Opinion
FSTCV136017862S
05-04-2016
Mafcote, Inc. fka Millen Industries, Inc. v. Leonard Paschalidis
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Donna Nelson Heller, J.
The plaintiff Mafcote, Inc., formerly known as Millen Industries, Inc., commenced this action, returnable July 16, 2013, against the defendant Leonard Paschalidis (i) for damages arising from the partial collapse of a retaining wall on the plaintiff's property and the defendant's encroachment on the plaintiff's property, and (ii) to quiet the title to that portion of the plaintiff's property that is subject to the defendant's encroachment. On November 5, 2013, the defendant filed an answer to the complaint and asserted two special defenses: as a first special defense, a claim that any damage to the retaining wall was caused by the plaintiff's failure to maintain its wall and not by any negligence on the part of the defendant; and as a second special defense, a claim that any property occupied by the defendant was openly and notoriously occupied by the defendant for over twenty years and is the property of the defendant by virtue of adverse possession (#107.00). The plaintiff filed a reply in which it denied the special defenses on January 15, 2014 (#115.00).
Count one of the plaintiff's complaint is for trespass to land and destruction of property. Count two is for encroachment and to quiet title to the plaintiff's property.
The defendant did not pursue the claim of adverse possession at trial, relying instead on a claim for prescriptive easement.
This action was tried to the court on November 3, 2015. The court heard testimony from the following seven witnesses: Bradford Fuller, Esq.; Jennifer Calderon, an employee of the plaintiff; Dennis Deilus, a land surveyor, licensed in the State of Connecticut; Steven Shulman, the president of the plaintiff; Viore Bruno, a structural engineer, licensed in the State of Connecticut; Dale Parsons, a contractor; and the defendant. The plaintiff submitted its post-trial memorandum on December 15, 2015 (#137.00). The defendant filed a post-trial memorandum on December 16, 2015 (#138.00). The plaintiff filed a reply memorandum on December 29, 2015 (#139.00).
I
The plaintiff and the defendant are the owners of adjacent properties in Norwalk, Connecticut. The plaintiff acquired title to the property located at 108 Main Street in Norwalk (the 108 Main Street property) on September 13, 1993. The defendant became the record owner of the property located at 106 Main Street in Norwalk (the 106 Main Street property) on December 30, 2011. On May 18, 1987, the parties' predecessors in interest entered into an agreement (the retaining wall agreement) with respect to a retaining wall, constructed of railroad ties, that was located on the 108 Main Street property, but anchored with ties that extended into the 106 Main Street property, and chain link " page fencing" that was installed on the top of the wall along the dividing line between the two properties. Under the terms of the retaining wall agreement, the owner of the 108 Main Street property would be responsible for any repairs to or reconstruction of the retaining wall and the fence, and would hold the owner of the 106 Main Street property harmless, as long as the claims or demands for loss or damage were not the result of negligence on the part of the owner of the 106 Main Street property. The retaining wall agreement provided that its covenants would run with the land and would be binding on the respective parties' heirs, representatives, and assigns.
The fence is a chain link fence made of galvanized steel.
Attorney Fuller searched the title of the 108 Main Street property and testified at trial regarding the title search and the retaining wall agreement. His fee for the title search, including preliminary work, was $520. The fee for his court appearance was $300.
The retaining wall abutted a parking area on the 108 Main Street property. It was approximately 246 feet long. Large hemlock trees grew along the length of the retaining wall. The retaining wall remained undisturbed on the 108 Main Street property for approximately twenty-five years. The wall was in good condition, with a remaining useful life of twenty to thirty years, until the defendant began an excavation on the 106 Main Street property for a new paved asphalt driveway to replace the unimproved driveway on the property. In April 2012, during the excavation, the defendant's contractors used steam shovels that pushed and piled boulders and rocks against the chain link fence. The chain link fence and the retaining wall began leaning toward the plaintiff's building on the 108 Main Street property. The plaintiff's employees had to park their cars elsewhere because it appeared to them that the retaining wall was deteriorating and leaning toward the parking area on the 108 Main Street property. They were afraid that the wall and the hemlock trees, which were almost as tall as the plaintiff's three-story office building, were going to fall over onto their cars.
