed from East Haven to Farricielli states that
the property to be conveyed is bounded northerly ‘‘by
McLay Avenue (undeveloped), as shown on said map,
303.18 feet . . . .’’ The map showing the property to
be acquired by Farricielli from East Haven, which was
revised in 1983 (1983 map), shows the parcel being
conveyed as being bounded on the north by McLay
Avenue. Ioime marked the 1983 map to show the place-
ment of the parcel that would later become 105 McLay
Avenue in relation to the land contained within the
description of the deed.2 Ioime also marked the 1983
map to demonstrate that lots 50, 51, and 52, which
correspond to 91, 95, and 99 McLay Avenue, were
located on the northerly side of McLay Avenue, and
marked the property conveyed as being located to the
south of McLay Avenue. The 1924 subdivision map
shows lots 50, 51, and 52 as being located on the north-
erly side of McLay Avenue, and Ioime testified that the
parcel drawn in red, which abutted those lots, repre-
sented 105 McLay Avenue. Ioime stated that lots 50, 51,
and 52 were outside the description in the deed from
East Haven to Farricielli.3
Ioime testified that 105 McLay Avenue was outside
the description of the property conveyed in the quit-
claim deed to Farricielli by East Haven. Ioime further
testified that the warranty deed from Farricielli to Lau-
relwood Associates, Inc., which contains the same legal
description of the property as the quitclaim deed from
East Haven to Farricielli, does not include 105 McLay
Avenue. The court credited Ioime’s testimony that 105
McLay Avenue was outside the plaintiff’s chain of title.
‘‘We cannot retry the facts or pass on the credibility
of the witnesses.’’ (Internal quotation marks omitted.)
Highstead Foundation, Inc. v. Fahan, supra, 105 Conn.
App. 759.
Accordingly, the court’s finding that there was a
break in the plaintiff’s chain of title is not clearly errone-
ous. See FirstLight Hydro Generating Co. v. Stewart,
328 Conn. 668, 678, 182 A.3d 67 (2018) (‘‘issue [of
whether] land [is] included in one or the other chain
of title [is] a question of fact for the court to decide’’
[internal quotation marks omitted]). As a result, the
subsequent conveyances in the plaintiff’s chain of title
did not include 105 McLay Avenue because ‘‘[i]t is funda-
mental that a grantor cannot effectively convey a
greater title than he [or she] possesses.’’ Stankiewicz
v. Miami Beach Assn. Inc., 191 Conn. 165, 170, 464
A.2d 26 (1983). The court’s finding that there was a
break in the plaintiff’s chain of title is not clearly errone-
ous, as there was evidence in the record to support it
and we are not left with the definite and firm conviction
that a mistake has been committed.4
The plaintiff next makes several additional arguments
that challenge the court’s conclusion that the defen-
dants own 105 McLay Avenue.5 Because we conclude
that the court’s finding that the plaintiff has no title or
interest in 105 McLay Avenue was not clearly erroneous,
however, we need not address his remaining claims.
Having failed to prove his own title in 105 McLay Ave-
nue, ‘‘the [plaintiff is] not permitted to question that of
the defendant[s], nor to assign as error the rulings of
the trial court relating thereto. . . . This is but an appli-
cation of the settled rule that in a controversy under
. . . § 47-31 over the title to, or an interest in, real
estate, a party can prevail, that is, can obtain an adjudi-
cation of title or an interest in himself, if at all, only on
the strength of his own title or interest as distinguished
from the weakness of the title or interest of his adversar-
ies.’’ (Citations omitted; internal quotation marks omit-
ted.) Marquis v. Drost, 155 Conn. 327, 334, 231 A.2d
527 (1967); see Ball v. Branford, 142 Conn. 13, 17, 110
A.2d 459 (1954); Borden v. Westport, 112 Conn. 152,
168, 151 A. 512 (1930); see also Thomas v. Collins, 129
Conn. App. 686, 691 n.8, 21 A.3d 518 (2011) (plaintiff
permitted to contest court’s finding that defendants had
easement because plaintiff had title to property).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendants presented evidence indicating that, after the original
