author: HENNESSY, J.

text:
    BARBARA MCAULEY v. SOUTHINGTON SAVINGS BANK ET AL.
    (AC 21461)
    Foti, Dranginis and Hennessy, Js.
    Argued December 4, 2001
    officially released May 21, 2002

      Kristen Schultze Greene, for the appellant (plaintiff).

      John F. Kania, for the appellee (named defendant).
   Opinion

HENNESSY, J.

The plaintiff, Barbara McAuley, appeals from the judgment rendered by the trial court following the granting of a motion for summary judgment in favor of the defendant Southington Savings Bank (bank). On appeal, the plaintiff claims that the court improperly granted the motion for summary judgment on the basis of its incorrect conclusions that (1) the bank owed no duty of care to the plaintiff, who was the named beneficiary on a certificate of deposit from which funds were wrongfully withdrawn pursuant to a forged withdrawal slip, (2) there was no genuine issue of material fact as to whether she was an owner of the certificate of deposit and (3) as a matter of law, the plaintiff lacked standing to bring an action against the bank for an alleged violation of General Statutes § 42a-4-401, which prohibits a bank from withdrawing funds from a customer’s account on the basis of a forged item. We affirm the judgment of the trial court.

The following facts are undisputed. In 1988, Alfreda DeVoe invested in a certificate of deposit (CD) at the defendant bank. DeVoe held the CD in trust for the benefit of her daughter, the plaintiff in this action. In March, 1998, the bank received, through the mail, a withdrawal slip that requested that the full balance of the matured CD be transferred to DeVoe’s checking account. The withdrawal slip also contained a note stating, “I will be in [Connecticut] in 3 or 4 weeks to make other arrangements].” The withdrawal slip was signed with Alfreda DeVoe’s name, which the plaintiff alleges was forged by Alfreda DeVoe’s husband, Roland DeVoe. On April 6, 1998, the bank transferred the balance of the CD into Alfreda DeVoe’s checking account. On May 1, 1998, Alfreda DeVoe appeared in person at the bank and directed that an amount approximate to that transferred from the CD be withdrawn from her checking account and deposited into six separate certificates of deposit in trust for persons other than the plaintiff.

In 1999, the plaintiff brought this action against the bank and Roland DeVoe by a seven count complaint. Counts one and two were directed at the bank and are the subject of this appeal. Counts three through seven were directed against Roland DeVoe and are not at issue in this appeal. In count one, the plaintiff alleges that Alfreda DeVoe’s signature on the March 24, 1998 withdrawal slip was a forgery and the resulting transfer was a violation of General Statutes § 42a-4-401. Count two, a negligence count, alleges that the bank breached its duty to the plaintiff by failing to ascertain that Alfreda DeVoe’s signature on the withdrawal slip dated March 24, 1998, was a forgery. On July 12, 2000, the bank filed a motion for summary judgment as to both counts, which was granted. This appeal followed.

We initially set forth the applicable standard of review. “The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Barrett v. Danbury Hospital, 232 Conn. 242, 250, 654 A.2d 748 (1995). Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue. Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994).” (Internal quotation marks omitted.) Hernandez v. Cirmo, 67 Conn. App. 565, 567, 787 A.2d 657, cert. denied, 259 Conn. 931, 793 A.2d 1084 (2002).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . [0]ur review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial corut’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Rangel v. Parkhurst, 64 Conn. App. 372, 377-78, 779 A.2d 1277 (2001).

I

The plaintiff first claims that the court improperly concluded that with regard to the negligence count, the bank did not have a legal duty to protect her from the harm caused by the wrongful transfer of the balance of the CD to Alfreda DeVoe’s checking account executed by a forged withdrawal slip. Specifically, the plaintiff claims that the court should have concluded that the bank owed a duty of care to her because (1) she was a named beneficiary of the CD, (2) she was a foreseeable and readily identifiable plaintiff because of the “strong, immediate and direct” nexus between the bank’s act of withdrawing the funds and her injuries, and, therefore, a finding of liability on the part of the bank would not have “create[d] limitless liability for an unending class of plaintiffs,” and (3) the bank was a “third party” with respect to the CD against whom an action by a beneficiary is authorized for the wrongful withdrawal of money from an account before the death of the depositor. See IA A. Scott & W. Fratcher, Law of Trusts (4th Ed. 1987) § 58.4, p. 224.

The bank argues that the court properly ruled that it owed a duty of care only to the owner of the CD and that the plaintiff did not have an ownership interest in the account. The bank claims that (1) the plaintiffs status as a named beneficiary of the CD, which was entitled “Alfreda DeVoe in Trust for Barbara McAuley,” did not confer an ownership interest on her, (2) there are factors that indicate that Alfreda DeVoe was the sole owner of the account, such as the fact that the CD was created under Alfreda DeVoe’s social security number and the only signature on the signature card was that of Alfreda DeVoe, and (3) although the plaintiff would have obtained an ownership interest in the CD if the CD still existed at the time of Alfreda DeVoe’s death and the plaintiff survived Alfreda DeVoe, the first of those requirements was not met and, thus, the plaintiff did not have an ownership interest in the account. Finally, the bank argues that it is not a “third party” with respect to the CD, against whom a wrongful withdrawal action is authorized, because it is a party to the agreement that gave rise to the creation of the account.

In its memorandum of decision, the court noted that the parties were in agreement as to the material facts relevant to this claim and that the only issue before the court was whether the defendant owed a duty to the plaintiff.

“In reviewing a trial court’s ruling on a motion for summary judgment when the material facts are undisputed, we must decide whether the trial court erred in concluding that the moving party was entitled to judgment as a matter of law. . . . [0]ur review of the ruling of the trial court is plenary, and we must determine whether the trial court’s conclusions are legally and logically correct and find support in the facts appearing in the record.” (Internal quotation marks omitted.) Stosuy v. Stamford, 65 Conn. App. 221, 222-23, 782 A.2d 198 (2001).

In the present case, the court granted the motion for summary judgment as to the plaintiffs negligence claim upon concluding that the defendant did not owe a legal duty to the plaintiff to verify the signature of the depositor on a withdrawal slip before transferring funds. “The existence of a duty of care is a prerequisite to a finding of negligence.” Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). Our Supreme Court has stated that “the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.) Id., 616.

