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Thoma v. Watson
REINALD E. THOMA, TRUSTEE
v. DAVID WATSON ET AL.
(AC 46307)
Elgo, Clark and Westbrook, Js.
Syllabus
The plaintiff appealed from the judgment of the trial court for the defendants
on the plaintiff’s claim of adverse possession. The plaintiff claimed, inter
alia, that the trial court improperly raised the issue of permissive use of the
disputed property sua sponte despite the defendant W’s failure to raise it
by way of a special defense. Held:
W was not required under the facts of this case to raise permissive use or
consent as a special defense, as W’s answer denying that the plaintiff’s use
was hostile and leaving the plaintiff to his proof, together with the fact
that the complaint alleged facts suggestive of some cotenancy or familial
relationship between the parties, sufficiently put the plaintiff on notice that
permissive use, as a matter of law, was a potential issue to overcome.
The trial court’s sua sponte posttrial inquiry into the issue of permissive
use was a proper exercise of judicial discretion.
The trial court did not apply an incorrect legal standard when it considered
whether the plaintiff had demonstrated that he affirmatively undertook to
dispossess, extinguish or steal another’s property rights because, in an action
in which the plaintiff and W shared some ownership rights in the subject
property, the party seeking to establish adverse possession must show that
their intent to disseize was clear and unmistakable.
The trial court did not erroneously find that the plaintiff failed to prove his
case by clear and convincing evidence.
The trial court did not improperly fail to comply with the statute (§ 47-31)
governing actions to quiet title by not making findings pursuant to § 47-31
(f) regarding the precise nature of the parties’ respective interests in the
disputed parcel, the court only having been required to affirmatively adjudicate the dispute of the parties as it had been presented to the court and on
the basis of the evidence presented.
Argued May 16—officially released October 8, 2024
Procedural History
Action seeking, inter alia, a declaratory judgment
determining the rights of the parties to a certain parcel
of real property, and for other relief, brought to the
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Thoma v. Watson
Superior Court in the judicial district of New London,
where the matter was tried to the court, Jacobs, J.;
judgment for the defendants, from which the plaintiff
appealed to this court. Affirmed.
Timothy D. Bleasdale, for the appellant (plaintiff).
Victoria S. Mueller, with whom were Thomas J. Londregan and Mathew H. Greene, for the appellee (named
defendant).
Opinion
WESTBROOK, J. The plaintiff, Reinald E. Thoma, as
trustee of the Reinald E. Thoma Revocable Trust (trust),
appeals following a trial to the court from the judgment
rendered in favor of the defendant David Watson1 on
the plaintiff’s claim of adverse possession. On appeal,
the plaintiff claims that the court (1) made several
errors related to the issue of permissive use of the
disputed property, including improperly raising that
issue sua sponte after the close of evidence despite the
defendant’s failure to raise it by way of special defense;
(2) made additional errors ‘‘concerning issues of intent,
motive, and subjective understanding’’; (3) erroneously
found that the plaintiff had failed to prove his case by
clear and convincing evidence; and (4) failed to comply
with General Statutes § 47-31 (f)2 by not determining
1
Throughout this opinion, we refer to Reinald E. Thoma as the plaintiff
when he is acting in his capacity as trustee of the trust and as Reinald when
he is acting in his individual capacity.
In the complaint, the plaintiff named the unidentified ‘‘heirs of Florence
B. Stimpson’’ as additional defendants. David Watson, however, is the only
defendant who appeared before the trial court and is the only defendant
participating in this appeal. Accordingly, any reference to the defendant in
this opinion is to David Watson only.
2
General Statutes § 47-31 governs quiet title actions and subsection (f)
provides that ‘‘[t]he court shall hear the several claims and determine the
rights of the parties, whether derived from deeds, wills or other instruments
or sources of title, and may determine the construction of the same, and
render judgment determining the questions and disputes and quieting and
settling the title to the property.’’
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Thoma v. Watson
the parties’ respective interests in the disputed property. We disagree with the plaintiff’s claims and, accordingly, affirm the judgment of the trial court.3
The following facts, which either were found by the
court or are undisputed, and procedural history are
relevant to our disposition of the plaintiff’s appeal. The
subject property is located on Long Pond Road in Ledyard. It originally was part of an undivided lot. On
December 10, 1945, the owner of the undivided lot,
Florence P. Stimpson, conveyed a remainder interest
in a portion of the lot (front parcel) to the defendant
and his sister, Lucille P. Watson (Lucille), reserving a
life estate for herself. From December 10, 1945, until
her death, the remainder of the lot (back parcel) was
owned by Stimpson. Following her death, title to the
back parcel passed to the heirs of her estate, which
included the defendant and Lucille.4 It is the back parcel
that is at issue in this matter.
