Opinion
CV195011345S
11-21-2019
Ann GRECO v. Michael GALLO et al.
UNPUBLISHED OPINION
OPINION
Nada K. Sizemore, Judge
The Plaintiff Ann Greco brings this application for a prejudgment remedy (hereinafter "PJR") against the Defendants Michael Gallo, Richard Galecki and Galecki Landscaping, LLC [hereinafter referred to as "Galecki Landscaping"] for alleged damage and/or destruction of a forty (40) year old Norway Maple tree located at her beach home on 49 New Britain Road in Old Lyme, Connecticut.
The Defendant Michael Gallo owns property at 52 White Sands Beach Road in Old Lyme, right next to the Plaintiff’s Greco property, and the subject tree sits near and/or on the property line between the two parcels.
On June 27, 2019, the court held an evidentiary hearing on the application for prejudgment remedy dated March 20, 2019, pursuant to C.G.S. 52-278a et seq.
Plaintiff Greco seeks prejudgment attachments on the real property and/or businesses of Michael Gallo, Galecki Landscaping and Richard Galecki to secure sums up to $30,000 on each defendant. After the hearing, the court ordered post-hearing briefs to be submitted by the parties and the final briefs were received on October 24, 2019.
Having reviewed and considered the testimony, evidence and briefs submitted by the parties, this court DENIES the Plaintiff Greco’s application for the three attachments. This court does not find sufficient proof on the claims against these three defendants, so as to allow for the finding of probable cause that judgment will be rendered against them on a trial on the merits on both issues of liability and damages.
The court bases its decision on the following.
PROCEDURAL BACKGROUND
By Complaint dated March 22, 2019, the Plaintiff Ann M. Greco brings suit against Michael Gallo, Galecki Landscaping, LLC and Richard Galecki via an eight-count complaint.
Plaintiff alleges that Defendant Gallo was the owner of certain real property at 52 White Sands Beach Road in Old Lyme abutting property owned by her at 49 New Britain Road in Old Lyme. She claims that on or about April 1, 2017, the Defendant Gallo requested permission to prune one of her trees that was overhanging onto the Gallo property. The Plaintiff granted such permission on a limited scale. She then claims that the Defendant Gallo performed significant pruning beyond what she had agreed to; Defendant damaged the roots of the tree with an ax or hatchet; and Defendant applied a foreign substance to the tree’s root structure thereby harming and destroying the tree. She now seeks compensatory damages, double and/or treble damages under C.G.S. Section 52-560 and punitive damages.
More specifically, in her Complaint dated March 22, 2019, she claims that the defendant Michael Gallo individually is liable for her losses in Counts One and Four under the following legal theories: (1) liability for violation of Connecticut’s tree statute, C.G.S. Section 52-560 and (2) liability in common-law negligence.
She claims in Count One that the Defendant Gallo performed arboriculture on the tree without a valid license and applied a foreign substance to the tree’s root structure. She further alleges that he and/or his agents caused the tree to die, and she was harmed through the loss of the tree, its valuable shade and the cost of tree’s removal and replacement.
In Count Four, she claims Defendant Gallo was negligent, in that he failed to follow her limited pruning instructions and thereby breached a duty of responsible conduct and care over the plaintiff’s tree, when he performed arboriculture on the tree without a license and she further claims his negligence caused the death of the tree.
In Counts Two, Five and Seven, she has also sued Galecki Landscaping, LLC claiming that Defendant Gallo had engaged and/or contracted it to perform arboriculture on the tree. She sues Galecki Landscaping asserting liability under C.G.S. 52-560; common-law negligence and violation of Connecticut Unfair Trade Practices Act- C.G.S. Section 42-110b et seq.
Last, in Counts Three, Six and Seven, she also has sued Defendant Richard Galecki individually claiming that he is liable under C.G.S. Section 52-560; and liable for common-law negligence and liable under the CUTPA statute, C.G.S. Section 42-110b et seq. for her losses. She specifically claims that he was engaged and/or contracted with Defendant Michael Gallo to perform arboriculture to the tree at this location.
By Answer, Special Defenses and Counterclaim dated June 17, 2019, the defendants deny liability and deny causing the plaintiff Greco’s losses and damages. Further, in their special defense they allege: (1) plaintiff fails to state a claim upon which relief can be granted; and (2) C.G.S. Section 52-560 does not apply to the instant matter because Defendant Gallo never entered the property of the plaintiff and the remaining defendant had no role in the pruning of the tree.
