Opinion
No. CV 04-4004379 S
September 25, 2007
MEMORANDUM OF DECISION
This is a civil action, filed on November 8, 2004, brought by Donald Spini and Linda Spini (Plaintiffs) against several defendants seeking money damages, counsel fees and injunctive relief in connection with the construction of an 18-lot residential real estate development in Woodbridge, Connecticut known as Woodbridge Estates, (development). Named as defendants are Woodbridge Estates, LLC (Woodbridge Estates), Woodbridge Country Homes, LLC (Country Homes), Olsen Walsh Associates, LLC (Olsen), Jacob and Harpreet Thomas (Thomas), and Sharon Carpenos (Carpenos). The first and second counts are directed at all defendants and allege, respectively, a private nuisance and a violation of the Connecticut Environmental Protection Act, C.G.S. § 22A-16 (CEPA). The third count alleges a violation of the Connecticut Unfair Trade Practice Act (CUTPA) and is directed at the three corporate defendants.
By way of relief as to the first count the plaintiffs seek both money damages and a permanent injunction requiring the defendants to stop the alleged unreasonable flow of water, sediment and erosion from Lots 5 and 6 onto the plaintiffs' property, and/or to implement a permanent solution to the nuisance.
With respect to the second count the plaintiffs allege a violation of CEPA, Connecticut General Statutes § 22A-16, seek the same injunctive relief sought in the first count, and reasonable costs for witnesses and attorneys fees in accordance with C.G.S. § 22a-18(e).
The court finds the following facts and reaches the following conclusions. The plaintiffs own and reside at property located at 25 Evergreen Drive in Woodbridge, Connecticut. In 2001 Woodbridge Estates, which was the owner of all of the land comprising the development, obtained approval from the Town of Woodbridge Planning and Zoning Commission to subdivide the property (Exhibit 21), and was responsible for implementing the storm water plan to protect other properties from increases in storm water runoff as a result of the development. Olsen acquired title to Lot 6 in the development, constructed a home on Lot 6, and sold it to Thomas, the present owner. Country Homes acquired title to Lot 5 in the development, constructed a home on Lot 5, and sold it to the defendant Carpenos, the present owner, on March 19, 2004. The subdivision map Exhibit 21, reflects the location of all the lots in the subdivision, and also shows the plaintiff's property, which is located north of the development. The north boundary of lot 6, owned by Thomas, abuts a substantial portion of the southern boundary of the plaintiffs' property. The west boundary of Lot 5, owned by Carpenos, abuts the eastern boundary of Lot 6. The Carpenos property does not abut the plaintiff's property. The northwest corner of the Carpenos' property is the portion of that property which is closest to the plaintiff's property, and is approximately 45 feet from the southeast corner of the plaintiff's property. Lot 4 in the development is located on the east side of lot 5. Neither the builder who constructed a home on lot 4, nor the owners of lot 4, were named as defendants in this case. The slope of the land is such that surface water from lots 4, 5 and 6 would flow in a northwesterly direction toward the plaintiff's property.
The plaintiffs claim in the complaint that, due to the design and development of Lots 5 and 6, their property has been subjected to a significant increase in surface water runoff and related sedimentation and erosion problems, and that such water has been caused to be discharged in a manner different in both volume and course from its natural flow, thereby causing erosion and sedimentation on the plaintiffs' property.
The plaintiffs also claim that Carpenos, who is the present owner of Lot 5, has expanded her driveway area, installed a swimming pool, and recontoured the surface of her property, resulting in an increase and funneling of the surface water across her property, and onto the plaintiffs' property. It is alleged that the flow of water and sediment from the Carpenos' property on and across the plaintiff's property unreasonably interferes with the plaintiff's use and enjoyment of their home, constitutes a continuing private nuisance, and has caused the plaintiffs to incur substantial money damages.
All of the named defendants, with the exception of Carpenos, appeared by counsel and filed appropriate pleadings. Carpenos has been defaulted for failure to appear. In September 2006, this case was reached for trial as against the appearing defendants. After several hours of pre-trial conferences with Judge Jonathan Silbert, the case against the five appearing defendants was settled and withdrawn on September 27, 2006. There was no judgment entered, and the agreement was not put on record. Plaintiff's counsel has represented to the court that a total of $30,000.00 was agreed to be paid to the plaintiffs by the appearing defendants, consisting of $5,000.00 by Thomas, $12,500.00 by Olsen, and $12,500.00 by Country Homes. It is also represented by counsel that Thomas agreed to allow access onto their property in connection with the construction of a drainage trench on the Carpenos' property, which will connect to a trench now located on a portion of the Thomas property. Woodbridge Estates is judgment proof and the case against that defendant was withdrawn without any payment. One of the issues in this case is whether Carpenos is entitled to a credit of $30,000, or any part thereof, as against any judgment for damages that may be rendered against her.
