Opinion
FBTCV166059810S
06-05-2019
UNPUBLISHED OPINION
OPINION
STEWART, J.
The plaintiff, Iron Shields Investment, LLC, has sued the defendant, Fred D’Amico d/b/a D’Amico Associates ("D’Amico" or "the defendant"), for professional negligence for his conduct of a survey and his later certification of a map to the plaintiff for undeveloped land in Weston, Connecticut.
The present case was initiated by complaint dated September 13, 2016, which originally named D’Amico, A. Elizabeth Miller, and Beck & Beck, LLC, as defendants. Prior to evidence being presented at trial, the plaintiff withdrew its complaint as to the other defendants, leaving D’Amico as the sole defendant for trial. The court heard evidence on December 13 and 14, 2018. After trial, the parties submitted post-trial briefs; the final brief was filed on March 4, 2019.
FINDINGS OF FACT
2006 Survey Work
1. From sometime prior to August 7, 2006 until 2014, two adjacent parcels of real property in Weston, Connecticut were owned by Lawrence and Carol Pelligrini and by A. Elizabeth Miller and Lester F. Miller, Jr. The Pellegrini property was to the north and the Miller property was to the south. Plaintiff’s Exhibit 5 .
2. On or about August 7, 2006, D’Amico prepared an A-2 survey for the Pellegrinis and the Millers depicting the total area of each lot, as well as the wetlands on each. Plaintiff’s Exhibit 5 .
3. According to the survey, the Pellegrini parcel was 3.95 acres, and the Miller parcel was 9.87 acres. Plaintiff’s Exhibit 5 .
4. D’Amico researched the Weston Land Records by preparing a title search and by reviewing the tax assessor field cards and maps for the Miller property, the Pellegrini property, and the adjoining Weston Gun Club property. Defendant’s Exhibit C .
5. The Miller deed description states "in quantity ten (10 acres) more or less bounded and described as follows ..." It also states it is the same premises as the second tract in a warranty deed to Buckley dated September 30, 1918. Plaintiff’s Exhibit 9 .
6. D’Amico researched the maps and found recorded Map 3528 for the Pellegrini property, showing 3.9477 acres. That map contained a reference to "[d]ata as shown on an old S.W. Hoyt Co., Inc. detail obtained from Wake, Lee & Dimes Attorneys was used to reestablish the boundaries of the parcel to the south. Deeds of record show Pellegrini parcel and parcel to the south as being 14 acres +/- field survey and Old Hoyt Co. data show combined area of 13.816 acres so in lieu of an apparent senior deed giving a definitive fixed area to one parcel, each parcel was prorated mathematically for the difference between the area called in the deeds of record and area obtained in the field." Plaintiff’s Exhibit 13 .
7. D’Amico researched the S.W. Hoyt map, which showed the southern tract as ten acres with boundary lines of two stone bounds along the boundary of property belonging to Stephen Godfrey. Defendant’s Exhibit C .
8. D’Amico went to the field and found two stone bounds in the field that lined up with the boundary between the Miller property and the Godfrey property on the S.W. Hoyt map. Based on this finding, the Pellegrini map, and the prior deeds containing references to ten acres, D’Amico determined that the southerly boundary line- now, the borderline with the Weston Gun Club- was between those two stone bounds, and that the Miller property was approximately ten acres. Tr. 12/13/18, 66:6-72:12; Defendant’s Exhibit C, Plaintiff’s Exhibit 5 .
9. In 1960, the Weston Gun Club performed a survey of its twenty-four acres and recorded a map known as Map No. 1482.
Plaintiff’s Exhibit 16 .
10. The surveyor for the Weston Gun Club showed several different possible boundary lines with the Miller property on his worksheet, but he selected a boundary line that gave the Weston Gun Club twenty-four acres. Defendant’s Exhibits G and H .
11. D’Amico saw that the 1960 Weston Gun Club map showed all five-stone bounds within its property, and from his visit to the field, he knew of five-stone bounds in the vicinity of the boundary between the Miller property and the Weston Gun Club property. Tr. 12/13/18, 21:26-22:3, 22:19-24:1, 87:14-88:27 .
12. D’Amico’s line on the survey of the Miller property was drawn between two of the five-stone bounds that matched the S.W. Hoyt map. The line on the 1960 Weston Gun Club map, however, showed a line from two different stone bounds. Plaintiff’s Exhibits 5 and 16; Defendant’s Exhibit C; Tr. 12/13/18, 21:8-21:20 .
13. D’Amico researched the Weston Gun Club’s claim of twenty-four acres and found that in July 1934, Samuel Shether deeded the Weston Gun Club property that was originally part of a seventy-five-acre parcel from Stephen Godfrey to Shether in June 1928. Defendant’s Exhibit C . It was the Stephen Godfrey parcel that appeared in the S.W. Hoyt Map the map with the two stone bounds on which D’Amico relied.
14. D’Amico testified that he saw the overlap between the bounds that the Weston Gun Club claimed marked the boundary and the bounds he relied upon, but he decided his line was accurate. Tr. 12/13/18, 60:14-62:12 .
15. D’Amico’s survey of the Miller Property does not indicate any stone bounds. Plaintiff’s Exhibit 5 .
16. D’Amico did not notate on his survey any discrepancy raised by the Weston Gun Club map from 1960. Plaintiff’s Exhibit 5; Tr. 12/13/18, 24:21-25:15, 44:7-44:21 .
2014 Certification to Iron Shields
17. On February 24, 2014, the plaintiff purchased the four-acre Pellegrini parcel for $325,000. Plaintiff’s Exhibit 11 .
18. On March 7, 2014, the plaintiff contacted D’Amico and bought a copy of the survey of the Miller property, which the plaintiff was considering purchasing from the Millers. Plaintiff’s Exhibits 2 .
19. Walid Cherfane is a construction manager who has worked with the plaintiff for eleven years. He testified to a discussion he had with D’Amico before the plaintiff signed the contract to buy the Miller property as follows:
Q Okay. And describe the discussion you had with Mr. D’Amico at that time about subdivision of the Miller property?
