author: LAVINE, J.

text:
    MICHAEL F. CHEBRO ET AL. v. JONATHAN C. AUDETTE
    (AC 33262)
    Lavine, Alvord and SchaHer, Js.

      Argued March 13
    officially released September 25, 2012

      Matthew G. Berger, for the appellant (defendant).

      Brian J. Murphy, for the appellees (plaintiffs).
   Opinion

LAVINE, J.

This appeal arises out of a quiet title action, brought pursuant to General Statutes § 47-31, concerning the location of a boundary between two parcels of land in Woodstock. The defendant, Jonathan C. Audette, appeals from the judgment rendered in favor of the plaintiffs, Michael F. Chebro and Jeanne E. Cur-tin-Chebro, after a trial to the court. On appeal, the defendant claims (1) that the court’s findings of fact are clearly erroneous and (2) that the court abused its discretion (a) in permitting the plaintiffs’ expert to testify and (b) in admitting into evidence as a business record a survey that the plaintiffs’ expert prepared. We affirm the judgment of the trial court.

The court made the following findings of fact in its memoranda of decision issued September 23, 2010, and March 4, 2011. In 1975, predecessors in title to the defendant engaged in a land swap with predecessors in title to the plaintiffs. The plaintiffs’ predecessors in title hired Gilbert F. Perry to survey the land in preparation for the conveyance. Perry prepared a survey, the Pine Brook Manor survey, dated June 23,1975, and recorded it in the Woodstock land records.

The Pine Brook Manor survey consists of a legal description of the location of the boundaries of the property, utilizing physical features, angles, bearings and distances. Further, the Pine Brook Manor survey incorporates by reference a map depicting the premises, also dated June 23,1975, filed with the Woodstock town clerk. The parties agree that this survey is ambiguous and inaccurate in its mathematical calculations. The description of the property states that the boundaries it details come back around to where they begin, creating a “closed” geometric shape. Yet, the angles and distances in the description do not actually come back to where they begin and do not actually form a closed geometric shape. Nevertheless, deeds to both the plaintiffs’ and the defendant’s properties have referred to the Pine Brook Manor survey since it was completed.

The plaintiffs took title to their parcel in 1994, and this boundary dispute began soon after the defendant acquired title to his parcel in 2006. The plaintiffs commenced an action to quiet title pursuant to § 47-31, and the defendant filed a counterclaim seeking essentially the same relief. In an attempt to discern the intent of the predecessors in title who engaged in the land swap, the parties each hired surveyors to prepare surveys of the defendant’s parcel. The defendant employed Jeffrey Stefanik; the plaintiffs employed Barry Clarke, who completed his survey after Stefanik completed his. Additional facts are set forth as necessary.

At trial, the case largely turned on the expert testimony of the surveyors and their explanations of various exhibits. After hearing and analyzing the evidence, the court rendered judgment in favor of the plaintiffs, adopting the Clarke survey in its decision. This appeal followed.

I

The defendant first claims that the court’s judgment rests on clearly erroneous findings of fact that are unsupported by the record. Specifically, the defendant claims that the court committed clear error in finding Stefanik’s opinion on the recorded dimensions to be less accurate than Clarke’s opinion and in crediting Clarke’s reliance on certain iron pins. Additionally, at oral argument before this court, the defendant claimed that although the court corrected its erroneous finding of fact; see footnote 3 of this opinion; it erred by not changing its judgment. We do not agree.

The following additional facts and procedural history are pertinent to resolving this claim. The ambiguous Pine Brook Manor survey describes the disputed boundary between the plaintiffs’ and the defendant’s parcels in the form of two lines: “[From] a point on the stone wall; thence approximately N. 57 degrees 00’ W. 190 feet, more or less; thence approximately S. 81 degrees 45’ W. 200 feet, more or less, to a fence comer post . . . .’’At oral argument before this court, the defendant pointed out that the parties agree as to both the location of the “point in a stone wall” and the “fence comer post.” According to the defendant, the substance of the dispute is the location of the point where the two lines converge.

Clarke and Stefanik employed different methods in determining the intended location of the two lines, as well as the point where they converge. Clarke testified that he relied on the mutually agreed upon point on the wall and comer post, as well as an additional monument-. a pin depicted in the map that the Pine Brook Manor survey incorporates by reference. In his survey, Clarke further utilized angles, and in scrutinizing the map the Pine Brook Manor survey incorporates by reference, he utilized distances. Stefanik, by contrast, did not rely on the additional monument. In ascertaining the intended boundary, Stefanik testified that he utilized only distances in addition to the mutually agreed on point on the wall and comer post. The court adopted the boundary line that Clarke submitted.

The following legal principles guide our analysis of this claim. “The resolution of conflicting factual claims falls within the province of the trial court. . . . The trial court’s findings are binding upon [a reviewing] court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.” (Internal quotation marks omitted.) Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 762, 674 A.2d 1313 (1996). Ordinarily, “[t]he construction of a deed in order to ascertain the intent expressed in the deed presents a question of law . . . .” (Internal quotation marks omitted.) Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 780, 687 A.2d 1270 (1997). Yet, “[w]here there is an ambiguity in the description of a boundary line in a deed, the question of what the parties intended that line to be is one of fact for the trial court.” Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 511, 280 A.2d 877 (1971); see also 12 Am. Jur. 2d, Boundaries §§ 112 and 114 (2009); 23 Am. Jur. 2d 201-202, Deeds § 192 (2009). Additionally, “[a] reference to [a] map in [a] deed, [f]or a more particular description, incorporates [the map] into the deed as fully and effectually as if copied therein.” (Internal quotation marks omitted.) Schwartz v. Murphy, 74 Conn. App. 286, 291, 812 A.2d 87 (2002), cert. denied, 263 Conn. 908, 819 A.2d 841 (2003), cert. denied, 546 U.S. 820, 126 S. Ct. 352, 163 L. Ed. 2d 61 (2005); see also General Statutes § 7-31 (governing incorporation of recorded maps into deeds).

“An expert witness testifies to assist the trier of fact in understanding the evidence or in determining a fact in issue.” (Internal quotation marks omitted.) Lisiewski v. Seidel, 72 Conn. App. 861, 871, 806 A.2d 1121, cert. denied, 262 Conn. 921, 922, 812 A.2d 865 (2002), quoting Conn. Code Evid. § 7-2. “The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact. . . . [An appellate] court does not try issues of fact or pass upon the credibility of witnesses.” (Emphasis added; internal quotation marks omitted.) Wasniewski v. Quick & Reilly, Inc., 292 Conn. 98, 103, 971 A.2d 8 (2009). “The [trial] court [i]s free to accept or to reject, in whole or in part, the testimony of one expert over another.” Palmieri v. Cirino, 90 Conn. App. 841, 847, 880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005).

In the present case, the court heard extensive testimony from the plaintiffs’ and the defendant’s surveyors, Clarke and Stefanik, both of whom explained in detail the bases for their conclusions. With respect to the location of the disputed boundary line, Clarke testified that he relied on a monument: a pin referenced on the map incorporated by reference into the Pine Brook Manor survey. See Frank Towers Corp. v. Laviana, 140 Conn. 45, 50, 97 A.2d 567 (1953) (“[wjhere the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses anddistances”). He also relied on scaled distances on the map, as well as angles in the description. Stefanik testified that he did not utilize that monument. In light of their testimony and ample additional evidence, we conclude that the court’s factual findings were not clearly erroneous.

The defendant does not claim that there was no evidence to support the court’s findings; rather, he claims that his evidence carried more weight. “[I]t is the function of the trial court to weigh the evidence and the credibility of the parties and to find the facts; we cannot retry the case on appeal.” Riscica v. Riscica, 101 Conn. App. 199, 207, 921 A.2d 633 (2007). This court “do[es] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). Both parties produced witnesses, and it was the function of the trier of fact to determine credibility. See Dooley v. Leo, 184 Conn. 583, 586, 440 A.2d 236 (1981). In doing so, the court could believe all, some or none of the testimony of any particular witness, including either expert witness. Id. The court resolved, the disputed question of fact as to the location of the contested boundary, and this court will not disturb the findings of the trial court.