By Counterclaim, Defendant Michael Gallo alleges damages to his real and personal property caused by the negligence of Plaintiff Greco, for her failure to keep her tree from overgrowth and encroaching upon his property. He alleges that prior to April 2017, for many years, her tree was excessively growing on his property causing damage. Specifically, he says that excessive growth caused damage to his septic system, roof and garage requiring demolition and rebuilding of his garage. He seeks damages in excess of $25,000.
Plaintiff Greco denies all claims made in the special defenses and counterclaim by Reply and Answer dated June 21, 2019.
At the prejudgment remedy hearing on June 27, 2019, the plaintiff Greco presented the following witnesses: Ann Greco, son-in-law Jason Yanelli and expert arboriculturist witness Jason Wilcox. She further presented the following exhibits: Exhibits 1A to 1J- Color prints of photographs of tree in question; Exhibit 2- Full 8x10 color photograph of tree; Exhibit 3- Handwritten estimate from Plaintiff’s expert with horticulture excerpt from Purdue University; Exhibit 4- Estimate from Wilcox Tree Experts, LLC dated Oct. 26, 2017; Exhibit 5- Old Lyme WCPA Liquid Waste Disposal Ticket dated May 25, 2018; and Exhibit 6- Photo of garage.
The defendants presented the testimony of Defendants Michael Gallo, Richard Galecki and expert arboriculturist witness Robert Manocchio. The defense also presented the following exhibits at the hearing: Exhibit A- Photographs (4) of border area between properties; Exhibit B- 4 photographs of tree; Exhibit C- 4 photos showing root areas of tree; Exhibit D- Report dated June 24, 2019 from Allied Tree and Lawn Care, LLC; and Exhibit E- Report dated June 21, 2019 from Synergy Adjusting Corporation and Exhibit F- Letter dated May 31, 2012 from Old Lyme Water Pollution Control Authority.
Further, the parties have presented several supplemental post-hearing briefs as follows: Plaintiff Greco’s Post-Hearing Brief RE Application for PJR Attachment dated Aug. 12, 2019; Defendants Galecki and Galecki Landscaping Post-Hearing Brief dated Sept. 12, 2019; Defendant Michael Gallo’s Post-Hearing Brief dated Oct. 11, 2019; and Plaintiff’s Post-Hearing Rebuttal Brief dated Oct. 24, 2019.
The court notes that current counsel for Michael Gallo appeared as of August 29, 2019, after the June 2019 hearing regarding the prejudgment remedy. At hearing, Defendant Gallo had been represented by Attorney Frank Ancona. Nonetheless, the Defendant Gallo’s new counsel was provided the hearing transcript and counsel filed briefs in support of Defendant Gallo’s defenses and claims through the law firm of Jackson O’Keefe, and the court accepts such as part of its decision process.
STANDARD OF LEGAL REVIEW
General Statutes § 52-278a et seq. controls this decision, in that Plaintiff is seeking a prejudgment remedy of attachment on the defendants’ properties prior to final judgment in this dispute. The court emphasizes that this is not trial on the merits, but it is a prejudgment hearing in which the issues are more narrow and limited.
A prejudgment remedy is available upon a finding by the court that "there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff." C.G.S. Section 52-278d(a)(1). "The language of our prejudgment remedy statutes requires that the court determine ‘whether or not there is probable cause to sustain the validity of the [applicant’s] claim.’ Id. ; see Ledgebrook Condominium Ass’n, Inc. v. Lusk Corp., 172 Conn. 577, 584, 376 A.2d 60 (1977). "The plaintiff does not have to establish that [s]he will prevail, only that there is probable cause to sustain the validity of the claim ... The court’s role in such a hearing is to determine probable success by weighing probabilities." (Internal quotation marks omitted.) Calfee v. Usman, 224 Conn. 29, 37, 616 A.2d 250 (1992).
"The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances in entertaining it. Wall v. Toomey, 52 Conn. 35, 36, (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535 (1983)." (Emphasis in original; internal quotation marks omitted.) Three S Development Co. v. Santore, 193, Conn. 174, 175, 474 A.2d 795 (1984).