On May 8, 1991, the defendant conveyed all his interest in the front parcel to Lucille, who, at that time, was
married and went by the name of Lucille Thoma.5 On
September 28, 2012, she conveyed her interests in the
front and back parcels to her husband, Reinald Thoma,
in his individual capacity. Reinald, on May 3, 2013, conveyed the same back to Lucille, who, on November
18, 2013, conveyed them to the plaintiff as trustee of
the trust.
Reinald always regarded the back parcel as his ‘‘backyard’’ and used it as if it were his own. During his marriage
3
Given our disposition of the plaintiff’s claims, it is unnecessary to address
the alternative grounds for affirmance raised by the defendant.
4
Although it is not clear from the record how title to the back parcel
passed to the heirs, whether by will or the laws of intestacy, no evidence
was presented that title had passed to anyone other than Stimpson’s heirs,
and neither side advanced a contrary argument before the trial court.
5
The record shows that Lucille married Reinald in May, 1963, and they
remained married until Lucille’s death in December, 2017.
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Thoma v. Watson
to Lucille, Reinald installed a well in the back parcel
to serve the front parcel. He also installed a septic
system on the back parcel, cleared brush for the well
drillers, planted grass seed, and cut down trees. Sometime between 2015 and 2016, he installed a fence on the
back parcel. Reinald also has insured and paid property
taxes for the back parcel. The only access to the back
parcel is through the front parcel.
The plaintiff commenced the underlying action in
May, 2021. In the operative amended complaint, the
plaintiff alleged that he, together with his predecessors
in title, had used and possessed the back parcel for more
than fifteen years and that such use and possession
was ‘‘open, visible, notorious, adverse, exclusive, continuous, and uninterrupted . . . .’’6 He claimed that,
through such use and possession, the plaintiff obtained
sole and exclusive title to the back parcel by adverse
possession.
The defendant filed an answer in which he admitted
some of the allegations but denied or left the plaintiff
to his proof on others.7 In particular, the defendant
denied the allegation in the complaint that the use and
possession of the back parcel by the plaintiff and his
6
We note that, pursuant to the doctrine of ‘‘tacking,’’ a period of adverse
possession by a predecessor in title may be added onto a successive period
of adverse possession by the claimant to meet the fifteen year requirement.
See McBurney v. Cirillo, 276 Conn. 782, 813,
889 A.2d 759 (2006), overruled
on other grounds by Batte-Holmgren v. Commissioner of Public Health,
281 Conn. 277,
914 A.2d 996 (2007). Because the plaintiff had only acquired
his interest in the front parcel as of November, 2013, fewer than nine years
prior to bringing this adverse possession action, he needed to ‘‘tack’’ the
adverse possession by his predecessors in title to satisfy the fifteen year
statutory period.
7
Although the defendant did not file an amended answer after the filing
of the operative amended complaint, the earlier answer remains applicable,
and we may construe it as such to the extent possible. See Practice Book
§ 10-61 (‘‘[i]f the adverse party fails to plead further [following an amended
pleading], pleadings already filed by the adverse party shall be regarded as
applicable so far as possible to the amended pleading’’).
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Thoma v. Watson
predecessors in title had been open, visible, notorious,
adverse, exclusive, continuous, and uninterrupted. The
defendant did not assert any special defenses.
The court, Jacobs, J., conducted a one day bench trial
on October 13, 2022. The plaintiff presented testimony
from Reinald regarding his use of the back parcel and
from Sharon Banker, a title searcher and paralegal,
regarding the chain of title. The defendant’s counsel did
not cross-examine the plaintiff’s witnesses and offered
only the defendant’s own testimony during the defendant’s case-in-chief. The court did not request, nor did
the parties provide, pretrial or posttrial briefs.
On October 17, 2022, a few days after the close of
evidence and prior to rendering a decision in the matter,
the court issued an order asking the parties to appear
and to be prepared to address the following questions:
‘‘1. If [the defendant] and [Lucille] were siblings, and
[the defendant] is an heir of the estate of Florence
Stimpson, wouldn’t that also make [Lucille] an heir of
the estate of Florence Stimpson? 2. If so, wouldn’t that
make [Lucille’s] use of the back portion of the property
permissive? And if so, and given that her date of death,
while not in evidence, occurred sometime between
November 18, 2013, and the present, wouldn’t that avoid
the claim of continuous hostile use of the back portion
for fifteen years?’’
The parties appeared on November 1, 2022, and presented oral argument in response to the court’s questions. During the hearing, counsel for the plaintiff confirmed that Lucille and the defendant were siblings and
that both are heirs of Stimpson. Regarding the issue of
permissive use, the plaintiff’s counsel argued that the
plaintiff had presented clear and convincing evidence
that ‘‘Lucille and her subsequent predecessors in title
held [the back parcel] adversely to the heirs’’ and that
this evidence was sufficient to rebut any presumption
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Thoma v. Watson
of permissive use. The defendant’s counsel disagreed,
arguing that Lucille’s use was presumptively permissive
as there was no evidence ‘‘that she had the specific
intent to take the property from the other heirs.’’ Neither
party raised any objection to the additional posttrial
proceedings, asked the court to open the evidence, or
sought to admit any additional evidence.