II

The defendant claims that the court abused its discretion in issuing two evidentiary rulings. In particular, the defendant claims (1) that the court should not have admitted Clarke’s survey into evidence as a business record, and (2) that the court should not have permitted Clarke to testify about his survey because he was unqualified to do so. The plaintiffs contend that neither claim was preserved properly and argue in the alternative that each claim should fail on its merits. We agree with the plaintiffs that the objection to the survey as a business record was not preserved properly. Although the defendant’s objection to Clarke’s testimony was preserved properly, the substance of the claim is without merit. As such, both of the defendant’s claims fail.

Both claims arise from the same point in the trial. When the plaintiffs’ counsel sought to offer Clarke’s survey, the defendant’s counsel questioned Clarke on voir dire. The defendant’s counsel then stated: “I’m going to object to [the survey] coming in, Your Honor. I think this witness isn’t really qualified to testify about what at least purports to be on [it]s own face, [Kenneth] Peterson’s survey.”

Ordinarily, this court “will not review an issue that has not been properly raised before the trial corut.” Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000); see also Practice Book § 60-5. The standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. “In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.” (Citations omitted; internal quotation marks omitted.) State v. Bush, 249 Conn. 423, 427-28, 735 A.2d 778 (1999); see also Practice Book § 5-5.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 157, 971 A.2d 676 (2009). “Appellate review of the admission of a document under [the business record exception to the rule against hearsay] is limited to determining whether the trial court abused its discretion.” River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 795, 595 A.2d 839 (1991).

A

The defendant claims that the court abused its discretion by admitting into evidence as a business record a survey prepared by the plaintiffs’ expert. Because the defendant did not make a proper and timely objection, the claim is not preserved for appeal and we decline to afford it review.

Business records are an exception to the hearsay rule. See Conn. Code Evid. § 8-4 (a) and commentary; General Statutes § 52-180. The defendant’s counsel mentioned neither the business record exception, nor the hearsay rule, when objecting at this point in the trial. As we state in part II B of this opinion, the defendant’s counsel raised an objection to the survey based on Clarke’s qualifications. Elsewhere in the trial, the defendant’s counsel distinctly raised objections on hearsay grounds. “Counsel thus failed to state distinctly the matter objected to and the ground of objection as required ... for appellate review.” (Internal quotation marks omitted.) State v. Darryl W., 303 Conn. 353, 371, 33 A.3d 239 (2012). For this court “[t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Id. We decline to review the claim.

B

The defendant claims that the court abused its discretion by permitting Clarke to testify about a survey signed by someone other than Clarke when he did not personally visit the location. The defendant further argues that Clarke “did not possess the requisite firsthand knowledge to testify . . . .” (Citation omitted.) We disagree.

As a preliminary matter, we address the plaintiffs’ contention that the issue has not been preserved properly. At trial, the defendant’s counsel stated, “I’m going to object to [the survey] coming in, Your Honor. I think [Clarke] isn’t really qualified to testify about what at least purports to be on [it]s own face, Mr. Peterson’s survey.” In overruling the objection, the court stated, among other things, “I think [Clarke is] qualified to testify with regard to the survey that was prepared by his firm.” The statement of the defendant’s counsel served to “apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.” (Internal quotation marks omitted.) State v. Bush, supra, 249 Conn. 427-28. The defendant properly preserved the issue of whether Clarke was qualified to testify about the survey.

“Generally, if a proponent of testimony establishes reasonable expert qualifications for a witness, further objections to that expert’s testimony go to its weight, not its admissibility.” Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 63, 717 A.2d 724 (1998). “[I]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” (Internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., supra, 292 Conn. 158; see also Conn. Code Evid. § 7-2. “[A]n expert’s testimony may be based on reports of others if the reports are those customarily relied on by such an expert in formulating an opinion.” State v. Cosgrove, 181 Conn. 562, 584, 436 A.2d 33 (1980); see also Conn. Code Evid. § 7-4 (b), commentary (“[t]he expert’s opinion may be based on facts made known to the expert before trial and of which the expert has no firsthand knowledge”).

The general rule controls the present case. Clarke testified about his professional qualifications as a surveyor, and his resume was admitted into evidence without objection from the defendant. The defendant has not challenged the proof of Clarke’s qualifications. “Where a surveyor, whose qualifications are accepted by the court, has made a map showing the sum of various acquisitions based upon an examination of the chain of title of all the parties affected, a review of the maps of record and information in the town records, an inspection of the property in question, field work and calculations, his testimony may be accepted as that of an expert.” Bond v. Benning, 175 Conn. 308, 312-13, 398 A.2d 1158 (1978). The plaintiffs “establishe[d] reasonable expert qualifications for [their surveyor, and] further objections to that expert’s testimony [went] to its weight, notits admissibility. ” Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 63. We conclude that the court did not abuse its discretion in permitting Clarke to testify.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties agree that Stefanik personally visited the site to take measurements, and that Clarke utilized measurements, handwritten reports and computerized data that his firm’s field crew collected.

       The court also heard testimony from the plaintiffs and the defendant, as well as from a neighbor, Ernest St. Jean.

       There was a factual misstatement in the opinion due to a transcription error, which suggested that Clarke completed his survey before Stefanik. The defendant filed a motion for reargument, which the court granted. The court corrected its error, clarifying that the misstatement had no bearing on the outcome of the case and that Clarke “presented the better or weightier evidence for the court’s consideration.”

       The precise nature of the defendant’s claim is not clear at first blush. The defendant simply claims that “[t]he [t]rial [c]ourt erred in entering judgment for the [plaintiffs.” A review of the defendant’s briefs and oral argument to this court demonstrates that the defendant takes issue with the court’s findings of fact.

       The defendant also claims that the court erroneously found that Stefanik did not rely on monuments at all. The court’s September 23,2010 memorandum of decision specifically finds otherwise. The court points out that Stefanik “locate[d] an iron pin” other than the pin Clarke used, and that “Stefanik utilized the iron pin” to determine starting points. The court’s statement that “the surveyor retained by the defendant did not rely upon fixed monuments,” when read in context, pertains only to aparticular portion of the survey. We discuss that portion subsequently in this opinion.

       Clarke testified that Peterson was his supervisor and that Peterson signed the surveys pursuant to the firm’s ordinary course of business.

       While overruling the objection that Clarke was not qualified to testify about the survey, the court did state that the business record exception would apply. Earlier statements at trial offer illuminating context. It is clear that the court identified the exception in the interest of expediency. (“I’m just trying to speed things up a bit — if we use the business records exception to the hearsay”). At the point in the trial in question, the defendant’s counsel did not object to the survey being admitted on the ground that it was inadmissible pursuant to the business record exception.

       The substance of the defendant’s claim is not immediately clear. In his brief, the defendant argues that “[t]he [t]rial [c]ourt erred in permitting the expert testimony of Barry Clarke.” Initially, it would seem that the defendant’s claim is directed at all of Clarke’s testimony. Such a claim was not preserved. Clarke testified about his professional qualifications as a surveyor', and his resume was admitted into evidence without objection from the defendant, and Clarke offered extensive testimony before the objection to the testimony about the survey. A review of the defendant’s briefs and oral argument to this court demonstrates that the defendant takes issue with Clarke’s testimony about the survey.


source: Caselaw Access Project

license: Public Domain

text:
    CHASE AND CHASE, LLC v. WATERBURY REALTY, LLC, ET AL.
    (AC 33532)
    DiPentima, C. J., and Lavine and Robinson, Js.

      Argued May 15
    officially released September 25, 2012

      James R. Winkel, with whom, on the brief, was William T. Blake, for the appellant (named defendant).

      Bridget C. Gallagher, with whom was Jared D. Cantor, for the appellee (plaintiff).
   Opinion

LAVINE, J.

