Opinion
No. CV 02 0816358 S
December 11, 2003
MEMORANDUM OF DECISION
This matter concerning a dispute between neighbors over real property, and other claims, was tried to the court on eight days in September 2003. On October 9, 2003, in the presence of the parties and counsel, the court conducted an on-site view of the properties which are the subject of the dispute. Thereafter, the parties submitted post-trial memoranda and reply briefs (the latter on November 25, 2003), in lieu of oral argument. After having reviewed the evidence and considered the arguments of the parties in their post-trial memoranda, the court issues this memorandum of decision.
I. Background
In their amended complaint (#136), the plaintiffs, Thomas Otley and Mary Otley (the Otleys), claim that they have acquired, by adverse possession, certain real property which is adjacent to property which they acquired by deed, and at which their home is located, at 169 Still Road in West Hartford, Connecticut. They seek injunctive relief against their next-door neighbor, the defendant and counter claimant, Jacqueline A. McCarthy, who owns 165 Still Road. The Otleys claim that, in violation of their rights in that adjacent property, McCarthy has built and/or moved a stockade fence in part of the area which they claim to have acquired by adverse possession; removed "no trespassing" signs posted by the Otleys; threatened to destroy and/or remove portions of their existing driveway; has or may destroy plantings and landscaping placed to the west of McCarthy's fence prior to its change of location; requested them to remove plantings located in the adjacent area; and entered onto and/or done acts thereon. See amended complaint, first count, ¶ 6; second count, ¶ 7.
For ease of reference Thomas Otley will be referred to as "Otley."
The Otleys seek to permanently enjoin McCarthy from engaging in such conduct. In addition, they seek a declaration that they have acquired title to the areas which they claim to have acquired by adverse possession.
In her second amended counterclaim (#148) (counterclaim), McCarthy claims that she is the owner of and in possession of real property, located at 165 Still Road. She claims that the Otleys have crossed over her land and encroached thereon. For example, she contends that their driveway has been constructed so as to create a continuing trespass. See counterclaim, first count. She seeks to quiet title to the land in which the Otleys claim an interest. See counterclaim, second count.
In addition, McCarthy claims that the Otleys, or one of them, in violation of General Statutes § 47-34a, removed or hammered down some or all of the survey markers which professional surveyors, whom she engaged, had placed on her property. She claims to have incurred additional expense as a result. See counterclaim, third count.
At the time this action was commenced, § 47-34a provided:
(a) Any person who knowingly injures, destroys, disturbs or removes any marker properly placed on any tract of land by a surveyor, or by any person at the direction of a surveyor, for the purpose of designating any point, course or line in the boundary of such tract of land, shall be fined not less than one hundred fifty dollars nor more than five hundred dollars.
(b) Notwithstanding the provisions of subsection (a) of this section, a surveyor licensed under chapter 391, or a person acting at the direction of any such licensed surveyor, may remove an existing marker in order to place an upgraded marker in the same location.
Section 47-34a was amended by P.A. 03-115; the authorized fine was increased.
In her fourth count, McCarthy alleges that, on two separate occasions, the Otleys, without having a survey of their own or any other support therefor, placed "no trespassing" signs on her property and refused to remove them. McCarthy contends that the Otleys have engaged in intentional or reckless conduct, with the intent to cause her severe emotional distress and other damage, by trespassing on her property, disturbing the survey markers, and placing the signs. As a result, she claims to have suffered severe emotional distress. See counterclaim, fourth count.
McCarthy seeks to enjoin the Otleys from trespassing on her property; an order directing the Otleys to remove, at their expense, any encroachments located thereon, including a portion of the driveway; and a judgment quieting title to 165 Still Road in accordance with Plaintiff's Exhibit 13, an A-2 survey. In addition, she requests awards of damages, including multiple and punitive damages.
The standards for such surveys are provided in Regs., Conn. State Agencies §§ 20-300b-1, et seq.; see Regs., Conn. State Agencies § 20-300b-11 (classes of accuracy).
II. Facts
The Otleys purchased their home at 169 Still Road in West Hartford, Connecticut, on or about July 29, 1996. McCarthy, their next-door neighbor to the east, resides at her home, located at 165 Still Road, which she purchased just over one year later, on or about July 31, 1997. At the times when they purchased their properties, neither the Otleys nor McCarthy were aware of the precise locations of their boundary lines.
This dispute arose after McCarthy engaged surveyors in May 2001, initially in connection with landscaping work she anticipated doing on the eastern side of her property. Eugene S. Smith, a licensed surveyor, credibly testified about the work he did for McCarthy. In May and June 2001, Smith surveyed McCarthy's property and discovered that the Otleys' driveway encroached over the western boundary of McCarthy's lot. Smith prepared a sketch depicting driveway and plantings encroachments, which he gave to McCarthy in June 2001. See Plaintiffs' Exhibit 12. Thus, at about that time, McCarthy became aware of the extent of the encroachments. When he did this work, Smith set rebars to show the boundaries of McCarthy's land.
Subsequently, in 2002, Smith checked the western boundary markers. He found that the rebar which he had placed near a pond had been pounded down. Since it had become out of position, he corrected it. He also placed additional points or nails which are not shown on Exhibit 13. For this work, of checking and resetting markers, McCarthy was charged $80.00. See Defendant's Exhibit H.
In response to McCarthy's March 2002 request, Smith subsequently prepared Plaintiffs' Exhibit 13, the A-2 survey, in May 2002. The driveway encroachment, which is shown on Plaintiffs' Exhibit 13, is triangular in shape, and is seven feet in width at its widest dimension.