On November 4, 2022, the court issued a short memorandum of decision in which it found that the plaintiff
had failed to establish his claim of adverse possession
by clear and convincing evidence. The court’s legal analysis is limited to the following single paragraph: ‘‘The
plaintiff’s claim of adverse possession is doomed by
the simple fact that [Lucille], as an heir of the estate
of Florence P. Stimpson, had, from the time of [Stimpson’s] death, permission to use, and at times an ownership interest in, the back parcel. That [Reinald] honestly
supposed the back parcel to be his ‘backyard’ does not
evince an intent to dispossess [Lucille’s] kin of their
right to share in its use. But even more fundamentally:
that Lucille and [Reinald] were related to the other
owners of the back parcel creates a presumption that
their use of that parcel was permissive. The plaintiff
failed to rebut that presumption, let alone prove [his]
case by clear and positive proof.’’ (Emphasis added;
footnote omitted.)
On December 22, 2022, the plaintiff filed a motion to
reargue claiming, inter alia, that the judgment included
‘‘[e]rrors concerning the law, findings of fact, and analysis relating [to] the issue of permissive use of the disputed parcel.’’ The court denied the motion without
comment on February 15, 2023. This appeal followed.
After filing the appeal, the plaintiff filed a motion for
articulation. First, the plaintiff noted that the memorandum of decision stated that ‘‘ ‘judgment is entered for
the defendant,’ ’’ singular, and asked the trial court to
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Thoma v. Watson
articulate whether it had intended to render judgment
for all defendants. Second, to the extent that the court
concluded that there was shared ownership of the back
parcel, the plaintiff requested that the court articulate
specific findings regarding the parties’ respective property interests to effectively quiet title. The court held
a hearing on July 6, 2023, and subsequently granted the
motion for articulation, stating the following: ‘‘Judgment is hereby rendered for the defendants. The state
of the title shall remain as is.’’ The plaintiff did not seek
any further articulation from the trial court, nor did he
move this court for review of the trial court’s articulation pursuant to Practice Book § 66-7.
On appeal, the plaintiff claims that the court (1) made
several errors related to the issue of permissive use,
including raising that issue sua sponte despite the defendant failing to affirmatively plead it as a special defense;
(2) made additional errors ‘‘concerning issues of intent,
motive, and subjective understanding’’; (3) erroneously
found that the plaintiff had failed to prove his case by
clear and convincing evidence; and (4) failed to comply
with § 47-31 (f) by not determining the parties’ respective interests in the disputed parcel. For the reasons
that follow, we disagree with the plaintiff that the defendant was required to specially plead permission as an
affirmative defense or that, under the circumstances,
it was improper for the court to have inquired further
regarding that issue following the close of evidence.
Finally, we reject the remainder of the plaintiff’s claims
and conclude that the plaintiff has failed to demonstrate
that the court’s dispositive finding—that the plaintiff
failed to prove its case ‘‘by clear and positive proof’’—
was clearly erroneous.
Before turning to the plaintiff’s claims, we begin by
setting forth general principles of law that guide our
review of decisions concerning a claim of adverse pos-
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Thoma v. Watson
session. ‘‘[If] title is claimed by adverse possession, the
burden of proof is on the claimant. . . . 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. . . . The use is
not exclusive if the adverse user merely shares dominion over the property with other users. . . . [Adverse]
possession is not to be made out by inference, but by
clear and positive proof. . . . In the final analysis,
whether possession is adverse is a question of fact for
the trier. . . . The doctrine of adverse possession is
to be taken strictly. . . .
‘‘Clear and convincing proof of the elements of an
adverse possession claim is an exacting standard . . .
that lies between the belief that is required to find the
truth or existence of the [fact in issue] in an ordinary
civil action and the belief that is required to find guilt
in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier
a reasonable belief that the facts asserted are highly
probably true . . . . In evaluating a claim of adverse
possession under that demanding standard, [e]very presumption is in favor of possession in subordination to
the title of the true owner.’’ (Citations omitted; emphasis added; footnote omitted; internal quotation marks
omitted.) Mulvey v. Palo, 226 Conn. App. 495, 500–502,
319 A.3d 211 (2024), petition for cert. filed (Conn. July
19, 2024) (No. 240124). ‘‘[T]he question of whether the
elements of an adverse possession claim have been
established by clear and convincing evidence is a factual
one subject to the clearly erroneous standard of review.’’
(Internal quotation marks omitted.) Id., 503. ‘‘The
demanding burden placed on a party claiming adverse
possession of the property of another reflects the fact
that such actions are disfavored.’’ Id., 502. With these
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Thoma v. Watson
general principles in mind, we turn to the plaintiff’s
claims.