In its memorandum of decision, the trial court noted that although it found that the first prong of the test for the existence of a legal duty of care was satisfied, public policy precluded it from extending liability to the bank for the plaintiffs loss because the plaintiff did not have an ownership interest in the CD. The parties agreed at trial that the CD at the focus of this case was a trust account governed by General Statutes § 36a-296. Thus, applying our standard of review, we must determine whether the court’s conclusion that public policy precluded it from extending liability to the bank for the plaintiffs loss of her beneficial interest in the trust account was “legally and logically correct.”

Our Supreme Court’s reading of General Statutes § 36-110, now § 36a-296, in Salvio v. Salvio, 186 Conn. 311, 322, 441 A.2d 190 (1982), is dispositive of our resolution of this question. In Salvio, our Supreme Court interpreted § 36-110, now § 36a-296, to provide that the beneficiary of an unqualified savings account trust acquires no legal interest in the funds on deposit until the death of the depositor. In the present case, the trust account entitled “Alfreda DeVoe in Trust for Barbara McAuley” matured, was not renewed and the depositor redistributed its funds. The court was correct in finding that the plaintiff, a named beneficiary to the trust account, did not have a legal interest in the trust account at the time of Alfreda DeVoe’s death.

Accordingly, we conclude that the corut properly ruled that public policy precluded it from finding that a duty of care was owed to the plaintiff by the bank, and, thus, its ruling was legally and logically correct.

II

The plaintiff next claims that the court improperly granted the motion for summary judgment on the negligence count because there was a genuine issue of material fact as to whether she was an owner of the CD based on the information found on the signature card. Specifically, the plaintiff argues that she was an owner because (1) her name was typed on the signature card near a preprinted “name #2” line and (2) the preprinted words “Primary Owner” that appeared before Alfreda DeVoe’s name denoted that Alfreda DeVoe was not the sole owner of the account.

The court addressed both of these arguments before granting the motion for summary judgment in favor of the bank. The court found that the evidence established that the plaintiffs name was not in fact typed on the second line, but rather was typed below the first line as a continuation of the wording on the first line which read as follows: “Alfreda DeVoe in Trust for . . . .” The court’s reading of the plaintiffs name together with the first line of text logically explained the purpose of the plaintiffs name on the card. It reasonably concluded that the plaintiffs name was on the card to make clear the context in which Alfreda DeVoe held the CD.

To accept the plaintiffs interpretation of the signature card would render the trust language on line #1 meaningless. It would also require us to import into the signature card a meaning that is not there, thereby defeating the intent of the depositor and the bank. The court’s interpretation gives effect to the wording by relating the plaintiffs typewritten name to the line above it. It is the policy of the court to give effect to all wording in a document. “When the plain meaning and intent of the language is clear, a clause . . . cannot be enlarged by construction. There is no room for construction where the terms of a writing are clear and unambiguous, and it is to be given effect according to its language.” (Internal quotation marks omitted.) Bonito v. Cambridge Mutual Fire Ins. Co., 64 Conn. App. 487, 493, 780 A.2d 984, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001). The court’s reading of the signature card is the only one that would give effect to the trust language and, thus, it is the only logical reading of the signature card. Accordingly, we conclude that the court’s determination that no reasonable person could find that the plaintiff was an owner because of the location of her name on the signature card was legally and logically correct and supported by the facts in this case.

The court also found that the occurrence of the preprinted words “Primary Owner” before Alfreda DeVoe’s signature on the signature card could not logically be read to alter the intent of the parties to create a trust account with DeVoe as the sole owner. We agree.

“[W]here there is a printed form . . . and other words are inserted [in the printed form], in writing or otherwise, it is to be assumed that they take precedence over the printed matter.” (Internal quotation marks omitted.) Total Property Services of New England, Inc. v. Q.S.C.V., Inc., 30 Conn. App. 580, 591, 621 A.2d 316 (1993). We cannot say that a single line on a preprinted form should enjoy the same presumption of legitimacy as the contradictory language added to the document by the parties. We think it unlikely that the parties meant for the preprinted label “Primary Owner” to modify the ownership interests in the CD in a manner inconsistent with their intentions as spelled out in the typewritten trust language.

In addition, as was the case with the plaintiffs first argument, we note that the plaintiffs proposed interpretation of the signature card would negate the trust language, “in trust for,” that followed Alfreda Devoe’s typewritten name on the card. We conclude, therefore, that the trial court’s finding that there was no genuine issue of material fact as to ownership of the CD is legally and logically correct and it is supported by the facts in the record. Accordingly, the trial court properly rendered summary judgment as a matter of law as to the second claim.

Ill

The plaintiffs final claim is that the court improperly found that, as a matter of law, she lacked standing to bring an action against the bank pursuant to § 42a-4-401. Specifically, the plaintiff argues that she has standing to bring an action against the bank because (1) she was an intended third party beneficiary to the contract between Alfreda DeVoe and the bank and (2) she was a customer of the bank for purposes of § 42a-4-401.

The plaintiff argues that her status as a named beneficiary to the trust account makes her an intended third party beneficiary to the contract between Alfreda DeVoe and the bank. We disagree. “The law regarding the creation of contract rights in third parties in Connecticut is . . . well settled. . . . [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties.” (Citations omitted; internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 261, 765 A.2d 505 (2001). The trial court reasoned that the contract between Alfreda DeVoe and the bank did not create a direct obligation on the part of the bank to pay the proceeds of the trust account to the plaintiff. Rather, the bank’s obligation to the plaintiff would arise only if she survived Alfreda DeVoe and the account was still in existence. We, therefore, conclude that because Alfreda DeVoe could have given the plaintiff an ownership interest in the account, thereby creating a direct obligation on the part of the bank, but did not, the plaintiff was not a third party beneficiary to the contract.