There is no dispute in this case as to the accuracy of Plaintiffs' Exhibit 13, the A-2 survey. Otley testified that his attorney hired a surveyor and that he accepted the boundary line shown on that survey.
Plaintiffs' Exhibit 12, a sketch by Smith, depicts another area of encroachment, south of the driveway, which is approximately rectangular in shape and is nine to ten feet wide.
Otley described the extent of the property which he claimed had been acquired by adverse possession. He claims an area from the southern edge of Still Road, south to the edge of a pond; this area, at its widest is the distance between where a new stockade fence (which McCarthy moved in 2002) is located and where the previous fence was located. See Plaintiffs' Exhibit 15P. He stated that, initially, he believed the eastern boundary of his property to be a line of trees which extended north to south until the line reached the former location of the stockade fence and then continued south. See Plaintiffs' Exhibits 15R and 15S. He claims that he maintained the grassy area between his driveway and the tree line and that he planted and maintained shrubbery and flowers along the fence line. In the year 2000, he engaged a contractor to re-pave the surface of his driveway, but claims that it was not expanded in area. Rather, he claims that it was larger before it was repaved. See Plaintiffs' Exhibits 15J and 15L.
This photograph shows a view of the area before the new fence was built in 2002. In 1998, McCarthy replaced a previous stockade fence in the same previous location. In comparison, Plaintiffs' Exhibit 15F shows the new fence.
A catch basin or drain is located at the southern edge of the driveway encroachment. See Defendant's Exhibit 15L. The driveway drains into the catch basin. From that point a PVC drain runs in a southerly direction, toward the pond, which is in the rear of the property. The property at 165 Still Road is the subject of a drainage easement for the benefit of 169 Still Road. See Plaintiffs' Exhibit 6, Drainage Easement, dated October 22, 1973, recorded in the West Hartford land records at vol. 519, p. 647. This document provides an easement for drainage purposes over a rectangular part of 165 Still Road. The catch basin is located within the easement area. See Plaintiffs' Exhibit 13.
Smith explained that the drawing which accompanies the drainage easement contains errors in detail. Also, part of it is illegible. The court does not rely on that drawing in reaching its findings.
Beginning in March 2002, the parties exchanged a series of correspondence outlining their respective claims about the property dispute. McCarthy advised Otley that she intended to move her fence to conform to the boundary identified by the A-2 survey, Plaintiffs' Exhibit 13. She also accused Otley of tampering with boundary markers. See Plaintiffs' Exhibit 8 (Letter from McCarthy to Otley, dated March 13, 2002). Otley objected to the relocation of' the fence, asserting that title to the land was disputed. See Plaintiffs' Exhibit 9 (letter from Otley to McCarthy, dated March 18, 2002).
Although dated in 2001, it was stipulated by the parties that the correct year is 2002.
Otley denied moving any of the boundary markers placed by McCarthy's surveyor. He admitted that, in the summer of 2001, he pounded down two of them, one near the street and one near the pond. He claimed that he did so for his own convenience, in order to be able to more easily mow the grass.
McCarthy requested the Otleys to remove the encroachment of their driveway from her property and to remove plantings and landscaping which they had placed to the west of the then-location of the stockade fence. See Defendant's Exhibit G, dated March 22, 2002, pp. 3-4 (letter from McCarthy's attorney to the Otleys). The Otleys had planted a garden along the stockade fence in 1998 or 1999.
On the next day, March 23, 2002, the same date he was served with Exhibit G, McCarthy's attorney's March 22, 2002 letter, Otley went into McCarthy's backyard while she was playing with her nephew and her dog and argued with her about their property dispute. McCarthy told him to contact her attorney. McCarthy and her nephew went into her house. McCarthy claims that she cried after Otley's argument with her and that her nephew was upset. McCarthy testified that no threat of physical harm was made.
McCarthy moved the fence to its present location in late March 2002. See Defendant's Exhibit AA (Town of West Hartford Zoning Permit); Defendant's Exhibits 15B and 15F.
On or about April 8, 2002, acting under the advice of counsel, Otley placed "No Trespassing" signs in the disputed area, prompting McCarthy to complain to the West Hartford Police. Subsequently, on April 21, 2002, McCarthy served the Otleys with notice that she disputed claims they had to the property described in her deed to 165 Still Road. See Plaintiffs' Exhibit 10.
On April 23, 2002, the parties sent correspondence to one another. The Otleys' attorney sent a letter (Defendant's Exhibit L) to McCarthy advising her to cease and desist from any activities relating to the disputed boundary. McCarthy's attorney sent a letter to the Otleys' counsel (Plaintiffs' Exhibit II) in which he asserted that the Otleys had again placed "no trespassing" signs in the disputed area. In McCarthy's attorney's letter, McCarthy advised the Otleys that, on May 11, 2002, she intended to have a work crew, with heavy machinery, on the site to remove the portion of the Otleys' driveway which was located on her property.
Otley acknowledged that he again placed "no trespassing" signs, on or about April 23, and testified that he had done so in order to assert his claim. The court credits this expression of Otley's intent and finds that he did not place the "no trespassing" signs with the intent to upset McCarthy. After seeing the second set of "no trespassing" signs, McCarthy stated that she was upset and cried on her way from her home to her office.
On May 3, 2002, the Otleys began suit by seeking a temporary injunction against McCarthy's proposed action concerning the driveway. On June 27, 2002, the parties agreed to a temporary injunction, which was entered by the court (Stengel, J.).
McCarthy claims that, as a result of the property dispute, she has difficulty sleeping. She also claims that she suffers from nausea and severe tension headaches, that she has lost weight since the dispute began, and she has a hard time focusing on her work. She claims that, in March 2003, she stayed out of her office for one week, due to nervousness and anxiety. She stated that she was unable to control shaking during this time. In her interrogatory responses, she stated that she worked at home during that one week. She has not seen a medical professional concerning these claimed symptoms. She stated that she took no medication, except for Tylenol, for her claimed symptoms. She also stated her headaches cause her to wake up every night.
