Opinion
No. FST CV 05 4006846 S
May 27, 2009
MEMORANDUM OF DECISION
On September 2, 2005, the plaintiff, Saugatuck Harbor Yacht Club, Inc. (SHYC), commenced this action to quiet title to the littoral rights associated with 15 Duck Pond Lane (the subject property), by summons and complaint on the defendants, Vetruvian Group, LLC (Vetruvian) and William Shaffer (Shaffer), the principal and managing partner of the Vetruvian. On March 19, 2007, the plaintiff filed an amended complaint adding New Alliance Bank as a defendant, which is the current holder of the notes and mortgages on the subject property. On June 26, 2007, the plaintiff filed a third amended complaint, adding Whitehall Realty Corp. (Whitehall) as a defendant. Whitehall assumed all interests of the co-defendant New Alliance Bank in and to the subject property. On June 2, 2006, the defendant, William Shaffer, filed an answer and counterclaims. Thereafter, on June 12, 2006, Vetruvian filed an answer and counterclaims. On February 23, 2007, the SHYC filed its answer to the special defenses and counterclaims of Vetruvian and Shaffer.
The defendant Shaffer's counterclaims allege: (1) that members of the SHYC made false and defamatory statements to members of the community in which the defendant practices his profession, causing injury to his reputation and business; and (2) that the SHYC commenced this action against the defendant without alleging in its complaint a cause of action against him individually. As a result of doing so, the defendant was prevented from obtaining financing from lending institutions and private sources of funding and his credit standing was adversely affected to his loss.
Vetruvian's counterclaims seek to quiet title to the subject property pursuant to General Statutes § 47-31, and enjoin the SHYC from impeding or prohibiting Vetruvian from obtaining a permit from the State of Connecticut Department of Environmental Protection (DEP) to construct a dock. Additionally, Vetruvian alleges that SHYC filed a statement in opposition to its DEP application for a dock permit and said opposition is based on a future finding of this court that SHYC controls the riparian rights to the subject property. As a result of SHYC's interference, Vetruvian has continued to carry the costs of maintaining and financing the premises.
The court finds the following facts:
The plaintiff is the owner and is in possession of a certain piece of land in the town of Westport bounded and described as follows: "Being all of the land and premises constituting Duck Pond Yacht Basin, so-called, being the land of the bottom and the sides of said Basin and the waters therein as shown on [Map Number 6746 (Exhibit [Exh.] 9)], lying westerly of the easterly boundary of said Duck Pond, being shown on said map as `Easterly Limit of Duck Pond Prior to Dredging' and lying below the approximate mean high water line of said Duck Pond. (Exhs. 18, 21).
Further, the court finds that the plaintiff acquired title to the subject property from: (1) Frances K. Probst by warranty deed dated January 29, 1970, and recorded in Volume 273 at Page 332 of the Westport land records (land records) (Exh. 18); (2) J. Anthony Probst by quitclaim deed dated January 29, 1970, and recorded in Volume 273 at Page 335 of the land records (Exh. 21); and Elizabeth Gordon, trustee, by quitclaim deed dated January 29, 1970, and recorded in Volume 273 at Page 332 of the land records (Exh. 19).
The defendant Vetruvian is the owner of the parcel of land and structures on the subject property. (Exh. 30). Vetruvian's deed describes the subject property as follows: "ALL THAT Certain tract, piece or parcel of land, together with the building and improvements located thereon, situated in the Town of Westport . . . in quantity, 0.75 Acre, more or less, shown and designated as Lot 34A on a certain map entitled `Map of Subdivision Prepared for Harbor Properties, Inc. . . . June 2, 1965, Certified Substantially Correct, Leo Leonard, Civil Engineer and Surveyor,' on filed in the office of the Town Clerk of the Town of Westport, bearing file Number 6459 [Exh. 8]." (Exh. 30.)