A I told him that we are looking into purchase that property. And since we are buying it in cash, I need to make sure that we can subdivide it into many lots. Now, I asked Mr. D’Amico if he was also an engineer, and he mentioned that he was. And he showed me a copy of some work that he had done for the Millers regarding that ten-acre lot where he’s subbed it, you know, not subdivide maybe, but he put a house with a septic field and some engineering work on that property for the Millers. Then I told him then we go from there, you know, we might retain you for other work, but for now what I need is to make sure that I have an A-2 survey of the property so I can make a- you know, make the closing for that property. And this is what we did.Tr. 12/14/18, 52:19-53:9 .
20. The plaintiff entered into the contract to purchase the Miller property on March 10, 2014, three days after D’Amico and Cherfane met to discuss the development possibilities for the Miller property. Defendant’s Exhibit D .
21. That contract contained a Zoning Contingency clause that stated in relevant part: "[t]his Contract is contingent upon the Buyer determining that the premises is suitable for division into two building lots, each capable of supporting a five-bedroom house." Defendant’s Exhibit D, ¶36 .
22. On March 31, 2014, Lester Miller sold the plaintiff the Miller property by warranty deed for $350,000. Plaintiff’s Exhibit 9 .
23. On October 1, 2014, D’Amico prepared, issued, and certified to the plaintiff a map ("Map") of the Miller property. Plaintiff’s Exhibit 3 and Tr. 12/13/18, 43:25, 44:1-44:6 .
24. The Map was prepared to an A-2 accuracy standard. Tr. 12/13/18, 9:1-9:27 .
25. The Map certified that the Miller property contained 9.917 acres. Plaintiff’s Exhibit 3 .
26. On November 3, 2014, the plaintiff obtained zoning approval for a three-lot subdivision for the 9.917 acres. Plaintiff’s Exhibit 14 .
27. The 2014 approval was based upon the Map as follows:
Notice is hereby given that, at a regular meeting of the Weston Planning & Zoning Commission held on Monday, November 3, 2014, the Commission approved with conditions, the application of owner Iron Shields Investment, LLC, to subdivide Map 10 Block 1 Lot 5, Hidden Spring Drive into 3 lots, consisting of approximately 9.917 acres of land located off Hidden Spring Drive, Weston, Connecticut.
Reference is hereby made to the following (collectively, the "Supporting Documents "):
1. Subdivision Plan prepared by D’Amico Associates dated October 1, 2014, with a date of last revision of November 3, 2012.Plaintiff’s Exhibit 14, p. 1 (the reference to "last revision of November 3, 2012" is a scrivener’s error, as the Map has a revision date of November 3, 2014. Subsequent revisions were done after subdivision approval.)
28. On August 24, 2015, the subdivision map was signed by Weston Planning and Zoning and recorded as Map 3829. Plaintiff’s Exhibit 3 .
Weston Gun Club Lawsuit
29. After the 2014 approval, the Weston Gun Club contacted the plaintiff’s engineer and advised him that a portion of the Miller Property upon which trees were cleared by the plaintiff was owned by the Weston Gun Club. Plaintiff’s Exhibit 12 .
30. Thereafter, the plaintiff and the Weston Gun Club agreed to a standstill. Tr. 12/14/18, 6:2-6:8 . The plaintiff and the Weston Gun Club then undertook an extensive review of the existing conditions and land records, employing surveyors, engineers and title searchers as part of that review. They exchanged information on an "open file" basis. Tr. 12/14/18, 7:7-8:10 .
31. At the conclusion of that review, Stephen Fogerty, a Weston Gun Club member and lawyer, testified that he believed that the Weston Gun Club had a strong case, particularly because of the existence and recordation of the 1960 map. Tr. 12/14/18, 10:16-10:20, Plaintiff’s Exhibit 29 .
32. On April 26, 2016, the Weston Gun Club instituted suit against the plaintiff to quiet title, among other claims. Tr. 12/14/18, 15:17-15:20. Plaintiff’s Exhibit 15 .
33. On April 29, 2018, the Weston Gun Club and the plaintiff settled their dispute just before trial and entered into a boundary line agreement. Plaintiff’s Exhibit 1. See also Weston Gun Club v. Iron Shields Investment, LLC, FBT-CV16-6056181-S .
34. None of the surveyors who testified could say that the Weston Gun Club had superior rights of ownership to the approximately four acres of land they claimed based on the 1960 Weston Gun Club map’s boundary as compared to the D’Amico boundary in the survey. Tr. 12/13/18, 76:13-77:15 (D’Amico); 143:17-144:13 (Faulds); 159:23-160:6 (Fanotto) .
35. Based upon the settlement with the Weston Gun Club, the plaintiff modified its subdivision approval and agreed to a revised Lot 1 and Lot 2, with no Lot 3. Plaintiff’s Exhibits 1 and 25 .
36. If the Weston Gun Club had prevailed in its lawsuit, the plaintiff would have lost two of the three buildable lots on the Miller property. Tr. 12/14/18, 84:11 - 84:26; Plaintiff’s Exhibit 18 .
Standard of Care
37. All of the surveyor witnesses testified that work performed by a surveyor must adhere to the regulations found in § § 20-300b-1 to 20-300b-20 of the Regulations of Connecticut State Agencies.
38. D’Amico testified:
Q And those regulations are what the surveyor must follow as the minimum standards to survey property, true?
A Yes.Tr. 12/13/18, 8:24-8:27 .
39. The plaintiff’s expert, Douglas Faulds, testified that the regulations are mandatory and must be followed by all surveyors in the performance of their work. Tr. 12/13/18, 98:18-98:25 .
40. John Fanotto, Jr., D’Amico’s expert, confirmed that the regulations set forth the standard of care that a surveyor must follow. Tr. 12/13/18, 172:26-173:2 .
LEGAL ANALYSIS
I. DUTY
The only claim in the complaint against D’Amico sounds in common-law negligence. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153, 155 (1994). The court will first address the element of duty. "The existence of a duty is a question of law and [o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Id., 384, 650 A.2d 155.