In her interrogatory responses, McCarthy attributed her symptoms to the incidents described in the fourth count of her counter claim, dated May 14, 2003, which include the placing of the "no trespassing" signs on her property and the disturbing of survey markers by Otley, and she attributed her symptoms to the argument she had with Otley in March 2002. See Plaintiff's Exhibit 19, interrogatories 1-3, 13.
In response to Interrogatory 13, McCarthy referred to this incident as having occurred in the spring of 2001. This is clearly a typographical error; the argument occurred in 2002. See Plaintiff's Exhibit 19.
Since they only acquired 169 Still Road in 1996, the Otleys' adverse possession claim depends on their "tacking" their claimed usage of the adjacent property onto that of their predecessors in interest. Towards that end, they presented the testimony of Sam G. Chung (Chung) and June W. Chung. Chung lived at 169 Still Road from 1973 until 1996. He and his wife, June W. Chung, acquired title by a deed dated November 16, 1973. See Plaintiff's Exhibit 1. By warrantee deed, dated July 29, 1996, the Chungs conveyed the property to the Otleys. See Plaintiffs' Exhibit 3. According to Otley, the Otleys and their counsel met with the Chungs at 169 Still Road in late May or early June 2002 to discuss the boundary line. The Chungs' testimony is discussed below.
See discussion of "tacking" below, at pp. 10-11.
Additional references to the facts are set forth below.
III. Discussion A. Adverse Possession
In Connecticut, the burden of proof which a claimant must sustain to establish an adverse possession claim is well settled. "[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner . . . A finding of adverse possession is to be made out by clear and positive proof . . . [C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist . . . The burden of proof is on the party claiming adverse possession . . . Adverse possession is a question of fact . . ." (Internal quotation marks omitted and citation omitted.) Allen v. Johnson, 79 Conn. App. 740, 744-45, 831 A.2d 282 (2003). "The doctrine of adverse possession is to be taken strictly." (Internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 499, 442 A.2d 911 (1982).
Here, as noted, the Otleys claim to have acquired, by adverse possession, title to part of the property which, according to her deed, McCarthy acquired when she purchased 165 Still Road. In response, McCarthy seeks to quiet title to that property. "A person who claims title by deed is claiming that he has good record title which entitles him, in an action to quiet title, to a judgment of ownership . . . Conversely, a person who claims title by adverse possession is claiming that although he does not have record title, his proof of possession which is adverse, open, notorious and continuous for the entire statutory period entitles him, in an action to quiet title, to a judgment of ownership. The trial court must first determine in which party record title lies, and then, if necessary, determine whether adverse possession has divested the record owner of his title." (Internal quotation marks omitted and citations omitted.) Konikowski v. Everson, 42 Conn. App. 658, 659-60, 680 A.2d 1366 (1996).
As noted above, there is no dispute here that McCarthy is the record owner of the land which the Otleys claim to have acquired by adverse possession. The depiction of the property, as set forth in the A-2 survey, Plaintiffs' Exhibit 13, is undisputed.
It is also undisputed that the Otleys have owned 169 Still Road only since July 1996. Therefore, in order for their adverse possession claim to succeed, the period of their claimed adverse possession must be "tacked" onto a similar previous adverse possession by their predecessors in interest, the Chungs, in order to amount to the requisite fifteen years. See amended complaint, first count, ¶ 5 (alleging that the Otleys, "coupled with their predecessors in title" occupied the claimed areas for a period in excess of fifteen years "thereby establishing ownership to said parcels of land by Adverse Possession"); second count ¶ 6 (alleging that the Otleys, "coupled with there [sic] predecessors" occupied the claimed land). In their trial brief, p. 5, the Otleys acknowledge that they "do not possess the requisite element of 15 years continuous use"; they rely also on the use of their predecessors in title.
"The authoritative rule of tacking successive possessions for the acquisition of title after fifteen years is found in Smith v. Chapin, 31 Conn. 530 (1863). See Marquis v. Drost, 155 Conn. 327, 332, 231 A.2d 527 (1967) . . . Privity of estate is not necessary, but rather, privity of possession. `It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years whether by one or more persons. This was settled in Fanning v. Willcox, 3 Day 258 [1808]. Doubtless the possession must be connected and continuous, so that the possession of the true owner shall not constructively intervene between them; but such continuity and connection may be effected by any conveyance agreement or understanding which has for its object a transfer of the rights of the possessor, or of his possession, and is accompanied by a transfer of possession in fact.' (Emphasis in original.) Smith v. Chapin, supra, 531-32. Privity of possession is defined as a continuity of actual possession, as between prior and present occupant, the possession of the latter succeeding the possession of the former under deed, grant, or other transfer or by operation of law." (Emphasis in original and internal quotation marks omitted.) Matto v. Dan Beard, Inc., 15 Conn. App. 458, 479-80, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988).
Thus, the Otleys' proof of the fifteen-year period depends directly on their predecessors' (the Chungs) adverse possession of the same property claimed by the Otleys. Their presentation relied heavily on the Chungs' testimony. In essence, the Otleys' adverse possession claim boils down to a credibility determination. As the trier of fact, the court must resolve a credibility contest. See State v. Nowell, 262 Conn. 686, 695, 817 A.2d 76 (2003); Lacic v. Tomas, 78 Conn. App. 406, 409-10, 829 A.2d 1 (2003) (quiet title/adverse possession action). "The determination of a witness' credibility is the special function of the trial court." State v. Nowell, supra, 262 Conn. 695. "[I]t is the trier's exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony." Hoffer v. Swan Lake Assn., Inc., 66 Conn. App. 858, 861, 786 A.2d 436 (2001).