Further, "[i]n acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the plaintiffs’ claim ... [T]he trial court, vested with broad discretion, need determine only the likely success of the plaintiffs’ claim by weighing probabilities." (Citations omitted, internal quotation marks omitted.) Haxhi v. Moss, 25 Conn.App. 16, 18-19, 591 A.2d 1275 (1991); E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628-30, 356 A.2d 893 (1975).
CLAIMS AGAINST MICHAEL GALLO
(a) Liability
Plaintiff has proposed suing Michael Gallo in two counts alleging liability under C.G.S. Section 52-560 and liability in common-law negligence.
(i) Statutory Liability under C.G.S. 52-560 for Trespass
Specifically under Connecticut General Statute Section 52-560, the Plaintiff claims that the Defendant Gallo committed trespass by cutting and destroying her tree without her permission. That statute reads as follows:
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, except on land subject to the provisions of section 52-560a, 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 this 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. (Emphasis Added.)
The Connecticut courts have often considered liability and damages issues arising under this statute. Section 52-560 embodied the long standing common law that predated its passage and includes the legal concepts of trespass and damages. See Caciopoli v. Lebowitz, 309 Conn. 62, 78 A.3d 1150 (2018); Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 881 A.2d 937 (2005); Stanley v. Lincoln, 75 Conn.App. 781, 818 A.2d 783 (2003); Geiger v. Carey, 170 Conn.App. 459, 154 A.3d 1093 (2017); Hardie v. Mistriel, 133 Conn.App. 572, 36 A.3d 261 (2012); Palmieri v. Cirino, 90 Conn.App. 841, 880 A.2d 172 (2005); Spencer v. Foisie, Superior Court, judicial district of Middlesex at Middletown CV 95-007648 (Burgdorff, J.- May 3, 2011) 2011 WL 2150571.
"The elements 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." (Internal quotation marks omitted.) Geiger v. Carey, 170 Conn.App. 459, 482-83, 154 A.3d 1093 (2017); Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007); see also State v. Lamar Advertising of Hartford, Superior Court, judicial district of Hartford, Docket No. CV- 08-5020325-S, 2010 WL 4611744 (October 21, 2010, Sheldon, J.). A trespass can exist without personal entry on land of another. Munro v. Williams, 94 Conn. 377, 379, 109 A. 129 (1920); see also Wright, Fitzgerald & Ankerman, Connecticut Law of Torts, Section 17 and 18 (4th Edition- 2018). Anything that a person does that appropriates adjoining land or substantially deprives an adjoining owner of the reasonable enjoyment of his or her property is an unlawful use of one’s property. Holt v. Crest Lincoln Mercury Inc., Superior Court, judicial district of New Haven at New Haven, CV 283667 (Pastore, J.- Dec. 10, 1990) , citing The Guide To American Law, Vol. I, pp. 65.
Our Supreme Court has held that "[i]t is axiomatic that entry upon property with permission of the owner, absent subsequent acts of abuse, is a defense to a claim of trespass." Carothers v. Capozziello, 215 Conn. 82, 101, 574 A.2d 1268 (1990); see also State v. Lamar Advertising of Hartford, supra . Further, "[o]ne who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it ..." (Internal quotation marks omitted.) State v. Lamar Advertising of Hartford, supra .
As both the Connecticut trial and appellate courts recognized in Geiger v. Carey, supra, Section 52-560 embodies the common-law rule pertaining to "an action for a trespass to the land to which the trees in question were appurtenant." Stanley v. Lincoln, 75 Conn.App. 781, 785, 818 A.2d 783 (2003). "[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.) Id., at 786, 818 A.2d 783. An action under § 52-560, therefore, is an action in trespass with a specifically prescribed measure of recovery of damages. As with trespass, the plaintiff cannot recover if the defendant had the "license," or permission of, among others, the owner. Failure to prove the elements of the underlying trespass dooms an action under § 52-560.
In the case at bar, the plaintiff Greco claims the evidence supports liability against Defendant Gallo for violation of C.G.S. 52-560, in that he admittedly pruned said tree; used an ax or hatchet on the roots of the tree; and placed some substance around the root region of the tree so as to harm it permanently. Even though Gallo’s actions all occurred from his neighboring property, the plaintiff claims the trespass is established through his unauthorized actions on the tree from his property.
