BARBARA F. O'MALLEY & a.
AARON LITTLE & a.
Argued: May 18, 2017
Casassa Law Office, of Hampton (Daniel R. Hartley on the
brief and orally), for the plaintiffs.
Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on
the brief and orally), for Aaron Little and Maryann Little.
Aaron and Maryann Little (Littles) appeal an order of the
Superior Court (Anderson, J.) quieting title in the
plaintiffs, Barbara F. O'Malley and her daughter Helen T.
O'Malley, of a strip of land based upon adverse
possession, as well as a previous order denying the
Littles' motion for summary judgment. We affirm.
pertinent facts are as follows. Barbara and her husband,
Joseph, acquired the property at 7 McKay Avenue in Hampton
(McKay Lot) in 1963 for use as a summer home. Over the next
50 years, the couple lived there with their children,
including their daughter Helen, during the summer months;
they also used the property for week-long vacations in April
and intermittent weekend trips. The backyard of the McKay Lot
abuts the backyard of the Littles' property at 6 Francis
Street (Francis Lot).
October 1993, Barbara contracted for the installation of a
chain link fence between the McKay Lot and the Francis Lot
after tenants from the latter began walking across the yard
of the Francis Lot with beach chairs and scratching
Helen's car. The fence was placed about three to five
feet over the property line between the two lots. Between the
fence and the property line (disputed area), there is a
clothesline as well as an outdoor shower and grill, all of
which were used frequently by the O'Malley family. The
plaintiffs and their relatives and friends would occasionally
park against the fence.
1996, following the death of her husband, Barbara deeded the
McKay Lot to herself and her daughter Helen. Around this
time, Helen planted three rose bushes in the disputed area
against the fence, one of which still exists. Tenants of the
Francis Lot and other individuals occasionally cut through a
gap that existed between the fence and another fence that
separated two other abutting properties, but few individuals
walked across the disputed area. The individuals who did
cross the disputed area did so on only a few occasions.
Littles purchased the Francis Lot in December 2008. Upon
acquiring the property, the Littles assumed that the actual
property line was represented by the fence between the two
properties. However, in the spring of 2010, Scott McCarthy, a
prior owner of the Francis Lot, informed the Littles that the
plaintiffs' fence encroached approximately three to five
feet onto the Francis Lot from the actual property line. The
Littles confirmed this statement by reviewing a survey plan
and measuring the property line with a tape measure. They
then called the plaintiffs in April 2010 to inform them of
this discovery, before stating that they needed to move the
fence. The plaintiffs refused. The Littles claimed that,
during this conversation, they gave the plaintiffs permission
to continue using the disputed area; the plaintiffs denied
that such permission was given. Aaron testified that, around
this time, he visited the O'Malley property and walked
along the fence with Helen, asserting that the correct
boundary between the two properties was represented by
several pins from an earlier surveyor's plan. However,
the location of those pins did not align with the property
line depicted on the surveyor's plan.
more occurred until the fall of 2013, when the Littles once
again e-mailed the plaintiffs and requested that the fence be
moved. Although the Littles offered the plaintiffs a license
to use the disputed area, the plaintiffs declined. In
November, the Littles contacted the plaintiffs yet again and
told them to remove the fence by the end of the year. The
Littles threatened to take action to move the fence if the
plaintiffs refused to relocate it. In December 2013, the
plaintiffs instituted this suit to quiet title to the
disputed area based upon adverse possession. The Littles
subsequently moved for summary judgment. The trial court
denied the motion. After conducting a two-day bench trial in
June 2016, the court found in favor of the plaintiffs.
Specifically, the trial court found that the plaintiffs did
not receive permission to use the disputed area in 2010, and
that the Littles' statement to the plaintiffs that the
fence needed to be moved "would not put a reasonably
prudent person on notice that they had actually been
ousted." This appeal followed.
appeal, the Littles assert that they ousted the plaintiffs in
2010 and/or 2013, before the expiration of the 20-year
statute of limitations applicable to adverse possession
claims, by asserting their title to the disputed area and
demanding that the fence be moved. The Littles further claim
that they implicitly granted the plaintiffs permission by
demanding the removal of the fence and then refraining from
removing it. The Littles also contend that the trial court
erred in denying their pretrial motion for summary judgment.
with the last issue first, we decline to entertain the merits
of the Littles' claim that the trial court erred in
denying their motion for summary judgment because they have
failed to brief a fundamental preliminary question bearing on
the issue: whether an erroneous trial court order denying
summary judgment is reviewable on appeal where, as here, the
case proceeds to the entry of a final judgment after trial.
We have never addressed this question and do not do so now.
We note, however, that there is substantial authority for the
proposition that in such circumstances the trial record
supersedes the summary judgment record, thereby rendering any
error in denial of summary judgment unreviewable on appeal.
See Ortiz v. Jordan, 562 U.S. 180, 184 (2011);
Brown v. State Farm Fire & Cas. Co., 90 A.3d
1054, 1057 (Conn. App. 2014); Holloman v.