I
We first address the plaintiff’s claim that the court
made multiple errors regarding the issue of permissive
use. The plaintiff argues that permissive use must
always be raised by way of special defense and, because
the defendant failed to do so in this case, it was
improper for the court to have raised it sua sponte,
particularly after the close of evidence. The plaintiff
also argues that the court misapplied the law regarding
permissive use and impermissibly shifted the burden
of proof on that issue to the plaintiff. For the reasons
that follow, we reject the plaintiff’s claim.
The issue of permissive use is highly relevant in
adverse possession cases because the use or possession
of property by permission of a title holder is, by definition, not hostile and cannot support a finding of adverse
possession. As previously stated, to establish title by
adverse possession, a claimant always has the very
heavy burden of demonstrating by clear and convincing
evidence that its alleged use and/or possession of the
subject property was without the consent or permission
of the owner. See O’Connor v. Larocque, 302 Conn. 562,
581,
31 A.3d 1 (2011).
As our Supreme Court has explained, establishing
this burden is particularly difficult in cases in which a
party is seeking to establish adverse possession against
a cotenant, i.e., a party holding a shared possessory
interest in the property. Id. ‘‘In cases involving claims
by one cotenant against another, we have added to
[the already] heavy burden by applying a presumption
against adverse possession. The rationale for this presumption is that, in view of the undivided interest held
by cotenants . . . possession taken by one is ordinarily
considered to be the possession by all and not adverse
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Thoma v. Watson
to any cotenant. . . . In other words, the presumption
is based on a recognition that one cotenant’s possession
is not necessarily inconsistent with the title of the others.’’8 (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Id., 581–82.
Moreover, ‘‘[a]lthough the presumption may be overcome in certain circumstances, it is not easily done.
[A] cotenant claiming adversely to other cotenants must
show actions of such an unequivocal nature and so
distinctly hostile to the rights of the other cotenants
that the intention to disseize is clear and unmistakable.
. . . Not only must an actual intent to exclude others
be demonstrated . . . but there also must be proof of
an ouster and exclusive possession so openly and notoriously hostile that the cotenant will have notice of the
adverse claim.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Id., 582. Courts have
employed a similar rebuttable presumption of permissive use in cases involving family members or other
close relations. See Woodhouse v. McKee, 90 Conn. App.
662, 673,
879 A.2d 486 (2005) (‘‘In determining what
8
‘‘Permissive possession is not hostile or adverse and will not support
an adverse possession claim [because] permissive possession is not considered to be the possession of the occupant but rather the possession of the
party on whose pleasure the permissive possession depends.’’ (Footnote
omitted.) 3 Am. Jur. 2d 129–30, Adverse Possession § 44 (2023). With a
cotenancy, ‘‘[t]he general principle is that there is a relation of trust between
cotenants, each having an equal right of entry and possession. Thus, every
cotenant has the right to enter into and occupy the common property and
every part thereof provided in so doing, the cotenant does not exclude
fellow cotenants or otherwise deny them some right to which they are
entitled as cotenants; and the other tenants, on their part, may safely assume,
until something occurs of which they must take notice, and which indicates
the contrary, that the possession taken is held as a cotenant and is, in law,
the possession of all cotenants. . . . In the absence of facts showing that
one cotenant in sole possession holds such possession in opposition to the
rights of other cotenants, the occupancy will be presumed to be that of a
cotenant, and it is further presumed that one tenant in common holds
property for the benefit of the others.’’ (Footnotes omitted.) Id., § 190,
pp. 249–50.
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Thoma v. Watson
amounts to hostility, the relation that the adverse possessor occupies with reference to the owner is
important. If the parties are strangers and the possession is open and notorious, it may be deemed to be
hostile. However if the parties are related, there may
be a presumption that the use is permissive.’’ (Internal
quotation marks omitted.)).9
Whether the defendant was obligated to plead permissive use of the subject property as a special defense to
the plaintiff’s adverse possession claim is a question of
law over which our review is plenary. See Howard-Arnold, Inc. v. T.N.T. Realty, Inc., 145 Conn. App. 696,
711,
77 A.3d 165 (2013), aff’d,
315 Conn. 596,
109 A.3d
473 (2015); see also Beckenstein Enterprises-Prestige
Park, LLC v. Keller, 115 Conn. App. 680, 689–90,
974
A.2d 764, cert. denied,
293 Conn. 916,
979 A.2d 488
(2009). Our rules of practice provide in relevant part
that ‘‘[t]he defendant in the answer shall specially deny
such allegations of the complaint as the defendant
intends to controvert, admitting the truth of the other
allegations, unless the defendant intends in good faith
to controvert all the allegations, in which case he or
she may deny them generally. . . .’’ Practice Book § 10-
46. As a general rule, a defendant must plead facts by
way of special defense only if ‘‘they are consistent with
the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.’’
(Emphasis added; internal quotation marks omitted.)
Silver Hill Hospital, Inc. v. Kessler, 200 Conn. App.
742, 750,
240 A.3d 740 (2020); see also Practice Book
§ 10-50.10 ‘‘The fundamental purpose of a special defense,
9
Both presumptions seem to be implicated under the facts of this case.
