State
v.
Lamar Advertising of Hartford

This case is not covered by Casetext's citator
Connecticut Superior Court Judicial District of Hartford at HartfordOct 21, 2010
2010 Ct. Sup. 20339 (Conn. Super. Ct. 2010)

No. CV 08 5020325

October 21, 2010


MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT


MICHAEL R. SHELDON, J.

I. INTRODUCTION/PROCEDURAL HISTORY

On June 2, 2008, the plaintiff State of Connecticut, acting through its Department of Transportation ("DOT"), brought this action against five defendants — Lamar Advertising of Hartford, Lamar Central Outdoor, LLC, Lamar Obie Corporation, and The Lamar Company of Connecticut, LLC (collectively, "the Lamar Entities") and Long Hill Tree and Lawn Care Service, Inc. ("Long Hill") — to recover damages, on various theories of liability, for the unauthorized cutting and removal of trees from certain parcels of State property in Waterbury, Connecticut in March of 2007. The case is now proceeding under the State's ten-count Substitute Complaint ("Complaint") dated November 3, 2008, in which the following facts are alleged.

Lamar Advertising of Hartford is alleged to be the trade name for a company with its principal place of business in Baton Rouge, Louisiana which at all times relevant to this case was operating an outdoor advertising business in Connecticut. Lamar Central Outdoor, LLC and Lamar Obie Corporation are alleged to be Delaware corporations with their principal places of business in Baton Rouge, Louisiana which at all times relevant to this case were authorized to conduct and were conducting business in the State of Connecticut. Lamar Company of Connecticut, LLC is alleged to be a Louisiana corporation with its principal place of business in Baton Rouge, Louisiana which at all times relevant to this case was authorized to conduct and was conducting business within the State of Connecticut.

On April 17, 2009, Lamar Advertising of Hartford filed a Motion to Dismiss the State's Complaint against it for lack of subject matter jurisdiction on the ground that, as pleaded in the Complaint, "Lamar Advertising of Hartford" is merely a trade name for an unnamed out-of-State business entity. The State filed an Objection to the Motion on April 27, 2009, asserting that the Motion does not implicate the Court's subject-matter jurisdiction despite the movant's claim to the contrary, and thus that the Motion should be denied as untimely because it was not filed within 30 days of the appearance of counsel herein. The Motion has never been resolved.

The Lamar Entities lease advertising space on billboards located on or near State highways, including Interstate 84 ("I-84") in Waterbury. Long Hill is in the business of removing trees. On or about February 7, 2007, one or more of the Lamar Entities applied to the DOT for an encroachment permit to "trim and remove undesirable growth" along an area within the State's right-of-way along the eastbound lanes of I-84 approximately 0.3 miles west of Austin Road, Waterbury ("right-of-way") which is owned by the State and under the control of the DOT. The State exercises exclusive possession over and under the non-traveled portion of the right-of-way and all abutting State-owned property. The permit application contained a diagram of the proposed work area and included a depiction of a billboard shown on the diagram as an advertising sign at the bend of Sidney Street. One or more of the Lamar Entities owns the billboard and sought, by obtaining and performing work under the permit, to increase the visibility of the billboard to traffic on I-84.

On or about February 23, 2007, the DOT's district office in Thomaston issued encroachment permit number 4005692 ("the permit") to one or more of the Lamar Entities. The permit included a copy of the application and an attachment entitled "Tree Trimming and Removal." The permit stated that the location of the permitted work would be on the "East side of highway, .3 miles west of Austin Road" ("the permitted location"). The permit stated that, "All work shall be performed in accordance with the following regulations and stipulations." Thereafter, it incorporated by reference "the pertinent provisions of the current Highway Encroachment Permit Regulations manual, including amendments thereto," and set forth seven stipulations. The seventh Stipulation provided as follows: "No tree removal trim only for eastbound road trees boarder[ing] (sic) private property." The permit further stated that, "The permit does not become effective until all necessary local and State licenses and permits are obtained by the permittee or designated agent, and further the Permittee shall be subject to all Federal, State and local regulations."

One or more of the Lamar Entities allegedly hired Long Hill to perform work under the permit. Thereafter, on or about March 15, 2007, Long Hill began clear-cutting shrubs and trees in the permitted location without the knowledge or permission of the DOT. On or about March 16, 2007, the DOT investigated the work in the non-traveled portion of the highway right-of-way and determined that Long Hill had clear-cut shrubs and trees: (1) at the permitted location; (2) at a second location within the highway right-of-way but outside of the permitted location ("the non-permitted location"); and (3) at a third location on abutting State property ("the abutting State property"). It is alleged that the unauthorized removal of shrubs and trees from the permitted location, the non-permitted location and the abutting State property, which was done solely for economic gain, eliminated a noise barrier for neighboring property owners, adversely affected the aesthetics of the roadway to the detriment of the State and the traveling public, and constituted a wilful destruction of the State's natural resources.

Counts One, Three, Five, Seven and Nine of the Complaint state parallel claims against Lamar Advertising of Hartford, Lamar Central Outdoor, LLC, Lamar Obie Corporation, The Lamar Company of Connecticut, LLC and Long Hill, respectively, based in material part upon the above-described allegations. In addition, they allege that Long Hill and each of the Lamar Entities, acting through Long Hill, clear-cut shrubs and trees at the permitted location without authorization and at the non-permitted location and on the abutting State property without a permit. These counts expressly allege that, in so doing, each of the defendants failed to comply with the provisions of General Statutes § 13a-140.

