Opinion
AANCV176024417S
10-19-2018
James BLAKEMAN v. KNOLLBROOK CONDOMINIUM ASSOCIATION, INC.
UNPUBLISHED OPINION
OPINION
John W. Moran, JTR
The plaintiff, James Blakeman, in his Third Amended Complaint, has filed a two-count complaint.
The first count is an action pursuant to C.G.S. § 47-31(a) seeking to quiet title to a certain strip of land claimed to be owned by the defendant, Knollbrook Condominium Association, Inc., by the doctrine of adverse possession over land to which the plaintiff, James Blakeman, is the record title owner.
C.G.S. § 47-31(a) provides: (a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff’s claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and 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 property.
The second count sounds in Tortious Interference by the defendant, Knollbrook, with the contractual relations of the plaintiff, James Blakeman.
The defendant, Knollbrook, has generally denied the allegations of the plaintiff’s complaint and leaves the plaintiff, James Blakeman, to his proof.
In addition to several special defenses to the plaintiff’s complaint, the defendant, Knollbrook, has filed a two-count counterclaim. The first count of the defendant’s counterclaim sounds in adverse possession, apparently pursuant to C.G.S. § 52-575(a). The second count of the defendant, Knollbrook’s, counterclaim titled "Quiet Title" is the corollary action to the plaintiff’s first count.
The plaintiff, James Blakeman, generally denies the allegation of the defendant’s counterclaim and leaves the defendant, Knollbrook, to its proof. Significantly, the plaintiff, James Blakeman, did not file any special defenses.
After a careful review of the pleadings, testimony and exhibits in this litigation, the court concludes that the dispositive issue is whether the defendant, Knollbrook, has established title to the disputed area under the doctrine of adverse possession. The factual genesis of this litigation is as follows:
FACTS
In February 1987, MNW Associates, Inc. (the predecessor in title to the plaintiff, Blakeman) owned approximately 15 acres of land off Old Bridgeport Avenue, Shelton, which was subdivided into Parcel A, bordering on Old Bridgeport Avenue, and Parcel B, an interior lot. Parcel A and Parcel B are shown on Plaintiff’s Exhibit 1.
The subdivision plan contained a roadway 50 feet in width to be shared by Parcel A and Parcel B for ingress and egress to Old Bridgeport Avenue.
On January 22, 1988, MNW Associates, Inc. declared Parcel B to Knollbrook Associates, retaining an easement to run with the land for driveway purposes for ingress and egress between Parcel A to Old Bridgeport Avenue. The declaration provided that the easement area may be used by Knollbrook and Parcel A, but shall be maintained by Knollbrook.
Further, on January 22, 1988, MNW Associates, Inc. expanded the easement in its favor by recording a declaration of easement reserving and retaining (1) the right to construct improvements in the easement area and "the construction of a roadway connecting Parcel A to the easement area" and perform any act required by any governmental authority required for the use or development of Parcel A. This January 22, 1988 declaration also imposed the amended easement on the Knollbrook Condominiums, i.e., Parcel B.
Thereafter, during 1988/1989, Knollbrook Condominium Complex was developed including 71 units, all with ingress and egress to Old Bridgeport Avenue by way of the 50-foot roadway now known as Ivy Grove Court as shown on Exhibits 5A and 5B. Note that Exhibits 5A and 5B show travel islands which are split on the curve of the roadway, which leads to and from the condominium units.
The resulting legal situation upon the completion of the Knollbrook Condominium complex was a roadway 50 feet in width known as Ivy Grove Court subject to the legal permission to be used by both Parcel B and Parcel A for ingress and egress to Old Bridgeport Avenue.
During the course of the trial it was pointed out that a certain arrowhead showed that the 50-foot roadway was less than 50 feet. However, Philip Tiso, the surveyor who prepared maps for Knollbrook certified that the arrowhead was misplaced and that it was a scrivener’s error. The scrivener’s error is immaterial. This court finds that the scrivener’s error does not diminish the width of the roadway known as Ivy Grove Court. It has always been 50 feet in width and is 50 feet in width.
Further, Parcel A had an easement by a driveway to Parcel A from Ivy Grove Court to access the interior of Parcel A.