The Defendant disputes this, arguing that Defendant Gallo can only be liable for the trespass embodied under § 52-560 if he literally and strictly had trespassed "on the land of another." The court notes that the Defendants have not cited any direct controlling authority on point in which such an interpretation of the statute has been proffered.
Based on the court’s review of the above case law and the facts presented at the prejudgment remedy hearing, this court concludes that sufficient evidence supports a probable cause finding that the Defendant Gallo committed the trespass contemplated in C.G.S. Section 52-560. As Defendant Gallo and Plaintiff both testified at hearing, he did ask Plaintiff Greco permission to prune her tree from his property line and she admits giving him such permission. She testified that the permission was limited directing him to not prune too much.
His testimony supports that he did do such pruning from his property on her tree, but she claims he went too far and aggressive in that pruning process. And even further, the evidence presented also showed that he never asked permission to hack or ax the roots of the tree on his property; and he never asked permission to put some foreign substances at or near the tree roots. This court finds this additional conduct beyond the permission given by Plaintiff Greco supports the probable cause finding on the trespass issue. At this stage, the court’s role is merely to weigh the probabilities as to probable success for the Plaintiff. And, this court finds the evidence presented sufficient on that issue of violation of C.G.S. Section 52-560.
(ii) Negligence Liability
Plaintiff Greco next asserts a claim of negligence against the Defendant Gallo in addition to the Section 52-560 count. The Connecticut court has most recently recognized that such common-law cause of action is permitted in tree damage cases, in addition to the statutory count. Caciopoli v. Lebowitz, supra, 309 Conn. at 62.
"The essential elements of a cause of action in negligence are well established: duty, breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010); cited by Spencer v. Foisies, supra.
In the case at bar, the court finds sufficient probable cause for the Plaintiff Greco to sustain her common-law negligence claims against the Defendant Greco.
From the evidence and testimony presented, the court finds that Defendant Gallo owed a duty to the Plaintiff Greco, once he engaged Plaintiff for permission to prune the tree. And, to exercise that permission reasonably and within the scope of permission provided by Plaintiff Greco.
The testimony of all witnesses to the tree and the photographs offered at hearing support the claim that he may not have been reasonable in how he conducted himself after she gave him limited permission to prune. His taking an ax or hatchet to the roots and placing foreign substances at the root areas may be a sufficient basis to find that he breached that duty and sustain the validity of the Plaintiff Greco’s negligence claim. Again, in the court’s discretionary role at this stage, the court finds probable cause to sustain the validity of the negligence claim against the Defendant Gallo.
(iii) Damages
Before the court can grant the Plaintiff Greco’s application for prejudgment attachment, the court must also find that the damages claimed by her also are supported by the requisite probable cause.
As to the damages claimed against Defendant Gallo, Section 52-560 is very clear as to what is or is not the measure of damages in tree damage cases.
"There are three possible measures of damages for loss of a tree in Connecticut. The distinctions between the measures are clearly stated in Maldonado v. Connecticut Light & Power Co., 31 Conn.Supp. 536, 537-38, 328 A.2d 120 (1974): ‘Our Supreme Court has clearly stated our rule applicable in this type of situation as follows: This is an action for a trespass to the land to which the trees in question were appurtenant. 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. Hoyt v. Southern New England Telephone Co., 60 Conn. 385, 390 [22 A. 957 (1891) ]. Eldridge v. Gorman, 77 Conn. 699, 701 [60 A. 643 (1905) ].’ This is the common-law rule." Canton Village Construction, Inc. v. Huntington, 8 Conn.App. 144, 146-47, 510 A.2d 1377 (1986). "Rather, the proper measure of damages is either the market value of the tree, once it is severed from the soil, or the diminution in the market value of the ... real property caused by the cutting." (Internal quotation marks omitted.) Palmieri v. Cirino. 90 Conn.App. 841, 850, 880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005); Hardie v. Mistriel, supra, 133 Conn.App. 572.
In the case at bar, in her post-hearing brief dated August 12, 2019, the Plaintiff Greco is seeking an attachment of $30,000 each over real and personal property of all three defendants. She is rather unclear as to the exact basis for the alleged damages related to the Norway Maple in question. And, there is contradictory evidence provided by each alleged expert arboriculturist on this topic.