This appeal centers on an easement for shared use of a commercial driveway over one parcel of land in Waterbury to access an adjacent parcel. The defendant Waterbury Realty, LLC, appeals from the judgment of the trial court, rendered in favor of the plaintiff, Chase & Chase, LLC. On appeal, the defendant claims that the trial court improperly found that (1) the plaintiff was entitled to a prescriptive easement over the driveway, (2) the plaintiff was entitled to an implied easement over the driveway and (3) the defendant’s actions in placing a fence in front of the driveway constituted a malicious erection of a structure. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. Prior to 1973, the plaintiffs parcel and the defendant’s parcel constituted a single parcel of land owned by Great Brook Realty, Inc. (Great Brook). In 1973, Great Brook subdivided the property into two parcels, one known as 40 East Farm Street (East Farm property) and the other known as 730 North Main Street (North Main property). In 1973, Great Brook transferred the East Farm property to Marktel Realty. After various conveyances, the plaintiff acquired title to the East Farm property in 1997. In 2001, Great Brook conveyed the North Main property to the defendant.

The East Farm property borders East Farm Street to its north and Orange Street to its east. It contains two structures: a large main building located at the comer of East Farm Street and Orange Street, and a smaller garage to the south of the main building. The North Main property is west of the East Farm property and also borders East Farm Street to its north. There is approximately twelve feet between the western side of the East Farm property main building and the North Main property boundary line.

A driveway located mostly on the North Main property opens onto East Farm Street and leads south adjacent to the western side of the East Farm property main building. The owners and occupants of both properties use the driveway to access the properties. From at least the time of the subdivision to the present, the only means of ingress and egress for vehicles using the East Farm property has been the driveway. Tenants, customers and suppliers, using various sized tracks, travel on the driveway to access loading docks attached to the main building on the East Farm property. Additionally, tenants, customers and suppliers travel on the driveway to access parking spaces on the west and south side of the main building. Because there is only twelve feet between the western side of the main building and the North Main property boundary line, trucks and smaller vehicles also cross onto the North Main property when parked at the loading docks or the parking spaces on the west side of the main building. These uses of the defendant’s property have been continuous from 1973 until the time of trial.

Since at least the time of the subdivision, the entranceway to the driveway has had a locked gate. The lock’s purpose was to keep trespassers off the North Main and East Farm properties at night. The last person to leave the premises locked the gate at night, and the first person to arrive in the morning unlocked it. The owners of both properties gave their respective tenants keys to the lock. The owners of the East Farm property replaced the lock over the years. At least one tenant of the North Main property replaced the lock on his own initiative without obtaining the consent of the owner of the North Main property. In 2004, the defendant replaced the gate with a new one and distributed keys to the tenants of the North Main property and to the plaintiff and the tenants of the East Farm property.

In February, 2009, the defendant informed the plaintiff that the defendant intended to erect a fence on the driveway along the boundary between the two parcels. The fence would prevent all vehicular traffic from accessing the main building on the East Farm property. The plaintiffs attorney informed the defendant that the plaintiff claimed to have a prescriptive easement over the driveway. Despite this claim, the defendant erected the fence. The plaintiff then brought this action against the defendant alleging that it had acquired a prescriptive easement and an implied easement over the driveway, and seeking to quiet title to its easements and injunctive relief in accordance with the easements. The plaintiff also alleged that the defendant maliciously erected a fence over the easement area and sought injunctive relief in accordance with its malicious erection of a fence claim.

Following a trial to the court, during which the court heard testimony from, among others, current and former tenants, relatives of deceased predecessors in interest, and agents of predecessors in interest, the court found that the plaintiff had established that it acquired a prescriptive easement and an implied easement over the driveway. The court found that the scope of the two easements was depicted in the plaintiffs exhibit number one, a surveyor’s map entitled “Map Showing Historic Truck Access Off Of East Farm Street,” and the plaintiffs exhibit 1A, which described the proposed easement area in metes and bounds. The court also explained that “[t]he plaintiffs use of said easement shall include the right to pass and repass and to maneuver and park trucks, including trailer trucks, within said easement while using the loading docks all as shown on [the] plaintiffs exhibit [number one].”

Regarding the prescriptive easement, the court found that since 1973, the use of the easement area was open, visible, continuous and uninterrupted for fifteen years and made under claim of right. The court also found that the defendant did not meet its burden of proving, as a special defense, that the plaintiffs use was permissive. Specifically, the court found that “[t]here is no credible evidence that [the defendant] or its predecessors in interest installed a lock before 2004, well after the plaintiff acquired its prescriptive easement. Additionally, there is no evidence that before 2004, [the defendant] or its predecessors in interest ever exercised any dominion over the driveway, ever gave permission to the plaintiff to use the driveway or ever told the plaintiff that it could not use the driveway.”

The court also found for the plaintiff on its malicious erection of a fence count, explaining that the plaintiff proved the necessary elements under General Statutes § 52-480. Specifically, the court found: (1) the defendant erected a fence that “was useless to it”; (2) the defendant “erected the fence with the intention to injure the enjoyment of the plaintiffs East Farm property”; and (3) “the erection of the fence has impaired the plaintiffs use of its East Farm property and its value because the fence prohibits the plaintiff, its tenants and their customers from accessing the loading docks of the main building.” The court granted the plaintiff a permanent injunction barring the defendant “from constructing any obstacle that would interfere with the plaintiffs use and enjoyment of said easement” and ordered the defendant to remove the remainder of “the fence that it constructed on the boundary of the North Main and East Farm properties and [to] restore the East Farm Street driveway to its former condition in the area where the fence was constructed.”

I

The defendant first claims that the court improperly found that the plaintiff was entitled to a prescriptive easement. Specifically, the defendant argues that the plaintiffs use of the driveway was not under a claim of right, was permissive and was the same as that of the general public. The defendant also argues that the plaintiff did not establish the scope of the easement to a reasonable degree of certainty. The plaintiff argues that there was adequate evidentiary support for the court’s findings.

The following principles of law and standard of review govern this claim. General Statutes § 47-37 “provides for the acquisition of an easement by adverse use, or prescription. That section provides: No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years. ... A party claiming an easement by prescription must demonstrate that the use has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. . . . The standard of proof that is required to establish an easement by prescription is a fair preponderance of the evidence.” (Citations omitted; internal quotation marks omitted.) St. Germain v. Hurd, 128 Conn. App. 497, 501-502, 17 A.3d 516 (2011).

“Whether a right of way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered. . . . When the factual basis of a trial court’s decision [regarding the existence of a prescriptive easement] is challenged, our function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id., 500.

The defendant argues that the plaintiff did not use the property -under a claim of right because the plaintiffs predecessors in interest, Frank LaPorta and Concetta LaPorta, in 1981, did not know the location of the property line. According to the defendant, “one cannot act under a claim of right when one does not even know that such a right exists.” Moreover, the defendant argues that neither the plaintiff nor its predecessors in interest made any “overt claim to any ownership” in the driveway. The defendant supports this argument by pointing to an affidavit of title by Great Brook provided to the defendant when the defendant bought the North Main property, stating that Great Brook did not believe that the plaintiff or its predecessors claimed any legal ownership or interest in the driveway.

The defendant misconstrues the claim of right requirement. “The requirement that the [use] must be exercised under a claim of right does not necessitate proof of a claim actually made and brought to the attention of the owner .... It means nothing more than a [use] as of right, that is, without recognition of the right of the landowner, and that phraseology more accurately describes it than to say that it must be under a claim of right. . . . [When] there is no proof of an express permission from the owner of the servient estate, on the one hand, or of an express claim of right by the person or persons using the way, on the other, the character of the [use], whether adverse or permissive, can be determined as an inference from the circumstances of the parties and the nature of the [use]. ... A trier has a wide latitude in drawing an inference that a [use] was under a claim of right.” (Citation omitted; internal quotation marks omitted.) Slack v. Greene, 294 Conn. 418, 428, 984 A.2d 734 (2009).