We find equally unavailing the plaintiffs contention that she was a customer of the bank because the bank “agreed to ‘collect items’ ” for her. In its well reasoned analysis, the trial court stated, “[T]he bank was not collecting items for the plaintiff. Under the [Uniform Commercial Code], [General Statutes] § 42a-4-105 (5), collecting bank means abank handling an item for collection except the payor bank. According to [General Statutes] § 42a-4-104 (a) (9), an item includes an instrument . . . handled by a bank for collection or payment .... Under [General Statutes] § 42a-3-104 (j), a certificate of deposit is an instrument. Here, Alfreda DeVoe’s account was in the form of a certificate of deposit. ... As the financial institution responsible for paying the funds due, the bank was handling Alfreda DeVoe’s certificate of deposit for payment. It was not handling the certificate of deposit for collection. Therefore, the plaintiffs claim that the bank was collecting items for her is unwarranted.” (Internal quotation marks omitted.)

We agree with the analysis of the court and conclude that the plaintiff does not fall within the definition of a “customer” for purposes of § 42a-4-401 and, as such, does not have standing to bring an action pursuant to that statute.

The judgment is affirmed.

In this opinion the other judges concurred.

       Roland DeVoe is also a defendant, but because the motion for summary judgment was not granted as to him, he is not involved in this appeal.

       For purposes of the motion for summary judgment only, the bank did not dispute that the signature was a forgery.

       Genera] Statutes § 42a-4-401 provides: “(a) A bank may charge against the account of a customer an item that is properly payable from that account even though the charge creates an overdraft. An item is properly payable if it is authorized by the customer and is in accordance with any agreement between the customer and bank.
      “(b) A customer is not liable for the amount of an overdraft if the customer neither signed the item nor benefited from the proceeds of the item.
      “(c) A bank may charge against the account of a customer a check that is otherwise properly payable from the account, even though payment was made before the date of the check, unless the customer has given notice to the bank of the postdating describing the check with reasonable certainty. The notice is effective for the period stated in section 42a-4-403 (b) for stop-payment orders, and must be received at such time and in such manner as to afford the bank a reasonable opportunity to act on it before the bank talcos any action with respect to the check described in section 42a-4-303. If a bank charges against the account of a customer a check before the date stated in the notice of postdating, the bank is liable for damages for the loss resulting from its act. The loss may include damages for dishonor of subsequent items under section 42a-4-402.
      “(d) A bank that in good faith makes payment to a holder may charge the indicated account of its customer according to: (1) The original terms of the altered item; or (2) the terms of the completed item, even though the bank knows the item has been completed unless the bank has notice that the completion was improper.”

       The bank also claimed that even if it had owed a duty to the plaintiff and had violated that duty, it was still entitled to summary judgment because Alfreda DeVoe ratified the withdrawal by creating new accounts from the withdrawn funds. Because it found that the bank did not owe a duty to the plaintiff, the trial court did not reach this claim.

       See also Salvio v. Salvio, 186 Conn. 311, 320 n.7, 441 A.2d 190 (1982).

       General Statutes § 36a-296 (a) (1) provides: “No bank shall establish any deposit account in which deposits are to be held by one natural person in trust for another natural person unless the depositor provides the bank with the name and a residential address for the beneficiary, upon establishing the deposit account or thereafter at the request of the bank. The depositor may also provide the bank with a writing signed by the depositor specifying the terms of the trust under which such deposit account is to be held. Unless such writing specifies to the contrary, it shall be conclusively presumed that the depositor intends to create a trust of all funds credited to the deposit account from time to time upon the following terms: (A) The depositor during his life may withdraw, or authorize charges against, such funds; (B) if the depositor survives the named beneficiary, the named beneficiary’s death shall terminate the trust and title to the deposit account shall thereupon vest in the depositor free and clear of the trust; (C) if the named beneficiary survives the depositor, the depositor’s death shall terminate the trust and title to the deposit account shall thereupon vest in the named beneficiary free and clear of the trust.”

       Additionally, we conclude that the court’s finding of no liability to the plaintiff on the part of the bank did not, as the plaintiff suggests in her brief, “effectively allow banks to commit negligence on a regular basis without any accountability.” Rather, it reflects the fact that a depositor or a depositor’s estate is the proper plaintiff in such an action against a bank.

       General Statutes § 42a-4-104 (a) provides in relevant part: “In this article, unless the context otherwise requires ... (5) ‘customer’ means a person having an account with a bank or for whom a bank has agreed to collect items, including a bank that maintains an account at another bank . . . .”

       See footnote 3.


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    LASALLE NATIONAL BANK v. FRESHFIELD MEADOWS, LLC, ET AL.
    (AC 21690)
    (AC 21691)
    Dranginis, Flynn and Daly, Js.

      Argued January 23
    officially released May 21, 2002

      Joseph A. Kubic, with whom, on the brief, was James M. Nugent, for the appellant (named defendant).

      David F. Borrino, for the appellee (plaintiff).
   Opinion

DALY, J.

In this consolidated appeal, the defendant Freshfield Meadows, LLC (Freshfield), appeals from the judgments of the trial court ordering foreclosure by sale of two properties. On appeal, the defendant claims that the court should not have granted the plaintiffs motions for summary judgment as to the defendants’ liability because it improperly (1) relied on transcript testimony as a judicial admission, (2) considered an uncertified transcript, (3) relied on an affidavit that had been withdrawn, (4) failed to consider the special defenses of breach of the implied covenant of good faith and fair dealing, unclean hands, breach of the common-law duty of good faith and fair dealing, unconscionability, equitable estoppel, and (5) considered the defendant’s failure to answer as a ground for granting the motion. We affirm the judgments of the trial court.

The pleadings, affidavits and other documentary information presented to the court reveal the following facts. On September 29,1998, to secure two promissory notes, the defendant mortgaged to Alliance Funding, a division of Superior Bank, FSB (Alliance), properties at 3315-3327 Main Street, now known as 3333 Main Street, and 3060 Main Street, both in Stratford. Nicholas E. Owen II, the owner of Freshfield, guaranteed payment of the notes, entering into guarantee agreements in favor of Alliance. The defendant granted, transferred and assigned to Alliance its right and title to and interest in all of the rents generated from 3333 Main Street.

