Opinion
NNHCV155036077S
02-28-2018
Doreeen SCANNELL, as Executrix of the Estate of Sophia Linnane v. IRISH AMERICAN COMMUNITY CENTER, INC.
UNPUBLISHED OPINION
File Date: March 2, 2018
OPINION
Ecker, J.
This is a lawsuit for trespass to residential real property, owned by plaintiff’s decedent Sophia Linnane, located at 88 View Terrace, East Haven, Connecticut. Defendant is a social organization which owns a tract of land abutting the western boundary of plaintiff’s property. The litigation arises out of defendant’s desire to expand a playing field used by its members to engage in a sport called Gaelic football. Although trial of the case required no detailed description of the game, it is evident from the photographs in evidence that the athletic contest takes place on a large outdoor rectangular grass area with upper and lower goal posts (separated by a crossbar) on either end; the field is generally similar in appearance to a rugby " pitch" or American football field. Plaintiff claims that defendant trespassed on her property in the course of its expansion project, and sues for damages.
The underlying facts are not complicated, although the precise nature and extent of the incursion is more easily described graphically than verbally. The dispute, at bottom, principally relates to the correct measure and amount of plaintiff’s damages. The parties presented testimony and submitted photographs, maps, appraisals and other exhibits in a two-day trial to the court. Post-trial briefs were filed. The court has reviewed the evidence, studied the parties’ memoranda of law, and conducted its own legal research regarding various disputed issues of law. The following findings and conclusions are made.
LIABILITY
A. Count One (Trespass)
The elements of an action for trespass to land are well-settled. To prevail, a plaintiff must prove (1) an ownership or possessory interest in the subject land; (2) an invasion, intrusion or entry by the defendant; (3) that the trespass was done intentionally, and (4) a direct injury. See, e.g., Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88 (2007). It is important to understand the nature of the " intent" element. There is no need to show that the defendant desired to cause harm to plaintiff or her property, or even that defendant knew that it was encroaching upon someone else’s property. " The intent required is to enter the land in question ... regardless of the defendant’s subjective belief as to the ownership of the land." Caciopoli v. Lebowitz, 131 Conn.App. 306, 320 (2011); see Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. at 89 (" in determining the existence of the requisite intent for trespass, the issue was not whether the defendants had intended the contaminated substances to enter the plaintiff’s land, but whether the defendants had intended the act that amounted to or produced the [trespass]" ).
Liability is not seriously in doubt on this record. Defendant undertook extensive excavation work on a portion of its property abutting plaintiff’s land. Those activities indisputably encroached onto the western portion of plaintiff’s land. According to defendant’s own appraiser, the trespassory activity resulted in the removal of " a roughly 4’ to 6’ high by 10’ to 12’ swath of earth ... along the entirety of [plaintiff’s] rear property line." Real Property Appraisal Report prepared by Albert W. Franke, III (Def. Ex. A). The " swath" excavated on plaintiff’s land was over twenty feet in length. Substantial evidence, including numerous photographs and site maps, demonstrate the nature and extent of the trespass and resultant property damage.
In addition to removing the trees, vegetation and soil on plaintiff’s land within the excavated area, defendant’s work also created a sheer (90 degree) " cliff" immediately behind plaintiff’s property, where there had been a gradual slope previously.
It is obvious also that defendant intended to undertake the actions that constitute the trespass upon which suit is brought. The excavation work, some of which encroached onto plaintiff’s property, was deliberately conducted by defendant as part of its project to lengthen and/or widen the dimension of its Gaelic football field. This is all the intent required to prove common-law trespass. Defendant insists that it never intended to cause harm or injury to plaintiff, and plaintiff does not contend that defendant’s actions were motivated by malice, ill-will, or any such animus. But defendant’s intention in this sense is irrelevant to liability for trespass. (The dispute over another issue of intent, i.e., whether defendant’s conduct was undertaken in reckless disregard of plaintiff’s rights, will be addressed in the discussion of punitive damages, below at pp. 11-16.)
Defendants have never raised any claim of consent.