The plaintiff contends on the basis of arguably imprecise or contradictory
language in the court’s memorandum of decision that the court conflated
the two presumptions. We decline to read such ambiguity in the court’s
analysis as providing a basis for overturning the court’s decision. See part
III of this opinion.
10
Practice Book § 10-50 provides: ‘‘No facts may be proved under either
a general or special denial except such as show that the plaintiff’s statements
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Thoma v. Watson
like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues
are not concealed until the trial is underway.’’ Bennett
v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802,
646 A.2d 806 (1994).
We now turn to the present case. The plaintiff argues
that the court raised the issue of permissive use for the
very first time, sua sponte, after the close of evidence
and that he was prejudiced because that procedure
prevented him from conducting discovery on the issue
and presenting evidence to rebut a permission defense.
He contends that the reason that the court should not
have considered the defense goes directly to a basic
sense of fair play embodied in our pleading and discovery rules and that the court’s denial of his adverse
possession claim based on an unpleaded special defense
amounted to a ‘‘trial by ambuscade to the detriment
of [him].’’ (Internal quotation marks omitted.) Jo-Ann
Stores, Inc. v. Property Operating Co., LLC, 91 Conn.
App. 179, 199,
880 A.2d 945 (2005); see also Howard-Arnold, Inc. v. T.N.T. Realty, Inc., supra,
145 Conn.
App. 712 (‘‘it is improper for a court, sua sponte, to
apply an unpleaded special defense to defeat a plaintiff’s
cause of action’’). The defendant, on the other hand,
argues that Practice Book § 10-50, which contains our
rules of practice governing denials and special defenses,
is not directly applicable and that ‘‘the plaintiff
[pleaded] facts to substantiate the cotenant/familial
relationship, and thus the added burden of proof was
of fact are untrue. Facts which are consistent with such statements but
show, notwithstanding, that the plaintiff has no cause of action, must be
specially alleged. Thus, accord and satisfaction, arbitration and award,
duress, fraud, illegality not apparent on the face of the pleadings, infancy, that
the defendant was non compos mentis, payment (even though nonpayment
is alleged by the plaintiff), release, the statute of limitations and res judicata
must be specially pleaded, while advantage may be taken, under a simple
denial, of such matters as the statute of frauds, or title in a third person to
what the plaintiff sues upon or alleges to be the plaintiff’s own.’’
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Thoma v. Watson
apparent in the pleadings.’’ We agree with the defendant
that permissive use is not a defense that must be specially pleaded.
In asserting that permissive use must be specially
pleaded, the plaintiff principally directs this court’s
attention to our Supreme Court’s decision in Slack v.
Greene, 294 Conn. 418,
984 A.2d 734 (2009). In Slack,
the defendant appealed from a judgment finding that the
plaintiff had established the existence of a prescriptive
easement11 over a paved right-of-way located on the
defendant’s property for purposes of ingress to and
egress from her home. Id., 419–20. Among other things,
the defendant claimed on appeal that there was insufficient evidence to support the trial court’s finding that
the plaintiff’s use of the right-of-way was adverse to
the couple who owned the property ‘‘because the plaintiff did not specifically mention the [couple] in her testimony, and because no other evidence about them was
adduced at trial, [and thus] the trial court could not
determine whether the plaintiff’s use of the right-ofway was adverse to their interests, or whether, instead,
they had given the plaintiff permission to use it.’’ Id.,
433. In rejecting the defendant’s claims, our Supreme
Court observed that, despite having alleged by way of
special defense that the plaintiff ‘‘had permission to use
the right-of-way from previous owners of the property’’;
(internal quotation marks omitted) id., 435 n.8; the
defendant had presented no evidence to support that
assertion. Id., 435. It explained that ‘‘the trial court
reasonably could have inferred that the [couple] had
not given the plaintiff permission to use the right-ofway by virtue of the fact that the record is devoid of
11
Although Slack and the cases to which it cites involved claims of prescriptive easements, ‘‘[t]he legal principles governing a claim for a prescriptive easement are similar . . . to those governing claims of adverse possession.’’ Viering v. Groton Long Point Assn., Inc., 223 Conn. App. 849, 868,
311 A.3d 215, cert. denied,
349 Conn. 901,
312 A.3d 586 (2024).
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Thoma v. Watson
any indication that such permission had been given.’’
Id. It further explained that ‘‘[i]t is not the plaintiff’s
burden to establish that an otherwise apparently
adverse use of the defendant’s property was conducted
without the defendant’s permission or license. . . . [If]
the defendant raises permission by way of a special or
affirmative defense, the burden of proof rests on the
defendant . . . who must prove the special defense by
a fair preponderance of the evidence. . . . Indeed, a
contrary rule would unfairly charge a party with proving
a negative.’’ (Citation omitted; emphasis added; footnote omitted; internal quotation marks omitted.) Id.