At all times relevant to this case, Section 13a-140, entitled "Removal of trees along state highways. Penalties established by municipalities," has provided as follows:


Sec. 13a-140. (a) The commissioner may cut, remove or prune any tree, shrub or other vegetation situated wholly or partially within the limits of any state highway so far as is reasonably necessary for safe and convenient travel thereon. No person, firm or corporation, and no officer, agent or employee of any municipal or other corporation, shall cut, remove or prune any tree, shrub or vegetation situated partially or wholly within the limits of any such highway without first obtaining from said commissioner a written permit therefor, provided however, that nothing contained in this subsection shall limit the rights of public service companies, as defined in section 16-1, to cut and trim trees and branches and otherwise protect their lines, wires, conduits, cables and other equipment from encroaching vegetation. No such permit shall be issued by the commissioner unless the chief elected official of the municipality in which any tree with a diameter greater than eighteen inches is situated is notified in writing. The notice shall include the location and a description of such tree to be cut or removed. No such permit for the removal of any such tree, shrub or vegetation shall be refused if such removal is necessary for that use of such adjoining land which is of the highest pecuniary value. *** Any person, firm or corporation cutting, removing, damaging or pruning any tree, shrub or vegetation in violation of the provisions of this subsection, whether it was planted by the commissioner or not, without a permit from said commissioner, shall be fined not more than one thousand dollars for each such violation and shall be liable civilly for any damage in an action brought by said commissioner.

(Emphasis added.)

Counts Two, Four, Six, Eight and Ten state parallel claims against each of the defendants for trespass. Each such count incorporates the above-described allegations and further alleges that the defendant's unauthorized clear-cutting was intentional and that it caused injury to the State. Attached to the Complaint is the permit obtained by one or more of the Lamar Entities, in the name of Lamar Advertising of Hartford, from the DOT.

In it prayer for relief, the Complaint seeks: (1) damages pursuant to General Statutes § 13a-140; (2) several different types of damages pursuant to General Statutes § 23-65, including cost of restoration, quintuple damages, appraiser's fees, attorneys fees, and management fees; (3) treble damages under General Statutes § 52-560; and (4) common-law damages for trespass.

At all times relevant to this case, Section 23-65, entitled "Posting or distributing advertisements. Removing, pruning, injuring or defacing certain trees or shrubs. Restoration. Damages. Regulations. Permit for cutting or removal.," has provided in relevant part as follows:


(a) Any person, firm or corporation which affixes to a telegraph, telephone, electric light or power pole, or to a tree, shrub, rock or other natural object in any public way or grounds, a playbill, picture, notice, advertisement or other similar thing, or cuts, paints or marks such tree, shrub, rock or other natural object, except for the purpose of protecting it or the public and under a written permit from the town tree warden, the borough tree warden, city forester or Commissioner of Transportation, as the case may be, or, without the consent of the tree warden or of the officer with similar duties, uses climbing spurs for the purpose of climbing any ornamental or shade tree within the limits of any public highway or grounds, shall be fined not more than fifty dollars for each offense. (b) Any person, firm or corporation, other than a tree warden or deputy tree warden, who removes, prunes, injures or defaces any shrub or ornamental or shade tree, within the limits of a public way or grounds, without the legal right or written permission of the town tree warden, the borough tree warden, the city forester, the Commissioner of Transportation, the Department of Public Utility Control or other authority having jurisdiction, may be ordered by the court in any action brought by the property owner or the authority having jurisdiction affected thereby to restore the land to its condition as it existed prior to such violation or shall award the landowner the costs of such restoration, including reasonable management costs necessary to achieve such restoration, reasonable attorneys fees and costs and such injunctive or equitable relief as the court deems appropriate. In addition, the court may award damages of up to five times the cost of restoration or statutory damages of up to five thousand dollars. In determining the amount of the award, the court shall consider the willfulness of the violation, the extent of damage done to natural resources, if any, the appraised value of the shrub or ornamental or shade tree, any economic gain realized by the violator and any other relevant factors. The appraised value shall be determined by the town tree warden, the borough tree warden, the city forester, the Commissioner of Transportation, the Department of Public Utility Control or other authority having jurisdiction and shall be determined in accordance with regulations adopted by the Commissioner of Environmental Protection. The commissioner shall adopt regulations, in accordance with the provisions of chapter 54, to develop guidelines for such plant appraisal. The regulations may incorporate by reference the latest revision of The Guide for Plant Appraisal, as published by the International Society of Arboriculture, Urbana, Illinois. Until such time as regulations are adopted, appraisals may be made in accordance with said Guide for Plant Appraisal. ****

At all times relevant to this case, Section 52-560, entitled "Damages for cutting trees, timber or shrubbery. Exclusion.," has provided in relevant part 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 his land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.

(Emphasis added.)

On March 23, 2010, the State filed a Motion for Summary Judgment as to liability only on all ten counts of the Complaint on the grounds that the Lamar Entities and Long Hill have admitted: (1) that they impermissibly cut and removed trees from the permitted location, in violation of the terms of the permit issued pursuant to General Statutes §§ 13a-140 and 23-65; (2) that they impermissibly cut and removed trees from the non-permitted location without a permit, in violation of those same statutes, (3) that they impermissibly cut and removed trees from the abutting State property without a permit, in violation of the same statutes; and (4) that they trespassed upon the non-permitted location and the abutting State property in order to cut and remove trees. The State supported its Motion with an accompanying memorandum of law.

The State's argument that the defendants have admitted certain facts is based primarily upon the failure of any of the Lamar Entities to respond to its first requests for admission. The State served such requests upon the Lamar Entities as follows: upon Lamar Advertising of Hartford, on April 15, 2009; and upon the remaining Lamar Entities, on April 17, 2009.
On April 20, 2009, Lamar Advertising of Hartford filed an Objection to the State's first requests for admission on the ground that it had previously filed a Motion to Dismiss all claims against it for lack of subject-matter jurisdiction. See note 2, supra. It claimed, on that basis, that all proceedings against it, including all discovery proceedings, must be stayed until the Court ruled on its Motion to Dismiss. Although neither the Objection nor the Motion to Dismiss has ever been ruled upon, the Court agrees with Lamar Advertising of Hartford that it could not be compelled to respond to the plaintiff's requests for admission during the pendency of its Motion to Dismiss for lack of subject-matter jurisdiction.
As for the requests for admission which were served upon the other three Lamar Entities, none of which had joined in Lamar Advertising of Hartford's Motion to Dismiss, the defendants filed two joint Motions for Extension of Time to respond to such requests, as follows: the first, filed on April 30, 2009, sought the Court's permission to extend the deadline for responding to the plaintiff's first requests for admission until June 16, 2009; and the second, filed on June 16, 2009, sought to extend the deadline for responding to such requests for admission until July 17, 2009. The State informed the movants before they filed each such Motion for Extension of Time that it would not object to the requested extension except as to Requests for Admission #1, which asked each defendant to admit that Lamar Advertising of Hartford was a trade name it used. Neither Motion for Extension of Time was ever claimed for adjudication on the short calendar or ruled on by the Court. However, no new motion to extend the deadline for responding to the plaintiff's first requests for admission beyond July 17, 2009 was ever filed. As a result, since none of the plaintiff's first requests for admission has ever been responded to by any of the Lamar Entities, all such requests for admission, as directed to any of the Lamar Entities other than Lamar Advertising of Hartford, are deemed to be admitted under Practice Book § 13-23(a). It is thus conclusively established, for the purpose of this case, that Lamar Advertising of Hartford is a trade name used by each of the other Lamar Entities.