Chung testified that, when he lived at 169 Still Road, he and his wife did not change the driveway and that he and his family used the area south of it to plant vegetables, flowers, and an apple tree. He also claims to have maintained an area to the east of the driveway. As explained below, the court does not credit Chung's testimony about the conditions which existed and what activities he conducted there during the time he lived at Still Road.
Chung's testimony was vague, contradictory, and unpersuasive. For example, as noted, in 2002, after her dispute with the Otleys arose, McCarthy moved the stockade fence to the western boundary of her property. Chung testified that he viewed the site with the Otleys no earlier than May 2002. Thus, he did so at a point in time after McCarthy moved the fence in March 2002. Nevertheless, Chung initially testified at trial that the property looked the same as it did when he owned 169 Still Road. See transcript of testimony, September 11, 2003, pp. 32, 37-40 (hereafter "Tr., p. ___"). Chung's initial inability, in his trial testimony, to discern the different location of the fence undermines his testimony about his recollection of the way the property was when he lived there and about the use of the property during that time. It also contradicts paragraph 8 of his affidavit of May 2, 2003 (Defendant's Exhibit J), which was submitted in opposition to McCarthy's motion for summary judgment (#141). There, Chung averred that the fence had been moved when he viewed the property in 2002.
Even if he viewed the property in late May or early June 2002, when Otley testified he first met with the Chungs, that would have been after McCarthy moved the fence to her western boundary.
Another example of Chung's diminished credibility involves his testimony about his affidavit. In paragraph 3 of his affidavit, Chung stated that when he and his wife purchased 169 Still Road in 1973, the driveway was "in substantially the same location as is depicted in the attached Exhibit `A' of Plaintiffs' Memorandum in Opposition to Motion for Summary Judgment. The configuration of the driveway as shown in Exhibit `A' accurately depicts how the driveway existed from November 16, 1973 through the date we sold the property on July 29, 1996."
Exhibit "A" to the referenced memorandum in opposition was the A-2 survey, Plaintiffs' Exhibit 13. See plaintiffs' memorandum of law in opposition to defendant's motion for summary judgment (# 147), p. 1. At trial, in contradiction to his affidavit, Chung stated that he never saw the memorandum. See Tr., p. 69. At trial, he could not recall the survey. See Tr., p. 65. Clearly, May 2003, when Chung signed his affidavit, is much more recent in time than events between 1973 and 1996. Chung's inability, at trial in September 2003, to recall what he swore to a little more than four months before trial calls into question his recollection of conditions as they existed years before.
Chung's credibility is further undermined by evidence of his bias in this matter. When he and his wife sold 169 Still Road to the Otleys, they provided a warrantee deed. See Plaintiffs' Exhibit 3. They also provided an owner's affidavit, and an owner's special title and survey report, both dated July 29, 1996. See Plaintiffs' Exhibit 14. Under paragraph (B) of the owner's affidavit, the Chungs stated that there was no survey of their property. Question 5 of the owner's special title and survey report states, "Do you know or have reason to believe that any building or other structure on your land (including patios, porches, stoops, etc.) encroaches (is partially located) on any adjoining property or onto or within the boundaries of any easement on your Property?" The Chungs checked "No" as their response. See Plaintiffs' Exhibit 14.
In signing Plaintiffs' Exhibit 14, the Chungs certified that "I/we completed this Special Title and Survey Report with the knowledge and understanding that the information that has been given herein will be relied upon by Connecticut Attorneys Title Insurance Company in issuing its mortgage title insurance policy without taking an exception in the policy for such state of facts as an accurate survey and a reasonable inspection of the premises would reveal. The answers to the above questions are true to the best knowledge and information of the undersigned."
Conceivably, the Otleys could argue that in providing such information about encroachments at the time of closing, the Chungs misled the Otleys. Also, by providing a warrantee deed, the Chungs assumed contractual obligations to the Otleys. See Rosenblum v. Eisenhauer, 29 Conn. Sup. 216, 220-21, 280 A.2d 537 (1971). Under these circumstances, the court does not view Chung as an objective witness, in that it is in his interest that the Otleys prevail in this action.
The court is unpersuaded by the Otleys' allusion, in their argument, to language difficulties or cultural differences to explain Chung's testimony. He testified in fluent English, without an interpreter. He noted that he had owned and operated a business in Connecticut for many years.
Likewise, the court does not credit the brief testimony of Chung's wife, June W. Chung. Her testimony was so vague and unspecific that it had no probative value.
Also, the court does not credit the testimony of John H. Miller, a surveyor, called by McCarthy, whose mortgage survey of 165 Still Road, dated April 30, 1986, was presented as Plaintiffs' Exhibit 5. While this survey shows no encroachments, such as the driveway, over the western boundary, Miller testified that the field work for this survey was done by staff members, and not by him. He had no personal knowledge of the site in 1986. In addition, the court finds Plaintiffs' Exhibit 18, a digitally created map, generated from MDC fly-over data, to be unpersuasive as to when the driveway encroachment began. For example, this map was not prepared to the standards of accuracy of an A-2 survey.
Thus, the court does not credit the testimony by either of the Chungs about the conditions at and the use of the adjoining properties when they owned 169 Still Road from 1973 to 1996. The proof offered by the Otleys as to their adverse possession claims is not clear and convincing. The court finds that the Otleys have not sustained their burden to show adverse possession for a fifteen-year period. Under these circumstances, there is no need for the court to determine whether the Otleys have established the other elements of an adverse possession claim. Judgment may enter for McCarthy, the defendant, on both counts of the amended complaint.