"[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ... The first part of the test invokes the question of foreseeability, and the second part of the test invokes the question of policy." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505, 509 (2001).
A. A Duty is Owed to Subsequent Purchasers
The defendant argues that there was no duty owed to the plaintiff because the defendant and the plaintiff were not in privity. Although the court agrees that the defendant was not in privity with the plaintiff when the defendant created the original survey for the Millers and the Pellegrinis in 2006, the court finds that the defendant was in privity with the plaintiff when the defendant sold the plaintiff’s representative the survey and when the defendant certified the map to the plaintiff in 2014. A surveyor may be held liable in negligence to the party who hired him for failure to make an accurate survey of land and to establish correct boundaries. Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 687-88, 508 A.2d 438, 441 (1986).
The court also holds that lack of privity is not an obstacle to finding that the harm to the plaintiff was foreseeable. Privity is a contract concept. As the Supreme Court has recognized, "the requirement of privity should only be applicable to actions growing out of contract theory and should be irrelevant to tort actions." Coburn v. Lenox Homes, Inc., 173 Conn. 567, 574, 378 A.2d 599, 602 (1977). 173 Conn. 567, 574, 378 A.2d 599, 602 (1977). Foreseeability, not privity, is the "ultimate test" of whether there is a duty of care. Id. In Coburn, the court permitted a subsequent purchaser of a home to sue the builder, holding that "there is no reason why the builder-vendor should not be liable for the effects of his negligence if they were foreseeable." Id., 378 A.2d 599. Later, the Supreme Court held that an architect was liable to third parties, stating "[i]t is now the almost universal rule that the contractor is liable to all those who may foreseeably be injured by the structure ... when the work is negligently done." (Internal quotation marks omitted.) Zapata v. Burns, 207 Conn. 496, 517, 542 A.2d 700, 711 (1988). The Appellate Court recently came to the same conclusion when it held that privity was not required to establish that the harm suffered was foreseeable in Bloomfield Health Care Center of Connecticut, LLC v. Doyon, 185 Conn.App. 340, 356-57, 197 A.3d 415, 424-25 (2018). In that case, the court held that a conservator owed a duty of care to a nursing home to submit a Medicaid application for his ward, who was a patient at the home. Id., 378, 197 A.3d 437.
Coburn, however, did hold that the lack of privity was a bar to bringing a warranty claim Coburn v Lenox Homes, Inc., supra, 573-74, 378 A.2d 601.
With respect to surveyors, the Superior Court has held that they can be liable in negligence to subsequent purchasers. Indeed, in one of the cases cited by the defendant, Vassalli v. Ahneman Kirby, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-17-6030884-S (January 12, 2018, Genuario, J.) , the court refused to strike a common-law negligence claim brought by third parties against a surveyor. The Vassalli court specifically determined that "surveyors who issue such certifications should properly anticipate that others besides the party with whom they have contracted might rely upon those certifications" and held that there was no public policy reason to require privity. Id. Moreover, in an earlier case against this very defendant, Simics v. Sharpe, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-90-033261-S (May 13, 1991, Fuller, J.) (4 Conn.L.Rptr. 83), the court denied the defendant’s motion to strike a claim by subsequent purchasers. Therefore, this court holds that privity is not required to find that the defendant owed a duty to the plaintiff, B. Standard of Care
The claim against the defendant is one of professional negligence, which is defined as "the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent, reputable member of the profession with the result of injury, of loss, or damage to the recipient of those services." (Emphasis omitted; internal quotation marks omitted.) Commonwealth Land Title Ins. Co. v. Close, Jensen & Miller, P.C., Superior Court, judicial district of Hartford, Docket No. CV- 06-5003046-S (November 5, 2008, Satter, J.T.R.) (46 Conn.L.Rptr. 602). Although the parties agree on this definition, they dispute what standard of care applies here.
The plaintiff argues that the standard of care is determined by § § 20-300b-1 through 20300b-20 of the Regulations of Connecticut State Agencies, which is promulgated by the Commissioner of the Department of Consumer Protection. The source of those regulations is General Statutes § 20-300b, which created a Survey and Map Standards Advisory Committee to make recommendations to the Commissioner, who then adopted regulations establishing minimum standards of accuracy, content and certifications for surveys and maps.
General Statutes § 20-300b provides: "There shall be in the Department of Consumer Protection a Survey and Map Standards Advisory Committee, which shall consist of six persons appointed by the Commissioner of Consumer Protection, two of whom shall be members of the board who hold licenses as land surveyors and who primarily engage in the private practice of land surveying, one of whom shall be a licensed land surveyor actively engaged in the private practice of land surveying, two of whom shall be selected from a list of three licensed land surveyors submitted by the Connecticut Association of Land Surveyors, and the director of the legal division of the Department of Consumer Protection. The members of the committee shall serve at the commissioner’s pleasure. The members shall not be compensated for their services. The committee shall make recommendations to the commissioner concerning minimum standards of accuracy, content and certifications for surveys and maps. In consultation with the committee, the commissioner shall adopt regulations, in accordance with chapter 54, establishing such minimum standards of accuracy, content and certifications for surveys and maps."
The plaintiff contends that the Survey and the Map are subject to § 20-300b-2 of the regulations. Subsection (a) of that regulation requires notation of facts regarding any boundary conflicts:
"Property/Boundary and Limited Property/Boundary Surveys require sufficient investigation, study, field measurement and evaluation of factors affecting boundaries, real property interests and other relevant matters with respect to the subject real estate to enable the surveyor to render a professional opinion as to boundary locations and any conflicts therewith. These surveys require the preparation of a detailed field survey and are intended to present the surveyor’s property/boundary opinion. It is recognized that certain factors pertaining to boundary line determination are beyond the surveyor’s purview and may require agreements between abutting property owners or action by the courts. Facts surrounding such circumstances should be noted."