Contrary to the defendant’s argument, the plaintiff and its predecessors in interest did not have to be aware that they were using the North Main property and did not have to make “an overt claim to any ownership.” See Crandall v. Gould, 244 Conn. 583, 591 and n.6, 711 A.2d 682 (1998). The trial court’s finding that the plaintiff and its predecessors in interest used the driveway “as if they had the ‘right’ to use it” is adequately supported by the evidence. In particular, the East Farm property owners, tenants and customers continuously used the driveway in an open manner since the time of the subdivision, and there was no evidence that the defendant objected to this use until 2009. Additionally, there was evidence that the East Farm property owners and tenants maintained the driveway by plowing it, repairing cracks and filling potholes. The court’s finding regarding the claim of right requirement, therefore, was not clearly erroneous.

The defendant next argues that the evidence demonstrates that its predecessor in interest installed the lock on the gate across the entranceway to the driveway, and, thus, the use of the driveway was permissive. “[I]t is not the plaintiffs burden to establish that an otherwise apparently adverse use of the defendant’s property was conducted without the defendant’s permission or license. . . . When the defendant raises permission by way of a special or affirmative defense, the burden of proof rests on the defendant . . . who must prove the special defense by a fair preponderance of the evidence. . . . Indeed, a contrary rale would unfairly charge a party with proving a negative.” (Citation omitted; internal quotation marks omitted.) Slack v. Greene, supra, 294 Conn. 435.

The record supports the court’s finding that the defendant did not meet its burden of proving that it or its predecessors in interest “installed a lock before 2004” or “gave permission to the plaintiff to use the driveway.” Carl Begley, a tenant of the North Main property and one of the defendant’s witnesses, testified that the gate was unlocked when he first became a tenant and that he installed a lock. He also testified that he spoke with the LaPortas before installing the lock but not with Great Brook, the owner of the North Farm property at the time. Moreover, Frank LaPorta, one of the principals of the plaintiff, testified that he did not believe Great Brook ever installed a lock on the gate. Therefore, the court’s finding that the defendant failed to meets its burden to prove permission was not clearly erroneous.

The defendant next argues that the plaintiffs use and the use by its predecessors in interest was the same as that of the general public. “Where the use of a right-of-way is in common with the public, the common use is considered to negate a presumption of grant to any individual use. In such a case, the individual user must, in order to establish an independent prescriptive right, perform some act of which the servient owner is aware and which clearly indicates his individual claim of right. ... A finding that the use made by the claimant and his predecessors in title was not different from that made by the general public is fatal to the establishment of any prescriptive right in the claimant.” (Citation omitted; internal quotation marks omitted.) Gioielli v. Mallard Cove Condominium Assn., Inc., 37 Conn. App. 822, 829-30, 658 A.2d 134 (1995). The trial court did not make such a finding in this case. As mentioned, there was evidence that the owners of the East Farm property maintained the driveway over the years. Therefore, the fact that the court did not find the use to be the same as that of the general public was not clearly erroneous.

The defendant also argues that the plaintiff did not establish the boundaries of the easement to a reasonable degree of certainty. Specifically, the defendant argues that the plaintiff failed to establish that WB-67 tractor trailer trucks, the size of which factored into the court’s analysis of the scope of the easement, were used continuously from 1973 to 1988. Therefore, according to the defendant, the easement boundary “is larger than that which would have been established as of 1988 and the plaintiff failed to adequately establish the proper bounds of the claimed easement.”

“[A] prescriptive right extends only to the portion of the servient estate actually used . . . and is circumscribed by the manner of its use .... A prescriptive right cannot be acquired unless the use defines its bounds with reasonable certainty.” (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 124, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006). “It is not always necessary or even possible for the party claiming a prescriptive right to establish the precise metes and bounds of the easement. . . . Nor must the common and ordinary use be without any deviation.” (Citation omitted.) St. Germain v. Hurd, supra, 128 Conn. App. 503.

There was sufficient evidence presented to support the court’s finding as to the scope of the easement. For example, George Telesco, who was a principal of Marktel Realty, testified that his brother shipped furniture from the main building on the East Farm property using a pickup truck and “a trailer.” Douglas Beardsw-orth, who had been a tenant of the East Farm property since 1978, testified that he and multiple other tenants received deliveries to and shipped goods from various loading docks on the main building via box trucks and tractor trailer trucks. Frank LaPorta testified that WB-67 tractor trailer trucks used the driveway weekly. Multiple witnesses also testified that the easement area depicted on the plaintiffs exhibit number one accurately set forth the area used by vehicles traveling to and from the East Farm property over the years. This evidence supports an inference that tractor trailer trucks as large as WB-67 used the easement area continuously from 1972 to 1988 and, therefore, that the plaintiff established the easement boundaries to a reasonable degree of certainty.

We therefore conclude that the court properly found that the plaintiff was entitled to a prescriptive easement over the driveway.

II

The defendant also claims that the trial court made clearly erroneous findings of fact in determining that the defendant’s actions in placing a fence on the driveway constituted a malicious erection of a structure. Specifically, the defendant takes issue with the court’s findings that the fence was useless to the defendant and that the plaintiffs use of the main building’s western loading docks did not negatively affect the defendant’s property. The defendant argues that “there was substantial evidence as to the negative impact that the plaintiff’s use of the west loading docks would have on the defendant’s development and use of the North Main property.” The plaintiff argues that there was adequate evidentiary support for the court’s findings.

“The Connecticut progenitor of what have commonly been called the spite fence cases appears to be Whitlock v. Uhle, 75 Conn. 423, 53 A. 891 (1903). . . . In [Whitlock], our Supreme Court construed and applied the predecessors to General Statutes §§ 52-480 and 52-570 and set forth the elements necessary to state a cause of action under §§ 52-480 and 52-570. The court held that the essential elements are: (1) a structure erected on the [defendant’s] land; (2) a malicious erection of the structure; (3) the intention to injure the enjoyment of the adjacent landowner’s land by the erection of the structure; (4) an impairment of the value of adjacent land because of the structure; (5) the structure is useless to the defendant; and (6) the enjoyment of the adjacent landowner’s land is in fact impaired.” (Citation omitted; internal quotation marks omitted.) Jackson v. Lee, 51 Conn. Sup. 399, 416-17, 996 A.2d 762 (2009), aff'd, 121 Conn. App. 375, 996 A.2d 302, cert. denied, 297 Conn. 926, 998 A.2d 1194 (2010). “Whether a structure was maliciously erected is to be determined rather by its character, location and use than by an inquiry into the actual motive in the mind of the party erecting it.” DeCecco v. Beach, 174 Conn. 29, 32, 381 A.2d 543 (1977). Because the defendant is challenging the court’s factual findings, we employ the clearly erroneous standard of review. See Berube v. Nagle, 81 Conn. App. 681, 696-97, 842 A.2d 724 (2004).

The defendant argues, citing photographic evidence of trucks parked at loading docks on the East Farm property, that “the court ignored the evidence presented showing tractor trailer trucks parked on the . . . loading docks of the East Farm property substantially, if not entirely, obstructing access to the North Main property as well as impeding potential parking.” These photographs, however, were taken after the defendant constructed the fence at issue, thus necessitating the trucks to intrude on the driveway more than if the fence had not been erected. Additionally, on the basis of our review of the photographs, the court reasonably could have found there to be adequate room for vehicles to maneuver around the trucks in the photographs. We also note that there was evidence that the North Main property, unlike the East Farm property, was accessible from another entranceway. Accordingly, we cannot conclude that the court’s finding — that the plaintiffs use of the loading docks did not negatively impact the North Main property — is clearly erroneous.

The defendant also argues that the fence was not useless to the defendant in light of the testimony of the LaPortas indicating that “security was a legitimate concern.” The testimony to which the defendant refers, however, established that the gate across the entranceway to the driveway was locked at night because of security concerns, not that the fence blocking access to the East Farm property was erected based on legitimate security concerns. Moreover, the evidence indicated that there were secondary gates already in existence seeming the North Main property. Accordingly, we conclude that the court’s finding that the fence was useless to the defendant was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Great Brook Realty, Inc., also was a defendant in this action. On July 22, 2009, the trial court granted the plaintiffs motion for a default judgment against Great Brook Realty, Inc., for its failure to appear. We therefore refer to Waterbury Really, LLC, as the defendant.