Attached to the State's memorandum of law were twelve exhibits: (A) a copy of the affidavit of Terrence J. Obey; (B) a copy of the affidavit of Daniel Scott Cullen, together with (B-1) an attached document entitled "Scott Cullen — Qualifications;" (B-2) attached documents containing a map and certain photo images; (C) an copy of the March 22, 2010 affidavit of Steven Geddes together with (C-1) attached documents purporting to be the State encroachment permit issued to one or more of the Lamar Entities and the application therefor; (C-2) an attached map; (D-1) a copy of the plaintiff's first requests for admission, as served upon Lamar Advertising of Hartford; (D-2) a copy of the plaintiff's first requests for admission, as served upon Lamar Central Outdoor, LLC; (D-3) a copy of the plaintiff's first requests for admission, as served upon Lamar Obie Corporation; (D-4) a copy of the plaintiff's first requests for admission, as served upon The Lamar Company of Connecticut, LLC; and (E) two apparently identical copies of Long Hill's responses to the plaintiff's first requests for admission, as served upon it.

Both the plaintiff and the defendants have failed to comply with Practice Book § 17-45 by not attaching to their memoranda properly certified copies of all of their submissions, or affidavits or other documentation authenticating the submitted evidence. See New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005). Even so, the Court will consider the evidence because there have been no objections to any such submissions. See Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003) ("[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency").

On April 12, 2010, Long Hill filed three pleadings: (1) an Objection to the State's Motion for Summary Judgment; (2) its own Motion for Summary Judgment; and (3) a memorandum of law in support of its Motion and in opposition to the Motion of the State. Long Hill's Motion seeks summary judgment on Counts Nine and Ten of the Complaint on the following grounds: (i) as to Count Nine, that a permit was issued for work to be performed in the permitted location and that the State subsequently, through an agent, gave permission for Long Hill to perform cutting and trimming work both in the permitted location and in the non-permitted location; and (ii) as to Count Ten, that any alleged trespass by it is not actionable because it occurred as a result of negligence. Attached to Long Hill's memorandum are two exhibits: (A) copy of the March 30, 2010 affidavit of Warren Jacques; and (B) an excerpt from the uncertified transcript of the March 11, 2010 deposition of Steven L. Geddes.

On May 26, 2010, the State filed an Objection to Long Hill's Motion for Summary Judgment. Attached to its Objection were five exhibits, all of which were set forth in a single appendix, labeled "Exhibit A": (1) a copy of the May 25, 2010 affidavit of Steven L. Geddes; (2) an uncertified document entitled "Class Specification;" (3) unauthenticated documents purporting to be the permit issued by the DOT to one or more of the Lamar Entities, in the name of Lamar Advertising of Hartford, to perform work in the permitted location and the application for that permit; and (4) and (5) copies of two Superior Court decisions. On June 21, 2010, Long Hill responded to the State's Objection by filing a Reply Memorandum in support of its Motion. Attached to the Reply Memorandum is a copy of the June 21, 2010 affidavit of Warren Jacques.

Also on June 21, 2010, the Lamar Entities filed three pleadings: (1) an Objection to the State's Motion for Summary Judgment; (2) their own Motion for Summary Judgment; and (3) a Memorandum of Law in support of their Motion. Like Long Hill's Objection, the Lamar Entities' Objection to the State's Motion incorporates by reference and relies upon the arguments presented in support of their own Motion for Summary Judgment. The Motion seeks summary judgment on Counts One through Eight on grounds mirroring those presented by Long Hill: (i) as to Counts One, Three, Five and Seven, that a permit was issued to one or more of the Lamar Entities to perform cutting and trimming work in the permitted location, which was then performed in both the permitted location and the non-permitted location; and (ii) as to Counts Two, Four, Six and Eight, alleging trespass, that any alleged trespass is not actionable because it occurred as a result of negligence. The Motion expressly "adopt[ed] the memorandum of law proffered" by Long Hill in support of its Motion for Summary Judgment.

Lamar Advertising of Hartford joined in these filings despite the continuing pendency of its Motion to Dismiss for lack of subject matter jurisdiction.

Attached to the Lamar Entities' Memorandum were two exhibits: (1) an unauthenticated copy of a letter from James Ambadjes to "Lamar of Hartford" dated February 8, 2007; and (2) an excerpt from the uncertified transcript of the March 11, 2010 deposition of Steven L. Geddes.

On June 24, 2010, the State filed an Objection to the Lamar Entities' Motion for Summary Judgment, which incorporated by reference its memorandum in support of its own Motion for Summary Judgment and its Objection to Long Hill's Motion for Summary Judgment.

On June 22, 2010, counsel for all parties appeared at the short calendar. Although only the State's Motion for Summary Judgment was scheduled for argument on that day, all three Motions were then argued by agreement of the parties due to the interrelatedness of the issues therein presented.