Under the terms of the mortgages and their accompanying notes, the defendant promised to pay to Alliance the principal sums of $340,000 and $240,000. Payment was to begin on November 1, 1998. Failure to make a required payment within fifteen days after it was due would result in a default, giving Alliance the right to “accelerate the indebtedness to become immediately due and payable and to sue on the Note.”

In a pooling and servicing agreement dated November 1, 1998, by an assignment dated October 7, 1998, Alliance assigned the defendant’s mortgages to the plaintiff as trustee. The plaintiff, as the holder of the notes, then was entitled to enforce their provisions. The defendant defaulted on payment of the notes and, on July 12, 1999, the plaintiff commenced the present foreclosure actions. On August 7, 2000, the plaintiff filed motions for summary judgment as to liability. The court granted the plaintiffs motion as to the 3333 Main Street property on November 1, 2000, and as to the 3060 Main Street property on January 16, 2001. A sale date was set by the court for each property. This appeal followed. Additional facts will be set forth as necessary.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) LoRicco v. Pantani, 67 Conn. App. 681, 683-84, 789 A.2d 514 (2002).

“In deciding a motion for summaiy judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . Further, the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the court rendered judgment for the plaintiffs as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Internal quotation marks omitted.) LaSalle National Bank v. Shook, 67 Conn. App. 93, 95-96, 787 A.2d 32 (2001).

I

The defendant’s first claim on appeal is that the court improperly relied on transcript testimony as a judicial admission. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. Prior to filing its motions for summary judgment, the plaintiff filed a motion for the appointment of a receiver of rents. Before deciding that motion, the court held a hearing during which testimony was given. As part of the documentary evidence submitted for the court to consider in deciding the motions for summary judgment, the plaintiff included a transcript of the testimony provided by Owen during the hearing on the motion for the appointment of a receiver of rents. The following colloquy took place between Owen and the plaintiffs attorney during the hearing:

“ [Plaintiffs Counsel]: So, is it a fair assumption for the court that the reason why you weren’t making mortgage payments was because you were using the income flow from the property plus whatever moneys that you obtained out of the mortgage due to a better and bigger deal or at least another real estate deal?
“Owen: Yes, that’s true.
¡fc 2%:
“[Plaintiffs Counsel]: And you are aware that you did sign documents including an assignment of rents to the bank if you didn’t pay the mortgage; is that right?
“Owen: Yes, that’s true.”

It is the defendant’s contention that the court’s reliance on Owen’s testimony was improper.

In its appellate brief, the defendant refers to case law that relates to whether a court can consider deposition testimony in deciding a motion for summary judgment. The court, however, was not presented with deposition testimony, but rather a transcript of a witness’ testimony during a judicial proceeding. As the court stated in its memorandum of decision: “That testimony is not deposition testimony because it was not taken for the purpose of discovery, but for a definite evidentiary purpose directly related to the plaintiffs application for the appointment of a receiver of rents. Moreover, the court has had the unique opportunity to observe the witness firsthand and assess his credibility in contrast to a deposition proceeding where no such opportunity is offered.”

The defendant essentially contends that the court improperly treated Owen’s testimony from the rent receiver proceeding as a judicial admission and, therefore, incorrectly found that his testimony should be regarded as conclusive. See Tianti v. William, Raveis Real Estate, Inc., 231 Conn. 690, 695 n.7, 651 A.2d 1286 (1995). “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings.” Jones v. Forst, 41 Conn. App. 341, 346, 675 A.2d 922 (1996). The determination of whether a party’s statement is a judicial admission or an evidentiary admission is a question of fact for the trial court. Tianti v. William Raveis Real Estate, Inc., supra, 694-95. “The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage. . . . While both types are admissible, their legal effect is markedly different; judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier.” (Internal quotation marks omitted.) Id., 695 n.6.

In considering Owen’s testimony, the trial court noted that “[a]ll of the statements Nicholas Owen made . . . at the hearing on the application for appointment of rent receiver . . . constitute admissions, which are unequivocal and unmistakable.” The court proceeded to distinguish Owen’s testimony from deposition testimony, which is not conclusive as a judicial admission. See Collum v. Chapin, 40 Conn. App. 449, 450 n.2, 671 A.2d 1329 (1996). Although the court did not expressly characterize Owen’s testimony as a judicial admission, it indicated that it regarded Owen’s testimony as such by carefully distinguishing deposition testimony from the testimony given by Owen in the earlier proceeding. Given that the court had the opportunity to observe Owen and to assess his credibility at the rent receiver proceeding, we conclude that the court correctly determined that Owen’s testimony at that proceeding should be treated as a judicial admission.

II

The defendant next claims that the court improperly considered the uncertified transcript of Owen’s testimony when it decided the motions for summary judgment. We disagree.

“A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . .” (Emphasis added.) Practice Book § 17-45. The inclusion of the phrase “but not limited to” indicates that the list that follows is nonexclusive. Nowhere in the language of Practice Book § 17-45 does it state that the transcripts must be certified for them to be considered by the court.

In its brief to this court, the defendant correctly points to language in the author’s comments to an annotated version of Practice Book § 17-46, which states that some trial court decisions require transcripts to be certified before they may be used to support a motion for summary judgment. See W. Horton & K. Knox, 1A Connecticut Practice Series: Practice Book Annotated (4th Ed. 1998) § 17-46, comments, p. 58. Although there is a division among the trial courts on the issue of the admissibility of uncertified copies of transcripts, we need not resolve that question here because “[u]nswom documents attached to a [party’s] motion for summary judgment [are] properly considered [where they also are] contained in the court file from a prior action between the patties of which the trial court could take judicial notice.” Id., (Sup. 2002) p. 16, citing Hryniewicz v. Wilson, 51 Conn. App. 440, 444, 722 A.2d 288 (1999). In this case, the transcript that the plaintiff provided in support of its motion for summary judgment did not contain a certification page. In the court file, however, there was an identical version of the transcript, dated June 8, 2000, with a certification page of which the court could have taken judicial notice. Accordingly, we conclude that it was appropriate for the court to consider the transcript in deciding the motions for summary judgment.