Subsection (b)(1) of that regulation indicates that a "Property Survey depicts the position of boundaries with respect to:
(A) Locations of all boundary monumentation found or set; ...
(G) Unresolved conflicts with record deed descriptions and maps; ... [and]
(H) All apparent boundary encroachments; ..."
In addition, all surveys must depict and adequately describe all monuments or markers found. Id., § 20-300b-2(d)(2) and (10).
The plaintiff also claims that the standard of care is determined by § 20-300b-17 of the regulations. If a surveyor finds "vagueness or conflict of boundary location ... the surveyor shall pursue such additional sources of information as the surveyor considers appropriate." Regs., Conn. State Agencies § 20-300b-17(a). "The additional research required is that which, in the surveyor’s professional opinion, is sufficient to reveal the location of the boundaries of the subject property and other related matters pertaining to the land. Where properties are poorly described or where the location of the boundaries has become lost or uncertain, the surveyor may contact adjacent owners or other persons for their knowledge as to the locations of boundary lines." Id., § 20-300b-17(b).
Each of the experts and the defendant himself testified that these regulations set minimum standards that surveyors must follow. Moreover, when the defendant signed the Survey and Map, he signed under a statement that said "this survey and map has been prepared in accordance with Sections 20-300b-1 to 20-300b-20 of the Regulations of the Connecticut State Agencies." Plaintiff’s Exhibits 3 and 5 .
As further support for its argument that these regulations establish the standard of care, the plaintiff cites Commonwealth Land Title Ins. Co. v. Close, Jensen & Miller, P.C., supra, Superior Court, Docket No. CV-06-5003046-S, in which the court relied, in part, upon the requirement set out in § 20-300b-2(a) to determine that when certain factors pertaining to boundary line determinations are "beyond the surveyor’s purview, facts surrounding such circumstances should be noted." In that case, the surveyor could not see the boundary line because two buildings were on top of it, and the plaintiff’s expert testified, in part based on the regulation, that if a surveyor cannot see a boundary, "he can’t make a statement that there are no encroachments." Id. The court ultimately concluded that the surveyor breached the standard of care because he failed to make a notation in his survey.
The defendant appears to argue that the standard of care only required him to do the title work and field work- which he did- and to find the markers and make a determination of the boundary line. He further argues that the standard of care did not require him to note the stone bounds on the Survey or the Map. His post-trial brief is silent as to the issue of whether he should have noted any conflict over the boundary with the Weston Gun Club.
The court holds that the regulations set forth the standard of care, and that the regulations required the defendant to depict all five-stone bounds on the Survey and the Map and to note the discrepancy between his boundary line and the boundary line depicted in the 1960 Weston Gun Club map. By failing to do these two things, the defendant breached the standard of care.
C. Negligence Per Se
The plaintiff in this case also argues that a violation of any of the regulations is negligence per se. The court declines to hold that such a violation is negligence per se. First, the complaint sounds solely in common-law negligence, not negligence per se. Second, the plaintiff does not cite any authority for the proposition that a violation of these particular regulations constitutes negligence per se. Finally, as the defendant points out, at least one Superior Court decision has held that a violation of these regulations is not negligence per se. Vassalli v. Ahneman Kirby, LLC, supra, Superior Court, Docket No. CV-17-6030884-S. In Fassalli, the court observed that these regulations were promulgated pursuant to General Statutes § 20-300, which called for regulations "concerning professional ethics and conduct appropriate to establish and maintain a high standard of integrity and dignity in the practice of the profession ..." (Internal quotation marks omitted.) Id. That court held that "[b]road standards of a general nature which are designed to raise the character of a profession as a whole do not provide the same type of standard with the particularities of conduct prohibited or required which would appropriately give rise to a claim of negligence per se." Id., citing Gore v. People’s Savings Bank, 235 Conn. 360, 382, 665 A.2d 1341, 1352 (1995), on remand, 40 Conn.App. 219, 670 A.2d 332 (1996). Although this court disagrees that the regulations at issue are based on General Statutes § 20-300, this court agrees that General Statutes § 20-300b similarly does not set forth particular requirements that give rise to a claim of negligence per se.
II. CAUSATION
Causation has two components: causation in fact and proximate cause. Ruiz v. Victory Properties, LLC, 315 Conn. 320, 329, 107 A.3d 381, 388 (2015). "With respect to the first component, causation in fact, we ask whether the injury would have occurred but for the actor’s conduct." Id. The plaintiff argues that but for the defendant’s failure to depict the stone bounds and make a notation about the possible conflict with the Weston Gun Club’s claim, the plaintiff would not have purchased the Miller property and attempted to develop it into three lots.
The plaintiff’s representative, Cherfane, first contacted the defendant and bought the survey on or about March 7, 2014. By that date, the plaintiff already had purchased the adjacent Pellegrini property. Three days later, on March 10, 2014, the plaintiff entered into a contract with the Millers to buy the property, and that contract included a zoning contingency clause that permitted the plaintiff to get out of the purchase of the Miller property if it was not suitable for division into two buildable lots. The plaintiff and the Millers closed on the sale of the Miller property on March 31, 2014.
The defendant testified that he had not told anyone that there was a potential four-acre overlap between his survey of the Miller property and the 1960 Weston Gun Club map. He also admitted that he did not make any notation on his survey that the Weston Gun Club might claim those four acres and that he did not depict any of the five-stone bounds. Although the defendant only acknowledged that it was "possible" that the plaintiff bought the survey from him before the plaintiff closed on the purchase of the Miller property, the defendant further testified that he knew that the plaintiff wanted to subdivide the Miller property into three lots and that the plaintiff needed the property to be ten acres in order to create three lots. He also acknowledged that it was "possible," if there was adequate frontage, that the Miller property could have been divided into two buildable lots without having to go through subdivision approval. After the plaintiff purchased the Miller property, the defendant prepared, issued and certified to the plaintiff the Map, on which the plaintiff relied for obtaining subdivision approval for the three lots.