The plaintiff hired Mr. Bruno, a licensed structural engineer, to examine the retaining wall and prepare a report on its structural integrity. Mr. Bruno inspected the retaining wall on December 2, 2012. Mr. Bruno concluded that as a result of the surcharge loads and the ramming incursions into the chain link fence from the 106 Main Street side during the driveway excavation and construction, the fence had partially collapsed, the retaining wall was destabilized, and the hemlock trees along the wall were damaged. The court credits Mr. Bruno's testimony.
The plaintiff paid Mr. Bruno $1, 750 for his report and $3, 990 for his deposition and trial testimony. The defendant paid $500 of Mr. Bruno's fees as a discovery sanction.
On June 27, 2012, the plaintiff engaged the services of Mr. Deilus, a land surveyor licensed in the State of Connecticut and a tenant in the 108 Main Street property, to prepare a survey of the property. The survey showed that the chain link fence and the retaining wall were on the 108 Main Street property, although the retaining wall was in such bad repair and falling over at the time of the survey that Mr. Deilus could not see the base of it. The survey also showed that about twenty feet of the length of the new paved asphalt driveway on the 106 Main Street property encroached by as much as 2.8 feet onto the 108 Main Street property.
Mr. Deilus testified at the trial. His fees were $1, 200 for the survey and $450 for his time in court.
The plaintiff hired Mr. Parsons, his wife Joanne Parsons, and their company to design and rebuild the retaining wall and the surrounding landscaping. The new retaining wall was identical to the old retaining wall, as the plaintiff had requested. The large hemlock trees had to be removed, and the plaintiff decided to replace them with smaller four-foot tall pine trees which were less expensive. The total cost of the new retaining wall and the replacement pine trees was $35, 756.16.
Ms. Parsons is a landscape architect and the president of the company.
II
In count one of the complaint, the plaintiff alleges that the defendant trespassed on the 108 Main Street property and caused damage to the retaining wall, the hemlock trees, and the chain link fence during the excavation for the new paved asphalt driveway on the 106 Main Street property. " [I]n order to prevail on a cause of action for trespass, the plaintiff must prove the essential elements of the tort. The essential elements of an action for trespass are: " (1) ownership or possessory interest in land . . .; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." (Citation omitted; internal quotation marks omitted.) Vento v. Marin, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-CV-06-5001778-S, (April 6, 2010, Mottolese, J.T.R.). " In order to satisfy the element of intent, it is not necessary to prove that the defendant intended to encroach upon the plaintiff's property. It is sufficient to prove that the defendant intended the act which produced the invasion or intrusion." (Citation omitted.) Jascha v. Rodrigues, Superior Court, judicial district of Fairfield, Docket No. CV10-6010265-S, (June 7, 2012, Radcliffe, J.). " [A] trespass may be committed by conducting construction activity beyond the boundary of one's property which causes injury to that property." Vento v. Marin, Superior Court, supra, Docket No. FST-CV-06-5001778-S. The defendant, through his attorney, admitted that the construction of the new driveway on the 106 Main Street property contributed to the deterioration of the retaining wall on the 108 Main Street property. The court finds that the plaintiff has proven by a preponderance of the evidence that the defendant's activities on the 106 Main Street property constituted a trespass to the 108 Main Street property and destabilized the retaining wall, caused the chain link fence to partially collapse, and damaged the hemlock trees, requiring their removal.
The plaintiff seeks to recover the expenses that it incurred for the replacement retaining wall and the new landscaping, including the four-foot tall pine trees, as damages. The defendant contends that any damages awarded to the plaintiff should be reduced to reflect the original retaining wall's depreciation because the wall was already more than halfway through its useful life. The issue for the court, therefore, is whether the full cost of the repairs is the proper measure of damages, as the plaintiff claims, or whether the damages should be measured by the diminution in the value of the 108 Main Street property, as the defendant argues.