Ill

The defendant’s third claim on appeal is that the court improperly relied on the affidavit of Colleen Withers, a litigation specialist for Superior Bank, in deciding the motions for summary judgment. This claim is without merit.

The following additional facts are necessary for our resolution of the defendant’s claim. The plaintiff originally filed its motions for summary judgment on June 20, 2000. In support of its motion, the plaintiff included the affidavit of Withers. On July 26, 2000, the court ordered both parties to withdraw all motions and memoranda related to the summary judgment motion and to refile a synthesized version of the previously filed documents by August 7, 2000. In its new motion for summary judgment, the plaintiff did not include the affidavit from Withers, but replaced it with an affidavit from Carol Connor, a loss mitigation manager for Superior Bank. There is no evidence that the court considered the affidavit of Withers in deciding the motion for summary judgment. On the contrary, in its memorandum of decision, the court relied on the affidavit of Connor, which was properly before the court, and did not discuss the affidavit of Withers, which was withdrawn. Accordingly, the defendant’s claim is without merit.

IV

The defendant next claims that the court improperly granted the plaintiffs summary judgment motions despite the special defenses that it had raised. Specifically, the defendant argues that summary judgment should not have been granted based on (1) the implied covenant of good faith and fair dealing, (2) the doctrine of unclean hands, (3) the common-law duty of good faith and fair dealing, (4) the doctrine of unconscionability and (5) the doctrine of equitable estoppel. We will address each special defense in turn.

“[A] foreclosure action constitutes an equitable proceeding. ... In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . .

“Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction . . . or, if there had never been a valid lien. . . . The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. ... A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both. . . . Where the plaintiffs conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles.” (Citations omitted; internal quotation marks omitted.) LaSalle National Bank v. Shook, supra, 67 Conn. App. 96-97. “[0]ur courts have permitted several equitable defenses to a foreclosure action. [I]f the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had .... Other equitable defenses that our Supreme Court has recognized in foreclosure actions include unconscionability . . . abandonment of security . . . and usury.” (Internal quotation marks omitted.) New Haven Savings Bank v. LaPlace, 66 Conn. App. 1, 10, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001).

A

The defendant claims that the court failed to find that the plaintiff breached the implied covenant of good faith and fair dealing when it failed to accept payments, refused to apply payments to the debt and refused to accept future payments. We disagree.

“The implied covenant of good faith and fair dealing requires faithfulness to an agreed common purpose and consistency with the justified expectation of the other party in the performance of every contract. . . . Essentially, it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy.” (Citation omitted; internal quotation marks omitted.) South-bridge Associates, LLC v. Garofalo, 53 Conn. App. 11, 16, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

The defendant tendered two checks to the plaintiff, one dated December 8, 1998, and the other dated December 28, 1998. Between December 28, 1998, and June 28,1999, when the underlying actions commenced, the defendant failed to submit any further mortgage payments. The only evidence the defendant has provided to support its claim that additional payments were tendered and rejected consisted of two checks, dated September 7, 1999, which the plaintiff did not accept. Those checks, however, were not presented to the plaintiff until three months after the underlying actions were instituted.

We recently stated that “special defenses and counterclaims alleging a breach of an implied covenant of good faith and fair dealing . . . are not equitable defenses to a mortgage foreclosure.” New Haven Savings Bank v. LaPlace, supra, 66 Conn. App. 10; see also Southbridge Associates, LLC v. Garofalo, supra, 53 Conn. App. 16-19. Even if a breach of the implied covenant of good faith and fair dealing were an equitable defense to a mortgage foreclosure, the clear language of the mortgage and the note fails to support the defendant’s claim that the plaintiff breached such an implied covenant. The plain language of the documents provides that the defendant was to pay the plaintiff monthly installments of $2634.25 beginning on November 1,1998, and that, in the event of default, the plaintiff had the right “to accelerate the indebtedness to become immediately due and payable and to sue on the Note.” Nothing in either document requires the plaintiff to renegotiate with the defendant or to accept less than the amount provided for in the mortgage. Also, the plaintiff had no obligation to accept the checks that were offered on September 7,1999, when the defendant had been in default for more than eight months. The clearly expressed terms of the mortgage and note support a finding that there was no genuine issue of material fact that the plaintiff did not breach the implied covenant of good faith and fair dealing.

B

The defendant next claims that the court improperly rendered summary judgment despite the plaintiffs having unclean hands for refusing to accept future payments. That claim is without merit.

“The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue. . . . Unless the plaintiffs conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply.” (Internal quotation marks omitted.) Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).

As we stated in part IV A, the plaintiff did not have an obligation to renegotiate the terms of the agreement upon the event of the defendant’s default; nor did the plaintiff have to accept payment after the indebtedness was accelerated due to the default. Accordingly, because the plaintiffs conduct was not of “ ‘such a character as to be condemned and pronounced wrongful by honest and fair-minded people’ ”; id.; there is no genuine issue of material fact that the clean hands doctrine does not apply.

C

The defendant next claims that the court improperly rendered summary judgment despite the plaintiffs breach of the common-law duty of good faith and fair dealing. We disagree.

“The common-law duty of good faith and fair dealing implicit in every contract requires that neither party [will] do anything that will injure the right of the other to receive the benefits of the agreement. . . . Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended.” (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn. App. 657, 665, 778 A.2d 237 (2001). As we discussed in part IV A, a reading of the unambiguous language of the mortgage and note negates any claim that the plaintiff did not comply with the common-law duty of good faith and fair dealing.

D

The defendant next claims that the court improperly rendered summary judgment despite the doctrine of unconscionability. It is the defendant’s contention that the plaintiffs alleged desire to leave the commercial real estate loan business represented a “superior, dominant bargaining position to force [the defendant] to accept unconscionable terms.” We disagree.