       Because we conclude that the court properly found that the plaintiff was entitled to a prescriptive easement over the driveway and the court found that the implied easement has the same scope as the prescriptive easement, we need not address the defendant’s claim that the court improperly found that the plaintiff was entitled to an implied easement.

       Specifically, Marktel Realty conveyed the East Farm property to Frank LaPorta and Concetta LaPorta in 1981. In 1986, the LaPortas conveyed the property to Chase Realty, which was owned and controlled by the LaPorta family. In 1997, Chase Realty conveyed the East Farm property to the plaintiff, the current owner. The plaintiff also is owned and controlled by the LaPorta family. The LaPorta family, therefore, has had an ownership interest in the East Farm property since 1981.

       The entranceway to the driveway is approximately twenty-eight feet wide and is located almost entirely on the North Main property.

       Vehicles using the North Main property, however, also could use another entrance on North Main Street to access the North Main property.

       In anticipation of litigation, the parties entered into a temporary agreement pursuant to which the defendant removed portions of the fence, thus allowing the plaintiff to gain limited access to the East Farm property until the case was resolved.

       The plaintiff also alleged a count in trespass and sought damages but subsequently withdrew those claims. Additionally, the defendant filed a counterclaim but withdrew it prior to trial.

       The easement area varies in width “but is approximately 28 feet in width” in most locations, which is the width of the entranceway to the driveway.

       The defendant also argues that the plaintiff acknowledged the defendant’s ownership of the driveway, and thus did not act under a claim of right, when the plaintiff did not question the defendant’s replacement of the entranceway gate in 2004. The defendant concedes, however, that 2004 was outside of the timeframe within which the court found that the prescriptive easement had ripened, which was in 1988. We therefore do not address this argument.

       A WB-67 tractor trailer truck measures sixty-seven feet from the middle of the front tires to the middle of the rear tires. The trailer attached to the truck measures fifty-three feet, and the total length of the truck measures seventy-three and one-half feet. The plaintiffs surveyor utilized WB-67 tractor trailer trucks in depicting the proposed easement area, which the court ultimately accepted, on plaintiffs exhibit number one.

       The defendant also argues that, during trial, Frank LaPorta “admitted that the area depicted in [the plaintiffs exhibit number one] was in fact not necessarily what was needed as an easement, and actually that the easement [area depicted in the exhibit] was significantly longer than that needed and used by the plaintiff.” According to the defendant, “[t]he court either overlooked this pertinent testimony, or completely ignored this admission by the plaintiff in finding that the easement to which the plaintiff was entitled consisted of the entire easement [area] set forth in [the plaintiffs exhibit number one].” We disagree. Frank LaPorta was testifying as to an earlier map prepared by the plaintiffs surveyor, which depicted the easement area as extending past the southern boundary of the East Farm property. The plaintiffs exhibit number one, in contrast, depicted an easement area that ended at the southern boundary of the East Farm property.

       General Statutes § 52-480 provides: “An injunction may be granted against the malicious erection, by or with the consent of an owner, lessee or person entitled to the possession of land, of any structure upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same.”

       General Statutes § 52-570 provides: “An action may be maintained by the proprietor of any land against the owner or lessee of land adjacent, who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land.”


author: FLYNN, J.

text:
    AMERICO D’APPOLLONIO, JR., ET AL. v. SARINA GRIFFO-BRANDAO ET AL.
    (AC 32187)
    DiPentima, C. X, and Robinson and Flynn, Js.

      Argued November 16, 2011
    officially released October 2, 2012

      Jeffrey M. Sachs, for the appellants (plaintiffs).

      Gennaro Bizzarro, for the appellees (defendants).
   Opinion

FLYNN, J.

The plaintiffs, Americo DAppollonio, Jr., and Carmela L. DAppollonio, appeal from the judgment of the trial court, rendered after a court trial, in favor of the defendants, Sarina Griffo-Brandao and her father, Pasquale Griffo, on their claims arising from the defendants’ partial construction of two retaining walls in an easement area located on Griffo-Brandao’s property in a residential subdivision, known as West Ridge Estates, in Rocky Hill. On appeal, the plaintiffs claim that the trial court committed error by (1) exercising subject matter jurisdiction over the controversy when all indispensable parties were not joined, (2) determining that the construction of the walls within the easement area was consistent with the easement covenants, (3) determining that the consent of the neighboring lot owners was not a prerequisite to construction of the walls within the easement area, and (4) determining that the consent of the plaintiffs to the construction of the second wall was procured. The plaintiffs additionally claim the court committed error by finding in favor of the defendants on their counterclaim — that the plaintiffs’ plantings within the easement area violated Griffo-Brandao’s property rights. We affirm the judgment of the trial court.

The following undisputed facts and procedural history inform our review. The plaintiffs are husband and wife who own lot 4 in the residential subdivision. The plaintiffs and Griffo-Brandao own lots abutting one another in the residential subdivision. Although the plaintiffs’ lot 4 has street access to New Britain Avenue, a public highway, lot 13 does not. The easement area at issue in this case is located on lot 13, owned by Griffo-Brandao. The easement area is approximately thirty feet in width where the walls at issue were constructed, and it permits ingress and egress for lot 4 and for lots 2 and 3 owned, respectively, by Lambrine Sideriadis and Diana Hughes. Sideriadis and Hughes never were joined as parties in this action, although they did testify as witnesses at trial. The easement area lies within the northern boundary of lot 13 where it begins at West Ridge Drive and runs in a northeasterly direction before ending at lot 13. At the time of the court’s decision, the easement area was paved from West Ridge Drive only to the driveway of plaintiffs’ lot 4, with the remaining portion of the easement area, extending to the front of Griffo-Brandao’s lot 13, remaining unpaved.

The plaintiffs and Griffo-Brandao both purchased their respective properties subject to the provisions of the “Declaration of Easements and Covenants” (easement declaration), recorded on March 9, 2004, at volume 452, page 414, of the Rocky Hill land records.

Paragraph 8 of the easement declaration, recorded in volume 452, page 416 of the Rocky Hill land records, provides that “[w]hereas, the Declarant intends on subdividing its land to the south of said Lots 2, 3 and 4, it reserves the right to solely amend this Declaration to incorporate newly created lots or reference a new subdivision map.”

Paragraph 9 provides that “ [t]his Declaration may be amended by the written agreement of [75] . . . percent of the owners of lots or land which utilize the easement area.”

Paragraph 2 provides that the purpose of the easement area shall be for “[a] mutual driveway for passing and repassing on and over the easement area by foot or by vehicle to gain access to and from said Lots and land” and “[l]aying, installing, using, maintaining, repairing or replacing . . . utilities, pavement, gravel or other improvements on or under the easement area as may reasonably be necessary . . .

Paragraph 5 expressly provides that no lot owner shall obstruct an easement by the parking of vehicles, erection of structures, or planting of bushes or trees. The easement declaration was amended on December 3, 2004, with express provisions incorporating lot 13 into the residential subdivision and establishing the easement area across lot 13 in favor of lots 2, 3 and 4. The amendment also expressly subjects lot 13 to the easements and covenants previously set forth in the easement declaration.

The court made the following factual findings. “The plaintiffs . . . are the owners of lot 4 and . . . Griffo-Brandao is the owner of lot 13 in [the] residential . . . subdivision. These lots abut each other with [the easement area] located for ingress and egress on lot 13 with covenants for the improving and maintenance of the easement [area] together with the liability for the proportional costs associated with the individual lot benefits received from the use of these lots ....

“The easement [area] at the present time is paved to the driveway of [the] plaintiffs’ lot 4. The remaining portion of the easement [area] is not paved as lot 13 was not built up or improved at that time. The construction of [Griffo-Brandao’s] residence is under way on lot 13 together with a driveway to the easement [area],

“[Griffo-Brandao] proposes to improve that portion of the unpaved easement [area] from the paved section ending at the plaintiffs’ driveway to the driveway at lot 13. To accomplish this . . . Griffo . . . who was overseeing the construction of lot 13, obtained the necessary town permits and approvals. He also contacted lot owner Americo D’Appollonio, Jr., and obtained permission to enter onto lot 4 during construction of a concrete retaining wall for improving the unpaved portion of the easement [area] ....