There was some ambiguity in D’Amico’s testimony as to whether he ever saw the 1960 Weston Gun Club map in 2006 when he originally created the survey, but the court finds that he was negligent whether or not he saw it in 2006 or only later after the Weston Gun Club asserted its claim.
Based on all of this, the court finds that the plaintiff clearly anticipated purchasing the Miller property together with the Pellegrini property before any contact with the defendant and that the plaintiff was prepared to develop the Miller property even if it only could be developed into two lots. The plaintiff, however, has met its burden of proving that but for the defendant’s Survey and his subsequent Map created for the plaintiff showing that there were three buildable lots on the property, the plaintiff would not have attempted to develop the Miller property into three buildable lots. See Commonwealth Land Title Ins. Co. v. Close, Jensen & Miller, P.C., supra, Superior Court, Docket No. CV-06-5003046-S (holding that reliance on a survey established causation).
"The test for proximate cause is whether the defendant’s conduct was a substantial factor in producing the plaintiff’s injury ... This substantial factor test reflects the inquiry fundamental to all proximate cause questions, namely, whether the harm [that] occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence." (Internal quotation marks omitted.) Ruiz v. Victory Properties, LLC, supra, 315 Conn. 329, 107 A.3d 388. The defendant argues that any negligence on his part was not a substantial factor producing the plaintiff’s inability to develop the third lot because the plaintiff did not prove that the disputed four acres actually belonged to the Weston Gun Club. In support of his argument, the defendant cites a number of trespass and quiet title cases in which our Supreme Court did indeed hold that the plaintiff had the burden of proving the location of the disputed boundary line. In those causes of action, however, possession or title is an element of the plaintiff’s claim. In contrast, the plaintiff in the present case is suing in negligence. The issue is whether the defendant’s failure to meet the standard of care by depicting all five-stone bounds and by noting the conflicting claim by the Weston Gun Club was a substantial factor in causing the plaintiff to try to develop a third lot on disputed territory. The defendant has not cited any authority, nor has the court found any, that requires the plaintiff to prove that the Weston Gun Club actually owned the disputed property in order for the plaintiff to establish the element of causation in its professional negligence claim. Indeed, the fact that § 20-300b-2(b)(1)(G) requires notation of "unresolved conflicts with record deed descriptions and maps" suggests that that proof of ownership is not necessary. A disputed boundary in and of itself can cause harm.
The defendant next argues that even if his negligence was a substantial factor in bringing about harm to the plaintiff, the settlement between the plaintiff and the Weston Gun Club that eliminated the third lot was an intervening cause that eliminates his negligence as a proximate cause. The plaintiff responds that the court should not consider this argument because the defendant did not plead intervening cause as a special defense, and even if the court considers the argument, the settlement was not an intervening cause.
A few Superior Court decisions have discussed the need to plead intervening cause as a special defense. See, e.g., Osso v. Marc Automotive, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-12-6023218-S (November 10, 2015, Zemetis, J.); Poremba v. Yale-New Haven Hospital, Superior Court, judicial district of Waterbury, Docket No. CV-03-0177177-S (June 21, 2007, Upson, J.), aff’d, 112 Conn.App. 687, 963 A.2d 1083, cert. denied, 291 Conn. 909, 969 A.2d 172 (2009). Requiring intervening cause to be set out in a special defense also appears to be consistent with the Practice Book requirement that "[f]acts which are consistent with [the plaintiff’s statements of fact] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." Practice Book § 10-50.
The court also finds that the settlement was not an intervening cause. An intervening cause is a cause proceeding entirely from an independent source that "[breaks] the chain of causation" from a defendant’s allegedly wrongful act to the plaintiff’s claimed injury. Edwards v. Tardif, 240 Conn. 610, 615, 692 A.2d 1266, 1269 (1997). In the present case, the settlement came about because the plaintiff, acting in reliance on the defendant’s Survey and Map, was developing second and third lots on land claimed to be owned by the Weston Gun Club. Therefore, the court cannot find that the settlement proceeded entirely from an independent source. Moreover, the settlement should have been foreseeable to an ordinarily prudent surveyor in the defendant’s position who was aware of all five-stone bounds and the claim made by the 1960 Weston Gun Club map. "The mere fact that the act of another person concurs, cooperates or contributes, in any degree whatever in producing the injury, is of no consequence ... [I]n no case is the connection between an original act of negligence and an injury actually broken if a [person] of ordinary sagacity and experience, acquainted with all the circumstances. could have reasonably anticipated that the [direct cause of the harm] might, not improbably but in the natural and ordinary course of things, follow his act of negligence." (Internal quotation marks omitted.) Ruiz v. Victory Properties, LLC, supra, 315 Conn. 346, 107 A.3d 398.
III. STATUTE OF LIMITATIONS
After the close of evidence, the defendant requested leave to amend his answer to add a special defense of the statute of limitations set forth in General Statutes § 52-584a(1). That statute provides seven years to sue a land surveyor for "any deficiency in the design, planning, ... or land surveying in connection with, an improvement to real property" or for "injury to property, real or personal, arising out of any such deficiency ..." The plaintiff did not file a timely objection, so the amendment is effective. In his post-trial brief, the defendant also argues that the two-year statute of limitations of General Statutes § 52-584 for common-law negligence claims bars the plaintiff’s claim because there was no improvement to real property in connection with the 2006 survey.
According to the return of service (no. 100.30), the defendant was served on September 22, 2016. The statute of limitations stopped running on that date. Chestnut Point Realty, LLC v East Windsor, 324 Conn. 528, 540, 153 A.3d 636, 644 (2017). Even though the original work on the 2006 survey occurred more than seven years before that date, the defendant certified the Map to the plaintiff on October 1, 2014, which is within the seven-year statute of limitations and the two-year statute of limitations. Plaintiff’s Exhibit 3 . Therefore, the court holds that this action is not barred by the statute of limitations.