“The purpose of the doctrine of unconscionability is to prevent oppression and unfair surprise. ... As applied to real estate mortgages, the doctrine of unconscionability draws heavily on its counterpart in the Uniform Commercial Code which, although formally limited to transactions involving personal property, furnishes a useful guide for real property transactions. ... As Official Comment 1 to § 2-302 of the Uniform Commercial Code suggests, [t]he basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. . . . Unconscionability is determined on a case-by-case basis, taking into account all of the relevant facts and circumstances.” (Citations omitted; emphasis added; internal quotation marks omitted.) Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754, 763, 677 A.2d 479 (1996). Because unconscionability is judged at the time of the making of the contract, and the defendant’s claim rests on alleged actions taken by the plaintiff subsequent to the making of the contract, the doctrine of unconscionability is not applicable to this case. Thus, a genuine issue of material fact does not exist as to the defendant’s claim that the doctrine of unconscionability precluded summary judgment in the plaintiffs favor.

E

The defendant next claims that the court improperly rendered summary judgment notwithstanding the doctrine of equitable estoppel. That claim is without merit.

“Our Supreme Court . . . stated, in the context of an equitable estoppel claim, that [tjhere are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist.” (Internal quotation marks omitted.) SKW Real Estate Ltd. Partnership v. Mitsubishi Motor Sales of America, Inc., 56 Conn. App. 1, 8, 741 A.2d 4 (1999), cert. denied, 252 Conn. 931, 746 A.2d 793 (2000); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60b, p. 365 & (Cum. Sup. 2001) pp. 385-86.

In its appellate brief, the defendant has failed to state how it was misled by the plaintiffs conduct. Without a showing that the defendant was misled, its argument that the doctrine of equitable estoppel should have precluded the court from rendering summary judgment has no basis.

V

The defendant’s final claim on appeal is that the court relied on the absence of an answer as grounds for the rendering of summary judgment. The defendant contends that the court did not consider its special defenses when it decided the summary judgment motions. That claim is without merit.

Although the court stated in its memorandum of decision that “the defendant is technically barred from arguing special defenses which it has not asserted,” it specifically addressed each of the defendant’s special defenses and found that they did not apply to the defendant’s case. Additionally, our review of the defendant’s special defenses in part IV supports the court’s determination that they were not applicable to the facts of this case.

The court properly concluded that there was no genuine issue as to any material fact and that the plaintiff was entitled to judgment as a matter of law. Further, all the special defenses raised by the defendant are without merit.

The judgments are affirmed and the cases are remanded for the purpose of setting new sale dates.

In this opinion the other judges concurred.

       The other defendants, Nicholas E. Owen II, Joseph Siciliano, Sandra M. McDonough and Beazley Stratford, also known as Beazley Company Realtors, are not involved in this appeal. We therefore refer in this opinion to Freshfield as the defendant.

       It should be pointed out, however, that this court is not bound by trial court decisions. Schallenkamp v. DelPonte, 29 Conn. App. 576, 581 n.7, 616 A.2d 1157 (1992), affd, 229 Conn. 31, 639 A.2d 1018 (1994).

       The court found that the defendant had not properly raised those defenses, but the court nonetheless addressed them as if they had been asserted properly. See part V.


author: LAVERY, C. J.

text:
    TOP OF THE TOWN, LLC, ET AL. v. SOMERS SPORTSMEN’S ASSOCIATION, INC.
    (AC 20841)
    Lavery, C. J., and Foti and Peters, Js.
    Argued October 31, 2001
    officially released May 21, 2002

      Christopher M. Harrington, with whom were Bruce D. Tyler and, on the brief, William J. Kupinse, Jr., for the appellants (named plaintiff et al.).

      John H. Parks, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiffs Top of the Town, LLC, Thomas V. Marshall and Tyrone W.G. Marshall appeal from the judgment, rendered after a trial to the court, determining that the defendant, Somers Sportsmen’s Association, Inc., had gained title to approximately twenty-three acres of the plaintiffs’ property through adverse possession. They claim on appeal that the court improperly found that the defendant was not occupying the land with the landowners’ implied permission and failed to find that the defendant’s recognition of title in the Marshalls defeated its ownership claim. They also claim that the court improperly found that the deeds to the disputed portion of the property were void. We conclude that the court improperly put the burden on the landowners to establish ownership rather than on the defendant to show that its possession was under a claim of right. We also conclude that the error was harmful because the evidence relied on by the court did not legally and logically support the conclusion that the defendant held the property under a claim of right. Accordingly, we reverse the judgment of the trial court.

In November, 1954, Robert A. Galbraith acquired contiguous parcels totaling approximately ninety to ninety-five acres that straddle Somers and Stafford. In 1957, he orally gave the defendant, of which he was a member, permission to use a portion of the property as a gun club and shooting range.

Galbraith continued to live in a house on the property with his mother and sister until his death on November 23,1967. Pursuant to the terms of his will, which did not refer to the defendant’s use, the property was deeded to a testamentary trust on January 14, 1974. The trust’s terms gave successive life estates to Galbraith’s mother and two sisters. Annabelle G. Marshall, the last surviving life estate holder, died on December 28, 1994. The trust ended on January 2, 1996, and the property was distributed in fee simple to Galbraith’s nephews, the plaintiffs Tyrone Marshall and Thomas Marshall. At the time of the trial, Thomas Marshall continued to reside in the house.

In 1997, the defendant offered to purchase the entire property from the Marshalls. Pursuant to a purchase and sale agreement created by the defendant, the defendant offered to pay $250,000, minus a monthly rent for Thomas Marshall to continue living in the house and one acre of curtilage. The purchase was never completed. The Marshalls instead sold the property on October 23, 1997, to the plaintiff. The purchase price was the same as that offered by the defendant, but the monthly rent for Thomas Marshall was lower.

On December 4, 1997, the plaintiff Top of the Town, LLC, issued a termination notice and notice to quit the premises to the defendant. When the defendant refused to vacate, the plaintiffs brought a summary process action. The defendant’s second amended answer contained twenty special defenses and a nine count counterclaim. Essentially, the defendant argued that it owned the entire property by virtue of its longtime occupation. Both the plaintiffs’ subsequent motion for summary judgment and the defendant’s motion to dismiss were denied. A five day trial to the court was held from April 21, 1999, to September 16, 1999.