II. SUBSTANTIVE FACTS

The following evidentiary facts, relevant to the Court's decision on the parties' pending Motions, are set forth in the parties' large volume of evidentiary submissions. The permitted, non-permitted and abutting locations are all owned by the State of Connecticut and within the jurisdiction of the DOT. Affidavit of Obey. The permitted and non-permitted locations are located in the highway right-of-way, and thus all within the jurisdiction of the DOT's Office of Maintenance. Id. The abutting State property, which is located outside of the highway right-of-way at the address of 25 Sidney Street, Waterbury, falls within the jurisdiction of the DOT's Division of Property Management within the Office of Rights of Way. Id. At no time did any person or entity, including Long Hill or any of the Lamar Entities, apply to the Division of Property Management for a written permit to perform work of any type including tree removal, on the abutting State property. Affidavit of Obey.

Steven L. Geddes is employed by the DOT as the landscape designer for the District Four Office of Maintenance, which includes Waterbury. March 22, 2010 Affidavit of Geddes. Among his duties, Mr. Geddes is responsible for the review of encroachment permit applications for the trimming or cutting of trees within State highway rights-of-way. Id.

On February 7, 2007, one or more of the Lamar Entities applied, under the name of Lamar Advertising of Hartford, for an encroachment permit to "trim and remove undesirable growth" along the highway right-of-way in the location indicated in the application. Id. On February 23, 2007, in response to that application, encroachment permit number 4005692 was issued to Lamar Advertising of Hartford. For the purposes of this case, it is conclusively established that Lamar Advertising of Hartford is a trade name used by each of the other Lamar Entities.

See note 6, supra.

Prior to the issuance of the permit, as part of his responsibilities for the Office of Maintenance, Mr. Geddes reviewed the Lamar Entities' application and recommended that a stipulation be placed in the permit to allow for tree trimming in, but not tree removal from, the permitted location. Id. That stipulation is set forth in paragraph 7 of the permit. Id. Mr. Geddes recommended that the permit include stipulation number 7 based upon the Lamar Entities' representation to him at the time of the application that they had obtained permission from the private owner of the abutting property to cut and remove trees from that property. May 25, 2010 Affidavit of Geddes. The permit thus authorized Lamar Advertising of Hartford to perform tree trimming within, but not tree removal from, the highway right-of-way 0.3 miles east of Austin Road, Waterbury, the previously identified permitted location. March 22, 2010 Affidavit of Geddes.

The permit contained several information boxes, which were filled out as follows. The "town" box said "Waterbury." The "route no." box said "I-84." The "name of highway" box said "Sidney Street." The "location of work or beginning and ending points" box said "east side of highway, .3 miles west of Austin Road." In another box, the permit stated, in relevant part, that: "Permission is granted to work within the highway right-of-way. This work will be limited to brush removal, tree trimming, herbicide applications, to cut stumps, and tree removals. Any tree removals must be reviewed and approved by the District Landscape Designer." The next sentence, however, stated that: "All work shall be performed in accordance with the following regulations and stipulations." Seven stipulations followed. Of the pertinent stipulations, stipulation 1 said, "See permit attachment `Tree Trimming and/or Removal.'" That attachment contained procedures for tree trimming and tree removal. Stipulation 7 read: "No tree removal trim only for eastbound road trees boardering (sic) private property." Attached to the permit was Lamar Advertising of Hartford's application for permit. The application noted the location of the proposed work as "Town: Waterbury," "Route: I-84" and "Street Name No.: 26 Sidney St., 0.3 mi w/o Austin Rd." It also said that the "application is hereby made to trim and remove any undesirable growth." A hand-drawn picture followed, purportedly indicating the location for which the permit had been sought and issued.

On or about March 1, 2007, Mr. Geddes met at the permitted location with Warren Jacques, an employee of Long Hill, to discuss the proposed work under the permit. May 25, 2010 Affidavit of Geddes. At that time, Long Hill had not yet performed any work in the area. Id. On behalf of Long Hill, Mr. Jacques informed Mr. Geddes that Lamar had obtained permission from the owner of the abutting property located on Sidney Street to remove trees from that parcel. Id. Mr. Geddes told Mr. Jacques that he was surprised that Lamar had obtained permission of the property owner to cut and remove trees from that property. Id. Also on March 1, 2007, Mr. Geddes reiterated to Mr. Jacques that the permit only authorized tree trimming, not tree removal. Id.

In a letter purportedly written or attested to by James Ambadjes on February 8, 2007, Mr. Ambadjes authorized "Lamar Advertising Hartford Ct" to "remove from the property at 55 Sidney Street Waterbury CT any vegetation trees that are obstructing the highway view of its sign." Ambadjes Letter.

On or about March 14, 2007, Mr. Geddes met with Long Hill at the permitted location. May 25, 2010 Affidavit of Geddes. By that time, Long Hill had cleared all or most of the trees from the property located on Sidney Street abutting the permitted location. Id. At that meeting, Long Hill asked Mr. Geddes if it could remove some of the trees from the permitted location. Mr. Geddes responded that if Long Hill had obtained permission from the owner of the abutting property to remove trees from that property, then Long Hill could remove red maples located within the permitted location along the right-of-way fence. Id. Also on or about March 14, 2007, Long Hill called Mr. Geddes to ask if it could remove a cherry tree from the non-permitted location. Id. Mr. Geddes responded that Long Hill could remove the cherry tree if Long Hill had the permission of the owner of the abutting property to remove trees from the abutting property. Id.

On or about March 16, 2007, Mr. Geddes was informed that Long Hill, on behalf of Lamar, had cut and removed trees from the permitted location, from the non-permitted location, and from the State-owned property located on Sidney Street which abuts the permitted location (the "abutting State property"). Id.; March 25, 2010 Affidavit of Geddes. No permits had been issued for the removal of trees from either the non-permitted location or the abutting State property. Id.

Also on or about March 16, 2007, Mr. Geddes learned that the State owned the abutting State property. May 25, 2010 Affidavit of Geddes. Prior to that time, he was unaware that the State owned that property since it was outside of the highway right-of-way. Id. For that reason as well, Mr. Geddes had no permitting authority over the abutting State property. Id.

Warren Jacques, who is employed as a commercial salesman by Long Hill, was personally involved in the events referred to in the plaintiff's Complaint. March 30, 2010 Affidavit of Warren Jacques. Some time prior to March 15, 2007, Long Hill was retained by one of the Lamar Entities to trim and cut trees in the vicinity of Interstate 84 eastbound. Id. Part of the job entailed cutting and trimming in the highway right-of-way, which Long Hill understood to be owned by the State. Id. Additional trimming and cutting was to be performed on property that Lamar told Mr. Jacques was private property, on which it had permission from the owner to trim and cut trees and brush. Id. In conversations between Mr. Geddes and Mr. Jacques, Mr. Geddes indicated that it was his belief that the property referred to as the abutting property was in fact private property. Id. Mr. Jacques was subsequently informed by Mr. Geddes that the abutting property was in fact State property, not private property, but that Mr. Geddes and the State had only became aware of this fact when they were so informed by another abutting landowner. Id.

In early March of 2007, while visiting "the scene" with Mr. Jacques, Mr. Jacques told Mr. Geddes that he had permission to remove the trees beyond the State fence line between the fence and the billboard. March 11, 2010 deposition of Steven L. Geddes, p. 25. On March 14, 2007, Mr. Geddes visited the scene, at which time Long Hill was removing trees and vegetation from the area beyond the fence. Id., 27. Also on March 14, 2007, Mr. Geddes and Mr. Jacques discussed removal of some trees on the highway side of the State fence followed by a replanting. Id. They did not identify or otherwise delineate by marking which trees were going to be removed. Id., 28-29. Instead, they physically looked at the tree locations and otherwise identified which trees would be removed. Id., 29.

Mr. Geddes has no concerns about any of the work that Long Hill performed within the permitted location in the highway right-of-way. Id. 44-45. Mr. Geddes would not take issue with the work performed by Long Hill in the permitted location as long as Mr. Jacques and Long Hill had permission to remove the trees and vegetation between the fence and the billboard. Id., 57. Assuming that Long Hill had permission to remove trees from the abutting property, Mr. Geddes did not take issue with the work that was performed in the permitted location. Id., 57. Mr. Geddes' only issue with the work performed by Long Hill at either the permitted location or the non-permitted location is that Long Hill did not have permission to perform the work it performed between the fence and the billboard. Id., 58.

Mr. Geddes does not take issue with the work performed on the permitted and non-permitted locations if, in fact, Long Hill had been allowed to remove all of the trees between the fence and the billboard. Id. Mr. Geddes did give authority to Mr. Jacques and Long Hill to cut trees from the permitted and non-permitted locations. Id., 123. That authority, however, was "contingent" on the belief that the abutting property was private property and that Mr. Jacques and Long Hill had permission from its owner to perform the work they did there. Id.

In Mr. Jacques's opinion, based upon twenty-plus years of involvement in cutting and trimming along State highway rights-of-way and on other State property, field changes are frequently made to the nature and scope of cutting and trimming work performed under State permits. June 21, 2010 Affidavit of Jacques. Such field changes, which are authorized by State employees on site, involve both cutting and trimming outside the physical boundaries specified in the relevant permit and additional cutting and trimming within the permitted area beyond that what is specifically authorized in the permit. Id. When field changes are authorized, no additional permit is issued by the State. Id. The practice of making field changes in the scope of permitted work not unusual. Id.

ANALYSIS I STANDARD OF REVIEW

"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969). "[S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

None of the parties have objected to the submission of any exhibits submitted by any of the other parties, and have not disputed any of the facts contained therein. None of those facts conflict with any others. Therefore, there are no genuine issues of material fact, and the court may resolve the motions as a matter of law.

II. TRESPASS COUNTS A

The parties agree that Counts Two, Four, Six, Eight and Ten of the Complaint all purport to state claims of trespass against the defendants. Those Counts allege that the individual defendants named in them intentionally clear-cut shrubs and trees at or upon the permitted location, the non-permitted location, and the abutting property. They further allege that the individual defendants who engaged in such conduct were not authorized to do so at the permitted location and did not have a permit to do so either at the non-permitted location or on the abutting State property.

As to these counts, the State argues that it is entitled to summary judgment because it has conclusively established all the requisite elements of trespass, to wit: (1) that the plaintiff is the owner of the property at the permitted and non-permitted locations and the owner of the abutting property; (2) that Long Hill, at the direction of Lamar, admittedly entered into or upon such State-owned property without a permit, thereby adversely affecting the State's exclusive possessory interest therein; (3) that Long Hill, at the direction of Lamar, admittedly entered into or upon such State-owned property with the intent to cut trees, and did cut trees there; and (4) that Long Hill's impermissible entry into or upon such State-owned property, at Lamar's direction, and impermissible cutting and removal of trees therefrom, adversely affected the State's ownership interest in those properties.

Long Hill opposes the State's Motion as to Count Ten, and argues in support of its own Motion on that Count, that: (1) the State, through its agent, Mr. Geddes, was fully aware of all the work that was taking place on the State property; and (2) that an action for trespass cannot stand when, as in the present matter, the alleged trespass was due to negligence. The State responds, in its Objection to Long Hill's Motion as to Count Ten: (1) that Mr. Geddes did not know that Long Hill's entry upon the abutting State property was an entry onto property owned by the State; and (2) that neither Mr. Geddes nor anyone else with the DOT ever authorized Long Hill to enter the abutting State property. In reply, Long Hill argues: (1) that Mr. Geddes's testimony does not indicate that he lacked apparent authority to act on behalf of the State, as to either the permitted, the non-permitted, or the abutting State property locations; and (2) that it was the State itself that represented to Long Hill that the abutting State property was private property.

The Lamar Entities oppose the State's Motion as to Count Two, which involves a claim against defendant Lamar Advertising of Hartford, on the ground that it is premature in light of the continuing pendency of that defendant's Motion to Dismiss for lack of subject-matter jurisdiction. The Court agrees, and hereby rules that any decision on that portion of the State's Motion, or the corresponding portion of the Lamar Entities' Motion for Summary Judgment against it on that Count, must be postponed until such time as the Motion to Dismiss is ruled upon and, if appropriate, denied.

With respect to Counts Four, Six and Eight, the other Lamar Entities oppose the State's Motion and support their own countering Motion for Summary Judgment by arguing: (1) that the State, acting through Mr. Geddes, was not only aware prior to the time any work was performed at the locations that trees and vegetation were going to be removed from the abutting State property, but Mr. Geddes was present while that work was being performed and authorized the work, both prior to and during its performance; (2) that none of the Lamar Entities had the intent required to establish a trespass; and (3) that an action for trespass cannot stand when, as in the present matter, the alleged trespass was due to negligence. In its Objection to Lamar's Motion, the State incorporates its memorandum of law in support of its own Motion and its Objection to Long Hill's Motion and makes further arguments similar to those contained in those submissions.

B

"The essentials 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.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007).

There is no dispute that, at all times relevant to this case, the State has had an ownership or possessory interest in the land in question, that the defendants' alleged conduct involving the cutting of trees on such land caused direct injury to the land, and that the defendants' alleged entries upon such land to cut trees affected the State's possessory interest in the land. The parties' dispute on the trespass counts primarily involves whether the defendants acted with the requisite intent to constitute a trespass.

The defendants argue that since they actually believed that the abutting State property was privately owned, and further believed that they had received permission to enter that property from its private owner, their actions were only negligent, and thus were not engaged in with the mental state required to establish a claim of trespass.

"Regarding the element of intent, `[i]t is enough that an act is done with knowledge that it will, to a substantial certainty result in the entry of the foreign matter.' 1 Restatement (Second), [Torts, Trespass on Land] § 158, comment (i), p. 279 [(1965)]; 75 Am. Jur.2d 45 [Trespass] § 55 [1991]." Id., 88. In Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. at 88, the Supreme Court recognized that there is an "absence of authoritative Connecticut case law on the meaning of intent in a trespass action," and thus turned to federal law to guide its analysis of that issue. The Bristol Court stated that: "In Scribner v. Summers, 84 F.3d 554, 558 (2d Cir. 1996), the United States Court of Appeals for the Second Circuit considered whether the migration of toxic substances from the defendants' property to the plaintiffs' property constituted a trespass. The court stated that, 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 [plaintiffs'] land, but whether the defendants had intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect that subterranean and other conditions would cause the contaminated substances to migrate from the defendants' to the plaintiffs' land . . . The federal court distinguished cases in which the requisite intent was lacking on the ground that the defendants in those cases did not have good reason to know that invasion of the plaintiff's property would occur because the contaminants had been enclosed in storage tanks or kept in place by a retaining wall through which they had leaked or seeped." (Citation omitted.) Id., 88-89. After reviewing federal law as aforesaid, the Bristol Court applied an analysis similar to that of the federal court in Scribner to a factually similar toxic tort context involving an alleged subterranean trespass. Id., 89.

Given the very different factual context of the alleged trespass at issue here, and the continuing absence of otherwise authoritative Connecticut case law on the meaning of intent in a trespass action, this Court must look to the Restatement (Second) of Torts, as did our Supreme Court in Bristol, to help elucidate the principles recognized in Bristol as relevant to the meaning of intent in the present trespass action. "One who intentionally enters land in the possession of another is subject to liability to the possessor of the land as a trespasser, although he acts under a mistaken belief of law or fact, however reasonable, not induced by the conduct of the possessor, that he (a) is in possession of the land or entitled to it, or (b) has the consent of the possessor or of a third person who has the power to give consent on the possessor's behalf, or (c) has some other privilege to enter or remain on the land." 1 Restatement (Second), supra, § 164, p. 296.

"In order to be liable for a trespass on land . . . it is necessary only that the actor intentionally be upon any part of the land in question. It is not necessary that he intend to invade the possessor's interest in the exclusive possession of his land and therefore that he know his entry to be an intrusion. If the actor is and intends to be upon the particular piece of land in question, it is immaterial that he honestly and reasonably believes that he has the consent of the lawful possessor to enter, or, indeed, that he himself is its possessor. Unless the actor's mistake was induced by the conduct of the possessor, it is immaterial that the mistake is one such as a reasonable man knowing all the circumstances which the actor knows or could have discovered by the most careful of investigations would have made. One who enters any piece of land takes the risk of the existence of such facts as would give him a right or privilege to enter. So too, the actor cannot escape liability by showing that his mistaken belief in the validity of his title is due to the advice of the most eminent of counsel. Indeed, even though a statute expressly confers title upon him, he takes the risk that the statute may thereafter be declared unconstitutional." Id., § 164, comment (a), p. 296.

"The actor may mistakenly believe that the possessor of the land has consented to his entry. The actor may have received a license from one whom he mistakenly believes to be the possessor of the land, or to be empowered to give consent on the possessor's behalf. So too, where consent has been given to enter a particular piece of land, there may be a mistake as to the identity of the land which leads the actor to enter another piece of land." Id., § 164, comment (d), p. 297. These excerpts from the Restatement (Second) are consistent with at least one Superior Court decision, which held that: "The intention required to make the actor liable for trespass is an intention to enter upon the particular piece of land in question, irrespective of whether the actor knows or should know that he is not entitled to enter. 75 Am. Jur.2d 30, Trespass § 29." Ike's Auto Body, Inc. v. Martin, Superior Court, Docket No. CV 95 0068506 (December 22, 1995, Pickett, J.).

The foregoing statements from the Restatement (Second) and Ike's Auto Body, Inc. v. Martin are directly applicable to the present factual situation, and this Court finds them to be persuasive. The plaintiff alleges trespass against each defendant individually, in a separate count, but bases each claim on acts allegedly performed at three separate locations. Because the allegations of each claim are nearly identical, the Court considers all of the trespass counts together, but construes each count as alleging separate trespasses at each of the three locations.