The defendant also contends that the cost of replacing the hemlock trees with the new four-foot pine trees should not be included in the plaintiff's damages. The court does not agree. The expenses that the plaintiff incurred to repair the damage to the 108 Main Street property caused by the defendant's trespass included the cost of the new pine trees. Those expenses are properly awarded as damages. See Jascha v. Rodrigues, supra, Superior Court, Docket No. CV-10-6010265-S.
The plaintiff elected to prove its damages based on the costs that it incurred to replace the retaining wall and the landscaping rather than on the diminution in value of the 108 Main Street property. This measure of damages is permissible, provided that (i) the cost of the repairs are not greater than the prior value of the 108 Main Street property (i.e., the value of the 108 Main Street property before the retaining wall was damaged), and (ii) the repairs do not increase the value of the 108 Main Street property above its prior value. As our Supreme Court has explained, " [t]he basic measure of damages for injury to real property is the resultant diminution in its value . . . There is, however, a well established exception to this formula; such diminution in value may be determined by the cost of repairing the damage, provided, of course, that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged . . . The cost of repairs, therefore, is a proxy for diminution in value caused by damage to property. Because these are, in effect, alternative measures of damages, the plaintiff need not introduce evidence of both diminution in value and cost of repairs." (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Association, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 59-60, 717 A.2d 77 (1998).
Turning first to the two prerequisites for using the cost of repairs as the measure of damages, the court finds that there is no evidence that the cost of the new retaining wall and landscaping exceeded the former value of the 108 Main Street property or that the new retaining wall and landscaping enhanced the value of the 108 Main Street property over its value prior to the excavation and construction on the 106 Main Street property and the resulting damage to the 108 Main Street property. Accordingly, the court will apply the plaintiff's cost to replace the retaining wall and the hemlock trees, in the total amount of $35, 756.16, to measure the plaintiff's damages in this case. See Centimark Corp. v. Village Manor Associates Limited Partnership, 113 Conn.App. 509, 531, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009) (absent evidence that cost of replacing roof exceeded value of property or that replaced roof enhanced value of property over its value prior to damage, trial court properly applied cost to repair property as measure of damages). In addition to the expenses incurred by the plaintiff to rebuild the retaining wall and replace the landscaping, the court finds that the structural engineer's assessment was instrumental to the repair and reconstruction effort. Mr. Bruno's fee for the report, in the amount of $1, 750, will be included in the damages awarded to the plaintiff.
Even if the new retaining wall was more valuable than the existing retaining wall, the plaintiff replaced several large hemlock trees with much smaller pine trees, at a lower cost.
Mr. Bruno's fees for testifying in court and at his deposition are addressed separately below.
The plaintiff has also asserted a claim pursuant to General Statutes § 37-1 for prejudgment interest at the rate of 8 percent annually on the amount that it spent to replace the damaged retaining wall and landscaping. Section 37-1 provides in pertinent part: " (a) The compensation for forbearance of property loaned at a fixed valuation, or for money, shall, in the absence of any agreement to the contrary, be at the rate of eight per cent a year . . . (b) Unless otherwise provided by agreement, interest at the legal rate from the date of maturity of a debt shall accrue as an addition to the debt." General Statutes § 37-1. " Section 37-1 applies to interest eo nomine as compensation for loans of money or property, as long as the parties have not disclaimed or waived any right to receive interest on the transaction." Sikorsky Financial Credit Union, Inc. v. Butts, 315 Conn. 433, 440, 108 A.3d 228 (2015). General Statutes § 37-1 is not applicable to the plaintiff's claim for damages.
General Statutes § 37-3a is also inapplicable here. " [Section] 37-3a applies to interest as damages and allows a trial court to award interest as compensation for the detention of money when the duty to pay arises from an obligation other than a loan of money or property, or when the parties to the loan have decided against interest on the loan." (Citation omitted.) Id. at 442. There is no statutory basis for an award of pre-judgment interest to the plaintiff in this case.