“The wall being constructed by the defendants along the mutual boundary of lots 4 and 13 was located on lot 13 but within the easement area. At the same time, concrete footings were being constructed on the opposite side of the easement [area] for a parallel wall. These walls would slope the paved easement [area] from the higher ground of lot 13 to the lower level of lot 4.

“This construction by the defendants within the easement [area] was permitted by and consistent with the easement covenants. The construction costs are the liability of . . . Griffo-Brandao, since the complete benefits of the easement [area] improvement is to lot 13.

“The plaintiffs have obtained a separate ingress and egress access from their lot 4 to a public highway and thus no longer use the easement [area] as a passway and have suffered no injury to their easement rights as a result of the defendants’ construction activity on the easement [area].

“The plaintiffs’ contention that the concrete wall being built by the defendants is an eyesore was based upon its personal appearance during the course of construction and does not indicate what the final result will be. In any case, the plaintiffs are benefitting from the construction of the wall as surface water from lot 13’s higher ground has drained into [the] plaintiffs’ yard and the wall will reduce surface flow onto lot 4.” (Citations omitted.)

On June 9, 2009, the plaintiffs filed a complaint alleging generally that the defendants’ construction of the retaining walls deprived the plaintiffs of the use of the easement area. On August 6, 2009, the defendants filed an answer generally denying liability and raised a counterclaim seeking in count one compensatory and consequential damages from the plaintiffs for causing delay to the construction of the two retaining walls. In count two of the counterclaim, they sought an injunction against the plaintiffs to remove plantings and other obstructions from the easement area that were hostile to Griffo-Brandao’s underlying title.

The plaintiffs filed an amended complaint on October 6, 2009, again alleging the defendants’ construction of the two retaining walls violated paragraph 5 of the easement declaration by obstructing and preventing the plaintiffs from fully utilizing the easement area. The amended complaint, however, for the first time, alleged that the defendants’ decision to raise the grade of the easement area and to place a garbage dumpster and portable toilet within the easement area violated the “Declaration of Covenants and Restrictions” (restrictive declaration). The amended complaint also reiterated a claim for a declaratory judgment determining the rights of the parties to the easement and settling title thereto in accordance with General Statutes § 47-31. The defendants never filed an answer to the plaintiffs’ amended complaint, which was permitted over objection on the first day of trial, and a court trial on the merits ensued despite the absence of closed pleadings.

After a court trial on the merits, the court, Hon. Julius J. Kremski, judge trial referee, rendered judgment in favor of the defendants on both counts of the plaintiffs’ amended complaint. The court observed that the construction of the two retaining walls within the easement area was consistent with and permitted by the easement covenants and that it benefited the plaintiffs by reducing the surface flow of water onto lot 4. The court also noted that the plaintiffs had obtained a separate ingress and egress from lot 4 to a public highway which no longer necessitates their use of the easement area as a passway and therefore had suffered no injury as a result of the construction of the retaining walls. Regarding the placement of the temporary toilet and garbage dumpster, the court concluded that they were acceptable as temporary inconveniences and that no evidence was presented to show that the defendants were made aware that the presence of these objects troubled the plaintiffs.

As to the counterclaim, the court rendered judgment in favor of the plaintiffs on the first count and in favor of the defendants on the second count. On the first count, in which the defendants claimed construction delay damages, the court’s judgment was not appealed. On the judgment on the second count, from which the plaintiffs appeal, the court ordered the plaintiffs to remove all plantings and encroachments from the easement area within ninety days after which the defendants could proceed and remove the encroachments at the plaintiffs’ cost. This appeal followed.

I

We commence our review by addressing first the plaintiffs’ claim that the trial court lacked subject matter jurisdiction to adjudicate the dispute because Sideriadis and Hughes, the owners of lots 2 and 3, were indispensable parties who were never joined as parties to the action. We disagree with the plaintiffs and conclude that the trial court possessed the necessary subject matter jurisdiction to adjudicate all of the claims and the counterclaim brought before it. We also conclude that failure to join a party who may claim an interest does not defeat jurisdiction of the court to hear the matter unless a statute or due process mandates otherwise. We further conclude that the statutory mandate found in the quiet title statute, § 47-31, although on its face mandating joinder, is subject to an exception drawn by our Supreme Court which permits such an action to proceed in the absence of some parties. We finally conclude that the failure to join Sideriadis and Hughes did not violate their due process rights.

We begin by setting forth our well established standard of review. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, 275 Conn. 105, 135, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006). “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it .... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . Catrini v. Erickson, 113 Conn. App. 195, 196, 966 A.2d 275 (2009).

A

At the outset, we address the defendants’ argument that the plaintiffs failed to raise their claim regarding indispensable parties at trial and that they, therefore, are barred from raising an unpreserved claim that the trial court lacked subject matter jurisdiction. We disagree. Subject matter jurisdiction is a question of law and cannot be waived or conferred by consent. Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993). Unlike most unpreserved claims, subject matter jurisdictional defects can be raised for the first time on appeal. AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 667 n. 11, 775 A.2d 284 (2001). Subject matter jurisdiction may also be raised sua sponte by the court. Serrani v. Board of Ethics, supra, 308. The plaintiffs’ claim that the trial court lacked subject matter jurisdiction therefore is properly before this court.

B

We now turn to the plaintiffs’ claim that the trial court lacked subject matter jurisdiction because Sideri-adis and Hughes, as parties that maintain an interest in the easement area, were never joined in the action. We disagree.

It is clear that Sideriadis and Hughes, as property owners within the same residential subdivision and having an interest in the easement area, were never joined as parties to this action. It is well established, however, that ah action cannot be defeated due to the nonjoinder or misjoinder of parties, and failure to notify or join indispensable parties does not deprive a court of subject matter jurisdiction. General Statutes § 52-108; Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 288-89, 914 A.2d 996 (2007); Bauer v. Souto, 277 Conn. 829, 838-39, 896 A.2d 90 (2006). Instead, the remedy for nonjoinder of parties is by motion to strike. Bauer v. Souto, supra, 839. The nonjoinder of a party will generally implicate the court’s subject matter jurisdiction and require dismissal, however, if a statute mandates the naming and serving of the party. Yellow Cab Co. of New London & Groton, Inc. v. Dept. of Transportation, 127 Conn. App. 170, 176-77, 13 A.3d 690, cert. denied, 301 Conn. 908, 19 A.3d 178 (2011); Sullivan v. Thorndike, 104 Conn. App. 297, 301, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 908, 942 A.2d 415, 416 (2008).

Our plenary review of the claims brought before the court reveals no jurisdictional defect, by nonjoinder of parties who may claim an interest in the subject matter, that implicates the trial court’s subject matter jurisdiction. Only three types of relief were requested by the parties at trial, and only one of those requests for relief was a statutory action that mandated the joining of certain parties. In addition to seeking injunctive relief to remove and enjoin further construction of the retaining walls, the plaintiffs also sought a judgment quieting title under § 47-31 as a statutory action. The defendants, via counterclaim, also sought (1) injunctive relief ordering the plaintiffs to cease interference with the construction of the retaining walls and to remove plantings, landscaping and stone curbings from the easement area, (2) a declaratory judgment declaring the right of the defendants to complete the construction of the improvements within the easement area in accordance with the permits obtained from the town of Rocky Hill and (3) a finding that the plaintiffs had abandoned their right to enforce the easement as to the retaining wall.