The subject property was created in 1965 through a granting of a variance by the Westport Zoning Board of Appeals. (Exh. A.) Harbor Properties, the then owner of the subject property, obtained approval to subdivide its property and create Lot 34A. (Exh. A.) Due to court action and a change in circumstances, the subdivision approval was reconsidered in 1967. (Exh. 22.) At its meeting on June 29, 1967, the Commission approved the map of the subdivision (Exh. 8, Map No. 6459), subject to the completion of two improvements. (Exh. 22.)
The details of the improvements are not pertinent to the present case.
In 1975, the subject property was conveyed by Elizabeth Gordon, trustee, to Michael Greenberg and Grover Mills by warranty deed dated April 11, 1975, and recorded in Volume 388 at Page 313 of the land records. (Exh. C.) The property was then conveyed by Michael Greenberg and Grover Mills to Richard Wilson and Norma Wilson by warranty deed dated November 14, 1975, and recorded in Volume 405 at Page 317 of the land records. (Exh. D.) The subject property was then conveyed by the Richard Wilson to Don Ceglar by warranty deed dated May 30, 1996, and recorded in Volume 1450 at Page 292 of the land records. (Exh. E.) Ceglar then conveyed the property to "Vetruvian" by deed dated December 3, 2003, and recorded in Volume 2334 at Page 308 of the land records. The deed was subsequently recorded in Volume 2372 at Page 60 of the land records with the corrected spelling of Vetruvian. (Exh. 30.) Each of the deeds in Vetruvian's chain of title reference Map No. 6459 (Exh. 8), which notes that "no water rights are granted to Lot 34A [the subject property]." (Exhs. C, D, E, 30). On March 17, 2005, Vetruvian filed an application with the DEP for a permit to build a dock into the Duck Pond. (Exh. 5).
By filing the dock permit application with the DEP, the SHYC claims that Vetruvian sought to exercise dominion over the littoral rights of the Duck Pond. In turn, the SHYC commenced this action to quiet title to the littoral rights.
The court agrees and finds that by filing the dock permit application, Vetruvian placed the plaintiff's title interest in dispute.
The plaintiff alleges that Vetruvian claims an interest in the littoral rights associated with the subject property which are adverse to the plaintiff's title and interest in said property. Specifically, Vetruvian claims to enjoy the littoral and riparian rights to the water of Duck Pond Yacht Basin, which is allegedly adverse to the grants of all such rights made to the plaintiff by Francis K. Probst, J. Anthony Probst, and Elizabeth Gordon, trustee.
Pursuant to § 47-31, the plaintiff seeks a determination of the rights of the parties in and to the land and the littoral and riparian rights over Duck Pond (Yacht Basin). Further, the plaintiff asks the court to enjoin the defendants from taking or continuing any action that is adverse to the plaintiff's right of exclusive enjoyment of all the littoral rights over the Duck Pond (Yacht Basin). In response, the defendants argue that the subject property's chain of title lacks any language clearly severing or extinguishing ownership of the littoral rights associated with said property, and therefore, the defendants were not on notice that such rights were not transferred when the subject property was conveyed to them in 2003. As a result, the defendants ask the court to hold that Vetruvian owns the littoral rights to the subject property.
General Statutes 47-31(a) provides: "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."
"There is often confusion between the terms `littoral' and `riparian' as applied to the water rights of property owners. `Littoral' is the proper term for describing the rights that shoreline owners possess to make exclusive use of the land lying seaward of the mean high water mark . . . Certain appellate cases also use the term `riparian' in the same fashion. Strictly speaking `riparian' rights are limited to rights related to the waters in a watercourse and include the right to take waters from a stream and to dam or impound the waters of a stream. However, the term `riparian' is also used in an expansive sense to describe all water related rights including littoral and riparian rights. 78 Am.Jur.2d 386, Waters § 30 (2002)." Caminis v. Troy, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4007029 (June 14, 2007, Tobin, J.).