III
In count two of the complaint, the plaintiff alleges that the defendant encroached on the 108 Main Street property when he constructed the new paved asphalt driveway for the 106 Main Street property. The plaintiff seeks to quiet the title to that portion of the 108 Main Street property that is subject to the defendant's encroachment. The defendant does not dispute that the new 106 Main Street driveway encroaches onto the 108 Main Street property. The defendant contends, however, that the encroachment was open, notorious and uninterrupted for a period of at least fifteen years, thus giving rise to an easement by prescription in his favor.
The plaintiff did not pursue its claim for damages arising from the defendant's continuing trespass and encroachment on the 108 Main Street property at trial.
" Prescriptive easements are recognized in this state . . . To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised . . . In order to prove such adverse use, the party claiming to have acquired an easement by prescription must demonstrate that the use of the property has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right . . . There can be no claim of right unless the use is unaccompanied by any recognition of his right [of the servient tenement] to stop such use. A use by express or implied permission or license cannot ripen into an easement by prescription . . . Connecticut law refrains from extinguishing or impairing property rights by prescription unless the party claiming to have acquired an easement by prescription has met each of these stringent conditions." (Citations omitted; internal quotation marks omitted.) County of Westchester, New York v. Town of Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993).
The defendant has offered no credible evidence to support a claim of prescriptive easement here. Mr. Shulman, the plaintiff's president, testified that he fully inspected the location when the plaintiff purchased the 108 Main Street property in 1993, and he observed grass in the area of the present encroachment. Mr. Deilus, the surveyor, testified that the driveway on the 106 Main Street property was unimproved until 2012, when the asphalt driveway was installed. He recalled that the 106 Main Street driveway was narrower before it was paved than it is now. There is no evidence that the use of the property in question by the defendant and his predecessors in interest was open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. The defendant has failed to establish that he acquired an easement by prescription in the encroachment area.
Turning to the plaintiff's claims, the court finds that the plaintiff has proven by a preponderance of the evidence that about twenty feet of the new paved asphalt driveway on the 106 Main Street property is partially on the 108 Main Street property, encroaching by as much as 2.8 feet. Judgment shall enter in the plaintiff's favor on count two of the complaint, seeking to quiet title to the portion of the 108 Main Street property covered by the 106 Main Street property's new driveway.
The plaintiff also seeks an order directing the defendant to cease and desist from encroaching on the 108 Main Street property and to remove the encroachment from the 108 Main Street property. " In a suitable case, injunctive relief is available, for the purpose of compelling the removal of an encroachment . . . Where the wrong complained of is an encroachment, brought about through an intrusion into another's property, Connecticut has applied an equitable balancing test. Where one has wrongfully or willfully invaded another's right in real property, the party owning the property is entitled to have the property restored to its original condition, even though the wrongdoer would suffer a great loss. The rationale for this rule is that a wrongdoer may not compel an innocent person to sell his right in the property. However, where there has been an innocent, as distinct from a willful and intentional mistake, and where the granting of a mandatory injunction would cause damage to the defendant greatly disproportionate to the injury of which the plaintiff complains, and money damages will adequately compensate the plaintiff, it would be inequitable to grant mandatory injunctive relief." (Citations omitted.) Jascha v. Rodrigues, supra, Superior Court, Docket No. CV-10-6010265-S.
The court finds that the defendant's encroachment on the 108 Main Street property was not willful or intentional; therefore, the court must balance the injury to the plaintiff with that which would result to the defendant if the court ordered the requested mandatory injunctive relief. " In deciding whether or not injunctive relief is appropriate, a court is called upon to compare the injury complained of, with that which will result if the injunction is issued . . . The test to be applied has been referred to as the comparative injury analysis. The court must balance the injury complained of, with that which would result from interference by way of mandatory injunctive relief . . . Where the granting of an injunction would cause damage to a defendant greatly disproportionate to the injury of which the plaintiff complains, it may be held inequitable to grant injunctive relief. The relief must be compatible with the equities of the case." (Citations omitted.) Id.
