Opinion
No. CV00 0440625
October 21, 2004
MEMORANDUM OF DECISION RE' ACTION TO QUIET TITLE, AND FOR, INTER ALIA, ACCOUNTING AND PARTITION
Plaintiff Janyce P. Siress brings this lawsuit against John P. Potenziani, III, her brother, and against Mary Potenziani, his wife, for the purpose of legally resolving a significant dispute over the ownership and disposition of property known as 1009 Durham Road in Madison, Connecticut. The plaintiff and the defendants acknowledge that by virtue of a quitclaim deed of September 29, 1980, plaintiff Janyce P. Siress (formerly known as Janyce Potenziani) and John Potenziani jointly owned this property which consists of 13.6 acres, more or less.
The controversy arises out of a claim by the defendants that Janyce Siress by virtue of her quitclaim deed, dated April 3, 1999, transferred her interest in the property to her brother, John Potenziani and to his wife, Mary Potenziani. Janyce Siress asserts that at her brother's request she made arrangements for a lawyer to prepare a quitclaim deed which would have transferred her interest to them; but that before leaving the lawyer's office she instructed him not to complete the transaction. Furthermore she states that her brother, without her permission, obtained the deed from the lawyer's secretary and recorded it.
Applicable Legal Principles
The basis principle as to the transfer of title to realty is that "[t]he delivery of a deed with intent by the grantor to pass title is essential to a valid conveyance. City National Bank v. Morrissey, 97 Conn. 480, 483, 117 A. 493; Wiley v. London Lancashire Fire Ins. Co., 89 Conn. 35, 39, 92 A. 678; Porter v. Woodhouse, 59 Conn. 568, 575, 22 A. 299; 7 Thompson, Real Property (Perm.Ed.) 4110 . . ." Lomartira v. Lomartira, 159 Conn. 558, 561, 271 A.2d 91 (1970). Mere physical possession of a deed is not conclusive evidence that it was legally delivered. McDermott v. McDermott, 97 Conn. 31, 34 (1921); Sweeney v. Sweeney, 126 Conn. 391, 394 (1940). Although physical possession and recordation of a deed create a presumption of delivery this presumption is rebuttable by providing evidence that the grantor lacked an intent to deliver insofar as the intention of the grantor is the determinative factor. Bell v. Bloom, 146 Conn. 307 (1959); 23 Am.Jur.2d, Deeds, § 118.
When disputes arise regarding the validity of the delivery of a deed, it is the intent of the parties, and not who has physical possession of the deed, that is the controlling factor. 32 Am.Jur.2d § 105; Lomartira v. Lomartira, supra; Nelson v. Nelson, 293 N.W.2d 463 (S.D., 1980); Chaney v. Waddell, 624 So.2d 545 (Ala., 1993); 23 Am.Jur.2d § 107; Powell On Real Property, ¶ 81a.04[2][a][iii]; ¶ 81a.04[2][a][iii][E] (Michael Allen Wolf, ed., Matthew Bender, 2004). The application of these legal principles frames the context within which the facts deduced from the evidence presented at the trial must be considered.
Two-Phase Trial
The trial of this case has been bifurcated into two phases. In the first phase the court will decide liability and relief on the equitable issues. In the second phase the court will determine damages, rule upon the accounting report, and determine the manner of partition.
Default as Affecting Liability and Damages
The complaint for resolution in this case contains seven counts, three of which are legal causes of action, and four of which are causes of action in equity. The legal causes of action are articulated in Count II — conversion (a claim that the defendants basically appropriated the property); Count IV — unjust enrichment (a claim descriptive of its nomenclature); and Count VI — fraud (also descriptive of its nomenclature).
Because earlier the defendants were defaulted for not complying with a discovery order a prior trial court judge has ruled that that default established the defendants' liability as to the legal causes of action; namely, Count II (conversion); Count IV (unjust enrichment) and Count VI (fraud). What remains as to these counts is the scheduling of a hearing in damages so that the court may determine what amount of damages should be assessed for the established liability.
First Phase of Trial — Equitable Causes of Action
The trial in this case was presented on the four causes of action in equity. The default of the defendants did not establish liability for the plaintiff's equitable causes of action; namely, Count I (an action to quiet title); Count III (slander of title); Count V (accounting) and Count VII (partition). The parties have produced testimonial and documentary evidence in support of their respective positions.
The court has considered the testimony presented in this case. The court focused not only upon the words spoken by the witnesses, but also upon their credibility. The court also has reviewed the exhibits presented at the trial, as well as the legal memoranda presented on behalf of the parties. The court finds the facts as hereinafter articulated.
Trial Court Findings
John P. Potenziani, III, acquired approximately 14 acres of raw land known as 1009 Durham Road in Madison, Connecticut in 1978 by a warranty deed which recites a consideration of $21,000. On August 15, 1979 he and his sister cosigned a mortgage in the amount of $20,000, secured on this property. Monies from the mortgage were used to make some of improvements to the property. John Potenziani improved the property by clearing it and constructing a main house with a garage, stables and an apartment in one of the stables. The carpentry work was done by him, his father, and his uncle. He subcontracted the plumbing and electrical work.