The plaintiff, James Blakeman, (who inherited Parcel A from his father, Monty Blakeman, who was a partner in MNW) decided to develop Parcel A. The plaintiff, James Blakeman, petitioned the Shelton Planning and Commission to zone Parcel A permitting apartments. A public hearing was held by the Shelton Planning and Zoning Commission regarding the plaintiff’s petition on September 28, 2016. The petition to rezone Parcel A was granted.
Thereafter, the Planning and Zoning Commission approved a site plan for Parcel A on May 24, 2017 (see Plaintiff’s Exhibit 9). This site plan showed a curb cut on Ivy Grove Court and a driveway that was opposite the gap in the travel islands on Ivy Grove Court.
However, by letter dated April 10, 2017 from Attorney Franklin G. Pilicy (counsel for Knollbrook), the plaintiff, James Blakeman, was advised that the defendant, Knollbrook, claims by way of the record title or adverse possession a strip of land about five feet in width running alongside the northerly boundary of Ivy Grove Court (Plaintiff’s Exhibit 11).
This claim was more exactly defined by Attorney Pilicy by his letter dated June 8, 2017 to a claim sounding solely in adverse possession regarding the five-foot strip (Plaintiff’s Exhibit 11).
This claim was denied by letter dated June 20, 2017 from Attorney Stephen R. Bellis, counsel for James Blakeman (Plaintiff’s Exhibit 11).
The disputed area claimed by the defendant, Knollbrook, is bordered on the south by "Road Under Construction" shown on the Subdivision Map dated February 26, 1987, a total of 264 feet, from Parcel B to Old Bridgeport Avenue, then continuing along Old Bridgeport Avenue for approximately 60 feet at a declining width of 30 feet to 13 feet to utility pole, then continuing in a northwesterly direction approximately 13 feet to a lamppost situated at the end of a wooden fence (guardrail), then continuing in a southwesterly direction along the fence line for approximately 60 feet and in a northwesterly direction along that fence line and an imaginary extension of the fence line by a line approximately 10 feet in width and parallel to the coterminous boundary of the roadway and Parcel A to land of Knollbrook (Parcel B) approximately 234 feet and then southwesterly along land of Knollbrook 10 feet to the point of beginning.
The court has carefully examined and reviewed the metes and bounds legal description recited in the Declaration of Knollbrook Condominiums, Schedule A-1 (Vol. 812, pages 168, 169) (Plaintiff’s Exhibit 2) with the Subdivision Map dated February 26, 1987 and finds that the northerly boundary of the roadway ("Road Under Construction") is exactly coterminous with the southerly boundary of Parcel A, a length of 264 feet.
ADVERSE POSSESSION
Connecticut General Statutes § 52-575(a) provides:
Entry upon land to be made within fifteen years. (a) No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards; and no such entry shall be sufficient, unless within such fifteen-year period, any person or persons claiming ownership of such lands and tenements and the right of entry and possession thereof against any person or persons who are in actual possession of such lands or tenements, gives notice in writing to the person or persons in possession of the land or tenements of the intention of the person giving the notice to dispute the right of possession of the person or persons to whom such notice is given and to prevent the other party or parties from acquiring such right, and the notice being served and recorded as provided in section 47-39 and 47-40 shall be deemed an interruption of the use and possession and shall prevent the acquiring of a right thereto by the continuance of the use and possession for any length of time thereafter, provided an action is commenced thereupon within one year next after the recording of such notice. The limitation herein prescribed shall not begin to run against the right of entry of an owner of a remainder or reversionary interest in real estate, which is in the adverse possession of another, until the expiration of the particular estate preceding such remainder or reversionary estate.
The law governing adverse possession is well established. "Adverse possession is a doctrine which grants ownership in derogation of record title since it presupposes that record title is in someone other than the claimant." Clark v. Drska, 1 Conn.App. 481, 486, 473 A.2d 325 (1984). "One claiming title by adverse possession always claims in derogation of the right of the true owner, admitting that the legal title is in another. The adverse claimant rests the claim, not on title, but on holding adversely to the true owner for the term prescribed by the statute of limitations." Matto v. Dan Beard, Inc., 15 Conn.App. 458, 476, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988). "By such title through adverse possession, the true owner is barred by a statute of limitations; General Statutes § 52-575; from making entry into the subject lands." (Footnote omitted.) LaPre v. Nibo Films, Ltd., 10 Conn.App. 669, 671, 525 A.2d 140 (1987).