Similarly, under these circumstances, it is unnecessary for the court to comment on the credibility of each witness who testified.
B. Trespass and Injunction
In the first count of her counterclaim, McCarthy claims that the Otleys have trespassed on her property, including a continuing trespass through their driveway's encroachment over the boundary line. "A trespass on real estate is the doing of a direct injury to property by force." Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 516, 280 A.2d 877 (1971). "The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." Abington Ltd. Partnership v. Talcott Mountain Science Center for Student Involvement, Inc., 43 Conn. Sup. 424, 427, 11 Conn. L. Rptr. 349 (1994). "[I]n order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land" (Internal quotation marks omitted.) Id. at 427-28. "Title is an essential element in a plaintiff's case where an injunction is sought to restrain a trespass . . . Since trespass is a possessory action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to prevail." (Internal quotation marks omitted and citation omitted.) Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 461, 338 A.2d 470 (1973).
"One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove. Restatement of Torts (Second) § 158. Further, [a] trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there. Restatement (Second) Torts § 161." (Internal quotation marks omitted.) Town of Ashford v. Rogers, Superior Court, G.A. 11 Housing Session, Docket No. CV11-9212 (Feb. 2, 2001, Kocay, J.) ( 29 Conn. L. Rptr. 333).
Our Supreme Court frequently cites the Restatement of Torts as authority. See Craig v. Driscoll, 262 Conn. 312, 331 n. 16, 813 A.2d 1003 (2003).
It is undisputed that McCarthy is the owner of and is in possession of 165 Still Road. She has proved that the Otleys are engaged in a continuing trespass on her property by failing to remove the driveway encroachment from her property in response to her March 2002 request.
McCarthy seeks injunctive relief, an order requiring the Otleys to remove the encroachment and restore the property. The issuance of an injunction is "an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances." (Internal quotation marks omitted.) Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982).
"Injunction is available in a suitable case, and will ordinarily issue at the suit of a landowner to compel the removal of encroachments." (Internal quotation marks omitted.) Branch v. Occhionero, 239 Conn. 199, 206, 681 A.2d 306 (1996). In addition, our Supreme Court has stated that in cases of trespass a plaintiff need not show that irreparable harm will result in the absence of injunctive relief. See Wambeck v. Lovetri, 141 Conn. 558, 564, 107 A.2d 395 (1954). "A decision to grant or deny an injunction must be compatible with the equities in the case and balance the injury complained of with that which will result from interference by injunction." (Internal quotation marks omitted.) Marquardt Roche/Meditz Hackett, Inc. v. Riverbend Executive Center, Inc., 74 Conn. App. 412, 421, 812 A.2d 175 (2003).
In her trial brief, McCarthy seeks "an order that the plaintiffs remove their encroaching driveway and any other encroachments upon her property, at their expense, and restore the property to its natural condition within a reasonable time; a permanent injunction barring the plaintiffs from use of defendant's property; and the posting of a bond in the amount of $20,000.00 to ensure the work in removal of the driveway is satisfactorily completed." See McCarthy's trial brief, p. 29. In their reply brief, while continuing to assert their claims, the Otleys do not comment on this requested injunctive relief.
In considering the equities, the court concludes that the requested injunctive relief is warranted. The court, having reviewed the evidence and having viewed the properties, finds that McCarthy's use and enjoyment of her property would be meaningfully impaired if the relief were not granted. McCarthy should not be compelled to surrender to the Otleys a portion of what she purchased. While, clearly, the Otleys will have to incur costs to remove some pavement and restore the property, no evidence was presented to show that such expenses would be unusually high or prohibitive. There is no evidence before the court tending to show that such removal could not be accomplished while respecting the drainage easement at the same time. Accordingly, in connection with the first count of McCarthy's counterclaim, the court grants the requested injunctive relief.
McCarthy seeks an award of $5,000.00 for the "inconvenience and damage caused by the trespass of the plaintiffs." See defendant's trial brief, p. 29. She does not explain what the components of such an award should be.
The previous gardening activities in which the Otleys engaged on McCarthy's side of the boundary, prior to her moving the stockade fence to her property's western edge, were begun when both sides were mistaken as to the actual location of the boundary. To the extent that they continued after the parties became aware of the true boundary, McCarthy has not proved that any substantial damage occurred as a result of them. Otley's mowing on the land east of the driveway likewise did not cause meaningful damages. Other activities of which McCarthy complains, including the raking of leaves and the shoveling of snow, even if they occurred, do not appear to have exceeded de minimus consequences. See Quiet Automatic Burner Corp. v. Wetstone, 143 Conn. 276, 279, 121 A.2d 635 (1956).
As noted, Otley admitted pounding down two survey markers and McCarthy incurred an $80.00 charge for re-positioning survey markers. See Defendant's Exhibit D and H. She also incurred a charge of $360.60 for the work needed to complete the A-2 survey. See Defendant's Exhibit I. These surveyor charges incurred by McCarthy, which total $440.60, result directly from trespassing by the Otleys. See Baker v. Croce, Superior Court, judicial district of Waterbury, Docket No. 093308 (January 18, 1991, Healey, S.T.R.). But for the continuing trespass, the survey completion work would not have been necessary.
In contrast, the initial survey work performed by Smith was commissioned for reasons unrelated to this property dispute. See Exhibit C. The evidence is not sufficiently clear for the court to be able to separate items within this bill in order to allocate them to work related to the dispute and work unrelated thereto. See Plaintiff's Exhibit 12 (sketch showing work performed May June 2001).