The court finds for plaintiff on Count One (trespass).
B. Count Two (Unjust Enrichment)
This claim was not addressed at any length (if at all) at trial, and has not been briefed by plaintiff in its post-trial brief. This probably reflects a prudent use of litigation resources. See Argentinis v. Fortuna, 134 Conn.App. 538, 557 (2012) (rejecting unjust enrichment claim in this context). In any event, the claim is considered abandoned. See, e.g., Collins v. Goldberg, 28 Conn.App. 733, 738 (1992).
Judgment shall enter for defendant on Count Two (unjust enrichment).
C. Count Three (Violation of C.G.S. § 52-560)
General Statutes § 52-560 provides a statutory remedy against " [a]ny person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another ..." A violator is required to pay the landowner " three times the reasonable value of the tree," unless " 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," in which case the damage award is limited to the " no more than the reasonable value" of the items cut, destroyed or taken. Id.
The treble-damage remedy applies to all trees except those intended for sale or use as a Christmas tree, which is protected by an enhanced statutory penalty equal to five times its reasonable value. The extra enhancement presumably is based on secular rather than religious considerations.
Section 52-560 provides a particular measure of relief for a specific type of harm, i.e., the loss of trees or shrubs. Damages are based on the " reasonable value" of the tree or shrub, which evidently means one of two things, depending on whether the item derives its value from its utility as chattel " after severance from the soil," or, instead, from its utility " as shade or ornamental trees while standing on the land." Hardie v. Mistriel, 133 Conn.App. 572, 575-76 (2012). If the tree primarily had value as chattel, its reasonable value is the market value of the wood; if the tree served as a shade or ornamental tree, its reasonable value is the diminution in the market value of the real property caused by the cutting. Id. Under either measure, the reasonable value is trebled to arrive at a damage award under the statute, unless the wrongful act arose from a mistake, in which case the statute provides for no enhancement.
Plaintiff here submitted no evidence permitting an award of statutory damages under § 52-560 based on the market value of the wood. Nor was there any evidence of a decrease in the property’s market value caused by the tree damage itself. Plaintiff submitted evidence of the cost associated with planting new trees, but Hardie v. Mistriel makes it clear that the cost of purchasing new trees- the " replacement cost" - is not the correct measure under the statute. 133 Conn.App. at 575. Plaintiff also presented evidence at trial about the decreased market value of plaintiff’s property caused by the defendant’s excavation work as a whole, but that evidence provides no basis for determining the specific component of the total decrease caused by the loss of trees in particular. There is, in short, no evidentiary basis for any award of damages under § 52-560.
For the foregoing reasons, judgment shall enter for defendant on Count Three (C.G.S. § 52-560).
DAMAGES
Plaintiff seeks damages in four basic categories: (1) property damage, including both the cost of restoring the property to its condition prior to the trespass, and, to the extent that restoration is not possible, the diminution in property value due to any permanent damage; (2) compensation for the annoyance and disturbance to Sophia Linnane caused by the trespass; (3) statutory treble damages for the cutting and removal of trees, pursuant to General Statutes § 52-560; and (4) punitive damages. Each category will be addressed in turn.