"It has long been the law in Connecticut that [t]he doctrine of adverse possession is to be taken strictly." (Internal quotation marks omitted.) Lisiewski v. Seidel, 95 Conn.App. 696, 711, 899 A.2d 59 (2006). "Adverse possession is not to be made out by inference, but by clear and positive proof ... Clear and positive proof is equated with clear and convincing proof ... In cases such as this which require such a showing of proof, the burden of persuasion is sustained 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 arc true or exist is substantially greater than the probability that they are false or do not exist." (Citations omitted; internal quotation marks omitted.) Matto v. Dan Beard, Inc., supra, 15 Conn.App. 475.
"[T]he party seeking to acquire title by adverse possession bears the burden of proving all the elements of adverse possession." American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 80, 574 A.2d 796 (1990). "Ordinarily, whether the elements of adverse possession have been proven are questions of fact for the trial court." Clark v. Drska, supra, 1 Conn.App. 485. "The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner." (Internal quotation marks omitted.) Anderson v. Poirier, 121 Conn.App. 748, 752, 997 A.2d 604, cert. denied, 298 Conn. 904, 3 A.3d 68 (2010). Each element is discussed in turn.
A
Ouster
"Our Supreme Court has defined ouster clearly. By ouster is not meant a physical eviction, but a possession attended with such circumstances as to evince a claim of exclusive right and title ... As otherwise stated: [a]n entry ... on the land of another, is an ouster of the legal possession arising from the title ... if made under claim and color of right ... otherwise it is a mere trespass." (Emphasis added; internal quotation marks omitted.) Eberhart v. Meadow Haven, Inc., 111 Conn.App. 636, 644-45, 960 A.2d 1083 (2008). "In determining whether entrance on another’s property amounts to an ouster, or rather, a mere trespass, [t]he intention guides the entry, and fixes its character." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 652, 905 A.2d 1256 (2006).
B
Continuity
"[T]he law requires that ... the ouster shall be continued uninterruptedly for the statutory period ..." (Emphasis added.) Pepe v. Aceto, 119 Conn. 282, 287, 175 A. 775 (1934). "In order to interrupt continued adverse possession, the record owner must assert his claim to the land, perform some act that would reinstate him in possession, before he can regain what he has lost." (Emphasis omitted; internal quotation marks omitted.) Woycik v. Woycik, 13 Conn.App. 518, 525, 537 A.2d 541 (1988). "Furthermore, [a]n adverse possessor may interrupt his or her continuous possession by acting in a way that acknowledges the superiority of the real owner’s title ... [T]he possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other ... Occupation must not only be hostile in its inception, but it must continue hostile, and at all times during the required period of fifteen years challenge the right of the true owner, in order to found title by adverse use upon it ... Such an acknowledgment of the owner’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew." (Internal quotation marks omitted.) Bowen v. Serksnas, 121 Conn.App. 503, 512, 997 A.2d 573 (2010).
C
Fifteen-Year Statutory Period
"The statutory period to acquire land by adverse possession in Connecticut is fifteen years. See General Statutes § 52-575." Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn.App. 759, 764 n.5, 890 A.2d 645 (2006). Put differently, "General Statutes § 52-575(a) establishes a fifteen-year statute of repose on an action to oust an adverse possessor." O’Connor v. Larocque, 302 Conn. 562, 578-79, 31 A.3d 1 (2011). "The statute always begins to run against a man the moment he is disseized, whether he is under a disability or not." (Internal quotation marks omitted.) Ruick v. Twarkins, 171 Conn. 149, 160, 367 A.2d 1380 (1976).
D
Claim of Right
"[A] claim of right does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it has the intent to disregard the true owner’s right to possession." (Internal quotation marks omitted.) Eberhardt v. Imperial Construction Services, LLC, 101 Conn.App. 762, 768, 923 A.2d 785, cert. denied, 284 Conn. 904, 931 A.2d 263 (2007). "In other words, a claim of right requires that the party seeking title through adverse possession must [manifest] her unequivocal intent to use the property as her own and without the consent of the owner." (Internal quotation marks omitted.) Brander v. Stoddard, 173 Conn.App. 730, 745, 164 A.3d 889 (appendix), cert. denied, 327 Conn. 928, 171 A.3d 456 (2017).