In its memorandum of decision, the court found that the defendant adversely possessed the twenty-three acres that it had fenced off or posted with “No Trespassing” signs, but found no evidence that it possessed any other part of the property. Accordingly, it found for the defendant on the summary process complaint, rendered judgment for the defendant on the adverse possession and quiet title counterclaims, as well as the counterclaims asking for a declaratory judgment that the deeds from the Marshalls to the plaintiff were void, limited to the acreage that the club occupied. It rendered judgment for the plaintiffs on the remainder of the counts. This appeal followed. Additional facts will be provided as necessary.

“[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.) 1525 Highland Associates, LLC v. Fohl, 62 Conn. App. 612, 622, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137 (2001); see also General Statutes § 52-575 (a).

The key issue here is whether the defendant’s use of the property after Galbraith’s death in 1967 was under a claim of right. A “claim of right” does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it has the intent to disregard the true owner’s right to possession. Horowitz v. F.E. Spencer Co., 132 Conn. 373, 378, 44 A.2d 702 (1945); Mentz v. Greenwich, 118 Conn. 137, 146, 171 A. 10 (1934). Conversely, “[i]f any [defendant] during the period in question recognized the plaintiffs ownership of the land, in words or by [its] conduct, the defendant cannot claim that [its] possession was adverse to the plaintiff.” 2 D. Wright, Connecticut Jury Instructions (2d Ed. 1970) § 605, p. 638, citing Horowitz v. F.E. Spencer Co., supra, 378-79; see also Kramer v. Petisi, 53 Conn. App. 62, 71, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999), citing Lazoff v. Padgett, 2 Conn. App. 246, 250, 477 A.2d 155, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984) (“ ‘possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other’ ”). As in the prescriptive easement context, a would-be adverse possessor’s recognition of the true owner’s right to terminate the permission shows permissive use. See Klar Crest Realty, Inc. v. Rajon Realty Corp., 190 Conn. 163, 168, 459 A.2d 1021 (1983).

A finding of adverse possession “is not to be made out by inference, but by clear and positive proof. . . . ‘[C]lear and convincing proof . . . denotes a degree of belief 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, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Citations omitted; internal quotation marks omitted.) Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989). The burden of proof is on the party claiming adverse possession. Kramer v. Petisi, supra, 53 Conn. App. 67.

Despite that exacting standard, our scope of review is limited. “Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion.” (Internal quotation marks omitted.) Wild-wood Associates, Ltd. v. Esposito, supra, 211 Conn. 43. With that standard in mind, we address the plaintiffs’ appeal.

The plaintiffs argue that the defendant occupied the land with implied permission from Galbraith’s death in 1967 until the plaintiff Top of the Town, LLC, issued a notice to quit in 1997. The defendant counters that the court properly found that Galbraith’s oral license was revoked upon his death and its possession thereafter was under a claim of right. It concludes that it gained the property by adverse possession in 1982.

The court properly found that the original arrangement between Galbraith and the defendant was that of a license. “ [A] license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property . . . .” (Internal quotation marks omitted.) Middletown Commercial Associates, Ltd. Partnership v. Middletown, 42 Conn. App. 426, 440, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996). It also properly found that this license expired upon Galbraith’s death in 1967. See Bland v. Bregman, 123 Conn. 61, 65, 192 A. 703 (1937); Prince v. Case, 10 Conn. 374, 382-83 (1835).

Although the license terminated in 1967, the court improperly concluded that the defendant’s occupation automatically converted to a claim of right. “[O]ne who enters into the possession of land in subordination to the title of the real owner, is estopped from denying that title while he holds actually or presumptively under it.” (Emphasis added.) Catlin v. Decker, 38 Conn. 262, 266 (1871). As with a prescriptive easement, implied permission by the true owner is not adverse. See Phillips v. Bonadies, 105 Conn. 722, 725, 136 A. 684 (1927).

Although possession that is originally permissive may become hostile, it does so only if [the permission] is “clearly repudiated by the occupant.” 3 Am. Jur. 2d 149, Adverse Possession § 53 (1986); see also A. Sedgwick & F. Wait, Trial of Title to Land (1882) § 730, p. 508; R. Tyler, Law of Adverse Enjoyment (1876) p. 85. Such repudiation must be shown by “some clear, positive, and unequivocal act brought home to the owner” or the use will be presumed to be permissive. 3 Am. Jur. 2d 149, supra; A. Sedgwick & F. Wait, supra, § 749, p. 539; R. Tyler, supra, p. 877.

The court improperly put the burden on the plaintiffs to establish their ownership interest rather than on the defendant to show that its possession was under a claim of right. The memorandum of decision is replete with statements from which we conclude that the court found that the defendant’s occupation was under a claim of right because the trustees failed to give it express permission to occupy. The court found that “ [o]n Galbraith’s death, it was incumbent upon his executor and subsequently his trustees to preserve and protect the trust assets.” The court found, however, that the trust officers never “undertook to define the relationship of the [defendant] with [the trust] as trustee. Although the trust officer was under the assumption that the [defendant] was in possession with permission, he never required that the permission be acknowledged by the [defendant]. The trust officer never met with the officers of the [defendant] to discuss the [defendant’s use of the Galbraith property.” The court also cited the trustee’s few visits to the land occupied by the gun club, the failure to charge the defendant rent while it charged rent to a life tenant and the trustee’s successful lobbying in 1984 for the defendant to be taxed directly for improvements it made to the property.

The court found that once Galbraith’s express license was terminated, “the possession of the premises by the [defendant] was open, visible, exclusive and without license or consent of the trustees . . . .” Those findings are inconsistent with the law that the burden is on the claimant to prove that the possession was under a claim of right, not on the true owner to show that it was permitted. Cf. Horowitz v. F.E. Spencer Co., supra, 132 Conn. 377 (affirming court’s finding of prescriptive easement where “nothing in the record” suggested court did not put burden of proof on claimants).

Our conclusion that the court improperly placed the burden of asserting ownership on the plaintiffs is further supported by the landlord-tenant case that it relied on to support the principle that a long occupation may raise a presumption that the occupant holds adversely to the true owner. See Camp v. Camp, 5 Conn. 291 (1824). In addition to the Camp case cited by the court, a similar presumption was found to be appropriate in Hanford, v. Fitch, 41 Conn. 486, 499-500 (1874).

