Opinion
TDCV185011328S
04-08-2019
Thomas J. CROSSEN, Jr. et al. v. Heidi DIEHL et al.
UNPUBLISHED OPINION
OPINION
Sicilian, J.
The plaintiffs, Thomas and Susan Crossen, own lakefront property in Coventry, Connecticut. The defendants, Heidi Diehl and Michael Martin, own lakefront property adjacent to the plaintiffs’ property. During 2018, a disagreement arose between the plaintiffs and the defendants regarding the location of the property line between their adjoining parcels. The plaintiffs allege that the defendants have encroached on their property and that the defendants have engaged in harassing conduct that has undermined the plaintiffs’ use and enjoyment of their property.
PROCEDURAL HISTORY
The plaintiffs’ initial complaint, dated November 16, 2018, was in three counts. It sought a declaratory judgment to quiet title (Count One), alleged a claim for trespass (Count Two) and alleged a claim for harassment (Count Three). On November 21, 2018, the plaintiffs filed a motion for temporary injunction requiring the defendants to cease maintaining alleged encroachments over the plaintiffs’ property and to cease what the plaintiffs allege to be harassment by the defendants.
A hearing on the plaintiffs’ motion for temporary injunction was held on January 31, 2019. The defendants appeared at that hearing without counsel and requested a continuance to retain counsel, which request was denied by the court on the ground that the hearing was properly noticed. At the conclusion of the hearing, the Court indicated on the record that it would allow the defendants two weeks to retain counsel and to make whatever application they and their counsel deemed appropriate with regard to the plaintiffs’ pending motion. On February 5, 2019, counsel appeared on behalf of the defendants and moved for an extension of time "to provide evidence and legal argument on the pending motion for a temporary injunction." On February 8, 2019, the court granted the defendants’ motion, extending the time for the defendants to file a brief in opposition to the plaintiffs’ motion for temporary injunction to February 22, 2019. The order stated: "The defendants may include in their opposition any arguments and authorities in support of the proposition that they should be allowed to introduce, and that the court may consider, evidence not introduced during the hearing on the plaintiff’s [sic] motion for temporary injunction."
On February 21, 2019, the defendants filed an objection to the plaintiffs’ motion for temporary injunction. The defendants did not seek leave to offer additional evidence. Among other points made in their objection, the defendants argued that Connecticut law does not recognize a civil cause of action for harassment. Apparently in response to that argument, on March 1, 2019, the plaintiffs filed a request for leave to amend their complaint by adding a fourth count for private nuisance. No objection having been filed to that request, the plaintiffs’ amended complaint is now the operative complaint.
Also on March 1, 2019, the plaintiffs filed a reply to the defendants’ objection to the motion for temporary injunction. On March 7, 2019, the defendants filed a sur-reply.
FINDINGS OF FACT
Four witnesses, all called by the plaintiffs, testified at the hearing on the plaintiffs’ motion: Joseph Boucher, a land surveyor who was qualified as an expert; the defendants, Heidi Diehl and Michael Martin; and the plaintiff Thomas Crossen. The plaintiffs introduced fourteen exhibits. The court finds:
During at least some portion of 2018, the defendants maintained two banners and a paddle board rack that encroached on the plaintiffs’ property. Prior to the hearing on the plaintiffs’ motion for temporary injunction, those encroachments were removed. During the hearing, counsel for the plaintiffs indicated that if the defendants would agree to refrain from reinstalling the encroachments pending a final determination of the parties’ boundary line dispute, that portion of the plaintiffs’ motion for temporary injunction would be withdrawn. The defendants declined to make that commitment.
For purposes of this motion, the court credits the testimony of Mr. Boucher. While the defendants apparently disagree with Mr. Boucher’s determination of the property line, they did not introduce any evidence challenging, contradicting or undermining that determination. The court finds Mr. Boucher’s testimony credible.
During the course of 2018, the defendants repeatedly harassed the plaintiff John Crossen, including by yelling at him, calling him a "bad person" and "beady eye," heckling him, reaching an arm and hand holding a telephone into his vehicle as he was in the driver’s seat, apparently to take a picture of him, and making an obscene gesture toward him. The defendants threatened to sue a contractor retained to do work on Mr. Crossen’s property, which caused the contractor to stop. While Mr. Crossen was with his grandchildren on a paddle boat tied to the plaintiffs’ dock, the defendant Mr. Martin yelled and called Mr. Crossen a derogatory name. The defendants’ yelling, gesturing and name calling was persistent to the point that it caused the plaintiffs’ children and grandchildren no longer to want to visit the property.