E
Exclusivity
Our Supreme Court has explained that "[i]n general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others ... Thus, the claimant’s possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner’s use ... It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question." (Internal quotation marks omitted.) Eberhart v. Meadow Haven, Inc., supra, 111 Conn.App. 641-42. "In adverse-possession doctrine, the exclusivity requirement describes the behavior of an ordinary possessor and serves to give notice to the owner." (Internal quotation marks omitted.) Boccanfuso v. Conner, 89 Conn.App. 260, 289 n.23, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005).
F
Openness and Visibility
"The legal significance of the open and visible element [of adverse possession] is not ... an inquiry as to whether a record owner subjectively possessed an understanding that a claimant was attempting to claim the owner’s property as his own. Rather, the open and visible element 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." (Internal quotation marks omitted.) Anderson v. Poirier, supra, 121 Conn.App. 753-54. "In satisfaction of the open and visible prong of an adverse possession claim, [t]he location and condition of the land must be taken into consideration and the alleged acts of ownership must be understood as directed to those circumstances and conditions." (Internal quotation marks omitted.) 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn.App. 776, 810, 54 A.3d 232 (2012); see, e.g., id., 811 (making "permanent improvements" such as "clearing the area of underbrush, cutting some trees down, planting a lawn, trees and a garden, and installing a fence" generally satisfies open and visible element).
G
License or Consent
"One of the elements of adverse possession is that the claimant’s possession be without license or consent of the owner." (Footnotes added; internal quotation marks omitted.) Lazoff v. Padgett, 2 Conn.App. 246, 249, 477 A.2d 155, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984). Put differently, "[t]o acquire title by adverse possession, the possession must be hostile from its inception." Woodhouse v. McKee, 90 Conn.App. 662, 672, 879 A.2d 486, 492 (2005); see Mulle v. McCauley, 102 Conn.App. 803, 813-14, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007). "Hostile possession can be understood as possession that is opposed and antagonistic to all other claims, and that conveys the clear message that the possessor intends to possess the land as his or her own." (Internal quotation marks omitted.) Mulle v. McCauley, supra, 814. "As a general proposition, to satisfy the hostility requirement of adverse possession, a claimant’s possession of the disputed land, from its inception, must be without permission, license or consent of the owner and must continue to be so throughout the required fifteen-year period." (Footnotes omitted.) Id., 813-14.
"[A] license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property ..." Provenzano v. Provenzano, 88 Conn.App. 217, 223, 870 A.2d 1085 (2005).
"The word ‘consent’ has been used in the legal analysis of claims of adverse possession to negate the necessary element of hostile possession." Gallo-Mure v. Tomchik, 78 Conn.App. 699, 706, 829 A.2d 8 (2003).
ANALYSIS
Based on the credible undisputed testimony, the court finds:
The defendant, Knollbrook, since at least 1989 to the present, has used possessed and maintained the disputed area.
Further, since 1989 to the present, the defendant, Knollbrook, has landscaped the grassy area of the disputed area.
Also, since 1989 to the present, the defendant, Knollbrook, has reseeded the grassy area within the disputed area.
From 1989 to the present, the defendant, Knollbrook, has planted and maintained bushes and shrubs within the disputed area.
From 1989 to the present, the defendant, Knollbrook, has trimmed and removed trees and bushes encroaching within the disputed area.
From 1989 to the present, the defendant, Knollbrook, has maintained and, on multiple occasions, has repaired the guardrail structure located within the disputed area.
From 1989 to the present, the defendant, Knollbrook, has paid outside contractors to maintain and improve the disputed area and the guardrail structure located within the disputed area.
From 1989 to the present, residents (including school children of Knollbrook Condominiums) have used the disputed area for ingress and egress between the condominium and Old Bridgeport Avenue and a school bus waiting area within the disputed area.
From 1989 to the present, the defendant Knollbrook understood it was paying taxes and maintaining insurance on the disputed area.
The court further finds by credible testimony that the plaintiff, James Blakeman, has owned four units in Knollbrook Condominiums since 1992, resided in one of these units from 1992 to 1998, routinely has driven on the driveway to Knollbrook Condominiums and past the disputed area since 1992, and knows and observed that the defendant, Knollbrook, has used, possessed and maintained the disputed area since 1992 to the present.