1. Harm to Property Caused by Trespass
In its most basic formulation, the measure of damages for injury to property caused by a trespass is " the difference in the value of the land before and after the harm ..." Robert v. Scarlata, 96 Conn.App. 19, 24 (2006) (citation omitted); see Centimark Corp. v. Village Manor Assocs. Ltd. P’ship, 113 Conn.App. 509, 529-30 (2009) (" The basic measure of damages for injury to real property is the resultant diminution in its value" ). The analysis gains refinement " depending on the nature of the injury." Robert v. Scarlata, supra, 96 Conn.App. at 24 (citation omitted). Some types of property damage resulting from a trespass are remediable; in such a case, which sometimes is referred to as a " temporary" injury, the cost of repair or restoration of the damage serve as " a proxy for diminution in value caused by [the trespass]." Argentinis v. Fortuna, 134 Conn.App. 538, 553 (2012) (quoting Centimark Corp. v. Village Manor Assocs. Ltd. P’ship, supra, 113 Conn.App. at 529-30 (2009) ). When the harm is permanent and irremediable in nature, however, the damage is measured by the diminution in property value based on an appraisal of the fair market value of the property " before" and " after" the trespassory damage. As summarized by the Connecticut Supreme. Court:
As indicated, the two different measures of damages appear to correspond to two different " types" of trespass, temporary and permanent. See Robert v. Scarlata, supra, 96 Conn.App. at 23;
" When injury to property resulting from a trespass is remedial [sic] by restoration or repair, it is considered to be temporary, and the measure o[f] damages is the cost of restoration and repair." [75 Am.Jur.2d, Trespass] § 129 [ (1991) ]. " Where a trespass is of a permanent nature, all damages, past and prospective, are recoverable in one action" and " the measure of damages is the decrease in the fair market value of the property ..." Id., § 128.City of Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. at 90.
Restoration cost and diminution in value are
The parties appear to agree that the foregoing measure of damages applies if defendant is liable for trespass. More particularly, the parties’ respective experts agree that the harm to plaintiff’s land should be measured by reference to (a) the reasonable cost of restoring the damaged property to its condition prior to the trespass (" restoration cost" ), plus (b) any diminution in the fair market value of the land based on harm caused by the trespass that is not included in the restoration cost. Or, to speak in the parlance of the case law reviewed above, the property damage here consists of both temporary injury and permanent injury. The parties do not agree, however, on the extent of the damage.
Defendant’s appraiser testified that the total damages for harm to plaintiff’s property includes restoration costs of $51,000.00, plus diminution in market value (for property damage that cannot be remedied) which was calculated by the expert as an additional $7,000 loss, resulting in total property damages of $58,000.00. Plaintiff’s position is that the restoration work will cost $48,138.26. She seeks an additional $10,361.25 in survey, engineering and other costs charged by Godfrey Hoffman Associates, the firm hired by plaintiff to design the restoration plan. In addition, plaintiff’s real estate appraiser values the decrease in property value (for property damage that cannot be remedied) to be $23,400.00. All told, plaintiff’s claim for property damage under her trespass count totals $81,889.51, compared to the $58,000.00 sum calculated by defendant.
The court uses a shorthand description to describe the expert’s calculations. The actual methodology employed an " impaired market value" approach, which is explained at pages 20-22 of Def. Ex. A.
Two factors explain the difference between the two expert opinions regarding decreased property value. First, plaintiff’s expert appraised the fair market value (FMV) of the property in unimpaired condition to be $195,000; defendant’s expert appraised the unimpaired FMV to be $183,500. Second, plaintiff’s expert opined that a reasonable " impairment discount" of 12% should be applied to derive the permanently lost value of the property; defendant’s expert used a 4% impairment discount.
The court awards plaintiff total damages for injury to property in the amount of $69,672.01. This amount includes total restoration costs of $54,992.01, plus $14,680.00 in decreased land value. The court arrived at the latter figure by considering the information and analysis contained in the appraisal reports (and the testimony) of the two appraisers, Charles Liberti and Albert Franke. Both experts provided helpful information and made certain valid observations regarding the proper determination of value, but neither analysis without flaws. In the end, the court used FMV and discount figures that varied slightly from the figures used by either expert but fell within the range of values contained in their analyses.