IV. DAMAGES
The plaintiff claims damages of $506,231.84, all allegedly caused by the defendant’s failure to document the stone bounds and the possible conflict with the Weston Gun Club on his Survey and Map. In support of that claim, the plaintiff introduced Exhibit 8, which is a summary chart of amounts spent on various vendors, with accompanying invoices, and a statement that the "cash loss of lot" was $325,000.00. The defendant argues that these lot damages are speculative because there was no expert evidence as to the difference in the value of the property actually received and its value as represented in the Survey and Map. The defendant also argues that the costs relating to road construction should not be recovered because the plaintiff would have had to build a road, regardless of the number of lots. As to the remaining components, the defendant questions whether they relate to subdivision approval. Finally, D’Amico argues that there should be apportionment of any damages award with the two co-defendants who settled before trial.
A. Compensatory Damages
The purpose of compensatory damages is "to restore an injured party to the position he or she would have been in if the wrong had not been committed." (Internal quotation marks omitted.) Rizzuto v Davidson Ladders, Inc., 280 Conn. 225, 248, 905 A.2d 1165, 1181 (2006). In negligence cases, the rule of damages is that insofar as money can do it, the plaintiff is to receive fair, just, and reasonable compensation for all injuries and losses, past and future, that are proximately caused by the defendant’s negligence. Leabo v. Leninski, 2 Conn.App. 715, 726, 484 A.2d 239, 246 (1984) ("the plaintiff who establishes tort liability is entitled to fair, just and reasonable compensation for his injuries" [internal quotation marks omitted]). [T]he burden of proving damages is on the party claiming them." (Internal quotation marks omitted.) Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 163, 976 A.2d 723, 735 (2009).
The court first considers whether the third lot, which was given up by the plaintiff in its settlement with the Weston Gun Club, is an element of damages, and if so, what amount should be awarded as damages for that lot. The defendant argues, albeit in the section of his brief addressing causation, that because the plaintiff did not lose the third lot as a result of a judgment, the defendant should not be responsible for any damages attributable to it. The court holds that if the settlement was reasonable, that settlement amount- the loss of the third lot- can be the basis for damages in this case. In Commonwealth Land Title Ins. Co. v. Close, Jensen & Miller, P.C., supra, Superior Court, Docket No. CV-06-5003046-S, the plaintiff title insurance companies entered into settlements with their policyholders, and then the court allowed the plaintiff’s to recover the settlement amounts from a surveyor who had not noted possible boundary line encroachments that later exposed the policyholders to liability. The court based its damages award on the Supreme Court’s standard for determining whether a settlement is reasonable:
In determining whether a settlement is reasonable, the jury is entitled to consider not only the damage sustained by the injured party, but also the likelihood that the injured party would have succeeded in establishing the insured’s liability. In order to recover the amount of the settlement from the insurer, the insured need not establish actual liability to the party with whom it has settled, so long as ... a potential liability under the facts known to the [insured is] shown to exist, cumulating in the settlement in an amount reasonable in view of the size of the possible recovery and a real probability of [a] claimant’s success against the [insured] .(Emphasis in original; internal quotation marks omitted.) Black v. Goodwin, Loomis, Britton, Inc., 239 Conn. 144, 160, 681 A.2d 293, 302 (1996). Although Black was a breach of an insurance duty to defend case, this court agrees with the Superior Court in Commonwealth Title that the amount of a reasonable settlement, rather than an actual judgment, can be the measure of damages in a surveyor negligence case. Although "a settlement payment may not reflect a full and fair measure of damages ... it undoubtedly serves a compensatory purpose." Guarino v. Allstate Property & Casualty Ins. Co., 315 Conn. 249, 262, 105 A.3d 878, 885 (2014). In light of that purpose, the court is able to consider the settlement in the present case when determining the compensatory damages the plaintiff is due.
To determine whether the settlement that resulted in the plaintiff giving up one lot was reasonable, this court must decide whether the plaintiff met its burden of proving the size of the possible recovery and a real probability that the Weston Gun Club would have prevailed at trial. The size of the possible recovery was four acres, which, according to all of the evidence, would have prevented the construction on two of the three lots on the Miller property. As to whether there was a "real probability" that the Weston Gun Club would have prevailed at trial, the evidence consisted of testimony by Stephen Fogarty on behalf of the Weston Gun Club; the testimony of Cherfane, the plaintiff’s expert; Douglas Faulds’ testimony, and the following exhibits: the Morehouse Map (Pl. Ex. 10), the 1960 Weston Gun Club map (Pl. Ex. 16), and the defendant’s research (D. Ex. C). Based on this testimony and these exhibits, the court cannot determine if there was a "real probability" of success by the Weston Gun Club. The court can only find that, based on the 1960 Weston Gun Club map, there was a risk that the Weston Gun Club would have prevailed, and the plaintiff would have lost two buildable lots.
Even if the loss of the third buildable lot on the Miller property was a reasonable settlement, the plaintiff cannot recover for that lot unless it establishes the diminution in value of the Miller property caused by its loss. "[T]he basic measure of damages ... to real property is the resultant diminution in value ... In order to assess the diminution in value, however, the [trier of fact] must first determine the value of the property, both before and after the injury has occurred ... [N]o one method of valuation is controlling ..." (Internal quotation marks omitted.) First American Title Ins. Co. v. 273 Water Street, LLC, 157 Conn.App. 23, 42-43. 11 7 A.3d 857, 870 (2015) (discussing measure of damages after Borough of Fenwick claimed ownership of a discontinued road on a property, the borough and the property owner settled on a smaller easement, and the property owner sought to recover from its title insurance company).
Of the claimed total damages of $506,231.84, the plaintiff attributes the amount of $325,000 to "cash loss of lot." The only evidence of the value of that lot is Plaintiff’s Exhibit 9, the warranty deed from Lester Miller to the plaintiff, which indicates that the plaintiff bought the entire Miller property for $350,000.00; Plaintiff’s Exhibit 11, which shows that the Pellegrinis sold their lot for $325,000.00; and Cherfane’s testimony that he attempted to find other lots in Weston since 2014 but could not find any comparable lots. Tr. 12/14/18 at 97-98 . The court holds that the plaintiff did not meet its burden of introducing evidence from which the court could estimate the diminished value, if any, of the Miller property with reasonable certainty.
"Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty ... Although damages often are not susceptible of exact pecuniary computation and must be left largely to the sound judgment of the trier ... this situation does not invalidate a damage award as long as the evidence afforded a basis for a reasonable estimate by the [trier] of that amount. (Internal quotation marks omitted.) Viejas Band of Kumeyaay Indians v. Lorinksy, supra, 116 Conn.App. 163, 976 A.2d 735.
"Speculative evidence is not sufficient evidence for the trier to make a fair and reasonable estimate of the plaintiff’s damages ... Evidence is considered speculative when there is no documentation or detail in support of it and when the party relies on subjective opinion." (Citations omitted, internal quotation marks omitted.) Viejas Band of Kumeyaay Indians v. Lorinksy, supra, 116 Conn.App. 163, 976 A.2d 735. Although "[m]athematical exactitude in the proof of damages is often impossible, ... the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate." (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 59, 717 A.2d 77, 107 (1998). The court declines to award the plaintiff $325,000.00 or any other amount for the loss of the third lot.
The plaintiff also seeks to recover a total of $181,231.84 in damages for various costs that it lists on the summary page of Plaintiff’s Exhibit 8. At trial, Cherfane testified as to what the various vendors did and what portion of their services the plaintiff attributes to the defendant’s negligence. As set forth above, the defendant argues that none of these amounts are proper damages for the negligence claim against him. In his motion to dismiss at the end of trial, on which the court reserved judgment, the defendant argued that these costs were consequential damages, which are not recoverable in a negligence action. Since the plaintiff has brought only a negligence claim, it only can recover for harm "of the same general nature as the foreseeable risk created by the defendant’s negligence." Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270, 273 (1973). The court finds that some, but not all, of the items listed on the first page of Plaintiff’s Exhibit 8 constitute harm of the same general nature as the foreseeable risk created by the defendant’s failure to depict all five-stone bounds and to note the conflict with the 1960 Weston Gun Club map. Other items on the list are too remote or represent costs that would have been incurred even if the Miller property had been subdivided into two lots all along.
The plaintiff also put on testimony, without supporting documents, at trial for other categories of damages that are not in Plaintiff’s Exhibit 8. In its post-trial brief, however, the plaintiff only seeks the damages from Plaintiff’s Exhibit 8. Accordingly, the court will not address those other categories of damages.
The defendant challenges those items that relate to a road built to reach the individual sites on the Miller property. These consist of J. Videira’s Paving, LLC; Target Enterprises, Inc.; Walker Construction, Inc.; Wayne Burritt, LLC; and Wharton Surety Consultants, LLC. The plaintiff seeks one third of the costs for each of these vendors, except that it seeks one-half of the Wayne Burritt costs, which appear to have been incurred entirely in 2017 and 2018, well after the Weston Gun Club asserted its claim. Although the plaintiff has attempted to limit the amounts it is seeking to one third or one-half of the total costs, the court finds that the plaintiff did not meet its burden of proving that the percentage of costs it is seeking was solely attributable to the third lot. Moreover, the plaintiff did not establish that it would not have built the road but for its understanding that there would be three lots instead of two. Both subdivision approvals required the road. Compare Plaintiff’s Exhibit 14 and Plaintiff’s Exhibit 25 .
Some of the items in Plaintiff’s Exhibit 8 are costs incurred with the expectation that there would be three buildable lots. These are the fees for work done by the defendant, LandTech Consultants, and M & O Construction Co., Inc., as well as the Weston property tax on the third lot. The plaintiff seeks to recover all of the defendant’s fees and all of the property tax attributable to the third lot, one-half of LandTech Consultants’ fees for the feasibility of a three-lot subdivision, and one-third of M & O Construction Company’s costs for clearing the three lots. The court finds that these costs are for work done on or for taxes on the third lot that the plaintiff ultimately could not develop. The court will allow the recovery of all of the $6,595 the plaintiff paid to D’Amico Associates because it would not have incurred those fees but for its pursuit of a three-lot subdivision. As to the Weston property tax, Plaintiff’s Exhibit 8 includes the following tax bills: October 1, 2013 Grand List for "Godfrey Road" $7,511.84, October 1, 2014 Grand List for "Hidden Springs Drive" $7,626.22: October 1, 2015 Grand List for "39 Hidden Spring Drive" $5,697.72; October 1, 2016 Grand List for "39 Hidden Spring Drive" $5,767.56; and October 1, 2017 Grand List for "39 Hidden Spring Drive" $5,863.32. There are no checks or other proof of payment, but Cherfane testified that the plaintiff paid the $17,460.80 that appears on the first page of Plaintiff’s Exhibit 8 as property tax on the third lot.
The court finds that the 2013 and 2014 taxes were assessed on the entire Miller property, and therefore only allows the recovery of one-third of those two amounts: $5.046.02. The court will also permit the recovery of the full amounts of the 2015 and 2016 taxes for "39 Hidden Spring Drive": $11,465.28. As to the final tax bill, the payment due dates fell after the settlement with the Weston Gun Club, and therefore, the court will not allow the recovery of those taxes. The plaintiff may recover a total for Weston property tax paid of $16,511.30. Cf. Neiditz v. Morton S. Fine & Associates, Inc., supra, 199 Conn. 683, 689-90, 508 A.2d 442 (allowing the recovery of property taxes during period of delay from surveyor who provided inaccurate survey). As to LandTech and M & O Construction Company, the court will allow the recovery of one-third of the work done. For LandTech, there are checks from the plaintiff totaling $39,550.90 during 2014 and early 2015. The first check, for $2,000.00, is dated March 3, 2014, and therefore cannot be attributed to anything done by this defendant, who had no contact with the plaintiff until March 7, 2014. The court will, however, award damages for one third of the remaining amount: $12,516.97. Finally, as to M & O Construction Company, the plaintiff seeks $5,437.50, which it attributes to the third lot; this claim arises from the $29,000.00 total the plaintiff paid for clearing the lots. The court will allow the recovery of that $5,437.50.