On September 27, 2006, the day the case against the appearing defendants was settled, the plaintiffs withdrew the case from the jury trial list, and requested a court trial as a hearing in damages as against Carpenos. This court heard the matter on the hearing in damages calendar on October 17 and 25, 2006, December 13, 2006. January 12 and 22, 2007, and on May 10, 2007. The court finds that the defendant Sharon Carpenos is not in the military service. Both plaintiffs testified, along with Thomas Balskus, a licensed professional engineer associated with the engineering firm of Milone and MacBroom of Cheshire, Connecticut, and Terry Gilbertson, the inlands wetlands enforcement officer of Woodbridge. The court received approximately fifty-two exhibits.
In the first count the plaintiffs are seeking money damages and injunctive relief based on a claim of private nuisance. In the second count they seek injunctive relief, costs, witness fees and attorneys fees, based on a claim of a violation of CEPA. Thus the plaintiffs are seeking monetary damages on the first count, and equitable relief on both counts, in a case where the defendant is in default.
"Practice Book 367 provides that `[i]n any hearing in damages upon default suffered . . . the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff's complaint, except such as relate to the amount of damages, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict . . .' Under these circumstances, the underlying purpose of a hearing in damages is to assist the trial court in determining the amount of damages to be awarded. DeBlasio v. Aetna Life Casualty Co., 186 Conn. 398, 401, 441 A.2d 838 (1982). `[A]t the very least, [the plaintiff] is entitled to nominal damages.' Id.; Ratner v. Willametz, 9 Conn.App. 565, 579, 520 A.2d 621 (1987). Further, `[a] default in an action for legal and equitable relief admits the material facts constituting a cause of action.'" (Emphasis added.) Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 445, 551 A.2d 1220 (1988).
"By contrast, at a hearing in damages in which the sole issue is the efficacy of equitable relief, `the principles of equity require that the plaintiff prove the allegations contained in his complaint so that equitable relief may be granted.' Ratner v. Willametz, supra, 576; Starr Cash Package Car Co. v. Starr, 69 Conn. 440, 446, 37 A. 1057 (1897); 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) 163."
"From this case law, it is apparent that if a plaintiff seeks monetary and equitable relief and the defendant is in default, the plaintiff may recover damages without first proving the allegations in the complaint, Ratner v. Willametz, supra; however, the remaining request for equitable relief implicates the principles of equity and does require the plaintiff to establish a factual predicate for the underlying cause of action. Id. Thus, to determine the appropriate proof requirements at a hearing in damages upon a defendant's default, the trial court must evaluate the nature of the cause of action and the relief requested by the plaintiff . . ." Baldwin v. Harmony Builders, Inc., 31 Conn.App. 242, 244-45.
Therefore, in this case, where the plaintiffs are seeking both damages and equitable relief, as against Carpenos, and where Carpenos has been defaulted, the plaintiffs are not required to prove the allegations of the first count of their complaint in order to recover damages. The allegations of the complaint concerning damages are deemed to have been admitted by virtue of the default. However, with respect to the claims for equitable injunctive relief, the court is required to evaluate the nature of the action and the relief requested and determine whether the plaintiffs have proven the allegations necessary to entitle them to the equitable relief which they seek.
The allegations of the first count, sounding in nuisance, and seeking money damages and equitable relief, are deemed to have been admitted with respect to those allegations essential to the claim for damages by virtue of the default, and the plaintiff has proven the following damages on the first count. The Lawn Maintenance LLC — $10,679.80, Milone MacBroom, Engineers — $8,966.00, Thomas Balskus, preparation and testimony fee — $993.98, Aquatek Labs — $88.00, all totaling $20,727.78. Attorneys fees paid to prior and present counsel are not allowed as damages.
The plaintiffs have already been paid $30,000 in this case. The plaintiffs stated on the record that "they would be taking a credit for the $30,000." The plaintiffs object to Carpenos receiving a credit of $30,000 as against any damages for which she is held liable in this case. If Carpenos is to receive a credit of $30,000 as against damages then the plaintiffs cannot obtain a monetary judgment against her because the court has found the damages total only $20,727.78. The basis for the plaintiff's position is that their claims against the other defendants included CUTPA claims against the two corporate defendants, the proof of which would entitle the plaintiffs to counsel fees, and that there is no evidence of how, or if, the $25,000 paid by those defendants was allocated as between damages and attorneys fees. The plaintiffs strenuously claim that this court should not "unilaterally" credit Carpenos with $30,000, although they make no suggestions as to how the "credit," to which they agreed is to be handled.
In the absence of any evidence with respect to the allocation of the $30,000 as between damages and attorneys fees the court will use the following method which it believes is fair as to all parties. There was no CUTPA claim made against Thomas so the court will credit their payment of $5,000 as against the $20,727.78 in damages referred to above. This reduces the net damages to $15,727.78. At the time the cases against the other defendants were settled the total attorneys fees were $28,946.95. It would appear that at least a portion of the $25,000 paid by the two corporate defendants was paid on the claim for attorneys fees since the payment exceeded the damages. At the time the cases were settled the net damages represented 35% of the total of net damages and attorneys fees then incurred. The court will allocate $8,750.00, representing 35% of the $25,000 paid, as an additional credit to Carpenos as against the judgment for damages. As indicated above, the plaintiffs have proven damages of $20,854.02. Carpenos is entitled to a credit totaling $13,750.00 as against the total damages proven, resulting in a judgment for damages on the first count of $7,104.02.