The plaintiffs’ claim that the trial court lacked subject matter jurisdiction fails because the general rule that failure to notify or to join claimed indispensable parties does not implicate a court’s subject matter jurisdiction applies to the parties’ claims for injunctive and declaratory relief. See General Statutes § 52-108; Batte-Holmgren v. Commissioner of Public Health, supra, 281 Conn. 288-89; Bauer v. Souto, supra, 277 Conn. 838-39; see also Cappo v. Suda, 126 Conn. App. 1, 13-15, 10 A.3d 560 (2011) (failure to join parties who may claim interest for claims involving declaratory and injunctive relief did not deprive trial court of subject matter jurisdiction to render judgment for both claims). As mentioned previously, the only exception to this general rule is when a statute expressly mandates the naming and serving of a party. The only such statute invoked by either party in the instant matter is the plaintiffs’ action to quiet title pursuant to § 47-31 (b), which mandates that the complaint “shall. . . name the [party] or [parties] who may claim the adverse estate or interest.” However, our Supreme Court, despite that mandate, has established that failure to join such parties under § 47-31 does not constitute error. See Swenson v. Dittner, 183 Conn. 289, 292, 439 A.2d 334 (1981) (“[Section 47-31] requires the plaintiffs to name the person or persons who may claim [an] adverse estate or interest. ... 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 failure to include [parties who may claim an interest] ... is not error because the decision to join a party in a suit to quiet title is made by the plaintiff.” [Citations omitted.]) After careful review of the record, we conclude that the failure to join Sideriadis and Hughes does not implicate the court’s subject matter jurisdiction.

C

Having concluded that the court possessed the necessary subject matter jurisdiction, we next must consider whether the due process interests of Sideriadis and Hughes were violated. Although failure to join parties who may claim an interest does not generally implicate the court’s subject matter jurisdiction, failure to provide notice may nonetheless implicate due process concerns that would compel a court to require notice or joinder before proceeding with the action. Batte-Holmgren v. Commissioner of Public Health, supra, 281 Conn. 289. “[A] court may refuse to proceed with litigation if a claim cannot properly be adjudicated without the presence of those indispensable [parties] whose substantive rights and interests will be necessarily and materially affected by its outcome. . . . Joinder of indispensable parties is mandated because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action], . . . Hilton v. New Haven, 233 Conn. 701, 722-23, 661 A.2d 973 (1995).” (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 289-90.

We conclude that the failure to join Sideriadis and Hughes did not infringe on their due process rights. “[A] person who is not a party will generally not be bound by a declaratory ruling. . . . [A]n interested person who is not notified of the action is subject only to the stare decisis impact of the judgment. If the situation of an interested person is quite similar to that of one of the parties, then the stare decisis impact of the interested person may be strong, but, because of the similarity of interests, the existing parties are likely to have represented well the nonparty’s interests.” Id., 291. Sid-eriadis and Hughes, the unjoined owners of lots 2 and 3, had rights and interests in the easement area identical to the named parties in the present case. Both Sideriadis and Hughes and the named parties possessed title subject to the terms and provisions of both the easement declaration and the restrictive declaration. Should Sid-eriadis and Hughes seek a future declaratory judgment or injunctive relief relating to similar conduct brought before the trial court in this action, they will be subject to only the stare decisis impact of this ruling. Accordingly, we decline to remand this case so that Sideriadis and Hughes may be joined or afforded notice. We conclude, as a matter of law, that the plaintiffs and defendants were entitled to judgments arising from their claims for declaratory and injunctive relief as set forth in the plaintiffs’ amended complaint and in the defendants’ counterclaim, respectively. See Cappo v. Suda, supra, 126 Conn. App. 16-17.

II

Having determined that the court properly exercised jurisdiction and did not violate the due process rights of Sideriadis and Hughes, we now consider the merits of the plaintiffs’ additional claims on appeal. We first consider the plaintiffs’ claim that the court committed error in determining that the plaintiffs consented to the construction of the retaining walls. The plaintiffs argue that it is unclear whether the court found that they consented to the construction of both retaining walls. The plaintiffs further argue that even if the court made such a finding, it is erroneous because they did not consent to the construction of the first retaining wall as built, and never consented to any construction whatsoever of a second retaining wall. We disagree with the plaintiffs that the court committed error in determining that the plaintiffs consented to the erection of both walls as constructed.

We first set forth our standard of review. Because this claim challenges the accuracy of the court’s factual findings, our review is limited to the clearly erroneous standard. “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... A factual finding may be rejected by this court only if it is clearly erroneous.” Assn. Resources, Inc. v. Wall, 298 Conn. 145, 184-85, 2 A.3d 873 (2010). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Goodspeed Airport, LLC v. East Haddam, 302 Conn. 70, 76, 24 A.3d 1205 (2011). “Underthe clearly erroneous standard of review, a finding of fact must stand if, on the basis of the evidence before the court and the reasonable inferences to be drawn from that evidence, a trier of fact reasonably could have found as it did.” (Internal quotation marks omitted.) McBurney v. Paquin, 302 Conn. 359, 368, 28 A.3d 272 (2011).

We conclude that the court made a finding that the plaintiffs consented to the construction of both walls in the easement area. The following factual findings and analysis, as set forth in the court’s memorandum of decision, are necessary for the clarification and resolution of this claim. On the basis of a May 4, 2009 letter (May 4 letter) sent by the plaintiffs to the defendants, which was introduced into evidence, the court found that “ [a] written document was signed by Americo D’Ap-pollonio and given to . . . Griffo . . . agreeing with and permitting the easement construction by the defendants and to enter on [the] plaintiffs’ lot 4 during construction.” (Citation omitted.) Our review of the May 4 letter reveals that the court’s use of the word “construction” indicates that the court found that the plaintiffs acquiesced in the construction of both retaining walls. The May 4 letter states that “the retaining walls. . . will have to be built outside and away from [the plaintiffs’] property” and that “[i]t is [the plaintiffs’] understanding that the to-be-built retaining wall along with the footings and supports will be constructed within the easement area.” (Emphasis added.) The court made a similar finding, later in the memorandum of decision, when it stated: “[Griffo] . . . contacted . . . Americo D’Appollonio . . . and obtained permission to enter onto lot 4 during construction of a concrete retaining wall improving the unpaved portion of the easement [area].”

The court further found that “subsequently, the plaintiffs changed their minds and asked the defendants to delay construction,” but that “[t]he [defendants refused pointing out that they had executed the construction contracts and the work was to begin the following day.”

The court then concluded its findings as follows: “Carmela D’Appollonio . . . pointed out that as a co-owner, she had not signed the approval. She did admit that she had discussed the matter with . . . Americo [D’Appollonio] . . . had been to the town building offices . . . had checked the defendants’ construction documents on file . . . was aware of the wall construction and . . . had not objected to [Americo D’Appol-lonio] representing her in [the] matter. She did . . . raise objections to the approximately six foot height of the wall and its rough appearance . . . .”

There was ample evidence at trial to support the court’s finding that the plaintiffs consented to the construction of the retaining walls. During redirect examination, Carmela D’Appollonio testified that when she composed the May 4 letter, it was her intention to convey to the defendants that the retaining walls could not be built on the plaintiffs’ property. When asked by counsel if she was indicating and consenting that the retaining walls could be constructed in the easement area, she answered as follows: “I was more concerned with the fact that there was a potential for part of this wall to be on our property. That’s what I was trying to emphasize [in the letter].” She later testified that she composed a letter dated May 13, 2009, in which she expressed her position that she no longer agreed to the construction of the first retaining wall. Americo D’Appollonio then testified that he did not have any concerns about the construction until after the footings and forms were installed. He also testified that when he later asked Griffo to stop pouring the concrete for the wall, Griffo asked if he would pay but that he did not answer. Griffo then testified that both plaintiffs orally agreed to the construction of the two walls. Perhaps the most important testimony the court could have credited to justify its finding was that of Jean Pierre Langolis, the building official for the town of Rocky Hill, who supplemented Griffo’s testimony by testifying that his department issued building permits for the construction of two retaining walls. Langolis further testified that these permits were issued pursuant to the plaintiffs’ consent to the construction of both walls as evidenced by the May 4 letter. The plaintiffs have therefore failed to demonstrate that the court’s finding that they Consented to the construction of both walls was infected by clear error.