The court’s calculation of restoration damages consists of $48,138.26 for the cost of the physical restoration work necessary to remedy the harm caused by the trespassory activity (Pl. Ex. 19),
2. Compensation for Discomfort and Annoyance to Sophia Linnane
In addition to recovering compensation for the property damage caused by a trespass, " [w]henever a harm to land occurs from an invasion of property rights," the landowner is also entitled to money damages " for the discomfort and annoyance to the party harmed as an occupant." Robert v. Scarlata, supra, 96 Conn.App. at 24 (citing, among other sources, 4 Restatement of Torts (Second) § 929 (1979) ). Sophia Linnane purchased the subject property in 1959, had a house built there, and lived on the premises from the early 1960s until her death in 2017, a period of more than fifty years. According to her daughter and son-in-law, each of whom testified at trial, Mrs. Linnane was very attached to her home and very proud of it. She enjoyed it, inside and out, and her enjoyment extended to her small but bucolic back yard. By 2014, when the trespass began, Mrs. Linnane was ninety-two years old. It should come as no surprise to anyone that a person of this age would become annoyed, to say the least, upon discovering that a neighbor had come onto her land without permission, and was using heavy equipment to excavate a sizable swath across the rear portion of her property despite repeated requests to stop. That is exactly what occurred. Mrs. Linnane was understandably annoyed and inconvenienced by the extensive trespassory activities in her back yard. She continued to experience extreme annoyance as a result of defendant’s protracted, on-again, off-again activities on her land throughout the second half of 2014. Doreen Scannell, Mrs. Linnane’s daughter, was in daily communication with her mother during this time. Ms. Scannell testified that the invasive activity " destroyed" her mother’s life. Her mother felt as if defendant " stole" her property and ignored her complaints. The testimony of Mrs. Linnane’s son-in-law, John Scannell, corroborated the fact that Mrs. Linnane was deeply agitated by defendant’s activities.
The court finds that the trespassory activity undertaken by defendant in 2014 annoyed and discomforted plaintiff by causing severe disruption to Mrs. Linnane’s quiet enjoyment of her property. Assessing damages for these consequences is not an easy task. While the parties agree that damages for discomfort and annoyance are recoverable in a claim for trespass to property, neither side has cited any cases or authority explaining precisely what these words mean in this context. We know that the damage for " discomfort and annoyance" means something different than the value attributable to loss of use of the land, because the category is included as a separate and distinct category of recoverable harm in Robert v. Scarlata and § 929(1)(c) of the Restatement (Second) of Torts. We also know, from comment e to § 929 of the Restatement, that the phrase is intended to include " [d]iscomfort and other bodily and mental harms." Restatement (Second) Torts, supra, § 929, comment e . Comment e goes on to explain: " Discomfort and annoyance to an occupant of the land and to the members of the household are distinct grounds for compensation for which in ordinary cases the person in possession is allowed to recover in addition to the harm to his proprietary interests." See also Gallagher v. Grant-LaFayette Electric Cooperative, 249 Wis.2d 115, 135-39, 637 N.W.2d 80, 89-91 (2001) (relying on 929(1)(c) to allow claim for discomfort and annoyance caused by neighbor’s destruction of trees on plaintiff’s property).
The court believes that fair, just and reasonable damages for the annoyance and discomfort caused to Sophia Linnane is $24,000. The court notes that this award was determined using a relatively conservative construction of the " disturbance and annoyance" standard. The calculation does not take into account all aspects of the emotional distress undoubtedly experienced by Mrs. Linnane as a result of defendant’s trespass.
3. Statutory Treble Damages (General Statutes § 52-560)
No award is made for this aspect of plaintiff’s claim. See above at pp. 4-5. The court points out that the restoration cost, awarded as damages for common-law trespass, includes payment for tree replacement.
4. Common-Law Punitive Damages (Attorneys Fees)
The court rejects defendant’s threshold contention that plaintiff’s complaint fails to set forth allegations supporting a claim for punitive damages. Paragraphs 4 and 5 of plaintiff’s trespass count contain factual allegations of intentional and deliberate misconduct undertaken by defendant despite actual knowledge (and, in fact, despite defendant’s own acknowledgment) that it was trespassing on plaintiff’s land. The complaint also makes repeated references to the fact that defendant refused to cease and desist its trespassory activities notwithstanding numerous direct requests by plaintiff.