It is noteworthy that the testimony or other evidence in this litigation is void of any indication that the plaintiff, James Blakeman, invoked the provision of C.G.S. § 52-572(a) which provides in part: "... unless within such fifteen-year period, any person or persons claiming ownership of such lands and tenements and the right of entry and possession thereof against any person or persons who are in actual possession of such lands or tenements, gives notice in writing to the person or persons in possession of the land or tenements of the intention of the person giving the notice to dispute the right of possession of the person or persons to whom such notice is given and to prevent the other party or parties from acquiring such right, and the notice being served and recorded as provided in section 47-39 and 47-40 shall be deemed an interruption of the use and possession and shall prevent the acquiring of a right thereto by the continuance of the use and possession for any length of time thereafter ..."
The court finds that the plaintiff, James Blakeman, did not give any notice to the defendant, Knollbrook, to prevent the continued use, maintenance and possession of the disputed area pursuant to C.G.S. § 52-575(a).
It is also noteworthy that the plaintiff, James Blakeman, did not invoke the provision of C.G.S. 47-38.
C.G.S. § 47-38 provides: The owner of land over which a right-of-way or other easement is claimed or used may give notice in writing, to the person claiming or using the privilege, of his intention to dispute the right-of-way or other easement and to prevent the other party from acquiring the right; and the notice, being served and recorded as provided in sections 47-39 and 47-40, shall be deemed an interruption of the use and shall prevent the acquiring of a right thereto by the continuance of the use for any length of time thereafter.
The court finds that the plaintiff, James Blakeman, did not give any notice to the defendant, Knollbrook, to prevent Knollbrook from acquiring a right of way or other easement over the disputed area pursuant to C.G.S. § 47-38.
The defendant, Knollbrook, has used, maintained and possessed the disputed area continuously and uninterruptedly for more than 15 years under a claim of right by an open, visible and exclusive possession without license or consent of the plaintiff, James Blakeman.
Based on the totality of the circumstances, this court finds by clear and convincing proof that the defendant, Knollbrook, has proven all the elements of adverse possession and thus has acquired legal title to the disputed area.
QUIET TITLE
As regards the plaintiff’s First Count (Quiet Title): the court’s findings and conclusions pertaining to the doctrine of adverse possession are determinative of the issue thereof.
The court finds that the plaintiff, James Blakeman, has no right, title or interest in the disputed area defined hereinbefore and that title is quieted in the name of the defendant, Knollbrook Condominium Association, Inc.
TORTIOUS INTERFERENCE
The plaintiff, James Blakeman, in the Second Count of his third Amended Complaint claims that the defendant, Knollbrook, tortiously interfered with his contractual relation, which the defendant, Knollbrook, denies.
Our Supreme Court "has long recognized a cause of action for tortious interference with contract rights or other business relations." Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983). "A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the [defendant’s] knowledge of that relationship, (3) the [defendant’s] intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the [defendant’s] tortious conduct." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000). "The plaintiff must satisfy his burden of proving each and every element of the claim." Loiselle v. Browning & Browning Real Estate, LLC, 147 Conn.App. 246, 259-60, 83 A.3d 608 (2013).
It is important to note that "the elements of a claim for tortious interference with contractual relations are substantially similar to the elements of a claim for tortious interference with business expectancies ... Historically, these are related but separate torts ..." (Citations omitted.) Kopperl v. Bain, 23 F.Supp.3d 97, 109 (D.Conn. 2014); see also American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 90, 920 A.2d 357 (setting forth elements of tortious interference with business expectancies claim), cert. denied, 284 Conn . 901, 931 A.2d 261 (2007). In Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 753, 474 A.2d 780 (1984), our Supreme Court explained that "[t]he common law has long countenanced a cause of action sounding in tort for interference with another’s business practices and opportunities. Originally the cause of action was recognized in suits where a defendant was alleged to have interfered with the plaintiff’s advantageous contractual relations ... Gradually, perhaps in recognition of an increasingly competitive business climate, the law came to recognize that a merchant might have protectible interests even in business expectations that had not been confirmed by contract. Dean Prosser identifies the decision in Temperton v. Russell, 1 Q.B. 715 (1893) as the generating force behind this evolution. There, the Court of Queen’s Bench declared that the principles of liability for interference with contract extended beyond existing contractual relations, and that a similar action would lie for interference with relations which were merely prospective or potential." (Citation omitted; emphasis added; internal quotation marks omitted.)