"The procedure in an action to settle the title . . . under the statute has been long and clearly established . . . The essentials of the complaint were statements of the plaintiff's ownership in the land described and of its title thereto . . . The plaintiff was required not only to allege but to prove that its title was so affected by the claims of the defendants as to justify the litigation . . . Finally, the plaintiff was required to prevail on the strength of its own title and not on the weakness of its adversary's." (Citations omitted.) Lake Garda Improvement Ass'n. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967).
Ordinarily, "these . . . rights, although originating in and derived from the ownership of upland adjoining the pond, were, as we have seen, separable from such ownership and independently alienable by the owner at his pleasure like any other property or franchise he possessed. A conveyance . . . of portions of [a] tract bordering upon the pond would presumptively carry with the respective pieces the riparian rights attached thereto, including those of reclamation and wharfing out to the river channel . . . Such presumption, however, is a rebuttable one, and if the grantor's intent to confine his grant to the upland, or to reserve some portion of the riparian rights attached thereto, is apparent from his deed when read in the light of the attending and surrounding circumstances, effect will, as in other cases, be given to that intent, and the operation of the deed limited accordingly." (Citations omitted.) Barri v. Schwarz Bros. Co., 93 Conn. 501, 507, 107 A. 3 (1919). It is clear that "whether or not riparian rights are conveyed along with the grant of the uplands depends largely upon the intent of the grantor. Such intent is to be determined from the language of the deed and surrounding circumstances." Mianus Realty Co. v. Greenway, 151 Conn. 128, 132, 193 A.2d 713 (1963).
The court further finds the following facts:
On January 3, 1961, Frances K. Probst and J. Anthony Probst conveyed, inter alia, parcel B to Harbor Properties, LLC (Harbor Properties). (Exh. 14.) Frances K. Probst withheld from said conveyance, property referred to as "Reserve" on map number 5090. (Exhs. 10, 14). Specifically, said deed states "excepting `Reserve' for Frances K. Probst as shown on said map number 5090." (Exh. 14.) Map number 5090, approved by the Planning and Zoning Commission on October 24, 1960, shows the land reserved by Frances K. Probst to include the Duck Pond Yacht Basin, a piece of property designated "#20," Lot 13 and a tract of land abutting the Duck Pond Yacht Basin, running underneath Lots 9, 10, 11, and 12. (Exh. 10.)
It is clear that by retaining the Duck Pond and a strip of land surrounding the Duck Pond Yacht Basin, Frances K. Probst intended to reserve for herself all of the littoral rights to the Duck Pond Yacht Basin. Accordingly, Harbor Properties did not receive any riparian rights to the property in the 1961 conveyance.
The court further finds the following facts:
As previously stated, in 1965, Harbor Properties obtained approval from the Commission to subdivide its property and create the subject property. (Exh. A.) The minutes from the Commission's meeting show that the map of the subdivision (Exh. 8, Map No. 6459) was approved, with the following comment: "Notes on the map [referencing Map No. 6459] as follows: (c) the approval of the subdivision map did not grant rights to the yacht basin for any of the lots." (Exh. 22.) Map No. 6459 expressly states that "no water rights are granted to Lots 33A, 34A [subject property], 35A and 41." (Exh. 8.) On March 15, 1969, Harbor Properties conveyed all of the land shown on Map No. 6459 (Exh. 8), which includes the subject property and the land shown on Map No. 6363, to Elizabeth Gordon, trustee. (Exhs. 17, 39.) At the time of this transfer, Frances K. Probst still held the title to the tract of land abutting the Duck Pond Yacht Basin and the littoral right associated with said land, that were reserved in the 1961 transfer. (Exh. 10.) Additionally, the lack of littoral rights associated with the subject property is evidenced by the clear notation on Map No. 6459 stating that "no water right are granted to Lots 33A, 34A [the subject property], 35A and 41." (Exh. 8.)