The plaintiff argues that our Supreme Court’s discussion in Slack establishes that permissive use must be
specially pleaded and, thus, the defendant in the present
case was required to plead permission as a special
defense to the adverse possession claim in order for
the court to have relied on permissive use as a basis
for ruling in favor of the defendant. We do not agree
with the plaintiff’s reading of Slack.
In Slack, the issue of whether permissive use is an
affirmative defense or must be specially pleaded was
not before the court. The court in Slack held that ‘‘[i]t is
not the plaintiff’s burden to establish that an otherwise
apparently adverse use of the defendant’s property was
conducted without the defendant’s permission or
license.’’ (Emphasis added; internal quotation marks
omitted.) Id. The court went on to explain that if a
defendant chooses to raise permission vis-à-vis a special
or affirmative defense, then ‘‘the burden of proof rests
on the defendant . . . who must prove the special
defense . . . .’’ (Internal quotation marks omitted.) Id.
The court also observed that generally requiring a plaintiff to prove that it did not have permission to use the
subject property in a case in which there was nothing
in the pleadings or record suggesting the alleged use
was anything other than adverse ‘‘would unfairly charge
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[the plaintiff] with proving a negative.’’ (Internal quotation marks omitted.) Id.
We read Slack as standing for the proposition that,
if the use of the disputed property as alleged by a plaintiff in support of its claim is ‘‘otherwise apparently
adverse,’’ a trier of fact reasonably may infer that such
use was also done without permission. We construe
the court’s use of the term ‘‘otherwise apparently
adverse’’ to mean there are no allegations in the pleadings or evidence adduced at trial that could raise a
contrary inference. Moreover, Slack notes that whenever a defendant elects to plead facts via special defense
that, if proven, would support a finding of consent or
permissive use, the defendant assumes the burden of
proof with respect to those facts. Cf. Janow v. Ansonia,
11 Conn. App. 1, 8,
525 A.2d 966 (1987) (defendant
who voluntarily alleges fact that could be proven under
simple denial may assume burden of proof, although
plaintiff is still bound to prove essential allegations of
complaint), citing Coogan v. Lynch, 88 Conn. 114, 116,
89 A. 906 (1914).
Permissive use, however, is not consistent with the
allegations of an adverse possession complaint. A plaintiff claiming adverse possession must allege that the
use or possession of the subject property was done in
a manner adverse or hostile to the interest of the title
owner. Permissive use stands in direct contradiction to
that essential element of adverse possession. Accordingly, permissive use is not properly viewed as an affirmative defense that must be specially pleaded under
our rules of practice. Rather, a general denial of the
allegations in the complaint seeking to establish the
hostility element of adverse possession ordinarily will
be enough to permit a defendant to demonstrate permissive use through evidence adduced at trial.12 See Silver
12
Although our case law reflects other instances in which defendants have
elected to plead permission as a special defense to adverse possession, none
holds that a defendant must do so in every case, nor do they suggest that
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Hill Hospital, Inc. v. Kessler, supra, 200 Conn. App.
750 (if party disputes material fact by way of general
denial, party ‘‘may introduce affirmative evidence tending to establish a set of facts inconsistent with the
existence of the disputed fact’’).
The plaintiff suggests that a rule requiring the defendant to plead permissive use would alert a plaintiff that
it may need to produce its own evidence either refuting
a defendant’s claim of permission or proving that such
permission was repudiated through some clear and
unequivocal act. We disagree. In the present case, by
alleging adverse possession, the plaintiff necessarily
assumed the burden of proving that his possession of
the property was hostile, i.e., without permission. Moreover, the defendant’s answer denying that the use was
hostile and leaving the plaintiff to his proof, coupled
with the fact that the complaint itself alleged facts suggestive of some cotenancy or familial relationship
between the parties, sufficiently put the plaintiff on
notice that permissive use, as a matter of law, was a
potential issue to overcome in this case.
In short, we conclude that the defendant was not
required under the facts of this case to raise permissive
use or consent as a special defense. We turn then to the
plaintiff’s related argument that the court improperly
the failure to plead permissive use bars its consideration at trial. See, e.g.,
Dowling v. Heirs of Bond, 345 Conn. 119, 132,
282 A.3d 1201 (2022) (‘‘[t]he
defendant . . . raised the following special defenses . . . (3) the plaintiff’s
use of the parcel was permissive’’ (emphasis added)); Brander v. Stoddard,
Superior Court, judicial district of Litchfield, Docket No. CV-XX-XXXXXXX-S
(August 6, 2015) (reprinted at 173 Conn. App. 732, 733,
164 A.3d 892) (‘‘[t]he
defendants filed . . . an amended answer and special defenses on February
13, 2015, alleging that the plaintiff’s use of the property was with the permission of the owners’’ (emphasis added)), aff’d, 173 Conn. App. 730,
164 A.3d
889, cert. denied,
327 Conn. 928,
171 A.3d 456 (2017); Woodhouse v.
McKee,
supra,90 Conn. App. 665 (‘‘[i]n the special defenses, [the defendant] claimed
that the plaintiffs’ use of the disputed parcel was consensual’’ (emphasis
added)).