A
In the context of a tortious interference with contractual relations claim- as opposed to a tortious interference with business expectancies claim- the first element that the plaintiff must plead and prove is that he had an existing contract with another party. See footnote 7 of this memorandum. As our Supreme Court has noted, "it is not necessary for a plaintiff to prove that a contract was in fact breached in order to recover on a claim of tortious interference." Landmark Investment Group, LLC v. CALCO Construction & Development Co., 318 Conn. 847, 866, 124 A.3d 847 (2015). "A plaintiff may recover damages for tortious interference with a contract not only where the contract is thereby not performed ... but also where the interference causes the performance to be more expensive or burdensome ..." (Citation omitted; emphasis added; footnote omitted; internal quotation marks omitted.) Herman v. Endriss, 187 Conn. 374, 376-77, 446 A.2d 9 (1982). Furthermore, "it is well-settled that the tort of interference with contractual relations only lies when a third party adversely affects the contractual relations of two other parties ... [T]here can be no intentional interference with contractual relations by someone who is directly or indirectly a party to the contract." (Citation omitted; emphasis in original; internal quotation marks omitted.) Metcoff v. Lebovics, 123 Conn.App. 512, 520, 2 A.3d 942 (2010).
B
The second element that the plaintiff must plead and prove is that the defendant knew of the plaintiff’s contract. Although there is no Connecticut appellate authority that directly addresses this element, Superior Court decisions recognize that "the actor must have knowledge of the contract with which he is interfering and of the fact that he is interfering with the performance of the contract ... Intentional interference of course presupposes knowledge of the plaintiff’s contract or interest, or at least of facts which would lead a reasonable person to believe that such interest exists. Without such knowledge there can be no intent and no liability ..." (Citation omitted; internal quotation marks omitted.) Tassmer v. McManus, Superior Court, judicial district of New Haven, Docket No. CV-08-5018961-S (April 9, 2009, Robinson, J.); see also Diary Fresh, Inc. v. Coca Cola Bottling Co. of New York, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 386770 (February 18, 1992, Walsh, J.) (6 Conn.L.Rptr. 628, 629). Put differently, "[t]o be actionable an interference must be a knowing and not an inadvertent or incidental invasion of plaintiff’s contractual interests ... To protect a contractual interest from negligent interference would place an undue burden on freedom of action and could impose a severe penalty on one guilty of mere negligence." (Internal quotation marks omitted.) Steele v. J&S Metals, Inc., 32 Conn.Supp. 17, 19, 335 A.2d 629 (1974).
C
The third element that the plaintiff must plead and prove is that the defendant intended to interfere with the plaintiff’s contract. Although there is no Connecticut appellate authority that directly addresses this element, the Appellate Court’s decision in United Services Automobile Assn. v. Marburg, 46 Conn.App. 99, 105-06, 698 A.2d 914 (1997), is instructive. There, the court explained as follows: "It is axiomatic, in the tort lexicon, that intentional conduct and negligent conduct, although differing only by a matter of degree ... are separate and mutually exclusive. The distinction between intentional and unintentional invasions draws a bright line of separation among shadings of almost infinitely varied human experiences ... Although in a given case there may be doubt about whether one acted intentionally or negligently, the difference in meaning is clear. As Holmes observed, even a dog knows the difference between being tripped over and being kicked." (Citations omitted; internal quotation marks omitted.) Id., 105.
The court further explained that "[i]n its most common usage, intent involves (1) ... a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act ... Also, the intentional state of mind must exist when the act occurs ... Thus, intentional conduct extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does ... Furthermore, [i]t is not essential that the precise injury which was done be the one intended ... Rather, it is an intent to bring about a result which will invade the interests of another in a way that the law forbids ... Our case law accords with these principles." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 105-06.
D
The fourth element that the plaintiff must plead and prove is that the defendant interfered with the plaintiff’s contract and that such interference was tortious. It is fundamental that "[o]ur relations and expectancies in life are constantly interfered with by others. That is an inevitable consequence of living in a competitive world, among people whose ambitions, hopes or purposes may match or conflict with our own. If we could file a civil action against anyone who interfered with our contractual relations or business expectancies, the courts would have no time to do anything else. The saving limitation, embedded in the common law, is found in the rule that only a tortious interference is actionable." (Emphasis added; internal quotation marks omitted.) Brown v. Otake, 164 Conn.App. 686, 710 n.16, 138 A.3d 951 (2016).