A number of items relate to work on the new two-lot subdivision of the Miller property. The court finds that these costs are too remote from any negligence by the defendant or that they would have been incurred even if the plaintiff had known about the Weston Gun Club’s claim and developed the property as two lots from the start. Therefore, the court will not permit recovery of the costs for Cedar Builders, LLC; Environmental Land Solutions; Peak Engineers, LLC; Ryan and Faulds, LLC; fencing; and the premiums paid for liability insurance. The court recognizes that there may be individual items in the Cedar Builders, LLC, and Ryan and Faulds, LLC, bills that relate to addressing the Weston Gun Club’s claim, but the plaintiff has not met its burden of breaking those items out and demonstrating that they are damages for harm of the same general nature as the foreseeable risk created by D’Amico’s negligence.
Accordingly, the court awards the plaintiff total compensatory damages from this defendant of $41,060.77. The plaintiff also seeks attorneys fees and prejudgment interest. The plaintiff only sued D’ Amico in negligence and does not cite any statute or contract as authority for attorneys fees, and therefore, this court will deny recovery of any attorneys fees. See, e.g., Medeiros v. Medeiros, 175 Conn.App. 174, 204, 167 A.3d 967, 986 (2017).
Prejudgment interest is governed by General Statutes § 37-3a. In relevant part, § 37-3a provides that "[e]xcept as provided in 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable ..."
The statute "applies to interest as damages and allows a trial court to award interest as compensation for the detention of money ..." Sikorsky Financial Credit Union, Inc. v. Butts, 315 Conn. 433, 442, 108 A.3d 228, 233 (2015). Our Supreme Court’s "earliest cases interpreting § 37-3a reveal that ... prejudgment interest was allowed under the statute, namely, claims to recover money that remained unpaid after it was due and payable ." (Emphasis added.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 310 Conn. 38, 51, 74 A.3d 1212, 1220 (2013).
"The corollary to that principle is that § 37-3a does not provide for interest on money that is not due and payable ... [Section] 37-3a provides a substantive right that applies only to certain claims ... It does not allow prejudgment interest on claims that are not yet payable, such as awards for punitive damages ... or on claims that do not involve the wrongful detention of money, such as personal injury claims ... The statute, therefore, applies to claims involving the ... detention of money after it becomes due and payable." (Emphasis in original; internal quotation marks omitted.) System Pros, Inc. v. Kasica, 166 Conn.App. 732, 771-72, 145 A.3d 241, 264 (2016). The court finds that the compensatory damages awarded above were not due and payable, and therefore does not award prejudgment interest.
B. Apportionment
The defendant argued at trial and again in his post-trial brief that any damages assessed should be apportioned with the two settling co-defendants: A. Elizabeth Miller and Beck & Beck, LLC. The plaintiff responds that apportionment is not legally permissible here and that the defendant did not plead or prove the facts necessary for apportionment.
The plaintiff’s complaint alleged that A. Elizabeth Miller and her late husband entered into a real estate agreement with the plaintiff to sell the Miller property to the plaintiff, that A. Elizabeth Miller quitclaimed her interest in the Miller property to her late husband, that her late husband, Lester Miller, executed a warranty deed in favor of the plaintiff, and that each of these contracts referred to the Miller property as ten acres. The complaint further alleges that "Miller knew or should have known through the exercise of reasonable care and proper due diligence that the Property was not ten (10) acres in size." The cause of action is not labelled, but it appears to sound in negligent misrepresentation or fraudulent inducement to contract. The plaintiff’s complaint against Beck & Beck, LLC, alleged legal malpractice based on the alleged failure of that law firm to make sure that A. Elizabeth Miller executed the warranty deed and to order its own survey of the Miller property. The claim against D’Amico sounded in negligence. During the course of the litigation, D’Amico filed an answer in response to the allegations against him in the complaint, but he did not file cross claims against the co-defendants. Moreover, after the conclusion of evidence, D’Amico requested leave to amend its answer to add the special defense of statute of limitations, but did not add any cross claims against the codefendants at that time.
For his argument that the court should apportion the damages, D’Amico relies upon General Statutes § 52-572h(f). That statute provides that the court shall specify:
(1) The amount of economic damages: (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant.
At oral argument at the conclusion of the trial, the plaintiff argued that there could be no apportionment involving A. Elizabeth Miller because the claim against her was a breach of warranty claim, not a negligence claim. The court does not agree with this characterization of the claim against A. Elizabeth Miller. She did not sign the warranty deed, and indeed, in the claim against Beck & Beck, LLC, the plaintiff acknowledges this fact. The claim against A. Elizabeth Miller appears to sound in negligent misrepresentation. Our Supreme Court has held that § 52-572h applies solely to commercial losses caused by negligence. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 586, 657 A.2d 212, 225 (1995). Accordingly, apportionment could apply here.
In its post-trial brief, the plaintiff argues that the defendant did not put on any evidence of the negligence of the co-defendants. The plaintiff is correct that there was no evidence at trial as to the alleged negligence of the co-defendants. The Appellate Court has held that, under these circumstances, it was appropriate for the trial court not to submit the issue of apportionment to the jury. Baxter v. Cardiology Associates of Neil) Haven, P.C., 46 Conn.App. 377, 379-82, 699 A.2d 271, 273-75 (holding that it was the defendants’ burden to prove negligence of the settled co-defendant), cert. denied, 243 Conn. 933, 702 A.2d 640 (1997); see also Trimm v. Kasir, Superior Court, judicial district of New Britain, Docket No. CV-11-6009059-S (March 12, 2015, Swienton, J.) . Likewise, this court declines to reach the issue of apportionment because there was insufficient evidence at trial as to the negligence of the codefendants.
CONCLUSION
For the foregoing reasons, this court enters judgment in favor of the plaintiff, Iron Shields Investment, LLC, and against the defendant, Fred D’Amico d/b/a D’Amico Associates, in the amount of $41,060.77.