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raised the issue of permission sua sponte after the close
of evidence. We are not convinced that the court’s actions
here amounted to reversible error.
‘‘When litigation raises difficult questions of law, a
trial court is well-advised to request briefs and to defer
its written decision until such time as the court has had
the opportunity to deliberate and to reach a thoughtful,
reasoned conclusion.’’ Frank v. Streeter, 192 Conn. 601,
605,
472 A.2d 1281 (1984). Accordingly, it is entirely
appropriate for a trial court, following a bench trial, to
request additional briefing if necessary to fulfill its duty
to the due administration of justice. Additionally, ‘‘[a]
court, in the interest of justice, after the close of evidence, may exercise its discretion to open the case for
the purpose of permitting the introduction of additional
evidence.’’ Statewide Grievance Committee v. Ankerman, 74 Conn. App. 464, 470,
812 A.2d 169, cert. denied,
263 Conn. 911,
821 A.2d 767 (2003). This is particularly
so if there is ‘‘a dearth of evidence to assist the court
in reaching an appropriate disposition.’’ (Internal quotation marks omitted.) Id., 471.
Here, the court did not explicitly state that it was
opening the evidence but rather appears only to have
sought clarification and additional argument from the
parties regarding the facts and issues already before it.
As we have previously discussed, the record before the
court indicated that the parties shared some ownership
interest in the disputed property which, by implication,
raised the issue of whether there was a presumption
of permissive use that the plaintiff needed to overcome.
Moreover, the plaintiff’s suggestion that the court raised
the issue of permissive use for the first time sua sponte
is belied by our review of the trial transcript. On direct
examination about his use of the back parcel, counsel
for the plaintiff asked Reinald the following question:
‘‘And you never had permission from anyone to use
it?’’ This question demonstrates that the plaintiff was
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cognizant that permissive use was potentially at issue
in this case.
Finally, nothing in the court’s request to the parties
precluded either party from asking the court formally
to open the evidence if they believed that responding
to the court’s posttrial inquiries required the presentation of additional testimony or other evidence. As we
have already indicated, the issue of whether the plaintiff
had proven by clear and convincing evidence that its
use of the subject property was adverse rather than
permissive was an issue that was raised by necessary
implication from the pleadings and evidence at trial
and, thus, was properly before the court to decide in
its role as the trier of fact. We are persuaded that the
court’s posttrial inquiry in the present matter was a
proper exercise of judicial discretion and not, as the
plaintiff argues, reversible error.
II
The plaintiff next claims that the court made additional errors ‘‘concerning issues of intent, motive, and
subjective understanding,’’ thereby demonstrating that
the court applied an incorrect legal standard. We disagree.
We construe the plaintiff’s claim as challenging whether
the court applied an incorrect legal standard, which
also requires us to interpret the decision rendered by
the court, both of which invoke our plenary review.
See In re Paulo T., 213 Conn. App. 858, 867,
279 A.3d
766 (2022), aff’d,
347 Conn. 311,
297 A.3d 194 (2023).
The plaintiff’s claim focuses on the court’s statement
in its memorandum of decision that the plaintiff’s purported use of the back parcel did not ‘‘evince an intent
to dispossess [Lucille’s] kin of their right to share in
its use.’’ The plaintiff argues that, ordinarily, a party
seeking to establish that it has acquired title by adverse
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possession has no obligation to demonstrate any particular motive or purposeful intent behind its use of the
subject property. In other words, there is no need to
prove that it affirmatively undertook to dispossess,
extinguish or steal another’s property rights. The plaintiff, however, acknowledges in his brief that, in an
action in which the plaintiff and the defendant share
some ownership rights in the subject property, the law
requires the party seeking to establish adverse possession over the other to show ‘‘actions of such an unequivocal nature and so distinctly hostile . . . that the intention to disseize is clear and unmistakable.’’ (Emphasis
added; internal quotation marks omitted.) O’Connor v.
Larocque, supra,302 Conn. 582. This is the standard
that the court appears to have been referencing in the
previously quoted statement. Despite the plaintiff’s
arguments to the contrary, we are unconvinced from
our review of the court’s decision that it applied an
incorrect legal standard; accordingly, we reject this
claim.
III
The plaintiff also claims that the court erroneously
found that the plaintiff had failed to prove its case by
clear and convincing evidence. We disagree.
‘‘This court will neither speculate with regard to the
rationale underlying the court’s decision nor, in the
absence of a record that demonstrates that error exists,
presume that the court acted erroneously. . . . It is
well settled that [we] do not presume error; the trial
court’s ruling is entitled to the reasonable presumption
that it is correct unless the party challenging the ruling
has satisfied its burden [of] demonstrating the contrary.
. . . [If] the record can be read to support [a] court’s
conclusion that the plaintiff failed to meet his burden,
the plaintiff has failed to demonstrate that the court
erred.’’ (Citations omitted; internal quotation marks
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omitted.) White v. Latimer Point Condominium Assn.,
Inc., 191 Conn. App. 767, 780–81,
216 A.3d 830 (2019).
Here, the court reasonably could infer from the evidence presented and the admissions of the parties during argument before the court that both the defendant
and Lucille were heirs of Stimpson and, as such, each
had acquired some ownership interest in the back parcel following her death. The court’s decision is not a
model of clarity as it can be read to conflate a presumption of permissive use based on a familial relationship
between the parties with the presumption of permission
arising from a cotenant’s equal right of entry and possession to co-owned property. As previously explained,
however, after the close of evidence, the court issued
its order asking the parties to appear and clarify certain issues.
The court’s first question sought clarification regarding the relationship between the defendant and Lucille
for the purpose of establishing whether, as Stimpson’s
heirs, they became cotenants of the back parcel after
Stimpson’s death. As we have discussed, the issue of
cotenancy is critical in an adverse possession case
because there is a ‘‘presumption against adverse possession’’ whenever one cotenant brings a claim against
another. (Emphasis omitted.) O’Connor v. Larocque,
supra,302 Conn. 581. In such an instance, ‘‘[a] cotenant
claiming adversely to other cotenants must show
actions of such an unequivocal nature and so distinctly
hostile to the rights of the other cotenants that the
intention to disseize is clear and unmistakable.’’ (Internal quotation marks omitted.) Id., 582. Overcoming this
presumption, our Supreme Court has said, ‘‘is not easily
done.’’ Id.
In light of the court’s questions, it is reasonable to
construe the court’s decision as having followed this
analytical pathway in concluding that the plaintiff had
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not proven its case by clear and convincing proof. In
setting forth the elements of an adverse possession
claim, the court cited to O’Connor v. Larocque, supra,302 Conn. 562, the leading cotenancy case in Connecticut. Although the court made no express findings concerning the existence of a cotenancy, the court as the
trier of fact reasonably could have inferred cotenancy
from the evidence before it and thus the existence of
a presumption against adverse possession. Although it
is true that the court commingles references to the
familial relationship of the parties, we are not convinced
that such reference undermines the fact that the court
also recognized the parties’ cotenancy as a basis for a
presumption of permissive use, one that the court as
the trier of fact determined the plaintiff failed to rebut
by clear and convincing proof.
Additionally, and perhaps more importantly, the
court stated in its decision that ‘‘[t]he plaintiff failed to
rebut [a] presumption [of permissive use], let alone
prove [his] case by clear and positive proof.’’ (Emphasis
added.) The plaintiff never sought clarification of this
statement. The court’s statement is ambiguous as to
whether it found that the plaintiff had failed to meet
his burden of proof with respect to one, multiple or all
elements of his adverse possession claim and why. It
was the sole province of the court as the trier of fact
to determine whether the evidence presented was
believable and established adverse possession by clear
and convincing proof, and we cannot substitute our
own weighing of the evidence. In the face of ambiguity,
we do not presume error but rather hold the appellant
to his burden of establishing error requiring reversal.
See White v. Latimer Point Condominium Assn., Inc.,
supra, 191 Conn. App. 780–81. On the record presented,
we are not convinced that the court erroneously found
that the plaintiff had failed to prove his case by clear
and convincing evidence.
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IV
Finally, we address the plaintiff’s claim that the court
improperly failed to comply with § 47-31 (f) by not making findings regarding the precise nature of the parties’
respective interests in the disputed parcel. We reject
this claim.
Section 47-31 (f) provides in relevant part that a court
hearing a quiet title action ‘‘shall hear the several claims
and determine the rights of the parties . . . and render
judgment determining the questions and disputes and
quieting and settling the title to the property.’’ See footnote 2 of this opinion. There is no express statutory
requirement that, in order to quiet and settle a title
dispute, a court must always set forth with any particular degree of specificity each party’s legal interest in
the disputed property. The court is only required to
affirmatively adjudicate the disputes of the parties as
they have been presented to the court and on the basis
of the evidence presented. See Marquis v. Drost, 155
Conn. 327, 333–34,
231 A.2d 527 (1967). We are convinced that the court met that standard here.
In particular, our review of the transcript of the hearing on the motion for articulation leads us to conclude
that the court properly determined that the evidence
before it was insufficient to determine anything more
than that the plaintiff had failed to meet his burden of
demonstrating that the existing title to the back parcel
had changed as a result of the plaintiff’s use or possession. Under these circumstances, we are not convinced
that the court failed to comply with the requirements
of § 47-31 (f) by affirmatively adjudicating the adverse
possession claim of the plaintiff in favor of the defendant and expressly finding that the ‘‘state of the title
shall remain as is.’’
The judgment is affirmed.
In this opinion the other judges concurred.