The expert testimony offered by Plaintiff’s expert, Jason Wilcox, indicated that the "reasonable value" of the tree in question was $98,000. Yet the expert testimony offered by the defense expert Robert Manocchio testified that the reasonable value of the tree to be $4,600.00. It is unclear if these sums are replacement cost figures for said tree or if they are values of the tree as timber once cut. Neither expert offered opinions with any reasonable degree of arboriculturist probability in their written reports nor in their testimony at trial; and neither expert provided sufficient scientific methodology or reasoning for how they each arrived at the dollar amounts testified to. In fact, both witnesses had never testified in court before, and both had limited prior experience in placing a valuation on trees in question such as the case at bar. Their testimony did not provide clear evidence on the replacement cost of the tree versus the cost of the tree once cut for potential lumber, as required by the statute and case law for the measure of damages under § 52-560.
Therefore, pursuant to Section 7-2 of the Connecticut Code of Evidence, this court cannot accept such testimony as credible, so as to sustain support for a prejudgment attachment remedy. This court concludes that both expert opinions about the "value of the tree" lack the required foundation and recognized scientific methodology and reasoning required by the Connecticut courts. See State v. Porter, 241 Conn. 57, 73, 698 A.2d 739 (1997), cert. denied, 532 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998); citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Trial judges are afforded wide discretion to serve as gatekeepers for scientific evidence because a relevance standard of admissibility inherently involves an assessment of the validity of the proffered evidence. More specifically, if scientific evidence has no grounding in scientific fact, but instead is based on conjecture and speculation, it cannot in any meaningful way be relevant to resolving a disputed issue. State v. Porter, supra, 241 Conn. at 84-87 cited by Fleming v. Dionisio, 317 Conn. 498, 505, 199 A.3d 531 (2015).
Therefore, even though the court does find probable cause for liability as to the Defendant Michael Gallo- the court does not find sufficient probable cause as to the amount of damages claimed by the Plaintiff Greco, so as to justify the placement of a monetary attachment on defendant Gallo’s real property.
CLAIMS AGAINST GALECKI AND GALECKI LANDSCAPING, LLC
The claims against the remaining Defendant Galecki and Galecki Landscaping, LLC also somewhat mirror the claims against the Defendant Gallo, except that the Plaintiff has added CUTPA claims based on, Conn. Gen. Statute Section 42-110b et seq., claim in addition to the violation of C.G.S. Section 52-560 and negligence counts.
Based on the court’s review of the testimony, evidence and briefs provided by the parties, this court cannot conclude that plaintiff has established probable cause for valid claims against these two defendants.
"The plaintiff does not have to establish that [s]he will prevail, only that there is probable cause to sustain the validity of the claim ... The court’s role in such a hearing is to determine probable success by weighing probabilities." (Internal quotation marks omitted.) Calfee v. Usman, supra, 224 Conn. 37.
From the evidence presented at the hearing, this court finds insufficient evidence to find probable cause as to the liability for either these defendants in this case for any theory of liability alleged by Plaintiff Greco.
The testimony presented by Defendant Galecki indicated that he and his landscaping company had nothing to do with the work done by Defendant Gallo at this Old Lyme property. The fact that Defendant Gallo, Defendant Galecki’s father-in-law, used equipment owned by Galecki and/or Galecki Landscaping, LLC is insufficient to create any agency relationship to make them liable for the conduct by Defendant Gallo at the Old Lyme beach property under any of the theories claimed by the plaintiff. Defendant Gallo’s alleged hiring of some of the workers from Defendant Galecki Landscaping, LLC independently to help him do this job in Old Lyme does not create the type of agency relationship, so that Defendant Gallo’s actions were aided by either Defendant Galecki or Galecki Landscaping.
Therefore, at this early prejudgment hearing, this court cannot find probable cause against Defendant Galecki or Galecki Landscaping on any of the liability issues raised against them.
CONCLUSION
THEREFORE, based on the above, the court concludes that it does find sufficient probable cause as to the liability issues, at this stage of the litigation, against the Defendant Michael Gallo only. However the court does NOT find sufficient probable cause as to damages, so as to allow this court to authorize an attachment of Mr. Gallo’s real estate.
And last, the court does not find any probable cause for any attachment as to the Defendants Galecki Landscaping, LLC or Richard Galecki individually, based on the evidence presented.
The applications for prejudgment remedy of an attachment are thus DENIED as to all three defendants.