In those cases, however, the adverse possessor gave notice that it was holding under a claim of right, and the title owner had not been on the property for many decades. In Camp, both parties agreed that the defendant occupied under a claim of right for fifty-seven years without any interference from or interaction with the lessor’s family and that the original lessor never owned or occupied the land. Id., 301-302. Likewise, in Hanford, the plaintiff had “ample notice from the acts of the parties holding the land” that they were doing so under a claim of right and that the plaintiff abandoned the property when she left Connecticut nearly fifty years earlier. Hanford v. Fitch, supra, 41 Conn. 501. Here, the life tenants and Thomas Marshall continued to occupy the land and to interact with the defendant without any notice that it was occupying under a claim of right.

Camp and Hanford also noted that their holdings were in derogation of the general principle that “a tenant is estopped to deny the title of his landlord, and although a person once a tenant will, prima facie, be deemed to continue in that character so long as he remains in possession . . . .” Id., 499-500. Even if a limited exception for longtime possessors exists in landlord-tenant law, it would not relieve a licensee of its burden to show that its possession was under a claim of right, even when the occupancy is long-standing. See St. Peter’s Church v. Beach, 26 Conn. 355, 365 (1857) (approving of jury charge instructing that key issue was whether licensee carried its burden to show actions were under claim of right).

In arguing that the court did not shift the burden to the plaintiffs but instead found that the defendant’s possession was under a claim of right, the defendant at oral argument directed us to portions of the memorandum of decision in which the court found that the disputed property was enclosed by a locked gate and fence, that the defendant maintained the road with crushed stone and that signage informed of the existence of a gun club and “No Trespassing.” As the defendant conceded, however, all of those were in place when the original license was in effect. Similarly, the rifle range, pistol range, archery target area, turkey shoot and trap range and clubhouse were built in the 1950s or 1960s. Since the expiration of the license, most of the improvements merely have modernized what already was in place, such as covering the rifle range, building a storage shed and putting in a trailer. The defendant’s occupation since 1967 is not a difference in kind, but in intensity. Although membership in the club doubled from 115 to between 220 and 230 since 1970, the defendant conceded at oral argument that Galbraith’s original license did not put any limitation on the amount of membership or use. The defendant also conceded that Thomas Marshall was a member of the organization, and that there was evidence at trial that he was not charged annual membership dues.

Having concluded that the court improperly allocated the burden of proof, we also must decide whether the error was harmful in that it likely affected the result. See Evans v. Santoro, 6 Conn. App. 707, 712, 507 A.2d 1007 (1986). We conclude that it was. The court’s conclusion that the defendant had been in possession of the land, “using it as [its] own” since Galbraith’s death in 1967 cannot stand. Not only does the evidence not logically support the conclusion that the defendant gave notice that it was occupying under a claim of right, but it rather supports that it recognized that it occupied the land with permission. Although the town agreed in 1984 to tax the defendant for improvements, the trust continued to pay taxes on the underlying property. Payment of property taxes is “ ‘powerful evidence’ ” to show that the occupier claimed the land as his own; Wren v. Parker, 57 Conn. 529, 531, 18 A. 790 (1889); see also Merwin v. Backer, 80 Conn. 338, 345, 68 A. 373 (1907); Merwin v. Morris, 71 Conn. 555, 574-75, 42 A. 855 (1899); Kelman v. McDonald, 24 Conn. App. 398, 399-400, 588 A.2d 667 (1991); although it is not dispositive. See Marshall v. Soffer, 58 Conn. App. 737, 745-46, 756 A.2d 284 (2000). In addition to impliedly recognizing that it did not own the property by paying taxes on the improvements but not on the property itself, the defendant seemed to recognize expressly that it was occupying the land with permission until shortly before the plaintiff Top of the Town, LLC, issued the termination notice. Its newsletters detailed its offer to purchase the entire property from the Marshalls and discussed the possibility that it may have to move to another site if it was unable to do so. At no point did the newsletters, the mailing lists for which included Tyrone Marshall, note that the defendant had the right to remain on the property by way of adverse possession.

Because we conclude that the court’s finding that the defendant showed by clear and convincing evidence that it held the property under a claim of right was legally and logically inconsistent with the evidence and that the defendant did not prove its claim of adverse possession, we conclude that the court also improperly found that the deeds were void.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In accordance with the parties’ representation during the trial, the court’s memorandum of decision states that the property is approximately sixty-five acres. Following a survey taken pursuant to settlement talks after the judgment, however, the parcel acreage was found to be approximately ninety to ninety-five acres.

       The counterclaim included claims of adverse possession, quiet title, prescriptive easement, constructive trust, declaratory judgments that various deeds were void, reformation and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

       General Statutes § 52-575 (a) provides in relevant part: “No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards; and no such entry shall be sufficient, unless within such fifteen-year period, any person or persons claiming ownership of such lands and tenements and the right of entry and possession thereof against any person or persons who are in actual possession of such lands or tenements, gives notice in writing to the person or persons in possession of the land or tenements of the intention of the person giving the notice to dispute the right of possession of tire person or persons to whom such notice is given and to prevent the other party or parties from acquiring such right, and the notice being served and recorded as provided in sections 47-39 and 47-40 shall be deemed an interruption of the use and possession and shall prevent the acquiring of a right thereto by the continuance of the use and possession for any length of time thereafter, provided an action is commenced thereupon within one year next after the recording of such notice. The limitation herein prescribed shall not begin to run against the right of entry of any owner of a remainder or reversionary interest in real estate, which is in the adverse possession of another, until the expiration of the particular estate preceding such remainder or reversionary estate.”

       The fact that the defendant improved the disputed twenty-three acres does not necessarily require a finding that it adversely possessed the property. Permanent structures built by a licensee become the property of the licensor unless the structures can be removed and their removal was contemplated by the parties. See Prince v. Case, supra, 10 Conn. 378-79. As one treatise states, “there are no equities in favor of a person seeking to acquire property of another by adverse holding.” 10 G. Thompson, Keal Property (Thomas Ed. 1994) 108, § 87.05.