Accordingly, our Supreme Court has held that "in an action for tortious interference, not every act that disturbs a contract or business expectancy is actionable ... [F]or a plaintiff successfully to prosecute [an action for tortious interference] it must prove that the defendant’s conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously ... The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification." (Citations omitted; internal quotation marks omitted.) Landmark Investment Group, LLC v. CALCO Construction & Development Co., supra, 318 Conn. 868-69.
The determination of whether the defendant tortiously interfered with the plaintiff’s contract without justification "is aided by 4 Restatement (Second), Torts § 767 (1979), which delineates certain factors relevant thereto, namely: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties ... Certain factors are closely interwoven with other enumerated factors, and thus cannot be easily separated." (Internal quotation marks omitted.) Varley v. First Student, Inc., 158 Conn.App. 482, 503-04, 119 A.3d 643 (2015). Ultimately, "[w]hether a defendant’s interference is tortious is a question of fact for the jury." Landmark Investment Group, LLC v. CALCO Construction & Development Co., supra, 318 Conn. 869.
E
The fifth and final element that the plaintiff must plead and prove is that he suffered actual loss as a result of the defendant’s tortious interference. As our Supreme Court has explained, "[u]nlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss ... it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffers actual loss." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 213 (discussing actual loss element in context of a tortious interference with contractual relations claim). Put simply, "[p]roof that some damage has been sustained is necessary to [support a cause of action for tortious interference]." (Internal quotation marks omitted.) Landmark Investment Group, LLC v. CALCO Construction & Development Co., supra, 318 Conn. 874.
To establish the element of actual loss, it must "appear that, except for the tortious interference of the defendant, there was a reasonable probability that the plaintiff would have entered into a contract or made a profit." Goldman v. Feinberg, 130 Conn. 671, 675, 37 A.2d 355 (1944). "Such a determination is a question for the trier of fact, as is the question of whether the plaintiff has suffered an actual loss." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 157 Conn.App. 139, 188, 117 A.3d 876, cert. denied, 318 Conn. 902, 122 A.3d 631 (2015).
ANALYSIS
An element of a claim of tortious interference with contractual or beneficial relationship requires the plaintiff, James Blakeman, to establish the existence of a contractual or beneficial relationship.
The plaintiff, James Blakeman, claims tortious interference with a contract purportedly signed and dated January 15, 2018. This contract, at best, is conditional per paragraphs 14 (agreement of formal contract by Seller’s Attorney) and 15 (approval of all planning and zoning terms). This claim is tenuous and, until fully executed, would not support a claim for damages.
The court also notes emphatically that this purported contract is dated January 15, 2018, several months subsequent to the development of Parcel A.
Importantly, the defendant, Knollbrook, did not assert a claim of adverse possession until April 10, 2017, which is prior to the approval of the Final Site Development Plan for Parcel A. (Query: how could the defendant, Knollbrook, know of the existence of a purported contract dated January 15, 2018 on or before April 10, 2017)
The plaintiff, James Blakeman, also claims that the defendant, Knollbrook, also interfered with the development of Parcel A by objecting to a zone change permitting apartments at a public hearing on September 28, 2016 before the Shelton Planning and Zoning Commission (See Plaintiff’s Exhibit 8).
A careful examination of this transcript indicates conclusively that none of the remarks voiced by the residents of Knollbrook Condominium Association, Inc. spoke for or on behalf of the defendant, Knollbrook Condominium Association, Inc. All persons speaking at the planning and zoning identified themselves personally as residents of Knollbrook Condominiums (except Dr. Kellagry of Sunwood Complex) and never identified themselves as representing the defendant, Knollbrook Condominium Association, Inc.
The court suggests that all of the objections voiced were very typical of a planning and zoning hearing or zoning board of appeals hearings. The objections sounded in traffic, safety, density, property values, aesthetics, design, access from Ivy Grove Court, etc. The plaintiff, James Blakeman, testified that the objections were "mild" and they had a right to express themselves. These objections were not malicious or illegal nor were they wrongful or tortious. They were merely several residents voicing their sincere objections to which they were legally entitled.