transfer of the Pond Lot from Granniss to Howe, the deed descriptions in
the plaintiff’s chain of title did not include 105 McLay Avenue, until the
conveyance from Laurelwood Associates, Inc., to Chalja, LLC. The defen-
dants argue, and we agree, that ‘‘one cannot create a title in himself merely
by proof of a set of deeds purporting to constitute a chain of title ending
with a conveyance to himself.’’ Loewenberg v. Wallace, 147 Conn. 689, 696,
166 A.2d 150 (1960).
2
Following the recording of the 1983 map, McLay Avenue was reconfig-
ured and 105 McLay Avenue, otherwise known as town of East Haven excess
row, was shown on the Laurelwood Estates subdivision map, revised as of
June 25, 1987.
3
Accordingly, 105 McLay Avenue abutted lots that were on the northerly
side of McLay Avenue and the property conveyed was located to the south
of McLay Avenue. We note in general that where the description in a deed
states that a parcel of land is bounded by a highway, the boundary is to
the middle of the highway. See Stiles v. Curtis, 4 Day (Conn.) 328, 329
(1810); see also Antenucci v. Hartford Roman Catholic Diocesan Corp.,
142 Conn. 349, 355–56, 114 A.2d 216 (1955) (absent contrary evidence, abut-
ting owner presumed to own fee to center of highway). Although the court
made no finding as to whether 105 McLay Avenue extended past the center
line of McLay Avenue prior to its reconfiguration, the court is presumed to
know the law and to apply it correctly, and the plaintiff has not shown
otherwise. See, e.g., Stratford v. Hawley Enterprises, Inc., 175 Conn. App.
369, 375, 167 A.3d 1011 (2017). Additionally, the court had evidence before
it, namely, the relevant maps and Ioime’s testimony, from which it could have
determined the location of 105 McLay Avenue on the map and concluded
that 105 McLay Avenue was not conveyed pursuant to the deed from East
Haven to Farricielli.
4
The plaintiff previously had brought an action to quiet title to 105 McLay
Avenue against a different defendant. In Bozelko v. Venditto, Superior Court,
judicial district of New Haven, Docket No. CV-XX-XXXXXXX-S (September 19,
2016), the court determined that the plaintiff did not own 105 McLay Avenue,
and found that Jennifer Venditto’s warranty deed for 91 McLay Avenue,
which property abutted 105 McLay Avenue, extended to the center of McLay
Avenue. The appeal to this court was dismissed, and our Supreme Court
denied certification for appeal. Bozelko v. Venditto, 324 Conn. 925, 155 A.3d
754 (2017). We note that ‘‘[§ 47-31] requires the plaintiffs to name the person
or persons who may claim [an] adverse estate or interest. . . . So that the
trial court can make a full determination of the rights of the parties to the
land, an action to quiet title is brought against persons who claim title to
or have an interest in the land. . . . Only the parties to an action to quiet
title are bound by the judgment. . . . The failure to include [parties who
may claim an interest] . . . is not error because the decision to join a party
in a suit to quiet title is made by the plaintiff.’’ (Citations omitted.) Swenson
v. Dittner, 183 Conn. 289, 292, 439 A.2d 334 (1981). The defendants in this
case were not named in Venditto, nor was Venditto named in this action.
5
The plaintiff claims that (1) the evidence submitted by the defendants
in support of their chain of title is insufficient, (2) the court erred in finding
that McLay Avenue was dedicated as a public street, (3) the court erred in
finding that ‘‘the property known as 99 [McLay] Avenue, which is owned
by Statewide Construction, Inc., extends all the way to the current street
line of McLay Avenue and includes to the center of McLay Avenue,’’ (4)
General Statutes § 47-33 extinguishes any claim the defendants have to 105
McLay Avenue, and (5) Statewide Construction, Inc., failed to comply with
§ 47-31 (d) and therefore cannot claim title to 105 McLay Avenue by virtue
of ownership of 99 McLay Avenue. All of these claims essentially attack the
court’s ruling that the defendants own 105 McLay Avenue in various pro-
portions.