Plaintiff seeks an award of attorneys fees in the amount of $16,134.86. She argues that these fees are recoverable as common-law punitive damages based on her claim that defendant acted with reckless indifference to her rights. See, e.g., Landmark Inv. Group, LLC v. CALCO Const. & Development Co., 318 Conn. 847, 878-79 (2015) (" In order to obtain an award of common-law punitive damages, the pleadings must allege and the evidence must be sufficient to allow the trier of fact to find that the defendant exhibited a reckless indifference to the rights of others or an intentional and wanton violation of those rights" ). (citation omitted); Vandersluis v. Weil, 176 Conn. 353, 358 (1978). Such findings should not be made lightly; punitive (or " exemplary" ) damages are reserved for cases involving particularly egregious misconduct. That said, a malicious or injurious intent is not required: " If the evidence discloses that a defendant was recklessly indifferent to the rights of a plaintiff, an actual intention to do harm to the plaintiff is not necessary." Berry v. Loiseau, 223 Conn. 786, 811 (1992).
The evidence in the present case warrants a finding that defendant exhibited reckless indifference to the property rights of Sophia Linnane. After seeing a colored tape marker toward the rear of her property in late March 2014- well before the excavation work began- plaintiff’s son-in-law, John Scannell, notified defendant’s president in writing that its planned activities appeared to encroach onto her land. See e-mail from John Scannell to John Cullinan dated 3/24/14 (" [Mrs. Linnane] is concerned that work is being proposed on your club’s property and whoever is responsible is not aware of where the property lines are located" ). The club president responded by imagining a false explanation for the placement of the colored tape (" I can only guess that it blew onto the property" ), and stated, falsely as it turned out, that the club " would never impede [sic] on someone else’s property." Cullinan also " assure[d Scannell] that it won’t happen again." This assurance was given approximately 3 months before the club proceeded to cut down plaintiff’s trees and remove approximately 1,500 cubic feet of earth from her property. Reckless is the right word.
Further efforts by plaintiff to obtain a meaningful response fell on deaf ears. The facts paint a picture of a party whose single-minded desire to complete a field expansion project led to a correspondingly blind indifference to the rights of others, including plaintiff. John Scannell emailed Cullinan again on July 20, 2014, to report that defendant’s contractors were now conducting work on plaintiff’s land. Nothing changed, and the work continued. Plaintiff’s counsel thereafter wrote a formal cease-and-desist letter to Cullinan on September 4, 2014. That letter contained photographs of the damage to plaintiff’s land caused by defendant, and also included a professional surveyor’s " stakeout" map, commissioned by plaintiff, to show the precise location and extent of the trespass across property lines. Defendant again did not respond. It chose instead to persist in its activities on plaintiff’s property, which continued to occur on numerous additional occasions over the next three months. The conduct was knowing, deliberate, and inexcusable. The court concludes from the evidence that defendant really did not care that its excavation activities encroached on plaintiff’s property, or damaged that property, or caused Mrs. Linnane to feel violated. Defendant’s conduct manifested an attitude that viewed the field expansion as of the utmost importance to the mission of the association and the welfare of its members, and whatever damage was caused to neighbors was trivial and inconsequential by comparison.
To be clear, the court does not believe that defendant acted with the intent to injure plaintiff. President Cullinan was polite in his replies to Scannell’s e-mails, at least before he stopped responding at all to plaintiff’s requests for aid. As noted, however, an actual intention to do harm is not a necessary prerequisite to an award of punitive damages. What matters is whether defendant’s conduct evinces an attitude of reckless indifference to plaintiff’s rights.
The expansion of the football field was a major project requiring substantial excavation of land extending to the outer boundary of defendant’s property. Defendant nevertheless did not obtain a boundary survey from a licensed professional before starting the project. Far worse, defendant inexplicably decided to forge ahead with the excavation work after being notified, in writing, that the proposed work area appeared to encroach on a neighbor’s property. Defendant failed to conduct any inquiry or take any precautions whatsoever in response to Scannell’s email dated March 24, 2014. Nor did plaintiff’s repeated entreaties after that time have any apparent effect. Even after receiving the formal cease-and-desist letter in early September 2014 from plaintiff’s counsel demanding immediate compliance, defendant continued to trespass on plaintiff’s property on multiple occasions. At least some of this activity involved running heavy machinery over the excavation site on plaintiff’s land.