The equitable relief the plaintiffs are seeking in the first count is for the court to order Carpenos to construct a drainage trench across her property, near the north boundary line, and across approximately 10' of the Thomas property, so as to connect with a drainage trench marked as "Existing Grass Covered Rip-Rap Channel" which has been constructed across a substantial portion of the Thomas property, all as is shown on Exhibit 1. The court declines to order the equitable relief that the plaintiffs are seeking.
The plaintiffs have failed to prove that whatever water is flowing onto their property is coming from the Carpenos property. Their primary witness, Thomas Balskus, testified that lot 4 in the subdivision is contributing to the plaintiffs' problems. He recommended that the solution to the water problem would be to extend the drainage ditch on Lot 6 across lot 5 and, depending on accurate mapping, which has not been done, perhaps onto lot 4. The owners and the builder of lot 4 were not named as defendants in this case. On the other hand, Terry Gilbertson, the inland/wetlands agency enforcement officer for the Town of Woodbridge testified that, as the result of work that was completed in April 2005, the plaintiffs' water problems had been solved.
The court finds that, in connection with the claim for injunctive relief, the plaintiffs have failed to establish that the Carpenos' property, lot 5, is at the present time causing such a flow of water onto the plaintiffs' property so as to entitle the plaintiffs to the equitable relief sought. An additional reason why the court will not order the equitable relief sought by the plaintiffs is that they request that the court order Carpenos, not only to construct a drainage trench on her own property, but also to construct a similar connecting trench on a portion of lot 6, the Thomas property. The plaintiffs chose to settle their cases against Thomas, the owner of lot 6, and Olson, the builder of the home on lot 6, without obtaining an agreement from either of them to finish the trench which had been partially constructed on that property. The court does not believe, under the facts of this case, that it is appropriate or equitable to order Carpenos to finish the construction of the trench located on the Thomas property. "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,' (Citations omitted)." Marguardt Roche/Meditz Hackett, Inc. v. Riverbend Executive Center, Inc., 74 Conn.App. 412, 421 (2003). For the foregoing reasons the plaintiffs' request for injunctive relief on the first count as against Carpenos is denied.
The second count alleges a violation of the Connecticut Environmental Protection Act (CEPA) C.G.S. § 22a-16, and seeks the same injunctive relief sought on the first count and, in addition, seeks costs, including reasonable costs for witnesses, and a reasonable attorneys fee pursuant to C.G.S. § 22a-18(e). In support of the allegations of the second count, the plaintiffs repeat all of the factual allegations of the first count with respect to the creation of the excess surface water, and add that the surface water which contains sediment and erosion is discharging into downgradient wetlands and watercourses, and is likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the waters of the state, in violation of CEPA.
CEPA allows any individual to institute legal action to protect the public interest. General Statutes § 22a-16 provides broadly that "any person . . . [or] corporation . . . may maintain an action . . . for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ." Inasmuch as § 22a-16 affords standing to any person or corporation, the plaintiff indisputably comes within the statute's purview. Indeed, "[t]his court . . . has recognized no restriction on the class of persons with standing to seek relief under § 22a-16." Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 495-96. Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 431-32.
Although the plaintiffs have standing to file a CEPA claim, the only relief which is available is equitable in nature. Connecticut General Statutes § 22a-18 provides as follows: "(a) The court may grant temporary and permanent equitable relief, or may impose such conditions on the defendant as are required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction." In the event that the entity bringing the action obtains equitable relief against the defendant then the court may award costs, including costs for witnesses, and a reasonable attorneys fee. "The court may award any person . . . which maintains an action under section 22a-16 . . . and obtains declaratory or equitable relief against the defendant, its costs, including reasonable costs for witnesses, and a reasonable attorneys fee." Section 22a-18(e).
Since the only relief available under CEPA is equitable, even though the defendant Carpenos has been defaulted, the plaintiffs must prove that they are entitled to that equitable relief. See Ratner v. Willametz, supra. In this case, the plaintiffs have failed to prove that water and sediment from lot 5 is discharging into downgradient wetlands and watercourses, and that this discharge is likely to pollute, impair or destroy the public trust in the waters of the state in violation of CEPA. The plaintiffs have failed to prove that they are entitled to equitable relief pursuant to C.G.S. § 22a-18(e).
A judgment may enter as against the defendant, Sharon Carpenos for damages in the amount of $7,104.02 on the first count. The request for equitable relief is denied.
A judgment may enter in favor of the defendant Carpenos on the second count.