The Court first considers the abutting State property, which all the parties admit to have believed, at the time of the events at issue, was privately owned, although it was actually State-owned. The facts show that the abutting property is located at 25 Sidney Street, Waterbury. Section 164, comment (a), of the Restatement (Second), controls the present situation. That comment provides that in order to satisfy the intent requirement for a trespass to land, the actor need only intentionally be upon any part of the land in question, it being immaterial that the actor honestly and reasonably believed that he has the consent of the owner to be there. 1 Restatement (Second), supra, § 164, comment (a), p. 296. Here, Long Hill, acting at Lamar's direction, intentionally entered upon the land at 25 Sidney Street. Lamar and Long Hill's presence at 25 Sidney Street was not unintentional, as if they had been forced upon the land by some other person or entity, but an intentional decision made on each party's own accord.

The facts clearly show that Lamar's only permission to enter, cut and remove trees from private property was that obtained from Mr. Ambajdes for the property at 55 Sidney Street. Long Hill, as hired by Lamar to perform the tree cutting and removal at 25 Sidney Street, relied on Lamar's erroneous representation that it had obtained permission to perform such work. The facts thus show, both explicitly and by inference, that none of the defendants ever obtained permission to enter, cut and remove trees from 25 Sidney Street from its owner, the State. The Restatement (Second) explains that it is immaterial that Lamar and Long Hill honestly believed 25 Sidney Street to be 55 Sidney Street, or honestly believed that they had permission from the owner to enter that land. See id. The intent requirement is met regardless of the actor's subjective intent. See id. Therefore, based on the Restatement (Second), this Court concludes that the defendants' conduct on the abutting property at 25 Sidney Street constituted a trespass.

This conclusion is consistent with one of several hypothetical illustrations that the Restatement (Second) provides to illustrate its general statements of the law of trespass. Section 164, illustration 10, is applicable to the present factual situation as to the abutting property. Illustration 10 provides: "A, having obtained from B, who is in possession of Blackacre, permission to enter Blackacre enters Whiteacre in the reasonable but mistaken belief that Whiteacre is Blackacre. A is subject to liability to the possessor of Whiteacre, even though B is in possession of Whiteacre." Id., § 164, comment (d), p. 298.
The current parties can easily be substituted for the parties in the above hypothetical. Here, Lamar (A) having obtained from James Ambadjes (B), who was in possession of 55 Sidney Street (Blackacre), permission to enter 55 Sidney Street and remove trees, entered 25 Sidney Street (Whiteacre), in the reasonable but mistaken belief that 25 Sidney Street was 55 Sidney Street, Lamar is subject to liability to the State (the possessor of 25 Sidney Street).

The primary argument on which the defendants rely in opposing the State's Motion for Summary Judgment on the trespass counts, and in arguing for summary judgment in their favor instead, is that their actions resulted from mere negligence, an action for trespass cannot stand. In support of this argument, the defendants rely on a line of cases stemming from two Superior Court decisions in which it was observed that: "The intention required to make the actor liable for trespass is an intention to enter upon the particular piece of land in question . . . An intrusion on the land of another as a result of negligence is not a trespass." (Citations omitted; internal quotation marks omitted.) Borrelli v. Hills, Superior Court, judicial district of Middlesex, Docket No. CV 06 4006452 (May 24, 2007, Aurigemma J.) ( 43 Conn. L. Rptr. 471, 472); Vaillancourt v. Southington, Superior Court, complex litigation docket, Docket No. X03 CV 01 0510816 (May 7, 2002, Aurigemma, J.) ( 32 Conn. L. Rptr. 191, 195); see also Keller v. Town Clerk of Southbury, Superior Court, judicial district of Waterbury, Docket No. CV 08 6000950 (December 4, 2008, Agati, J.) (citing Vaillancourt); Liss v. Milford Partners, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 04 4025123 (September 29, 2008, Berger, J.) ( 46 Conn. L. Rptr. 439, 441) (same); Donaghy v. Bristol, Superior Court, judicial district of New Britain, Docket No. CV 07 6001200 (May 20, 2008, Gilligan, J.) (same); Jameson v. Newington, Superior Court, judicial district of Hartford, Docket No. CV 04 0832671 (February 27, 2006, Tanzer, J.) ( 40 Conn. L. Rptr. 803, 804) (same).

The oft-stated principle that an intrusion on land as a result of negligence is not a trespass is of no help to the defendants here, however, because the intrusion by the defendants was not the result of negligence. While the defendants' failure to obtain permission to enter the abutting State property may have been negligent, the actual intrusion upon the land at that location was not. A look at the facts of Borrelli v. Hills, and Vaillancourt v. Southington, is illustrative of the importance of that difference in a trespass action.

Both Borrelli and Vaillancourt involved toxic torts. In Borrelli, the plaintiffs alleged that hazardous byproducts of equine fecal material stored on the defendants' land had leached into the groundwater and migrated onto the plaintiffs' property, contaminating their well and surface water. Borrelli v. Hills, supra, 43 Conn. L. Rptr. 472. The Court, Aurigemma, J., granted a motion to strike a trespass count because the plaintiffs did not allege that the defendants intended for the hazardous byproducts to enter the plaintiffs' property, or that they knew with substantial certainty that they would. Id., 473. In Vaillancourt, the plaintiffs alleged trespass based upon the "escape" of unidentified toxic and hazardous substances from a landfill and their migration onto the plaintiffs' neighboring property. Vaillancourt v. Southington, 32 Conn. L. Rptr. 195. There again, the Court, Aurigemma, J., granted a motion to strike a trespass count because the plaintiffs had not alleged that the defendants intended for the substances to migrate to the plaintiffs' neighboring property. Id., 196.

In the present case, unlike Borrelli and Vaillancourt, the defendants' entry onto the abutting State property was not the unintended result of some action on a neighboring piece of land. Instead, the defendants intentionally entered upon the abutting State property to cut and remove trees. As discussed above, the fact that the defendants thought that they had permission to do so is immaterial to their liability for trespass.