The evidence also shows that defendant’s excavation work trespassed on another neighbor’s land immediately to the south of plaintiff’s property as well. The evidence at trial left no doubt that defendant was far more concerned about completing its field expansion project than it was about its neighbors’ property rights.
The court’s finding of reckless indifference also is supported by substantial indirect evidence in the record. Three examples will be mentioned. First, having received no satisfaction through conventional means, in late 2014 plaintiff’s son-in-law contacted a local news station about the fifty-foot cliff created by defendant at the rear of plaintiff’s land. The media attention attracted notice. Perhaps as a result, the town of East Haven required defendant to erect a high chain-link fence at the property line to prevent people from falling over the cliff. The timing of this particular remedial measure (after the cliff was created) is consistent with the court’s view that defendant, left to its own devices, demonstrated a disturbing lack of concern for the welfare of its neighbors, or persons on its neighbor’s land. From the photographs presented at trial, it should have been painfully obvious to defendant that the cliff, which appears to have been created by design, presented a significant physical danger to anyone near the edge of plaintiff’s property. Yet it apparently took adverse press coverage, and/or a governmental mandate, to compel defendant to attend to the dangerous condition created by its construction project.
Second, there are numerous indications in the record that defendant failed to comply with various ordinances and/or zoning requirements in the course of its excavation activities. At one point it was required to stop its activities in response to a cease-and-desist order issued by the Town of East Haven. In addition, according to defendant’s own appraiser, there were complaints in July 2014 that defendant was using rock-crushing/earth processing equipment prohibited by the zoning regulations in a residential zone. It also appears clear that the excavation activities were carried out in a manner that deviated substantially from the site plan filed by defendant with the town years earlier. For example, the sheer cliff created at the base of plaintiff’s property was limited by regulation to a 2:1 (45 degree) slope maximum, but was excavated with a nearly vertical (1:1, or 90 degree) slope, which is what made it so dangerous. These various items again point to defendant’s disregard for rules designed to protect its neighbors, including plaintiff.
Plaintiff presented credible evidence at trial that defendant violated the cease-and-desist order, but the court finds it unnecessary to decide the issue.
Third, it also appears that defendant breached an agreement with plaintiff, made on November 30, 2015, to suspend all project-related work pending the outcome of this case. The agreement was reached in connection with an application for a prejudgment remedy and temporary injunction in the early stages of the present lawsuit. The lawyers for each party evidently arrived at court in New Haven for a hearing on plaintiff’s application, and then reached an agreement which allowed their clients to avoid proceeding on the application. The lawyers reported the agreement on the record to Judge Richard Burke, who was handling the special proceedings calendar that day. The agreement imposed two obligations on defendant. First, defendant agreed that no further work would take place on the property until the case was litigated. Second, defendant agreed that it would not transfer, sell, lien or otherwise encumber its property pending the litigation. The lawyers also told Judge Burke that they would attempt to secure an early trial date (in the spring of 2016); this arrangement would allow them to have one rather than two evidentiary proceedings.
The court has listened to a recording of the proceedings.
The agreement that there would be no further work on the " property" did not include an explicit definition of the " property" to which the agreement applied. Plaintiff says that defendant agreed to stop all work on the project until the dispute was resolved. Defendant has not offered a different interpretation of the agreement. A number of contextual clues lead this court to conclude with a high level of confidence that plaintiff is correct; the reference is to activities on
Defendant plainly appears to have violated the agreement reported on the record to Judge Burke on November 30, 2015 (the 11/30/15 Agreement). That is to say, defendant unquestionably resumed work on the project at some point in 2016, while the case was still pending. Plaintiff, however, never returned to court to seek enforcement of the 11/30/15 Agreement, and it has not asked this court to enforce the Agreement now. Nor would the court do so without further inquiry. The lawyers told Judge Burke on November 15, 2015, that they would reduce the agreement to writing and e-file it with the court by the end of the week. That was not done. It is possible that defendant has some valid excuse or justification f or its apparent non-compliance- although none was offered at trial, despite the fact that the claim of non-compliance was raised by plaintiff’s counsel, and John Scannell testified regarding the 11/30/15 Agreement. Suffice it to say only that the record facts relating to the 11/30/15 Agreement do nothing to undermine the court’s finding of reckless indifference.