We address next the plaintiffs’ claim that they did not consent to the erection of the first retaining wall as constructed. We disagree. The plaintiffs argue that the dimensions of the constructed retaining wall differ substantially from a hand drawn sketch of the proposed wall attached to an. April 24, 2009 letter authored by Griffo thanking the plaintiffs for allowing the defendants to “work from [the plaintiffs’] side of [the] property line as [the defendants] construct [their] needed retaining wall.” The sketch depicts a retaining wall that is 125 feet long and 6 feet in height at its highest point. The plaintiffs claim that the wall that actually was erected was 165 feet long and 8.8 feet high at its highest point. Although the completed wall was 8.8 feet high at its highest point, the record reveals that the plaintiffs are mistaken and that the wall was only 116 feet in length. Furthermore, Griffo testified that the plaintiffs refused to sign the letter attached to the sketch thereby allowing the court to infer that they did not consent at all to the proposed dimensions indicated in the sketch. Instead, Griffo testified that the plaintiffs told him they would write and send him their own letter through which they would indicate their consent to the construction. This letter was the May 4 letter which Griffo testified he eventually received sometime thereafter. The May 4 letter makes no reference to Griffo’s April 24 letter or the sketch attached thereto. Although the May 4 letter grants consent to the defendants to construct a retaining wall, it gives no instruction that the wall should be built according to any specific set of dimensions. Consequently, the plaintiffs did not sustain their burden to show that the court committed clear error in determining that the plaintiffs consented to the erection of the first retaining wall as constructed.

m

We turn now to the plaintiffs’ claim that the court erred in its determination that the construction of both retaining walls was consistent with the easement covenants. Because we have already determined that the plaintiffs consented to the construction of both retaining walls, it is unnecessary for us to examine whether that construction was consistent with the terms of the easement covenants. Accordingly, we decline to review this claim.

IV

We next consider the plaintiffs’ claim that the court committed error in determining that consent of Sideri-adis and Hughes, the other lot owners who maintained an interest in the easement area, was not a prerequisite to allow the construction of the retaining walls within the easement area. The plaintiffs raise this claim on a presumption that the court found, as a factual matter, that the plaintiffs consented to the construction of both walls. We conclude that this claim has no merit. Having already concluded, in part I of this opinion, that it was not error for the court to render judgment in the absence of Sideriadis and Hughes, we now conclude that the plaintiffs have failed to show how they were aggrieved by Sideriadis’ and Hughes’ absence as parties to the action. “The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specifically and injuriously affected by the [challenged action].” (Internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369, 880 A.2d 138 (2005). Although it may be argued that Sideriadis and Hughes might have had an interest in the controversy that they wished to protect, their absence in this action affects only their own respective interests. The plaintiffs have not shown that any right that Sideriadis and Hughes might have to grant or to withhold consent to the construction of the walls is somehow the plaintiffs’ specific, personal and legal interest. Accordingly, we decline to review this claim.

V

The plaintiffs’ final claim is that the trial court committed error in determining that the plaintiffs’ plantings in the easement area violated Griffo-Brandao’s property rights. We disagree with the plaintiffs.

This issue arises from the second count of the defendants’ counterclaim, which alleged that the plaintiffs installed and maintained plantings in the easement area that were open and hostile to Griffo-Brandao’s title and were not permitted under the terms of the easement declaration. The plaintiffs concede that their plantings encroach into the easement area but dispute the court’s conclusion that the plantings violated Griffo-Brandao’s easement rights by creating an obstruction. Our review of the court’s conclusion that the plantings violated Griffo-Brandao’s easement rights involves a mixed question of fact and law. “[S]o-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this,,sense. . . . [Such questions require] plenary review by this court unfettered by the clearly erroneous standard. . . . When legal conclusions of the trial court are challenged on appeal, we must decide whether [those] . . . conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Crews v. Crews, 295 Conn. 153, 162-63, 989 A.2d 1060 (2010).

It is clear that the court based its ultimate conclusion that the plantings violated the terms of the easement declaration upon a finding that the plantings obstructed the easement area. First, the court concluded that the plaintiffs “have planted shrubs on the [easement area] in violation of the easement’s terms and [in] violation of [Griffo-Brandao’s] rights to the underlying title.” Later, the court made a finding that the plantings obstructed the easement area when it characterized the defendants’ claim as follows: “[T]he defendants seek to have the plaintiffs remove plantings and other obstructions from the easement area in that they are not authorized by the terms of the easement and are in fact hostile to [Griffo-Brandao’s] underlying title.” (Emphasis added.) Our examination of the terms of the easement declaration reveals that the court’s ultimate conclusion that the plantings violated the terms of the easement was legally and logically correct given the facts found that appear in the record. Paragraph 5 of the easement declaration provides in relevant part: “No owner shall block or permit obstruction of the easement area by the . . . planting of bushes ... or otherwise.” The American Heritage Dictionary defines “block” as “to stop or impede the passage of or movement through, hinder or obstruct.” American Heritage Dictionary (2d College Ed. 1985) “Obstruct” is defined by Black’s Law Dictionary to mean “[t]o block up; to interpose obstacles; to render impassable; to fill with barriers or impediments, as to obstruct a road or way.” Black’s Law Dictionary (6th Ed. 1990). Paragraph 5 makes expressly clear that plantings within the easement area violate the easement declaration if the plantings block or obstruct the easement area. The plaintiffs concede in their appellate brief that their plantings encroached into the easement area. Furthermore, the court heard Griffo’s testimony that the plantings interfere with his ability to drive through the easement area. The court was also free to consider the fact that the entirety of the easement area crosses over Griffo-Bran-dao’s property which it could weigh toward its finding that her property rights were violated. Accordingly, we conclude that the court properly determined that the plaintiffs’ plantings violated the terms of the easement declaration because the plantings encroached on the easement area and blocked or obstructed it.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court describes the access easement as situated on Griffo-Brandao’s lot 13 and abutting the boundary of and serving the plaintiffs’ lot 4. However, it is clear from the record that the access easement also serves lots 2 and 3.

       Although the court allowed the trial to proceed in the absence of closed pleadings, we are not prohibited from reviewing its judgment in this appeal. See Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 106, 523 A.2d 888 (1987); Rummel v. Rummel, 33 Conn. App. 214, 219, 635 A.2d 295 (1993).

       The plaintiffs requested that the trial court articulate its decision. Following the court’s denial of that motion, the plaintiffs, pursuant to Practice Book § 66-7, filed a motion for review with this court on October 28, 2010, to compel the trial court to issue an articulation to ensure an adequate record for appellate review. On January 5, 2011, this court granted in part the plaintiffs’ motion and ordered the trial court to articulate (1) whether it found that the defendants had obtained approval for their construction from any of the other subdivision lot owners, other than Americo D’Appol-lonio, and, if so, from whom did they obtain such consent and (2) whether or not it made any ruling that the plaintiffs’ passway rights over the easement area were extinguished, abandoned or terminated as a matter of law. On April 1, 2011, the court issued its response by answering in the negative to each requested articulation.

       Pursuant to Practice Book § 60-5, and Practice Book § 60-2, which provides in relevant part that a reviewing court may, “on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial record for the proper presentation of the appeal,” this court sua sponte ordered the trial court to specify and articulate whether all of the factual references in the “factual situation” portion of the decision were findings of fact. On April 20, 2012, the court issued the requested articulation and clarified that all of the references in the “factual situation” section were findings of fact. Furthermore, the court corrected the last sentence on page two of its memorandum of decision from “[Tjhereafter, the plaintiffs sought and received a court order enjoining further work of the walls by the defendants” to “(Tjhereafter, the plaintiffs sought and never received a court order enjoining further work of the walls by the defendants.”

       The plaintiffs do not dispute that they consented to the construction of the first retaining wall. However, they claim that the wall, as constructed, exceeded the terms of the original agreement with one of the key differences being that the wall was ultimately installed in a different location than what Griffo had originally represented.

       We note that the court erroneously references exhibit 35 as the document in question where Americo D’Appollonio expressly grants permission to the defendants to enter onto the plaintiffs’ property for the purpose of undertaking the easement construction. Exhibit 35, in fact, is a letter signed by Griffo-Brandao thanking the plaintiffs for granting their permission to allow the defendants access to the plaintiffs’ property for construction of the retaining walls. This error by the court, however, is harmless. It is clear that the document the court intended to reference is exhibit B. Exhibit B is signed by Americo D’Appollonio and contains the language that the court references in its memorandum of decision.