Accordingly, McCarthy is awarded damages in the amount of $440.60 on the first count of her counterclaim.
C. Quiet Title
In the second count of her counterclaim, McCarthy seeks to quiet title to her property, in accordance with the A-2 survey, Plaintiff's Exhibit 13. In their reply brief, p. 14, the Otleys assert that the quiet title claim depends on the outcome of the court's ruling on their claim for adverse possession.
The essential elements of an action to quiet title recited in § 47-31 of the Connecticut General Statutes are as follows: (1) that the plaintiff claims title to the property; and (2) that the action is brought against such persons claiming an interest in the property that is adverse to that of the plaintiff See Koennicke v. Maiorano, 43 Conn. App. 1, 9, 682 A.2d 1046 (1996).
Here, as noted above, it is undisputed that McCarthy is the record owner of 165 Still Road. Also, there is no dispute that the boundaries to her property are as set forth in her deed and in the A-2 survey, Plaintiff's Exhibit 13. As discussed, the court has found that the Otleys have not acquired part of McCarthy's property by adverse possession. Accordingly, McCarthy is entitled to a judgment quieting title in accordance with the allegations of the second count of her counterclaim, subject to the drainage easement.
D. Damage to Survey Markers
In the third count of her counterclaim, McCarthy pleads a violation of General Statutes § 47-34a, concerning the unlawful destruction or disturbance of a surveyor's marker. As noted in her trial brief, p. 29 n. 16, in this civil action the court does not have the jurisdiction to impose the fine authorized by the statute. The court has awarded damages to McCarthy, under her trespass claim, for Otleys' actions, which he admitted, in hammering down survey markers. While Otley is liable for his actions, such damages may only be awarded once. McCarthy also requests (see McCarthy's trial brief, p. 27) that the court consider these actions in connection with her claims of reckless and intentional conduct. The court has done so. See discussion below.
E. Intentional and Reckless Conduct
In the fourth count of her counterclaim, which she entitles "Intentional and Reckless Conduct," McCarthy realleges the allegations of the previous count concerning the damage to the survey markers, and adds allegations concerning the two occasions, on April 8, 2002, and on April 23, 2002, when Otley placed the "no trespassing signs" on her property. In paragraph 14 of this count she alleges that the Otleys have engaged in "reckless, outrageous conduct with the intent to deprive the Defendant of her property rights and cause her severe emotional distress and cause other damage, in that . . ." (a) the survey markers were disturbed in order to prevent her from obtaining an accurate survey and to cause her "severe emotional distress"; (b) the Otleys placed the "no trespassing" signs without basis and "with the intent to deprive the Defendant of the right to use of her property and to cause her severe emotional distress"; and (c) they placed the signs again "with the intent not only to deprive the Defendant of the use of her property, but with the intent to create severe emotional distress upon her." In her brief, she also refers to the "March 23, 2002 back-yard argument between Mr. Otley and Ms. McCarthy that left her shaken and her nephew worried." See McCarthy's trial brief, p. 28. She claims that Otleys' actions in placing the signs and in pounding down the survey markers amounted to more than negligence and more than gross negligence. See McCarthy's trial brief, p. 28.
This title is reiterated in her trial brief, p. 27.
In support of this claim, McCarthy relies on our Supreme Court's recent decision in Martin v. Brady, 261 Conn. 372, 379, CT Page 14048 802 A.2d 814 (2002). There, our Supreme Court explained, "[i]n the common-law context, . . . we have stated: [I]n order to establish that the defendant's conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Id.
McCarthy also refers to earlier appellate decisions which contain language similar to that in Martin v. Brady, supra. See McCarthy's trial brief, p. 27.
Nowhere does McCarthy allege, and the evidence at trial does not reflect, that the parties' property dispute here involved, at any time, "a situation where a high degree of danger is apparent." Id. In her own testimony, McCarthy acknowledged that no threat of violence occurred. While, as in many such disputes between neighbors, it is understandable that McCarthy found Otley's actions annoying and/or distressing, there is no evidence before the court that a high degree of danger to her was involved. Also, as noted, the court credits Otley's testimony that he placed the signs with the intent to assert his claim. McCarthy has not proved that Otley's actions were undertaken with the intent to cause her distress.
In neither of McCarthy's two post-trial briefs does she contend that her fourth count should be read to allege the tort of intentional infliction of emotional distress or that she has proved that the Otleys are liable for the same. Where a case is tried to the court, without a jury, a claim is deemed abandoned where it is not briefed; see Collins v. Goldberg, 28 Conn. App. 733, 738, 611 A.2d 938 (1992); or argued. See Practice Book § 5-2. Accordingly, to the extent that McCarthy's fourth count may be read to allege the intentional infliction of emotional distress, this claim is deemed to be abandoned.
In this matter, the parties submitted trial briefs and reply briefs in lieu of oral argument.
Practice Book § 5-2 provides, "Any party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief under Section 5-1 or state the question distinctly to the judicial authority on the record before such party's closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. If the party fails to do this, the judicial authority will be under no obligation to decide the question."
Notwithstanding this finding, the court also notes that the evidence is insufficient to support a claim of the intentional infliction of emotional distress. Our Supreme Court recently reiterated the elements of this cause of action. "In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted; citations omitted; footnote omitted.) Carol v. Allstate Insurance Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003).