As with the other two examples discussed above, defendant’s conduct relating to the 11/30/15 Agreement is not relied upon as an essential or necessary basis for the court’s finding of reckless indifference. The court’s finding rests on the facts and conclusions discussed in the first four paragraphs of this part of its memorandum of decision (Damages, part 4), not including footnote 11. These other examples of defendant’s questionable conduct are provided as additional evidence reinforcing or corroborating the court’s conclusion that defendant’s trespassory activities on plaintiff’s land were of a sufficiently egregious nature to justify an award of exemplary damages.
Attorneys fees are awarded in the amount of $16,135.86. In addition, plaintiff is entitled to recover litigation expenses of $2,600.00 for the cost of the Godfrey Hoffman stakeout survey, $907.50 for the Godfrey Hoffman deposition fee, $2,500.00 for charges associated with the Hoffman/Rotondo trial testimony, $2,200.00 for the Mr. Liberti’s appraisal report, and $1,000.00 for the fee charged by Liberti for testifying at trial. Total fees and expenses are $25,343.36.
Judgment will enter on the First Count of the complaint in plaintiff’s favor in the total amount of $119,015.37, which includes awards for property damage of $69,672.01, annoyance and discomfort of $24,000.00, and punitive damages of $25,343.36. Judgment will enter for the defendant on the Second and Third Counts.
It is so ordered.
City of Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. at 90. A temporary trespass can be abated, whereas a permanent trespass cannot be abated. Id. ; see, e.g., Rickel v. Komaromi, 144 Conn.App. 775, 787-88 (2013) (discussing distinction in context of statute of limitations); Emerick v. Town of Glastonbury, No. HHD-CV-115035304, 2015 WL 3684303, *5-*6 (Superior Court, May 14, 2015) (same).
alternative measures of damages to the extent that the restoration of the property returns the property to its original value. See, Argentinis v. Fortuna, supra, 134 Conn.App. at 554. It obviously is important to avoid duplicative damages in this context. Id.
plus $6,853.75 for surveying and engineering work undertaken by Godfrey Hoffman Associates, LLC in connection with the restoration work. (Pl. Ex. 28.) Defendant argues that the surveying and engineering work is a litigation expense, which should not be included in damages. The court disagrees. These particular costs were a necessary and integral part of the restoration project itself, which plaintiff was required to undertake to remedy the trespass, regardless of any litigation. The court has not included in this award the expenses billed by Godfrey Hoffman for the deposition of Mr. Rotondo ($907.50). The court also has not included as part of this award the $2,600 fee charged by Godfrey Hoffman for the initial survey work billed on August 14, 2014. But see pp. 16-17 below (awarding litigation expenses as part of punitive damage award).
Id. at ¶¶ 7-8. This is enough to put defendant and the court on notice under Markey v. Santangelo, 195 Conn. 76, 77-79 (1985), and its progeny. Even were it not, paragraph 9(f) of the trespass count explicitly claims punitive damages. Defendant’s pleading-based argument has no merit.
defendant’s property (as well as plaintiff’s, of course). This explains why plaintiff’s counsel told Judge Burke that the agreement provides plaintiff " essentially" with the relief sought in her request for a temporary injunction. See Plaintiff’s Application for Prejudgment Remedy and Order to Show Cause for Temporary Injunction, dated October 6, 2015 (# 100.31) (seeking temporary injunction ordering defendant to " cease and desist any further trespass upon the Plaintiff’s property located at 88 View Terrace, East Haven and cease and desist any further excavation and construction activity in regard to the ongoing activity on its property at 9 Venice Place, East Haven" ). Again, defendant did not disagree with plaintiff’s characterization of the agreement during the trial before this court.