Additional factual findings will be referenced in the discussion below.
DISCUSSION
"The standard for granting a temporary injunction is well settled ... A party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm without an injunction; (3) it will likely prevail on the merits; (4) the balance of equities tips in its favor." Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97, 10 A.3d 498 (2010).
The Encroachments
The plaintiffs seek a temporary injunction restraining the defendants from reinstalling the encroachments that were removed after the filing of the plaintiffs’ motion for temporary injunction and before the hearing. The defendants argue that there is no continuing trespass to enjoin and, even if there were, the offending encroachments do not rise to the level of "great and irreparable mischief," Smith v. King, 61 Conn. 511, 23 A. 923 (1892), meriting a temporary injunction.
The plaintiffs argue that courts more liberally grant injunctive relief in cases involving trespass than in other situations, but the cases on which they rely do not support an injunction here. Those cases focus on the preference for injunctive relief over repeated actions for damages when the trespass is continuing or repeated. See DPF Fin. Holdings, LLC v. Lyons, Docket No. WWM-CV-08-4007186, Superior Court, judicial district of Windham (Dec. 1, 2008) (dos Santos, J.); Walton v. New Hartford, 223 Conn. 155, 166, 612 A.2d 1153 (1992); Hartford Rayon Corp. v. Cromwell Water Co., 126 Conn. 194, 199, 10 A.2d 587 (1940); Berin v. Olson, 183 Conn. 337, 342-43, 439 A.2d 357 (1981). The encroachments of which the plaintiffs complain are not, at this point, continuing. "As a general rule, an injunction will not be granted to prevent threatened trespass." Smith v. King, supra.
In addition, the encroachments at issue here, even when they existed, were minor. The encroachments consisted of the defendants’ attachment of banners to trees that are near the edge of the plaintiffs’ property and construction of a paddle board structure, a corner of which extended slightly over the property line onto the plaintiffs’ property. None of the encroachments was shown to have interfered significantly with the plaintiffs’ use and enjoyment of their property such that extraordinary injunctive relief pending a final determination of the parties’ boundary dispute would be appropriate. Injunctive relief, particularly temporary injunctive relief, ought not to be granted where the harm sought to be enjoined is "trifling." Smith v. King, supra.
The plaintiffs’ request for a temporary injunction prohibiting the defendants from reinstalling the removed encroachments is denied.
The Harassment
In the Third Count of their amended complaint, the plaintiffs assert a cause of action for harassment. The uncontroverted evidence establishes that the defendants have engaged in repeated harassing and abusive conduct toward the plaintiff Thomas Crossen that has interfered with the plaintiffs’ use and enjoyment of their property. Notwithstanding those findings, the defendants argue correctly that our law does not recognize a civil cause of action for harassment. See, e.g., Cuadrado v. Bristol Police Dept., Docket No. NB-CV-14-5015961, Superior Court, judicial district of New Britain (April 28, 2015) (Swienton, J.); Thomas v. Rogers, Docket No. LLI-CV-12-5007354, Superior Court, judicial district of Litchfield (May 22, 2012) (Pickard, J.). "Harassing behavior has been alleged in causes of action for emotional distress, but Connecticut has yet to recognize a separate cause of action for harassment." Holt v. Safeco Ins. Co. of America, Docket No. FST-CV-6017661, Superior Court, judicial district of Stamford/Norwalk (August 8, 2016) (Tobin, J.).
The lack of a cognizable, civil cause of action for harassment makes it impossible for the plaintiffs to show that they are likely to prevail on such a claim and, therefore, impossible for the plaintiffs to establish the requisites for a temporary injunction. See Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97, 10 A.3d 498 (2010).
The plaintiffs have not cited any statute, case or other authority that contradicts Cuadrado and Thomas or that otherwise provides a basis for recognizing a civil cause of action for harassment. Instead, they argue, first, that even in the absence of a recognized cause of action for harassment, courts have the authority to enjoin harassing behavior; and, second, that the claim for private nuisance in their amended complaint provides a basis for enjoining the defendants’ harassing conduct.
1. Enjoining Harassment in the Absence of a Recognized Cause of Action
The plaintiffs cite Stohlts v. Gilkinson, 87 Conn.App. 634, 657, 867 A.2d 860 (2005); Regency Towers Condo. Ass’n v. Scully, Docket No. CV-05-4015744, Superior Court, judicial district of Hartford (May 30, 2007) (Rittenband, J.); and Lord v. Mansfield, Docket No. CV-9300116326, Superior Court, judicial district of Waterbury (April 8, 1997) (Vertefeuille, J.), for the proposition that the court may enjoin harassment even in the absence of a recognized cause of action. The cases do not support that proposition.