While the pounding of the markers contravened a Connecticut statute, that in itself does make the conduct "beyond all possible bounds of decency." Id. See DeLeon v. Little, 981 F. Sup. 728, 738 n. 8 (D.Conn. 1997). Likewise, while the placing of the "no trespassing" signs may have been without legal basis, it resulted from the parties' boundary dispute. At the times the signs were placed, the Otleys thought they were protecting their legal rights. Once this litigation began shortly thereafter, and a temporary injunction was put in place, these activities ceased. The court finds that such conduct did not amount to harassment. Finally, as noted above, while the parties argued about their dispute, there was no threat of violence. None of the conduct which McCarthy alleges meets the standard of extreme and outrageous.
Accordingly, judgment may enter for the Otleys as to the fourth count of McCarthy's counterclaim.
F. Punitive Damages CT Page 14050
In her counterclaim, McCarthy seeks an award of punitive damages "for the reckless and intentional actions of the Plaintiffs." See counterclaim, demand for relief, ¶ 5.
An award of punitive damages is discretionary. See Arnone v. Enfield, 79 Conn. App. 501, 522, 821 A.2d 283 (2003). "To furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought." Markey v. Santangelo, 195 Conn. 76, 77, 485 A.2d 1305 (1985). Our Appellate Court recently reiterated the applicable considerations under the common law, stating, "[w]e have previously held that in order to award punitive damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . ." (Internal quotation marks omitted.) Arnone v. Enfield, supra, 79 Conn. App. 521. "In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence." Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987).
"In Connecticut, common-law punitive damages are limited to the plaintiffs' litigation expenses plus taxable costs. Berry v. Loiseau, 223 Conn. 786, 825-27, 614 A.2d 414 (1992). Such damages `serve primarily to compensate the plaintiff for his injuries'; id., 827; but, `when viewed in the light of the increasing costs of litigation, also serves to punish and deter wrongful conduct.' Id. Our Supreme Court recently declined to revise that rule, concluding that it `fulfills the salutary purpose of fully compensating a victim for the harm inflicted on him while avoiding the potential for injustice which may result from the exercise of unfettered discretion by a jury.' (Internal quotation marks omitted.) Id." Franc v. Bethel Holding Co., 73 Conn. App. 114, 140, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002).
In arguing for an award of punitive damages, McCarthy likens the situation here to that present in Stohlts v. Gilkinson, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 01-0096452 (August 22, 2003, Aurigemma, J.). The court is unpersuaded that the evidence here of the Otleys' acts rises to the level present in Stohlts, which also involved claims of trespass and quiet title. The court there described a series of events which justified an award of punitive damages. These included that a defendant, using a backhoe, placed boulders in the center of the plaintiffs' driveway. This was coupled with the creation of "bogus survey," and a failure to present evidence at trial, leading the court to conclude that the defendant property owner knew he had no rights over the plaintiffs' driveway, and making the conduct "outrageous." Id.
In awarding punitive damages in Stohlts, the court also described an incident in which a defendant was instructed to "dig a deep trench and install a fence along the westerly border line of the Stohlts' property. Dickinson again used Gilkinson's backhoe, rather than a conventional post hole digger, to dig an incredibly deep trench. He intentionally erected the most unsightly `fence' imaginable. The fence was made of PVC pipes which were installed at varying heights and at all pitches and angles. The digging activity with the backhoe continued from early in the morning until late at night, even after Mrs. Stohlts requested Dickinson to stop." Id.
Also, the court in Stohlts rejected the defendants' argument that they were relying on their attorney's legal opinion, stating that it was not supported by the facts. "If [defendants' counsel] had indeed formed a legal conclusion that the Gilkinsons had a right to the plaintiffs' driveway, the defendants certainly would have presented evidence supporting that conclusion at trial. They did not." Id. In addition, the court noted that several threatening letters were sent. In its opinion, the court quotes from three letters.
Here, the pounding of the survey markers and the placing of the "no trespassing" signs are not the equivalent of the placing of the boulders and the digging of the trench incidents in Stohlts. The Otleys' conduct was not of the same magnitude. Also, no bogus survey was recorded on the land records and no series of threatening letters is in evidence. Likewise, no failure to present evidence is involved here either. The Otleys mistakenly believed that they had acquired rights by adverse possession. At trial, they presented evidence, through the testimony of their predecessors in interest, in order to attempt to prove their claim.
In addition, as discussed above, Otley and McCarthy had an argument in her backyard about their dispute, which McCarthy found distressing. Taken as a whole, the conduct involved here does not warrant an award of punitive damages.
G. Costs
In her trial brief, p. 32, McCarthy seeks an award of costs for work performed by Smith and for Miller's trial testimony. McCarthy requests these enumerated costs "[i]n addition to statutorily-defined taxable costs." See McCarthy's trial brief, p. 32. Practice Book § 18-5 provides for the filing of a bill of costs. The court is not aware that a bill of costs has been filed. The court declines to treat the requested costs on a piecemeal basis. Costs should be requested in accordance with the Practice Book.
Practice Book § 18-5 provides, "(a) Costs may be taxed by the clerk in civil cases fourteen days after the filing of a written bill of costs provided that no objection is filed. If a written objection is filed within the fourteen day period, notice shall be given by the clerk to all appearing parties of record of the date and time of the clerks taxation. The parties may appear at such taxation and have the right to be heard by the clerk. (b) Either party may move the judicial authority for a review of the taxation by the clerk by filing a motion for review of taxation of costs within twenty days of the issuance of the notice of taxation by the clerk."
H. Plaintiffs' Motion to Disallow Expert Fees
At trial, the parties also brought to the court's attention the Otleys' motion to disallow expert fees, dated September 17, 2003 (#159.00), concerning McCarthy's request for the payment of expert fees in connection with the pre-trial deposition of Miller, who, as noted above, was called by her as a trial witness. With their motion, the Otleys submitted a memorandum of law. In response, McCarthy filed an objection, dated September 24, 2003 (#160). At trial, the parties agreed that the court would adjudicate the motion on the papers submitted, as part of its memorandum of decision about the trial.