The plaintiff, James Blakeman, also claims that the defendant, Knollbrook, claimed title by adverse possession in order to "interfere" with the development of Parcel A for apartments.
The evidence presented at trial established that any "interference" experienced by the plaintiff, James Blakeman, with the development of Parcel A was justified, reasonable, legitimate and incidental to the dispute over the adverse possession claim. There was testimony that the defendant, Knollbrook, asserted its claim of adverse possession only after consulting with an attorney, presumably to test the soundness and validity of its claim.
The defendant, Knollbrook’s, claim of adverse possession was not tortious. The defendant, Knollbrook’s, claim was credible and justifiable and recognized as legitimate under established law. The defendant, Knollbrook, has not pursued its adverse claim for any improper purpose. It has pursued the claim of adverse title to obtain title to land it has possessed, used, maintained and possessed since 1989.
While the defendant, Knollbrook’s, claim of adverse possession may have tangentially interfered with the plaintiff, James Blakeman’s, development or sale of Parcel A, any such interference was a natural and incidental consequence of the assertion of adverse possession and not wrongful or tortious. Nor did the defendant, Knollbrook, have any specific intent to interfere with any contractual relationship of the plaintiff, James Blakeman.
The plaintiff, James Blakeman, claims that he suffered losses and damages as a result of the defendant, Knollbrook’s, alleged tortious interference with contractual relations, i.e., the development or sale of the apartment project of Parcel A.
The plaintiff, James Blakeman’s, claim of losses and damages include an aborted contract to sell the apartment project on Parcel A, loss of favorable mortgage interest sales and loss of rental income.
Any loss or damages purportedly occurring by reason of an aborted contract to sell the apartment project is speculative and tenuous as the purported contract was conditional and, as previously pointed out, would not support a claim for damages.
The testimony of the plaintiff, James Blakeman, regarding loss of a favorable mortgage interest rate was speculative and based on hearsay.
The plaintiff, James Blakeman, failed to corroborate any claim of loss or damages. He did not produce spreadsheets as evidence of a cost to build the apartment complex, the cost to maintain said apartment nor rental income relative to the apartment complex.
Further, any testimony regarding interest rates or increase thereof was hearsay and lacked corroboration. He did not produce a qualified banker to prove his claim. His testimony was speculative.
The plaintiff, James Blakeman’s, claim of loss of rental income is misplaced. Simply stated, the loss of rental income would not be an actual loss but merely pushes the rental income a year down the road.
The plaintiff, James Blakeman’s, claim of losses and damages are generalized unsubstantiated assumptions, speculation and conjecture, and not based on credible and reliable evidence.
The court finds that the plaintiff, James Blakeman, has failed by a fair preponderance of evidence to prove any loss or damage with reasonable certainty and does not award any damages to the plaintiff, James Blakeman.
Despite the absence of a special defense of ultra vires act by the defendant, Knollbrook Condominium Associates, Inc., the plaintiff, James Blakeman, has addressed this claim in his post-trial brief (section 11). The court declines to rule on this claim as the plaintiff, James Blakeman, did not plead this as a special defense. However, the court notes that there was testimony that officers and directors were polled by telephone or electronic means regarding the bringing of a claim of adverse possession. The polled officers and/or directors agreed to authorize their attorney to bring a claim of adverse possession. The court finds that this polling of the officers and directors was tantamount to a proper meeting.
CONCLUSION
The court enters the following judgment:
Legal title to the disputed area is quieted and settled in favor of the defendant, Knollbrook Condominium Association, Inc., and that the plaintiff, James Blakeman, does not have any right, title, interest or estate in the disputed area.
The legal title to the disputed area is vested in the defendant, Knollbrook Condominium, Inc., by the doctrine of adverse possession.
Judgment on the plaintiff, James Blakeman’s, Second Count of tortious interference is entered in favor of the defendant, Knollbrook Condominium Association, Inc.
It is the order of this court that the defendant, Knollbrook Condominium Association, Inc., shall cause to be prepared a A-2 survey/map suitable for filing, delineating the disputed area consistent with this decision.
The defendant, Knollbrook Condominium Association, Inc., is ordered to prepare a judgment for purposes of recording to quiet title and settle title in favor of the defendant, Knollbrook Condominium Association, Inc. and vest legal title to the disputed area in the defendant, Knollbrook Condominium Association, Inc.