John Potenziani lived in the apartment in the stable while they constructed the main house. Janyce Potenziani also lived on the property, and paid rent to her brother for her occupancy. By quitclaim deed dated September 29, 1980, he transferred to his sister Janyce a joint and undivided interest in the property in survivorship. Since they were both single, he planned that if he were to suffer a fatal misfortune, the title to the property, together with the improvements would succeed to her. However, he on several later occasions, including once in 1985, requested that Janyce transfer her interest in the property back to him.
In 1989 John married his wife, Mary. They and their children occupy the main house. Concerned about estate planning for himself, his wife and children, he renewed his request in 1993, and 1999 that his sister return her interest in the property to him. The assessed value of the property in 1999 was in excess of $600,000. The assessed value at the time of the trial in March of 2004 was between $900,000 and $1,000,000.
Over the years John collected income from renting certain structures on the premise to others. He also collected rent from Janyce from sometime in 1987 until sometime in 1991-92 when she moved to Chicago. After returning to Connecticut, Janyce constructed a house in Guilford, Connecticut. The plaintiff and her brother had discussions as to what would be the fair value of her contribution to the property at 1009 Durham Road. Figures in the range of $18,000 to $20,000 were mentioned. At one point defendant John Potenziani told his sister that since he did not have that amount of money available he would paint the trim work in her house instead.
At her brother's continued urging in 1999 Janyce considered acquiescing to his request of returning her interest in the property on Durham Road to him. In this regard she met with attorney George McManus, as her lawyer, on April 3, 1999, and signed a deed before him in his office. The deed provided for the transfer of all of her interest in the property to her brother and his wife. During their meeting attorney McManus made reference to gift taxes incident to the transfer. Janyce Potenziani informed attorney McManus that she was unaware that gift taxes would be due and that she was uncertain as to what, if any, compensation she would receive in exchange for the deed. Expressing hesitancy in completing the transaction at that time, she told him to do nothing with the deed.
At the trial plaintiff Janyce Siress testified that she did not authorize attorney McManus to deliver the deed to anyone. Attorney McManus also testified that the plaintiff instructed him to hold the deed and she did not authorize him to record it or to give it to anyone.
In early April of 2000 John Potenziani went to attorney McManus's office and picked up the deed from the legal secretary, assuring the secretary that the taxes would be cleared up. On or about May 30, 2000 he returned to attorney McManus's office to have the deed recorded. At that time attorney McManus's secretary instructed him to record the deed in the town clerk's office. After doing so, John Potenziani telephoned his sister in early June of 2000 and told her that he had recorded the deed. She was shocked and outraged. This lawsuit was filed against John and Mary Potenziani within two weeks after Janyce became aware that the deed had been recorded.
The court also finds that plaintiff Janyce Siress did not authorize the release of the deed. The Court further finds that attorney McManus did not authorize the release of the deed to defendant John Potenziani, and that his obtaining the release was not only without authority but also the product of his misplaced eagerness as expressed by him in this excerpt from his trial testimony:
Q. Isn't it true that you would rather litigate with your sister for years in the hopes of getting this entire valuable property in only your family's name, rather than simply undoing the quitclaim deed after you learned your sister did not agree that she gifted it to you?
A. At the time that I spoke with my sister, at the time that I spoke to her on the phone — CT Page 15248
Q. I'm talking about June 26, 2000, Mr. Potenziani.
A. It wasn't a matter of giving it back to her. I always felt that she said it was my property, and that it was that she was on the property, and that we were going to work out some agreement down the road. I mean, I always thought that there was going to be some sort of agreement. I didn't realize that it was going to go back. And where would we be at that point? We'd be — she'd be angry at me. We'd be back at square one. There had to be some finality to the property. There had to be some — some, you know, break, and there had to be some security for my family somewhere.
Trial Transcript 3-10-04, page 24.
The court finds that when John Potenziani obtained the deed from attorney McManus's secretary he knew that he did not have his sister's permission to do so, and that he knew that he had not reached a final agreement with her relative to the disposition of her interest in the property. This court also finds that the plaintiff did not have donative intent relative to the transfer of the deed to her brother, and finds that the deed was not properly "delivered" to him in the legal sense of the term. The court further finds that at the time of his recording the deed defendant John Potenziani slandered the plaintiff's title interest in said property.
Accordingly, the court enters the following judgments:
Count I Action to Quiet Title
The Court enters a judgment quieting Title to the premises known as 1009 Durham Road, Madison, Connecticut as described in Exhibit 5.
The title to said premises and all rights and interest therein are vested in John P. Potenziani, III, and Janyce P. Siress, formerly known as Janyce P. Potenziani, as said interest is described in Exhibit 5, and to the survivor of them and unto their heirs and assigns.
Count III Slander of Title
The court enters judgment for plaintiff Janyce Siress on Count III, Slander of Title.
Count V Accounting
Pursuant to Connecticut General Statutes Section 52-402 et seq., the court hereby enters an order for an accounting from the date on which Janyce Siress (Potenziani) first obtained a title interest in the property to the date on which the auditor(s) complete their work.
In this regard, the court orders 1) that the parties confer with respect to their preference of auditor(s) for the accounting and the expenses attendant thereto, and 2) the parties appear on November 16, 2004 at 9:30 a.m. in Courtroom 443, at the Superior Court, 70 Huntington Street, New London, Connecticut, to address the same.
Count VII Partition
The court enters an order of Partition, pursuant to the grant of authority under Connecticut General Statutes Section 52-495. The court reserves decision as to whether the partition will be by sale.
Clarance J. Jones, Judge