The Otleys contend in their motion that no expert fees are warranted since they issued their notice of Miller's deposition prior to the service of an expert disclosure, pursuant to Practice Book § 13-4, by McCarthy. In support of her motion for summary judgment (#141), which was filed in March 2003, McCarthy filed a supplemental brief, with an affidavit from Miller, in July 2003 (#152). In this affidavit, as he later did at trial, Miller offered the opinion that in 1986 there was no driveway encroachment from 169 Still Road to 165 Still Road.
The Otleys initially noticed Miller's deposition for July 17, 2003, then re-scheduled it for August 14, 2003. On that date, McCarthy's attorney provided the Otleys' counsel with a disclosure of expert witness, pursuant to Practice Book § 13-4. The deposition was taken on August 14, 2003. Thereafter, McCarthy presented a bill from Miller for payment by the Otleys, in the amount of $825.00, concerning preparation for and testimony at the deposition.
The Otleys contend that "this was not an expert discovery deposition under Practice Book § 13-4, and hence, the Plaintiffs do not have an obligation to pay the deponent surveyor a reasonable fee as an expert." See Otleys' memorandum of law in support of motion to disallow expert fees, p. 2.
Practice Book § 13-4(4) provides, in relevant part, "In addition to and notwithstanding the provisions of subdivisions (1), (2) and (3) of this rule, any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Each defendant shall disclose the names of his or her experts in like manner within a reasonable time from the date the plaintiff discloses experts, or, if the plaintiff fails to disclose experts, within a reasonable time prior to trial . . . Any expert witness disclosed pursuant to this rule within six months of the trial date shall be made available for the taking of that expert's deposition within thirty days of the date of such disclosure."
Practice Book § 13-4(1) states, "Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Section 13-2 and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (1)(A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject mater on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (B) Unless otherwise ordered by the judicial authority upon motion, a party may take the deposition of any expert witness disclosed pursuant to subdivision (1)(A) of this rule in the manner prescribed in the rules of practice Section 13-26 et seq. governing deposition procedure generally."
Concerning the payment of fees for the expert to respond to discovery, Practice Book § 13-4(3) provides, in relevant part, "(3) Unless manifest injustice would result, (A) the judicial authority shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (1)(B) and (2) of this rule . . ."
The rules of practice are interpreted in the same manner as a statute. "We interpret provisions of the Practice Book according to the same well settled principles of construction that we apply to the General Statutes . . . In determining the meaning of a statute, [it] must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation." (Internal quotation marks omitted and citations omitted.) Lyman v. Lodrini, 63 Conn. App. 739, 744, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001).
Practice Book § 13-4(4)'s statement that its provisions are to be read as being "in addition to" the previous subdivisions of § 13-4 also directs the court to read this rule as a whole. Given the identical language in § 13-4(4) and § 13-4(1) as to the substance of what an expert disclosure must contain and § 13-4(4)'s language concerning making the expert available for a deposition, it is evident that § 13-4(3)'s payment requirement is applicable to a § 13-4(4) expert deposition.
Here, there is no doubt that as a surveyor offering opinions as to the meaning of a survey, Miller was offering expert opinion testimony. This testimony had been disclosed, in substance, in his affidavit, prior to the Otleys' initial notice of his deposition. Then, prior to the taking of the testimony, McCarthy provided her disclosure of expert witnesses, in compliance with § 13-4. The Otleys then had the option of not proceeding with Miller's deposition, since they were on notice that Miller was expected to testify at trial as McCarthy's expert. Although they received the disclosure on the day of the deposition, nothing compelled them to proceed with it.
Since they proceeded with Miller's deposition, the Otleys are responsible, pursuant to § 13-4(3), to pay Miller a reasonable fee. They do not contend that the requested fee is unreasonable in amount. Accordingly, the motion to disallow expert fees is denied.
CONCLUSION
1. As to the plaintiffs' amended complaint, judgment may enter for the defendant.
2. Judgment may enter for the defendant on the first second and third counts of her counterclaim, as follows:
a. at their expense, the plaintiffs shall remove their encroaching driveway and any other encroachments from the defendant's property located at 165 Still Road, West Hartford, Connecticut, and they shall reconfigure their driveway in conformance with any applicable Town of West Hartford driveway placement standards, and they shall restore the defendant's property to its natural condition, within a reasonable time, but by no later than May 14, 2004. The plaintiffs shall post a bond, with surety, in the amount of $20,000, to ensure that the work in removal of the driveway from the defendant's property is satisfactorily completed;
b. it is adjudged that the defendant has quiet title to her property, as described in the deed to her, dated July 31, 1997 (Plaintiffs' Exhibit 4) and as described in the class A-2 survey (Plaintiffs' Exhibit 13), entitled "Property Survey Of Premises Owned By Jacqueline A. McCarthy 165 Still Road West Hartford, Connecticut," dated May 8, 2002, prepared by Petersen Hoffman-Land Surveyors. Said title is subject to the drainage easement (Plaintiffs' Exhibit 6), which was recorded in volume 519, pages 647-48 of the West Hartford Land Records ("the drainage easement"), and is unencumbered by any other right, title or interest in said property to or by the plaintiffs.
c. the plaintiffs are permanently enjoined from the use of the defendant's property, except for their obligations as set forth in subparagraph 2a above and except as provided in the drainage easement;
d. the defendant is awarded the sum of $440.60 as damages.
3. As to the fourth count of the defendant's counterclaim, judgment may enter for the plaintiffs.
4. The plaintiffs' motion to disallow expert fees is denied.
It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT.