Opinion
No. 08 5002561 S
July 31, 2008
MEMORANDUM OF DECISION RE DEFENDANT SAXTON MORTGAGE, INC.'S RE MOTION TO STRIKE
On February 28, 2008, the plaintiff, John DeMars, filed a three-count complaint against Alan and Cheryl Ann Chatelle (the Chatelles) and Saxon Mortgage, Inc. In his complaint, the plaintiff alleges the following facts: On March 2, 1990, he and his late wife, who was terminally ill at the time, conveyed by warranty deed property known as 23 Sayles Avenue, Dayville (Killingly), Connecticut to the Chatelles. According to the plaintiff, they conveyed the property pursuant to an agreement that they presumably had with the Chatelles, whereby he and his late wife were to retain life estates in the property upon its conveyance. The scrivener, however, due to an oversight failed to reserve the life estates in the deed, which was duly recorded in the Killingly land records. Upon discovering the alleged mistake, the plaintiff asked the Chatelles to remedy it by executing an endorsement to the deed or by otherwise conveying a life estate in the property to him; they refused. On October 11, 2006, the Chatelles executed a mortgage on the property. Saxon Mortgage, Inc., is the holder of the mortgage note.
In counts one and two of the complaint, the plaintiff is seeking either to have the deed set aside or reformed. In count three, he is seeking to quiet title to the property, alleging to have acquired title by adverse possession.
On April 22, 2008, Saxon Mortgage, Inc. filed a motion to dismiss on the ground that the plaintiff had failed to state a cause of action against it. On May 27, 2008, this Court denied the motion because challenges to the legal sufficiency of a complaint to state a cause of action are more appropriately raised by a motion to strike.
On June 5, 2008, Saxon Mortgage Inc. (hereinafter the defendant), filed a motion to strike and a memorandum of law in support thereof. The defendant seeks to strike count three of the plaintiff's complaint or in the alternative the entire complaint on the grounds that the plaintiff's claims are barred by the statute of frauds and the law of contracts, that it is not a proper party to the plaintiff's action, and that the plaintiff has failed to state a cause of action based on adverse possession. On June 18, 2008, the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike. On June 23, 2008, the court heard oral argument on the motion to strike.
On April 8, 2008, Alan and Cheryl Ann Chatelle filed answers to the complaint. They are not parties to the motion presently before the court.
The plaintiff's memorandum of law in opposition to the defendant's motion to strike only addresses the defendant's assertion that it is not a proper party to the action. It is silent as to the other grounds advanced by the defendant.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [p]laintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
I. THE STATUTE OF FRAUDS
"The statute of frauds is permitted to be raised by a motion to strike only when the alleged agreement falls squarely within those categories of agreements required to be in writing." (Internal quotation marks omitted.) Carabetta Construction v. Martinez, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4003241 (November 9, 2006, Taylor, J.) (42 Conn. L. Rptr. 300, 301). "[I]n order for the plaintiff to survive a motion to strike a count that would otherwise be barred by the statute of frauds, it is incumbent on the plaintiff to plead sufficient facts to take the claim out of the statute of frauds." Keiser v. Hanrahan, Superior Court, judicial district of Fairfield, Docket No. CV 04 0410421 (August 25, 2004, Dewey, J.).
The defendant argues that the plaintiff cannot state a cause of action based upon the allegation that he and his late wife had an agreement with the Chatelles, according to which they were to retain life estates in the subject property upon its conveyance, because it is not in writing, as required by the statute of frauds. The plaintiff does not address this ground in its memorandum in opposition to the defendant's motion to strike.
General Statutes § 52-550, the statute of frauds, provides in relevant part: "No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property." The courts, however, "have repeatedly recognized that a contract [for the sale of real property or any interest in or concerning real property] is enforceable, despite the statute, when, subsequent to the making of the contract, there has been conduct that amounts to part performance." (Internal quotation marks omitted.) Levesque Builders, Inc. v. Hoerle, 49 Conn.App. 751, 756, 717 A.2d 252 (1998); see also Santoro v. Mack, 108 Conn. 683, 690, 145 A. 273 (1929) ("where one party, in reliance upon the contract, has partly performed it to such an extent that a repudiation of the contract by the other party would amount to the perpetration of a fraud, equity looks upon the contract as removed from the operation of the statute of frauds and will enforce it by specific performance or give other relief as the case may be").
"[T]he acts of part performance generally must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party . . ." (Internal quotation marks omitted.) Levesque Builders, Inc. v. Hoerle, supra, 49 Conn.App. 756. Moreover, they "must be of such a character that they can be reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute"; Breen v. Phelps, 186 Conn. 86, 94, 439 A.2d 1066 (1982); and they "must be referable to and consistent with the oral agreement." (Internal quotation marks omitted.) H. Pearce Real Estate Co. v. Kaiser, 176 Conn. 442, 443, 408 A.2d 230 (1979). Part performance is a question of fact. See Milazzo v. Schwartz, 44 Conn.App. 402, 407, 690 A.2d 401, cert. denied, 240 Conn. 926, 692 A.2d 1282 (1997).
The defendant moves to strike count three or in the alternative all three counts of the plaintiff's complaint based upon the statute of frauds. The statute of frauds, however, is not applicable to all three counts of the plaintiff's complaint. In count three of the complaint, the plaintiff is seeking to quiet title to the subject property. He claims title to the property by adverse possession. His claim is notably not based upon the alleged oral agreement with the Chatelles. The statute of frauds, therefore, is inoperable as to count three. In counts one and two of the complaint, the plaintiff is seeking either to set aside or reform the deed. In so far as he is seeking to set aside the deed, the statute of frauds is similarly inapplicable because in seeking to set aside the deed the plaintiff is not asking the court to enforce the alleged oral agreement. On the other hand, in seeking to reform the deed, the plaintiff is asking the court to enforce the alleged oral agreement. Since the oral agreement pertains to an interest in land, it falls squarely within the purview of the statute of frauds and cannot be enforced unless the plaintiff has pleaded sufficient facts to take it outside of the statute.
In the present case, the plaintiff alleges that he and his late wife conveyed the subject property by warranty deed to the Chatelles in reliance upon the oral agreement between the parties that they would retain life estates in the property. In addition, since conveying the property to the Chatelles the plaintiff has allegedly remained in possession of it and has not paid any rent. These acts, in the absence of other circumstances, may indicate that there existed some contract between the parties regarding the property. Moreover, they are seemingly referable to and consistent with the alleged oral agreement. The plaintiff has, consequently, pleaded facts sufficient to take the case outside the statute of frauds at this stage of the proceedings.
II. CONTRACT LAW
The defendant is also moving to strike count three or all three counts of the plaintiff's complaint on the ground that they are legally insufficient pursuant to the law of contracts. The defendant argues that the plaintiff has failed to state a cause of action in his complaint because under the law of contracts he should be deemed to have assumed the risk of mistake by having failed to read the deed before signing it. "[T]he defendant's attempt to raise the concept of assumption of risk should be asserted by way of special defense. See, e.g., Sanders v. Officers Club of Connecticut, 196 Conn. 341, 352, 493 A.2d 184 (1985); Johnson v. Pagano, 184 Conn. 594, 595, 440 A.2d 244 (1981)." Hubbard v. Eastern Water Development Co., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 05 4003014 (January 12, 2007, Ronan, J.T.R.). The contract law principle relied upon by the defendant does not challenge the legal sufficiency of the plaintiff's allegations to state a cause of action; accordingly, the defendant's motion to strike based on this ground is denied.
III. MISJOINDER
"Naming an improper person as a party in a legal action constitutes misjoinder." Zanoni v. Hudon, 42 Conn.App. 70, 73, 678 A.2d 12 (1996). "The exclusive remedy for misjoinder of parties is by motion to strike." (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 723 n. 23, 661 A.2d 973 (1995); Practice Book § 11-3.
The defendant asserts that the plaintiff has failed to state a cause of action against it anywhere in his complaint. Accordingly, it is not a proper party to the plaintiff's action. In support of its assertion, the defendant argues that the plaintiff cannot divest it of the priority and interest it has in the subject property as a mortgagee because at the time of the mortgage the defendant relied upon the Killingly land records, which notably do not provide any interest in the plaintiff nor any actual or constructive notice of the plaintiff's present claims. In addition, the defendant argues that since the plaintiff is not challenging the validity of its mortgage, its interest in the subject property is not adverse to that claimed by the plaintiff and thus, it is not even a proper party to the plaintiff's quiet title action set out in count three of the complaint. The plaintiff counters that the defendant is a proper party to its quiet title action because as a lien holder its interest in the property is adverse to that claimed by the plaintiff.
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 . . . 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 . . ." "So that the trial court can make a full determination of the rights of the parties to the land, an action to quiet title is brought against persons who claim title to or have an interest in the land . . . Only the parties to an action to quiet title are bound by the judgment . . . the decision to join a party in a suit to quiet title is made by the plaintiff." Swenson v. Dittner, 183 Conn. 289, 292, 439 A.2d 334 (1981).
In count three of his complaint, the plaintiff is seeking to quiet title to the subject property. In doing so, he alleges that the defendant claims an interest (a mortgage) in the property that is adverse to his own. The defendant argues that since the plaintiff is not challenging its mortgage on the property, its interest is not adverse to that claimed by the plaintiff. "The general rule, [however], is that a person or entity which takes a mortgage on property admits, by so doing, the title of the mortgagor . . ." Bond v. Benning, 175 Conn. 308, 314, 398 A.2d 1158 (1978). Accordingly, the defendant's interest is "essentially identical" to the interest of the Chatelles, and their interest, as the record owners of the subject property in fee simple, is clearly adverse to any interest claimed by the plaintiff. Id. The defendant, thus, is a proper party to the plaintiff's action to quiet title, as its interest is adverse to the plaintiff's. Moreover, joining the defendant as a party defendant enables the court to make a full determination of the rights of the parties to the subject property.
As to counts one and two of the complaint, the plaintiff is seeking either to have the deed set aside or reformed. He alleges that on account of a scrivener's error the deed conveying the subject property to the Chatelles did not contain the life estates that the parties allegedly agreed his late wife and he would retain in the property. These allegations, if proven, could only render the deed voidable not void. "The rule of law in Connecticut is that where the conveying instrument is void even a bona fide purchaser or mortgagor for value and without notice will not acquire an estate or interest as against the owner. If, however, instead of being void the transfer is merely voidable, a bona fide purchaser or mortgagor would retain an interest on the property which ceases to exist only upon satisfaction [of] the loan . . . A bona fide purchaser is a buyer who pays a full and fair price for the property without notice that a third party has an interest in that property . . . A transfer is void when the transferor does not have the authority to effectuate the transfer." (Citations omitted; internal quotation marks omitted.) Dana Investment Corp. v. Schlesinger, Superior Court, judicial district of Danbury, Docket No. CV 93 314027 (November 13, 1997, Stodolink, J.). There is nothing in the complaint to suggest that the defendant is not a bona fide purchaser. Consequently, as argued by the defendant, the complaint does not contain any allegations that would invalidate the defendant's mortgage.
Regardless, the defendant does have an interest in the subject property making it a proper party to the actions stated in counts one and two of the complaint. In a similar case, Sobasko v. Rywolt, 18 Conn.Sup. 104 (1952), the plaintiff named a subsequent mortgagor as a defendant in its action to set aside a deed, and the mortgagor moved to strike the complaint. In denying the motion, the court stated: "The defendant bank has an interest in the land concerned such that it is a proper if not a necessary party defendant . . . the complaint . . . alleges no facts such as to make the mortgage invalid as to the bank. But it is obvious that the pleader did not intend to state such a cause of action against the bank. Since it has an interest in the property, the deed to which the plaintiff seeks to set aside, it is a proper party and the complaint sets out the true situation as to the bank and nothing more. The complaint is not subject to general attack by demurrer." (Citations omitted.) Id., 106-07.
Following the reasoning of the court in Sobasko, the defendant in the present case is a proper party to the actions set out by the plaintiff in counts one and two, as it has an interest in the property, the deed to which the plaintiff is seeking to have the court set aside or reform. It does not matter that the plaintiff has not alleged any facts that would invalidate the mortgage held by the defendant. The defendant's motion to strike counts one and two on the grounds that neither states a legally sufficient cause of action against it and that it is not a proper party to either is denied.
IV. ADVERSE POSSESSION
The defendant asserts that count three of the complaint, the quiet title action, should be stricken because the plaintiff has failed to properly state a claim of adverse possession. In support thereof, the defendant contends that the plaintiff cannot establish the elements of an adverse possession claim because he has allegedly shared possession of the subject property with the Chatelles, acknowledged their title to it, and used it with their permission.fn3 The defendant also notes in its motion to strike that in order to state a legally sufficient cause of action, the plaintiff must allege facts not legal conclusions in his complaint.
"[General Statutes § ]47-31 provides that [a quiet title] action may be brought by anyone claiming title to, or any interest in, the property, and that the complaint must set forth this title or interest and the manner in which the plaintiff acquired it . . . One obvious purpose of the latter requirement is to make certain that a plaintiff has, within the purview of the allegations of his complaint, not a mere groundless claim but an actual interest in the property sufficient to justify his instituting an action concerning it and asking the court to adjudicate his rights and those of the parties defendant a defendant may, if he chooses, put in issue whether the plaintiff has, within the purview of the allegations of the complaint, title to, or an interest in, the property sufficient to enable him to maintain the action . . . If the allegations of the complaint fail on their face to show in the plaintiff such a title to, or interest in, the property, their insufficiency may be attacked by demurrer." (Citations omitted.) Loewenberg v. Wallace, 147 Conn. 689, 692-93, 166 A.2d 150 (1960). "[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 614 n. 13, 887 A.2d 599 (2006).
"A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. In count three of his complaint, in seeking to quiet title to the subject property, the plaintiff alleges that he acquired title "by use and enjoyment of the premises described herein for more than fifteen years prior to the commencement of this action; such use and possession has been at all times open, visible, notorious, adverse, exclusive, continuous and uninterrupted . . ." The plaintiff does not allege any facts establishing the essential elements of an adverse possession claim. His adverse possession claim is, therefore, a legal conclusion unsupported by any facts, and as such, it fails to state a cause of action.
Since the plaintiff's quiet title action is based on his claim to have acquired title to the subject property by adverse possession and since he has failed to state a legally sufficient claim of adverse possession, the plaintiff cannot maintain his quiet title action. As a result, the defendant's motion to strike count three of the complaint is granted.
For the foregoing reasons, the defendant's motion to strike is granted as to count three of the plaintiff's complaint but denied as to counts one and two.