Opinion
No. DBD-CV-09-4010742-S
March 17, 2010
MEMORANDUM OF DECISION
I PROCEDURAL HISTORY AND BACKGROUND
The parties in this action are the plaintiff, Naromi Land Trust, Inc. and the defendant, Donald Borkowski. The plaintiff is a nonprofit land conservation organization dedicated to preserving open spaces, farmland, ridges and scenic vistas in Sherman, Connecticut. The plaintiff owns over 1,025 acres of property in Sherman, Connecticut and holds conservation easements on an additional forty-five acres. The pending action centers around one of the plaintiff's land holdings known as the Brookland Preserve. In its complaint, the plaintiff seeks a permanent injunction, restoration costs, attorneys fees and other relief against the defendant as a result of certain alleged activities of the defendant, mainly that he caused damage to the Brookland Preserve when he constructed a motorcross track on the Brookland Preserve.
In its complaint dated July 14, 2009, the plaintiff asserted three counts against the defendant. Those counts are: (1) violation of General Statutes § 52-560a, damages for encroachment on a nonprofit land conservation organization open space land; (2) private action pursuant to General Statutes § 22a-44(b) for enforcing the Inland Wetlands and Watercourses Regulations of Sherman; and (3) trespass. On November 9, 2009, the defendant filed his answer to the complaint and no counterclaims were asserted.
The defendant has filed a claim to the jury docket list for this action and the plaintiff has filed an objection to such claim. The plaintiff contends that the gravamen of its complaint is to prevent and repair the environmental harm caused to the Brookland Preserve and that in the first two counts of its complaint it relies on state statutes designed to preserve and protect protected lands. The defendant contends with respect to the plaintiff's third count of its complaint, a trespass claim, that such claim is legal in nature and the defendant is entitled to trial by a jury on this claim. Oral argument was held on this issue and both parties were ordered to file supplemental memoranda of law with respect to the trespass claim in the action. On March 1, 2010, oral argument was heard on this issue.
II DISCUSSION
"The standards used to determine whether a party is entitled to a trial by jury are well established. Under article first, § 19, of the Connecticut constitution, as amended, `[t]he right of trial by jury shall remain inviolate. We have consistently held that the scope of article first, § 19, is defined by applying a historical test. The right to a jury trial may not be abrogated for causes of action that were triable to the jury prior to the constitution of 1818, and extant at the time of adoption." (Internal quotation marks omitted.) Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 49, 578 A.2d 1054 (1990); see Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, 203 Conn. 63, 76, 523 A.2d 486 (1987).
General Statutes § 52-215 provides, in relevant part, that as a matter of right "civil actions involving such an issue of fact as, prior to January 1, 1880, would not present a question properly cognizable in equity, should be entered on the docket as jury cases upon proper request." Section 52-215 goes on to state, in relevant part, that certain enumerated action and "all other special statutory proceedings, which prior to January 1, 1880, were not triable by jury" should be tried to the court without a jury.
"Accordingly, in determining whether a party has a right to a trial by jury under the state constitution . . . the court must ascertain whether the action being tried is similar in nature to an action that would have been tried to a jury in 1818 when the state constitution was adopted. This test requires an inquiry as to whether the course of action has roots in common law, and if so, whether the remedy involved was one in law or equity. If the action existed at common law and involved a legal remedy, the right to a jury trial exists and the legislature may not curtail that right directly or indirectly." Skinner v. Angliker, 211 Conn. 370, 375-76, 559 A.2d 701 (1989). "Consequently, statutory actions established since the adoption of the constitution of 1818 ordinarily fall outside the scope of the provision, unless, perhaps, the new remedy constitutes a modification of existing remedies, so vital as to unduly limit and violate the right of trial by jury." (Internal quotation marks omitted.) Ford v. Blue Cross Blue Shield of Connecticut, Inc., supra, 216 Conn. 49-50.
In Commissioner of Environmental Protection v. Connecticut Bldg. Wrecking Co., 227 Conn. 175, 186-87, 679 A.2d 1116 (1993), the Supreme Court held that "[G]eneral Statutes § 22a-1, the legislature's statement of environmental policy, asserts the importance of protecting and maintaining the natural resources of the state and preserving the status quo with regard to the quality of the environment. We consider this legislative goal of protecting the environment through preservation and restoration of natural resources to be a dominant goal in this and other environmental enforcement actions. Because this goal is restitutionary, or equitable in nature, we are persuaded that environmental enforcement actions under our state's environmental statutes are primarily equitable" in nature.
The plaintiff's verified complaint seeks relief to prevent and repair the alleged environmental harm caused to the Brookland Preserve. In its first two counts of the complaint, the plaintiff specifically asserts claims based on state statutes, General Statutes §§ 52-560a and 22a-44(b), that are designed to preserve and restore protected lands. Such claims are clearly statutory and defendant is not entitled to a jury trial on such claims. The issue then arises as to whether the remaining count of the plaintiff's complaint, Count Three, which alleges a claim of continuing trespass, should be tried to the court or to a jury.
The test for a claim for the jury docket on a claim of trespass is whether "the issue raised in this action is substantially of the same nature or is such an issue as prior to 1818 would have been triable to a jury." Ford v. Blue Cross Blue Shield of Connecticut, Inc., supra, 216 Conn. 51. There is no dispute in this action that a claim of trespass prior to 1818 would have been triable to a jury.
The plaintiff, while conceding that a claim of trespass would ordinarily be tried before a jury, argues that notwithstanding this right, its remedy at law is inadequate on its trespass claim and it is seeking injunctive relief to prevent further damage to the Brookland Preserve. However, the plaintiff did concede at oral argument on this motion that it was also seeking damages in addition to equitable relief. The defendant contends that notwithstanding the plaintiff's request for equitable relief, it is still entitled under the state constitution to have the plaintiff's trespass claim heard by a jury.
