Vance v. Tassmer
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Plaintiffs filed this action against Defendants seeking a declaratory judgment that, under the doctrine of adverse possession, Plaintiffs were the owners of a parcel of land bordering Defendants' property. The parties reached a settlement agreement providing for a new boundary line between their properties. The agreement provided that Defendants would apply for and pursue a variance from the town zoning board of appeals because the new boundary line left Defendants with slightly less than the minimum frontage requirement. Plaintiffs later filed a motion to enforce the settlement agreement, which the trial court granted. The trial court ultimately conveyed the property to Plaintiffs. The appellate court reversed in part and remanded to the trial court with direction to render a judgment of adverse possession in favor of Plaintiffs contingent on the parties' compliance with the terms of the settlement agreement. The Supreme Court granted Defendants' petition for certification to appeal. However, after examining the record, the Court dismissed the appeal on the ground that certification was improvidently granted.
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** RONALD J. VANCE ET AL. v. KENNETH P. TASSMER ET AL. (SC 18807) Rogers, C. J., and Norcott, Palmer, Zarella and Eveleigh, Js.* Argued December 5, 2012 officially released January 29, 2013 Hugh D. Hughes, with whom, on the brief, was William F. Gallagher, for the appellants (defendants). Vincent T. McManus, Jr., for the appellees (plaintiffs). Opinion PER CURIAM. The plaintiffs, Ronald J. Vance and Carol P. Vance, brought this action against the defendants, Kenneth P. Tassmer and Richard W. Perillo, seeking a declaratory judgment that, under the doctrine of adverse possession, the plaintiffs were the owners of a certain parcel of land located at the northwest corner of their property at 131 Cook Hill Road in Wallingford, which borders the defendants property. The parties ultimately reached a settlement agreement that provided for a new boundary line between their properties. Because the new boundary line left the defendants property with slightly less than the minimum frontage requirement, the agreement also provided that the defendants would apply for and pursue a variance from the zoning board of appeals of the town of Wallingford (board). If the board failed to approve the application, the case would proceed to trial. The defendants filed a motion to open the settlement agreement alleging that they had signed the agreement under duress and that the plaintiffs had violated the agreement on several occasions. The defendants also filed an application for a variance, but then withdrew it. The plaintiffs in turn filed a motion to enforce the settlement agreement, which the trial court granted. The defendants appealed from that decision to the Appellate Court, which dismissed the appeal for lack of a final judgment because it remained to be decided by the board whether to grant the variance. (Internal quotation marks omitted.) Vance v. Tassmer, 128 Conn. App. 101, 106, 16 A.3d 782 (2011). Subsequently, the trial court granted the plaintiffs motion to reconvene the hearing on their motion to enforce the parties settlement agreement, and Tassmer filed a second application for a variance with the board in which he acknowledged that the denial of the application would result in no hardship. Id. At the plaintiffs urging, the trial court ordered the defendants to amend the application to reflect that both defendants owned the property since the application did not name Perillo as one of the owners, and to indicate that the application was being filed pursuant to a court order. Id., 107. At a hearing on the amended variance application, Perillo again told the board that the denial of the variance would not cause a hardship and that the defendants wanted to proceed to a trial on the quiet title action. Id., 115 16. The trial court then held another hearing on the motion to enforce the settlement agreement, at which the plaintiffs claimed that the defendants had waived their right to pursue a variance and that the trial court should enter an order conveying the disputed property to the plaintiffs. Id., 108. The trial court granted the motion and conveyed the property to the plaintiffs; id., 109; and the defendants appealed from the ruling to the Appellate Court. Id., 103. The Appellate Court agreed with the trial court that the defendants had waived their right to enforce the provision of the settlement agreement allowing them to go to trial if the board failed to approve their application for a variance, but concluded that the trial court improperly had ordered the property to be conveyed to the plaintiffs when other provisions of the settlement agreement had not yet been satisfied. Id., 118. Accordingly, the Appellate Court reversed the judgment in part and remanded the case to the trial court with direction to render a judgment of adverse possession in favor of the plaintiffs contingent on the parties compliance with the terms of the settlement agreement, except for the variance contingency. Id., 119. We then granted the defendants petition for certification to appeal to this court, limited to the following issue: Did the Appellate Court properly affirm the trial court s granting of the plaintiffs motion to enforce the settlement agreement? Vance v. Tassmer, 301 Conn. 925, 22 A.3d 1278 (2011). After examining the entire record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted. The appeal is dismissed. * This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Norcott, Palmer, Zarella and Eveleigh. Although Chief Justice Rogers was not present when the case was argued before the court, she read the record and briefs and listened to a recording of oral argument prior to participating in this decision.
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