Opinion
No. X03 CV 01 0522640S
February 2, 2006
DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT OF THE DEFENDANT AMY DAY KAHN
Pursuant to Practice Book Section 17-45, the defendant, Amy Day Kahn, has moved for summary judgment against the plaintiff, Curtis Deane, with respect to the First, Third, Fourth, Thirteenth and Fourteenth Counts Deane's amended complaint dated October 31, 2001.
Deane has objected to the motion. Oral argument was held on December 12, 2005. Trial is scheduled to commence on February 28, 2006. For the reasons stated below, in light of the full record, including the oral arguments of the parties and their written submissions, the motion is denied in all respects. In the court's view, given the fact-specific nature of the interrelated disputes which constitute this lawsuit; the widely divergent views of the parties; the need of the trier to assess witness credibility and intention; the importance of evaluating the topography involved; differences involving expert opinions; and the complex legal issues presented, a full trial is necessary to resolve this case.
The facts relating to this dispute as set out in the parties' moving papers are involved and pertain to various claims relating to properties owned by the parties, all neighbors in Lyme. The parties' versions of the factual background of the various existing disputes, including the history of various parcels and claimed and disputed easements, are set out at length in their memoranda. Because of their complexity, the facts will not be set out here in detail. Exhibit 15, the affidavit of Gerald J. Stefon, and Exhibit 16, a chart of the history of the properties, attached to the October 27, 2005, Motion for Partial Summary Judgment of the Defendant, Amy Day Kahn, sets out some of the essential facts from Kahn's point of view.
The legal standards relating to motions for summary judgment are well known and need not be exhaustively recounted here. Such motions must be scrutinized with great care because when granted, they deprive the nonmoving party of their right to a trial.
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski. 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt about the existence of any genuine issue of material fact." Plouffe v. New York. N.H. H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). The evidence must be viewed in the light most favorable to the nonmoving party. D.H.R. Construction Co. v. Donnelly. 180 Conn. 430, 434, 429 A.2d 908 (1980).
The First Count
In the First Count Deane seeks to quiet title as to an equitable easement which he claims over the lower portion of Kahn's property along the Connecticut River. Kahn argues that the First Count "fails to set forth a basis for the claim." This count, and the Third Count, relate to the so-called "claimed riverfront easement." Deane disputes the contention that no claim has been properly set forth, asserting that Kahn's argument is properly raised in the procedural context of a motion to strike. The court agrees that Kahn's argument, from a procedural standpoint, should have been raised pursuant to a motion to strike. Burke v. Avitabile, 32 Conn.App. 765, 630 A.2d 624 (1993), cert. denied, 228 Conn. 908, 634 A.2d 297 (1993). The court also agrees with Deane that the First Count, as it presently stands, complies with the requirements of General Statutes Section 47-31(f). If Deane believes that leave to amend the First Count should be granted to permit him to clarify his legal theories, he is free to request permission to do so, and Kahn is free to object, if she desires.
Substantively, citing Stiefel v. Lindemann, 33 Conn.App. 799, 813 638 A.2d 642, cert. denied, 229 Conn. 914, 642 A.2d 1211 (1994), Kahn argues that when the Deane and Kahn properties were divided by conveyances in 1960 to Marion and Charles Sreboff, the Deane property had no legal right-of-way over the Kahn property, none was given, and that if an express right-of-way existed, it was lost when the properties were conveyed. But review of the record leads the Court to conclude that a genuine issue of material fact exists as to whether an easement by implication exists; Kelley v. Tomas, 66 Conn.App. 146, 783 A.2d 1226 (2001); and as to whether an express easement exists. Chaput v. Clarke. 26 Conn.App. 785, 603 A.2d 1195 (1992). See Deane's 12/7/05 Memorandum of Law, Exhibit L, deposition of Richard D. Dixon.
The Third Count
In the Third Count, Deane seeks a ruling that he has an easement by necessity over a portion of Kahn's property, alleging, in part, that due to the terKahn and slope of his property, he is unable to reasonably access the riverfront portion of his parcel without crossing Kahn's property. Kahn argues that because Deane does not claim that his property is landlocked, summary judgment should be granted. Citing Collins v. Prentice. 15 Conn. 39 (1842), and other cases, Kahn correctly notes the difficulty of establishing an easement by necessity. Deane contests Kahn's arguments, pointing to the need for the court to evaluate the riparian utilization of the plaintiff's property, both past and future. Stefanoni v. Duncan, 92 Conn.App. 172, 191-94, 883 A.2d 1271 (2005). For purposes of deciding the pending motion only, the court agrees with Deane. In Marshall v. Martin, 107 Conn. 32, 139 A.2d 348 (1972), the court stated that reasonable, not strict, necessity is the rule in Connecticut governing easements created by necessity. A key issue in such cases is whether "the means of access available [across his own land] would not afford the landowner any real beneficial enjoyment of the property." Deane v. Kahn, Superior Court Judicial district of New London at New London, Docket No. 559712 (May 9, 2002, Hurley, J.). Review of the full record persuades the court that a genuine issue of material fact exists as to this point. As argued by Kahn, and as Judge Hurley states in his decision, however, the court notes that a plaintiff seeking to prevail on a claimed easement by necessity carries a heavy burden to prevail at trial.
Fourth Count
In the Fourth Count, Deane seeks a declaratory judgment extinguishing Kahn's claimed right-of-way and/or easement over the westerly part of Deane's property. This count relates to what the parties refer to as the "shared boundary easement." Deane claims, in essence, that Kahn has abandoned the claimed right-of-way, in reliance on his own testimony, plus that of Frank Parker Heinemann, Carole Schmitt, and William Blundin.
As the Court made clear in Boccanfuso v. Conner, 89 Conn.App. 260, 279, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005), part of the Court's inquiry into a claim that an easement has been abandoned centers on the intention of the dominant owner to abandon or release the easement. Issues of intention are rarely properly decided on summary judgment. Both Kahn and the former owner of her property, Frank Parker Heinemann, have testified that they never intended to abandon the shared boundary easement. The Court concludes that a genuine issue of material fact exists which will require a trial on the abandonment issue.
The Thirteenth Count
In the Thirteenth Count, Deane seeks a court declaration affirming a claimed equitable servitude, and/or a claimed equitable easement which follows the course of what is asserted to be an ancient right-of-way. Kahn argues, "There is no evidence anywhere to support that any of the properties were ever divided into building lots `under a general development scheme.'" However, Deane cites to the affidavit of expert witness Richard D. Dixon as supporting the argument that a "common plan" — or mutual covenants and consideration — existed. Whether Dixon's testimony withstands attack at trial, or whether Deane can prove his claim, is not before the Court in the context of the pending motion. The Court concludes that a genuine issue of material fact, which must be tested at trial, exists.
The Fourteenth Count
In the Fourteenth Count, Deane asks the Court to declare that a constructive trust exists whereby defendants Kahn and John Gorman and their successors hold their property subject to a right-of-way benefiting the users thereof until such times as the title to properties referred to in the complaint as parcels A, C and D — owned by Deane, Kahn, and Gorman — may merge. This count alleges, among other things, that since 1997 and 1998 respectively, Kahn and Gorman have interfered with Deane's use of a portion of the ancient route which runs across their properties. This count relates to the claimed riverfront easement.
Kahn argues that Deane cannot establish the elements necessary to prove a "constructive trust" under applicable case law, including cases such as Gulack v. Gulack. 30 Conn.App. 305, 310, 620 A.2d 181 (1993). Deane retorts that what is at issue is a "resulting trust," which does not require proof of the existence of a pre-existing fiduciary relationship. However one chooses to analyze the issue, review of the record persuades the Court that a genuine issue of material fact exists as to whether the defendants have, as Deane claimed, interfered with his use of a portion of the claimed ancient route involved. See Exhibit F of Deane's Objection to Defendant Amy Kahn's Motion for Partial Summary Judgment, 8/24/04 Deposition of Curtis Deane, pp. 381; 394; 395; 405.
Conclusion
As noted, the disputes involved in this case are legally complex, fact specific, and concern arcane issues of real property law. Moreover, questions of credibility and intention, and issues upon which experts disagree, are not generally susceptible to decision on motions for summary judgment, but require the trier of fact to evaluate and assess the testimony in the context of all the admissible evidence. Genuine issues of material fact exist as to each count discussed above. The motion for summary judgment is denied.