In a case that involves both legal and equitable claims, "whether the right to a jury trial attaches depends upon the relative importance of the two types of claims." (Internal quotation marks omitted.) Comm. of Environmental Protection v. Connecticut Bldg. Wrecking Co., supra, 227 Conn. 182; see Texaco, Inc. v. Golart, 206 Conn. 454, 458-59, 538 A.2d 1017 (1988). "[W]here the essential right asserted is equitable in its nature and damages are sought in lieu of equitable relief or as supplemental to it in order to make that relief complete, the whole action is one in equity and there is no right to a jury trial." (Internal quotation marks omitted.) Id., 183; see Dick v. Dick, 167 Conn. 210, 220, 355 A.2d 110 (1974). "Where, however, the essential basis of the action is such that the issues presented would be properly cognizable in an action of law, either party has a right to have the legal issues tried to the jury, even though equitable relief is [also] asked in order to give full effect to the legal rights claimed." United States Trust Co. v. Bohart, 197 Conn. 34, 45, 495 A.2d 1034 (1985).
"It is thoroughly well established that equity does have jurisdiction to restrain repeated and continuing trespasses . . . where there is a threat of continuance and the remedy at law is inadequate . . ." (Citation omitted; internal quotation marks omitted.) Midstate Medical Center v. Doe, 49 Conn.Sup. 581, 591, 898 A.2d 282 (2006) [ 41 Conn. L. Rptr. 77]. The plaintiff cites Midstate Medical Center, for the proposition that an action for continuing trespass is an equitable claim and one that is not entitled to be tried before a jury. However, in Midstate Medical Center, the court did not address nor even mention the issue of a request for a jury trial on a continuing trespass claim. The case instead centered on the plaintiff's applications for temporary and permanent injunctions and whether injunctive relief was appropriate for a continuing trespass. That is not the issue on this motion. The issue presented in this case is whether the plaintiff's Count Three claim of continuing trespass can be claimed to the jury docket.
The plaintiffs also cites Innis Arden Golf Club v. Pitney Bowes, Inc., 541 F.Sup.2d 480, 485 (D.Conn. 2008), for the proposition that a continuing trespass claim is equitable in nature. That case too is inapposite to the issues in this case. In Innis Arden Golf Club, the federal court clearly cited to the differences in federal court and state court rules and found that the right to a jury trial must be examined under federal law to characterize the action. Id.; see Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963). The court also recognized that "federal policy favoring jury decisions to resolve legal rights in which disputed fact questions exist could produce one result in federal court and the opposite result in state court." Innis Arden Golf Club v. Pitney Bowes, supra, 541 F.Sup.2d 485. Finally, the federal court held that under federal law and policy that a continuing trespass claim historically sounded in equity, and denied the Seventh Amendment right to a jury trial on the continuing trespass claim. Id. The case at bar is not a federal case, nor does it invoke any federal claims that would be subject to the right to a jury trial under the Seventh Amendment. Thus, the holdings in Innis Arden are inapplicable to this action.
The Connecticut Supreme Court has weighed in on the issue of trying a continuing trespass claim to a jury. In Roy v. Moore, 85 Conn. 159, 163, 82 A. 233 (1912), the Supreme Court held that "[u]nder the modern doctrine of equitable interference to restrain continuing trespasses, equity will act only in a case where the complainant's title is either admitted or not denied, or is established at law, or has been long enjoyed and where the complainant is in actual possession, or perhaps in cases where irreparable injury will be likely to result from non-interference, which is not this case. When the title and possession are not in dispute, the court having jurisdiction may proceed to final judgment. When the title is in dispute, or doubtful, or has not been long enjoyed, or the possession is not in the complaint, equity will leave the parties to settle the title and possession at law, and, pending such adjudication, will issue a temporary injunction restraining the continuance of the trespass." In Roy, the Supreme Court further held: "[I]t is certainly competent for a party to invoke the aid of a court of equity to protect his alleged legal right, by staying the hand of the opposite party from destroying it pending litigation; and it is equally his privilege to have the questions as to the existence of his legal right tried and determined by a jury." Id., 165, citing Washburn v. Miller, 117 Mass. 376, 377 (1875).
In this case, the mere fact that plaintiff is seeking equitable relief as well as damages, does not preclude the claim of trespass from being claimed to the jury docket. In Roy, the Supreme Court found it was permissible for the plaintiff to seek both legal and equitable remedies as to its trespass claim and claim the case for the jury docket. Roy v. Moore, supra, 85 Conn. 168. Moreover, in this case, the plaintiff has asserted a continuing trespass claim against defendant in the construction of a motorcross track allegedly on the Brookland Preserve. The plaintiff claims to be in possession and title of the land allegedly impacted by the track built by defendant. The defendant has asserted in his answer that he "admits relocating portions of the `Track,' however, does not concede that any portion of said Track encroaches on plaintiff's property, or has in the past." (Defendant's Answer ¶ 11.) It is clear from the defendant's Answer and arguments made during oral argument, that the defendant is claiming possession and title of the property on which the track lies. The disputed issue of whose property the continuing trespass is occurring on is clearly present in this action. In Roy, the Connecticut Supreme Court held that: "[W]hen the title [of the premises] is in dispute, or doubtful, or has not been long enjoyed, or the possession is not in the complaint, equity will leave the parties to settle the title and possession at law, and, pending such adjudication, will issue a temporary injunction restraining the continuance of the trespass." Roy v. Moore, supra, 85 Conn. 163.
III CONCLUSION
Based on the foregoing, the plaintiff's objection to the defendant's claim to the jury trial list of Counts One and Two of its Complaint is sustained and overruled as to Count Three.