Opinion
No. 4101451
December 14, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The defendant, Dane Lewis, in the above-entitled matter filed a motion to strike the revised complaint on November 16, 2005. The defendant moves to strike counts three through nine of the revised complaint claiming that C.G.S. § 52-560 is exclusive remedy in these matters. The defendant also moves to strike count nine where the plaintiff claims intentional infliction of emotional distress for damage to chattels. The defendant further moves to strike all references to attorneys fees in ¶ 6 of counts three through nine.
The plaintiffs, Ronald Bose and Margaret Bose, contend to the contrary. While they agree that C.G.S. § 52-560 provides an exclusive remedy for tree cutting, they deny that this statute sets forth the sole cause of action available to them. They further contend that a claim for negligent infliction of emotional distress is a proper cause of action for damage to chattels. The plaintiffs concede in their brief that attorneys fees are improper damage claims as alleged in ¶ 6 of counts three through nine.
Law Re Motion to Strike
The law governing the court's consideration of a motion to strike is well-established. "The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." (Citations and internal quotation marks omitted.) Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214 (1992). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Suffield Devel. Assoc. L.P. v. National Loan Inv., 64 Conn.App. 192, 197 (2001). "The role of the trial court is to examine the complaint, construed in favor of the plaintiffs, to determine whether the pleading party has stated a legally sufficient cause of action." Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, 378 (1997).
Analysis
The defendant cites to Koennicke v. Maiorano, 43 Conn.App. 1, 682 A.2d 1046 (1996); Stanley v. Lincoln, 75 Conn.App. 781, 818 A.2d 783 (2003); and Ventres v. Goodspeed Airport, LLC., 275 Conn. 105, 159, 881 A.2d 937 (2005); for the proposition that § 52-560 is the exclusive remedy in tree cutting cases. This statute states as follows:
General Statutes § 52-560, entitled, "Damages for cutting trees, timber or shrubbery," provides: "Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another or on public land, without license of the owner, and any person who aids therein, shall pay to the party injured five times the reasonable value of any tree intended for sale or use as a Christmas tree and three times the reasonable value of any other tree, timber or shrubbery; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on his land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.
Section 52-560 "does not give a new and independent cause of action, but prescribes the measure of damages in cases where compensatory damages would, in the absence of the statute, be recoverable." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC., 275 Conn. 105, 159, 881 A.2d 937 (2005). In Stanley v. Lincoln, supra, 75 Conn.App. 781, 785, the court stated that "[t]here are three possible measures of damages for loss of a tree in Connecticut . . . It is an appropriate remedy either for the recovery of damages for the mere unlawful entry upon the plaintiff's land; for the recovery of the value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel. For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of . . . This common-law rule has been embodied in § 52-560."
In Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 105, the Supreme Court simply modified the holding of Stanley v. Lincoln, in holding that § 52-560 authorized "treble damages only for the value of the trees as commodities, not for the reduction in the pecuniary value or for the replacement cost of the trees." Id., 160. Ventres and Stanley hold that § 52-560 is not an independent cause of action, but simply prescribes the measure of damages by which a plaintiff may recover for an injury caused by the cutting of trees upon his/her land.
Moreover, because § 52-560 is not an independent cause of action, it must be claimed in conjunction with a proper cause of action. See Gallant v. Housatonic Lumber Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 074167 (February 13, 2002, Holden, J.) ( 31 Conn. L. Rptr. 402, 404 n. 1); Behren v. Richman, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0170540 (September 14, 1999, Hickey, J.); cf. CT Luxury Home Builders v. Chudecki, Superior Court, judicial district of Hartford, Docket No. CV 02 0819738 (January 16, 2003, Satter, J.T.R.) ( 33 Conn. L. Rptr. 698) (where court held that § 52-560 is not the sole measure of damages to which the plaintiff may be entitled to in claims for intentional and negligent cutting down of trees on plaintiff's property). The court is not persuaded by the defendant's argument. The plaintiff has alleged proper causes of action with the remedy limited to the damages set forth in § 52-560 in counts three through eight.
To the extent that the plaintiffs' claims that they are entitled to attorneys fees in counts three through eight, their claim is without merit. In Koennicke v. Maiorano, supra, CT Page 15975 43 Conn.App. 31-32, this court determined that "a plaintiff claiming damages pursuant to General Statutes § 52-560 may collect only those damages designated by the statute, but no additional punitive damages or attorneys fees. The ability to provide for such damages under § 52-560 is a matter for the legislature." Stanley v. Lincoln, supra, 75 Conn.App. 781, 788 n. 6. The plaintiffs' attorneys fees claim in ¶ 6 of counts three through eight should be stricken.
The court is left with Count 9 which deals with a claim of emotional distress. "No Connecticut cases specifically allow recovery for negligent infliction of emotional distress resulting from an injury solely to property." Delco v. Reed, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0172435 (January 3, 2000, Hickey, J.) (where the court held that plaintiff's claim for negligent infliction of emotional distress was predominantly based on damage to property and, therefore, did not state a claim upon which relief could be granted). The Appellate Court has ruled that an emotional distress claim cannot be made as a result of injuries or death of a pet. Hartford v. Meyers, 84 Conn.App. 395 (2004). This court concludes that count nine is improper in that no cause of action is stated.
ORDER
It is hereby ordered that the motion to strike is denied as to Counts three through eight, and granted as to Count nine. Prayer for relief for attorneys fees is not available in a cause of action relying on § 52-560 and, therefore, the motion to strike the reference to attorneys fees in ¶ 6 of counts three through eight is hereby granted.