Thereafter, in 1970, four conveyances were made to the SHYC. The first conveyance was by Frances K. Probst, who conveyed, by warranty deed dated January 29, 1970, and recorded in Volume 273 at Page 332, all his interests in Lot 13 and the Duck Pond Yacht Basin, together with "the exclusive right and interest in and to the waters of said Duck Pond, including the exclusive riparian and littoral rights in and to said waters, there being no riparian, littoral or other rights outstanding as an appurtenance . . . in favor of the owners of any uplands abutting said Duck Pond." (Exh. 18.) The second conveyance was by Elizabeth Gordon, who conveyed by quitclaim deed dated January 29, 1970, and recorded in Volume 273 at Page 332, any interest she had in Lot 13, Parcel B, the Duck Pond Yacht Basin and its littoral and riparian rights. (Exh. 19.)
All four conveyances refer to the land as it is shown on Map No. 6746 (Exh. 9).
The third conveyance was also by Gordon, who conveyed by warranty deed dated January 29, 1970, and recorded in Volume 273 at Page 332, any interest she had in Parcel D, subject to the notations set forth on Map No. 6746. (Exh. 20.) Notation two on Map No. 6746 states "Parcel C, Lots 41, 35A, 34A [subject property], 33A, Land of Elizabeth Gordon, Trustee, situated at the northerly end of `Duck Pond,' Parcel 10B, Parcel 9B and Lot R-5 have no riparian, littoral or other rights in `Duck Pond' (Yacht Basin) or in waters therein." (Emphasis added.) (Exh. 9.) Finally, J. Anthony Probst conveyed, by quitclaim deed dated January 29, 1970, and recorded in Volume 273 at Page 335, any and all interest in Lot 13, Parcel B, Parcel D, and the Duck Pond Yacht Basin, together with any interest in the riparian and littoral rights associated with the lands abutting the Duck Pond. (Exh. 21.)
In support of the plaintiff's ownership rights in and to the littoral rights of the subject property, the court heard credible testimony from Victor Riccio, an expert title searcher. Riccio testified that, in his opinion, "the SHYC owns the riparian or littoral right to the waters of the yacht basin and the surrounding areas," as a result of the four 1970 conveyances. (Transcript [Tr.], 10/28/08, p. 82.) According to Riccio, Frances K. Probst "never transferred any littoral or riparian rights or any conveyance of the duck pond." (Tr., 10/28/08, p. 116.) Further, Riccio testified that reason for the four conveyances to the SHYC in 1970 was "to ensure that no one can make a claim to any riparian or littoral rights by getting anyone who may even have a semblance of an interest in [the subject property] . . . to sign over their rights to the [SHYC]." (Tr., 10/28/08, p. 118.) Riccio also testified that, although he did not believe that Gordon held any littoral rights in and to the Duck Pond, her transfer of Parcel B and Lot 13 (Exh. 19) would have conveyed any interest she had in and to the littoral rights of the Duck Pond to the SHYC. (Tr., 10/28/08, p. 118-20.) Thus, assuming arguendo that Gordon did have an interest in the littoral rights of the Duck Pond, that interest was severed from the subject property and conveyed to the SHYC in 1970. (Tr., 11/5/08, p. 120; Exh. 19.)
The court finds that in the present case, it is evident from the language of the deed conveying the subject property to Harbor Properties in 1961 that Frances K. Probst intended to exclude the littoral rights from said conveyance. (Exh. 14.) Said deed references Map. No. 5090, which notes that Frances K. Probst excluded from the conveyance, inter alia, the Duck Pond Yacht Basin and a tract of land abutting the Duck Pond. (Exh. 10.) It is clear that by retaining the Duck Pond and a strip of land surrounding the Duck Pond Yacht Basin, Frances K. Probst intended to reserve for herself all of the littoral rights to the Duck Pond Yacht Basin. Further, it is clear that the four conveyances to the SHYC in 1970 were intended to ensure that the SHYC held exclusive title to all the littoral rights associated with the Duck Pond in the event that Frances K. Probst did not properly reserve the littoral rights in the Duck Pond. Thus, from 1961 to the conveyance to the SHYC in 1970, Frances K. Probst held the littoral rights to the Duck Pond.
Assuming arguendo, that Frances K. Probst did not properly reserve the littoral rights to the Duck Pond in 1961, the four conveyances in 1970 would have transferred any and all outstanding interests in the littoral rights of the Duck Pond to the SHYC. Thus, if Frances K. Probst did not reserve the littoral rights to the Duck Pond, then said rights were transferred to Harbor Properties in the 1961 conveyance. In 1965, Harbor Properties conveyed, inter alia, the subject property and its littoral rights to Elizabeth Gordon, trustee. Gordon then conveyed any interest she had in the littoral rights to the SHYC in 1970. Accordingly, any subsequent transfer of the subject property by Gordon did not include any potential interest she had in the littoral rights of the Duck Pond, as said rights were transferred to the SHYC in 1970.
Therefore, it follows that on April 11, 1975, when Gordon conveyed the subject property to Michael Greenberg and Grover Mills, by warranty deed recorded in Volume 388 at Page 313; (Exh. C); any interest in the subject property's littoral rights was severed by the 1970 conveyance to the SHYC. The severing of the subject property's littoral rights is evidenced by a reference in the deed to the Map No. 6459, which states that the subject property has "no riparian, littoral or other rights in Duck Pond." (Exhs. C, 8.) Thereafter, on November 14, 1975, Greenberg and Mills conveyed the subject property, as shown on Map. No. 6459, to Richard and Norma Wilson, by warranty deed recorded in Volume 405 at Page 317. (Exh. D.) Said deed states the premises are subject to, inter alia, the notations on Map No. 6459. (Exh. D.) In 1996, Richard Wilson conveyed the subject property, as shown on Map No. 6459, to Don Ceglar, by warranty deed recorded in Volume 1450 at Page 293. (Exh. E.) On January 5, 2004, Ceglar conveyed the subject property, subject to the notations on Map. No. 6459, to Vetruvian. (Exh. 30.) As previously stated, there is a notation on Map No. 6459, providing that `no water rights are granted to [the subject property]." (Exh. 30.)
Although the plaintiff's claim of ownership of the littoral rights of the subject property is based upon its purchase of those interests in 1970, the defendants, rather than challenging the plaintiff's chain of title, maintain that the subject property cannot be left without littoral rights absent a "clear and manifest" reservation appearing in Vetruvian's chain of title. Specifically, the defendants argue that the language included in Map No. 6459 (Exh. 8), stating that "no water right are granted to lots 33A, 34A [subject property], 35A and 41," is ambiguous, and therefore, the ownership of the littoral rights associated with the subject property is ambiguous. The defendants attempt to support this position with the testimony of Barry Hammons, an expert land surveyor. Hammons testified that the term "no water rights" was "inconspicuously placed [and] not in a location where notes are normally placed, so it could have been overlooked by an inexperienced person." (Tr., 11/5/08, p. 55). He did, however, concede that a competent title searcher should have found the notation. (Tr., 11/5/08, p. 57). Hammons further testified that the phrase "no water right are granted to lots 33A, 34A, 35A and 41" was "so vague that it meant nothing." (Tr., 11/5/08, p. 59.) Hammons, however, previously conceded that "water rights in and of themselves are too broad . . . [A]ll riparian rights are water rights, but not all water rights are riparian rights." (Tr., 11/5/08, p. 59.) Thus, the defendants' own expert conceded that the term "no water rights" which is found on Map No. 6459 and is referenced throughout the chain of title, is broader than just littoral and riparian rights, but does, in fact, include littoral and riparian rights. (Tr., 11/5/08, pp. 59, 65.) When questioned further, Hammons also conceded that the term "no water rights" found on Map No. 6459 "excluded from ownership in [the subject property], littoral and riparian rights." (Tr., 11/5/08, p. 65.) Thus, defendants' own expert conceded that, at a minimum, the littoral and riparian rights associated with the subject property fall within the phrase "no water rights" referenced on Map No. 6459.
The court did not accept Hammons as an expert with respect to title matters.
This understanding was confirmed by Riccio's testimony. Riccio testified that he understood the phase "no water rights" to mean no "riparian and littoral rights." (Tr., 10/28/08, p. 138.)
In examining the various conveyances, the evidence submitted by parties and the expert testimony provided to the court, the court finds that the littoral rights to the subject property are owned by the SHYC by virtue of the 1970 conveyances. Frances K. Probst, in conveying the subject property to Harbor Properties in 1961, withheld, inter alia, a tract of land abutting the Duck Pond Yacht Basin. (Exh. 14.) In doing so, Frances K. Probst clearly and unambiguously reserved the littoral rights to the subject property, leaving Harbor Properties with title to the subject property without ownership of the littoral rights associated with said property. Frances K. Probst's intent to reserve the littoral rights to the property abutting the Duck Pond is further evidenced by the notations on Map No. 6459, which is reference throughout both the SHYC's and Vetruvian's chain of title. On said map, it clearly states that "no water rights are granted" to the subject property, which at a minimum excepts the littoral rights associated with the property. (Exh. 8.)
Further, the Commission's statement that "approval of the subdivision did not grant right to the yacht basin for any lots," reinforces the understanding of the notation regarding water rights found on Map No. 6459. Thus, throughout the subject property's chain of title, Frances K. Probst's original intention to reserve for herself the littoral rights associated with the Duck Pond is evidenced by the reference to Map No. 6459 (Exh. 8) and the notations on said map. (Exhs. C, D, E, 30.) As it is clear that said property is subject to the notation on Map No. 6459 that states that "Lot 34A [subject property] . . . [has] no riparian or littoral rights or other right in `Duck Pond' (Yacht Basin);" (Exh. 9); it cannot be said that Frances K. Probst's original intention to sever the littoral rights from the subject property in 1961 was not clear and unambiguous to all future purchasers.
"In many contexts courts have held that when a recorded instrument in a party's chain of title makes reference to some extrinsic document, the party thereby is charged with constructive or actual notice of the contents of the extrinsic document." Johnson v. Sourignamath, 90 Conn.App. 388, 397 401, 877 A.2d 891 (2005).
It is clear that "whether or not riparian rights are conveyed along with the grant of the uplands depends largely upon the intent of the grantor [and] such intent is to be determined from the language of the deed and surrounding circumstances." Mianus Realty Co. v. Greenway, supra, 151 Conn. 132. Accordingly, the court finds that it is apparent, not only from Frances K. Probst's original deed to Harbor Properties, but also from the plain language of various subsequent deed transfers to the subject property, that her intent to reserve the littoral rights to the subject property and except said rights from her 1961 conveyance to Harbor Properties, was clear. Therefore, by way of the 1970 conveyance from Frances K. Probst to the SHYC; (Exh. 18); Frances K. Probst transferred all of her interest in the littoral rights in and to the Duck Pond to the SHYC.
Thus, the court finds that the plaintiff, Saugatuck Harbor Yacht Club, Inc., is the owner of the littoral and riparian rights of the subject property. Further, the court enjoins the defendants, their successors, assigns, members, employees, agents and anyone acting on their behalf from taking or continuing any action that is adverse to the plaintiff's right of enjoyment of all littoral and riparian rights over the Duck Pond Yacht Basin, including, but not limited to, seeking permission from the Connecticut Department of Environmental Protection to construct a dock adjacent to 15 Duck Pond Road and extending into the basin of Duck Pond.
Defamation
The defendant Shaffer is a practicing architect, licensed to practice his profession in the state of Connecticut, with offices located in Westport. The defendant alleges that a member of the SHYC made false and defamatory statements to members of the community in which he practices his profession, leading them to believe that he has initiated legal claims and proceedings against the SHYC. The defendant further alleges that these defamatory statements to third parties have caused injury to his reputation and have deterred third parties from associating or dealing with him as an architect. Specifically, the defendant alleges that Vivian Grotto (Grotto), a member of the SHYC, made comments that the defendant "must be crazy to think he could build this house here. We'll never allow a dock. This thing will be held up in litigation and he'll never get this house sold." (Tr., 11/7/08, p. 78.) Further, the defendant alleges that Grotto repeated these comments multiple times.
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement . . . With each publication by the defendant, a new cause of action arises . . . As a general rule, however, no action for defamation exists if the defendant publishes the defamatory statements to only the plaintiff, and the plaintiff subsequently disseminates the statements to a third person." (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
"[D]efamation is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business." Moriarty v. Lippe, 162 Conn. 371, 384, 294 A.2d 326 (1972); see Toroysyan v. Boehringer Ingleheim Pharmaceuticals, Inc., 234 Conn. 1, 35, 662 A.2d 89 (1995) (holding that falsely charging the plaintiff with improper conduct and lack of integrity in the performance of his professional duties was defamation per se).
In the present case, the court heard testimony from Emee Sarica, a realtor from Remax Heritage and Grotto. Sarica testified that she conducted an open house for the subject property on April 28, 2007. (Tr., 11/7/08, p. 74.) Further, Sarica testified that she heard a woman talking loudly over the crowd at the open house. (Tr., 11/7/08, p. 76.) She did not know the identity of this person, but later found out, from another member of the SHYC, that her name is Vivian Grotto. (Tr., 11/7/08, p. 77.) Sarica testified that the woman said that the defendant "must be crazy to think he could build this house here. We'll never allow a dock. This thing will be held up in litigation and he'll never get this house sold." (Tr., 11/7/08, p. 78.) In addition, Sarica testified she heard the unidentified woman repeat the above mentioned statement at least three times. (Tr., 11/7/08, p. 78.)
Grotto testified at trial and the court finds her testimony credible as to the following facts: she is a member of the SHYC and has never held a position on a board or committee of the SHYC. (Tr., 11/7/08, p. 85, 89.) She attended an open house for the subject property. (Tr., 11/7/08, p. 85.) While at the open house, she does not remember speaking with anyone but her husband and does not recall saying anything regarding the defendant. (Tr., 11/7/08, p. 66.) She specifically denies saying the comment mentioned above. Further, although neighbors for forty-three years, she does not know, nor has ever met the defendant Shaffer. (Tr., 11/7/08, p. 86.)
Even if the court were to find that the alleged defamatory statements were in fact said and were actionable per se, the court would still not be able to find that those statements were attributable to the SHYC. The statements were allegedly made by a member of the SHYC, and for this court to find SHYC vicariously liable for the statements of one of its members, the court would have to find that the member was acting within the scope of actual or apparent authority conferred on them by SHYC.
"Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses . . . Restatement (Second) provides that apparent authority results from a manifestation by a person that another is his agent, the manifestation being made to a third person and not, as when authority is created, to the agent . . . Apparent authority is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him . . . [E]ither the principal must intend to cause the third person to believe that the agent is authorized to act for him, or he should realize that his conduct is likely to create such a belief . . .
"To apply the doctrine of apparent authority, the plaintiff or third person must show that a person in his situation would have the right to assume that a certain party was an agent of the [principal] . . . Furthermore, the plaintiff must show that he believed the party to be an agent of the principal because (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority . . . If the plaintiff demonstrates that apparent authority exists, the third person has the same rights with reference to the principal as where the agent is authorized." (Citations omitted; internal quotation marks omitted.) Loughery v. Commissioner of Corrections, Superior Court, judicial district of Hartford, Docket No. CV 01 0812161 (July 9, 2002, Hennessey, J.).
The defendant has not provided any evidence showing that the defamatory statements allegedly made by a member of the SHYC were done with the actual or apparent authority of the SHYC. Therefore, in the present case, the court cannot find the SHYC vicariously liable for the alleged defamatory statements of one of its members. Accordingly, the court finds in favor of the plaintiff with respect to this claim.
Unlawful Contractual Interference
In the defendant Shaffer's second counterclaim, he alleges that the plaintiff commenced this action "serving and making [him] a party defendant . . . without alleging in its complaint or amended complaint a cause of action against him, individually." The defendant further alleges that as a result, he "has been prevented from obtaining personal, professional, business and/or family financing from lending institutions and private sources of financing . . . as he has been . . . required to disclose to any such financial source this subject lawsuit." Additionally, the defendant alleges that this has adversely effected the defendant's credit standing.
The defendant is a member of Shaffer Studio LLC. (Tr., 11/7/08, p. 6.) Shaffer Studio LLC is a member of the Vetruvian Group LLC. (Tr., 11/7/08, p. 6.) The defendant was the lone signatory on Vetruvian's application with the DEP for a permit to build a dock into the Duck Pond. (Exh. 5.) As previously stated, by filing the dock permit application with the DEP, Vetruvian sought to exercise dominion over the littoral rights of the Duck Pond, which led the SHYC to commence this action. Under the defendant's signature on the DEP application, it reads: "William Schaffer [sic], Managing Member, The Vetruvian Group, LLC." (Exh. 5.) The defendant testified, however, that he is not the managing member of Vetruvian. (Tr., 11/7/08, p. 6.) Further complicating the issue, the defendant, as a member of Vetruvian, played a role in the closing on the subject property. (Tr., 11/7/08, p. 25.)
In addition, the plaintiff's requested relief is, in part, a court order enjoining Vetruvian, "their members, employees, agents and anyone acting on their behalf from taking or continuing any action that is adverse to the plaintiff's right of enjoyment of all littoral and riparian rights over the Duck Pond." Therefore, although the defendant testified that he is not a managing member of Vetruvian, the plaintiff cannot be faulted in joining the defendant in this action, as it was reasonable in its belief that the defendant was the managing member of Vetruvian and the plaintiff's prayer for relief asks the court to enjoin Vetruvian's members from taking any action that is adverse to the plaintiff's right to enjoy the littoral rights to the Duck Pond,
Accordingly, the court finds that there was sufficient reason for the plaintiff to join the defendant Shaffer in the present suit. Accordingly, the court finds in favor of the plaintiff with respect to the defendant's second counterclaim, as it cannot be said that the defendant proved said counterclaim by a preponderance of the evidence.
Conclusion
With respect to count one, the court finds that the plaintiff proved by a preponderance of the evidence that it enjoys the littoral and riparian rights to the subject property.
With respect to count two, the court finds in favor of the plaintiff and enjoins Vetruvian, their successors, assigns, members, employees, agents and anyone acting on their behalf from taking or continuing any action that is adverse to the plaintiff's right of enjoyment of all littoral and riparian rights over the subject property, including, but not limited to, seeking permission from the DEP to construct a dock adjacent to the subject property and extending into the basin of Duck Pond.
With respect to the defendant Shaffer's first counterclaim, alleging defamation per se, the court finds in favor of the plaintiff as the defendant failed to prove by a preponderance of the evidence that the alleged statements were attributable to a person acting as an agent of the plaintiff.
With respect to the defendant Shaffer's second counterclaim, alleging unlawful contractual interference, the court finds in favor of the plaintiff, as the defendant failed to prove this cause of action by a preponderance of the evidence.
With respect to the defendant Vetruvian's counterclaims, as the court finds that the plaintiff enjoys the littoral and riparian rights in and to the Duck Pond, it follows that the court finds in favor of the plaintiffs regarding the defendant's counterclaims asking this court to: (1) find that Vetruvian owns the littoral and riparian rights to the subject property; and (2) enjoin the plaintiff from interfering with said rights.
Additionally, with respect to the defendant Vetruvian's third counterclaim alleging contact interference, the court finds in favor of the plaintiff, as this court finds that the plaintiff is the rightful owner of the littoral and riparian rights associated with the subject property.
Wherefore, judgment may enter in favor of the plaintiff in accordance with this decision.