In Stohlts and Lord, the courts issued injunctions after full trials on the merits in cases in which the plaintiffs asserted claims for infliction of emotional distress based at least in part on evidence of harassment. There was, therefore, a recognized cause of action in each of those cases that properly supported equitable relief. There is no claim for infliction of emotional distress in the plaintiffs’ complaint here.
Regency Towers is a decision on a motion for contempt against the defendant for violating a temporary injunction preventing the defendant from, among other things, harassing residents of a condominium. The decision does not disclose the causes of action on which the underlying injunction was issued and, therefore, does not support the proposition that an injunction can be issued even where there is no recognized cause of action to support it.
The well-settled requirements for injunctive relief include a demonstration that the party seeking the relief is likely to prevail on the merits of its claim. The plaintiffs are not likely to prevail on their cause of action for harassment. There is, therefore, no basis for the issuance of an injunction based on that cause of action.
2. Private Nuisance
The plaintiffs argue that their recently asserted claim for private nuisance is sufficient to support their request to enjoin the defendants from continuing to harass them. "A private nuisance is a non trespassory invasion of another’s interest in the private use and enjoyment of land ... The law of private nuisance springs from the general principle that it is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor ... The essence of a private nuisance is an interference with the use and enjoyment of land." (Citations and internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).
The defendants argue that the facts established at the hearing on the plaintiffs’ motion for temporary injunction do not prove the elements of a claim for private nuisance. They rely on Superior Court decisions that hold that there is a distinction between conditions related to the use of a defendant’s property, such as smells, noises, lights, and the placement of unsightly objects, which can create nuisances, and conduct, such as yelling obscenities and making gestures, which cannot. Villa v. Salviaggio, Docket No. CV-11-6022543, judicial district of Fairfield (July 17, 2014) (Sommer, J.). Blouin v. Blouin, Docket No. CV-89-0295774, Superior Court, judicial district of New Haven (Jan. 17, 1992) (Healey, J.T.R.).
In Villa, the plaintiff and the defendant were both residents of a condominium complex. The court found that the plaintiff and her fiancéwere subjected to a wide range of offensive and harassing conduct by the defendant, including racially offensive and derogatory statements, threats toward the plaintiff and her fiancé, "keying" of cars, stalking, and theft of mail. The court held, however, that such actions were taken "in order to target specific individuals" and "did not connect to the manner in which the defendant was using her property." They were, therefore, just "actions" and not "conditions" sufficient to create a private nuisance.
In Blouin, the court similarly held that yelling obscenities, making gestures, and knocking over a lawnmower could not form the basis for a claim of private nuisance because they were actions and did not create a "condition the natural tendency of which is to create danger and inflict injury ..." (Internal quotation marks and citation omitted).
Villa and Blouin are consistent with the decisions of the Supreme Court describing the elements of private nuisance. "Nuisance is a word often very loosely used; it has been not inaptly described as a catch-all of ill-defined rights. In its proper use, however, it involves as an essential element that it can be the natural tendency of the act or thing complained of to create danger and inflict injury upon person or property ... To constitute a nuisance in the use of land, it must appear not only that a certain condition by its very nature is likely to cause injury but also that the use is unreasonable or unlawful ... A further necessary element is that the danger created must have been a continuing one, as opposed to a single act." Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121 (1972) (internal quotations marks and citations omitted). "The term nuisance refers to the condition that exists and not to the act or failure to act that creates it." Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978).
The plaintiffs have not cited, and the court has not found, any case holding that harassing conduct itself can create a condition relating to the use of land sufficient to create an actionable, private nuisance. The evidence does not establish that the defendants’ harassing behavior creates a condition that exposes the plaintiffs, in their use of their property, to continuing danger of the sort necessary to constitute a private nuisance in the use of the defendants’ land. Therefore, the plaintiffs have not demonstrated that they are likely to prevail on the merits of their claim. There is, therefore, no proper basis for a temporary injunction.
CONCLUSION
The court certainly does not condone the defendants’ name-calling, yelling and other harassing conduct that has interfered with the plaintiffs’ use and enjoyment of their property. Were such conduct to continue, it might well rise to the level of infliction of emotional distress and be actionable on that basis. But the plaintiffs have not asserted such a claim to date and the claims they have asserted do not provide a proper basis for the issuance of a temporary injunction.
The plaintiffs’ motion for a temporary injunction is denied.