Neither party offered any evidence concerning the cost of removing the portion of the paved asphalt driveway that encroaches on the 108 Main Street property and restoring that area of the 108 Main Street property to its pre-encroachment condition. There is also no evidence regarding the impact of the encroachment on the value of the 108 Main Street property. Without this information, the court is unable to undertake a comparative injury analysis to determine whether a mandatory injunction ordering the defendant to remove the encroaching portion of the 106 Main Street property's driveway from the 108 Main Street property is appropriate here. Accordingly, the court declines to order relief in the form of a mandatory injunction.
Because the defendant has not been ordered to remove the encroachment from the 108 Main Street property, he must assume the responsibility for maintaining, repairing, and controlling the portion of the 106 Main Street property's driveway located on the 108 Main Street property and to insure against loss. The defendant is ordered to execute a writing, in a form that is witnessed and suitable for recording on the Norwalk land records as a covenant running with the land, in which he assumes on behalf of himself and his successors in title, the obligation of controlling, maintaining, repairing, and insuring the portion of the 106 Main Street property's driveway that encroaches on the 108 Main Street property. The defendant shall further provide in the writing that he will indemnify and hold harmless the plaintiff and its successors in title for any claim for damages arising out of the maintenance and repair of the driveway, including reasonable attorneys fees which may be incurred in defending any such action. The document suitable for recording shall be prepared and recorded on the Norwalk land records at the defendant's sole cost and expense. See id.
Nothing in this memorandum of decision shall preclude the defendant from removing the encroaching portion of the 106 Main Street property's driveway from the 108 Main Street property upon notice to the plaintiff and at his sole expense; provided, however, that the defendant shall restore the area of the 108 Main Street property now subject to the encroachment to its prior condition within thirty days of removing the encroachment. Once the encroachment is removed and the affected portion of the 108 Main Street property restored to its prior condition, the obligations set forth in the document described above may be released.
Although the plaintiff represented that it was not seeking to recover damages for the defendant's encroachment on the 108 Main Street property, the plaintiff included the cost of the title search--$520--and the survey--$1, 200--in its claim for damages. The court finds that the plaintiff would not have incurred those expenses but for the encroachment, and they are properly recoverable as damages.
The fees of Mr. Fuller and Mr. Deilus for testifying during the trial are discussed below.
IV
The plaintiff also seeks to recover the fees of its expert witnesses for their testimony in court. " It is a settled principle of our common law that parties are required to bear their own litigation expenses, except as otherwise provided by statute." (Internal quotation marks omitted.) Miller v. Guimaraes, 78 Conn.App. 760, 782, 829 A.2d 422 (2003). " [Section] 52-260, relating to witness fees, sets forth the court's authority to award expert witness fees in civil litigation. Within the statute, there is an enumeration of the categories of experts entitled to a discretionary award of expert witness fees." (Citation omitted.) Centimark Corp. v. Village Manor Associates Limited Partnership, supra, 113 Conn.App. at 541. There is no provision in the General Statutes for a prevailing party to recover expert witness fees for the testimony of engineering experts, land surveyors, or title searchers. Therefore, the court will not award the plaintiff the fees of its expert witnesses for testifying in this case.
General Statutes § 52-260(f) provides in pertinent part as follows: " When any practitioner of the healing arts, as defined in section 20-1, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, as defined in section 20-87a, psychologist or real estate appraiser gives expert testimony in any action or proceeding, including by means of a deposition, the court shall determine a reasonable fee to be paid to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse, psychologist or real estate appraiser and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse, psychologist or real estate appraiser."
V
Accordingly, judgment shall enter in favor of the plaintiff and against the defendant in the amount of $39, 226.16.
It is further ORDERED that the defendant, following consultation with the plaintiff, through its attorney, shall prepare and record the document described above within thirty days from the date of this memorandum of decision.