Another argument that Lamar and Long Hill both make against holding them liable for trespass with respect to the abutting property is that the State's agent, Mr. Geddes, was aware of the work taking place on the abutting property, that he authorized that work, and thus that the State consented to the defendants' entry. While it is true that Mr. Geddes was at some point aware of the work that was being performed on the abutting property, and on a few occasions he was present in the highway right-of-way when that work was being performed, the evidence indisputably shows that Mr. Geddes never purported to assert any authority over the abutting State property, much less to authorize the performance of tree-removal work thereon. The only written authorization Mr. Geddes ever gave to any of the defendants was the written permit issued to Lamar to perform work at the permitted location. His later, conditional oral authorizations were only applicable to the permitted location and the non-permitted location. As averred by Mr. Geddes in his May 25, 2010 affidavit, and unrefuted by the defendants, Mr. Geddes never had permitting authority over the abutting State property, since it was located outside of the highway right-of-way. Therefore, Mr. Geddes could not have authorized, on behalf of the State, the entry by the defendants onto the abutting State property.

A final argument made by Long Hill is that the State itself represented to it that the abutting State property was private property, and therefore, Long Hill cannot be held liable for trespass. This argument is not supported by the facts. The only basis for Mr. Geddes's claimed understanding as to the ownership of the abutting State property was Lamar's permit application to perform work on the highway right-of-way. Any later statements that Mr. Geddes may have made regarding the supposed ownership of the abutting State property were based on this representation by Lamar. Furthermore, none of these statements could have been rationally construed as an authorization by Mr. Geddes, or his employer, the State, for Long Hill to enter the abutting State property.

As to the permitted and the non-permitted locations, the defendants' entries onto the State's property at those locations differ from their entry onto the abutting State property because, unlike the latter entry, Mr. Geddes admittedly gave the defendants some form of express oral permission to enter and perform work on those properties. There is no dispute that the defendants had written permission, in the form of a permit issued by Mr. Geddes, to enter the permitted location for the purpose of trimming trees and vegetation there. But the claims of trespass are based on the defendants' cutting and removal of trees. As to the defendants' permission to cut and remove trees from the permitted and the non-permitted locations, Mr. Geddes gave only conditional oral permission to do so. Mr. Geddes told the defendants that they could cut and remove trees from the permitted and non-permitted locations on the condition that they had permission to cut and remove trees from the abutting State property, which he did not then know to belong to the State. At the time Mr. Geddes gave that conditional oral permission, the defendants had already cut and removed at least some trees from the abutting State property.

Initially, the defendants make the same argument with respect to the permitted and the non-permitted locations as they do with respect to the abutting State property, to wit: that they lacked the intent to commit a trespass at either location because they reasonably, albeit negligently, believed they had permission to cut and remove trees from those locations, and thus that they complied with Mr. Geddes's condition. Since the Court has already found that the defendants had the intent necessary to commit a trespass on the abutting State property despite their ignorance as to its true ownership and their permission to enter it to cut and remove trees, this argument similarly fails as to their intent to enter the permitted and non-permitted locations to cut and remove trees. With the intent argument disposed of, as previously discussed, it appears that all the elements of a trespass are satisfied as to both the permitted and the non-permitted locations.

When an alleged trespasser has permission to enter certain land, our Supreme Court has explained 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." (Emphasis added.) Carothers v. Capozziello, 215 Conn. 82, 101, 574 A.2d 1268 (1990). The determinative question, then, is whether the defendants' cutting and removal of trees from the permitted and non-permitted locations without satisfying the condition on which Mr. Geddes's permission was based, qualifies as "subsequent acts of abuse." Neither the Supreme Court, in Carothers v. Capozziello, nor any other Connecticut court has explained what types of acts qualify as "subsequent acts of abuse" in a trespass case where the owner has granted at least conditional permission to enter the land at issue. For guidance, the Court thus returns again to the Restatement (Second) of Torts.

Chapter 8 of the Restatement is entitled "Privileged Entries on Land." 1 Restatement (Second), supra, p. 306. Section 167, contained within that chapter, is labeled "Effect of Consent of Possessor." It provides: "The rules stated in §§ 892-892D as to the effect of consent to the actor's conduct apply to entry or remaining on land." Id., § 167, p. 309. Section 892A, labeled "Effect of Consent," provides, in relevant part, that: "(1) One 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 . . . (3) Conditional consent or consent restricted as to time, area or in other respects is effective only within the limits of the condition or restriction. (4) If the actor exceeds the consent, it is not effective for the excess . . ." 4 Restatement (Second), Torts, Justification and Excuse § 892A, p. 364 (1965).

Comment f to § 892A explains the law applicable to conditional consent. It provides that: "Consent is conditional if it is to be effective only upon the occurrence or nonoccurrence of an event or the existence of or nonexistence of a fact. If the consent is granted upon the condition that it take effect only on the happening of a particular event or only if that event does not happen or only if a particular fact is or is not true or only if the actor does or does not do a certain act, the conduct is not privileged by virtue of the consent until the condition has been met. Thus, if the possessor of land gives another permission to enter the land if the consent of a third person is obtained, the other is not privileged to enter until the third person has given his consent. The consent may also be made subject to a condition subsequent, in which case the consent terminates when the condition is not met." (Emphasis added.) Id., § 892, comment f, p. 368.

Returning to chapter 8 of the Restatement, that chapter includes Section 168, labeled "Conditional or Restricted Consent." Section 168 is consistent with Section 892, comment f, in providing that: "A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with." 1 Restatement (Second), supra, § 168, p. 311. Comment b of that section adds: "A consent restricted to entry for a particular purpose confers no privilege to be on the land for any other purpose." Id., § 168, comment (b), p. 311; see Boccanfuso v. Conner, 89 Conn.App. 260, 274 n. 11, 873 A.2d 208 (2005) (quoting § 168, comment (b)).

The portions of the Restatement (Second) cited above are persuasive and applicable to the present facts. Under Section 892A, the defendants' permission to cut and remove trees from the permitted and non-permitted locations comes within the definition of "conditional consent" in the Restatement (Second) because the consent obtained from Mr. Geddes was made effective only upon the existence of a certain fact or only if the defendants did a certain act, to wit: obtain the permission of the owner of the abutting property to cut and remove trees from the abutting property. As discussed above, the evidence shows that the defendants did not obtain that permission. Under the Restatement (Second), then, the defendants' cutting and removal of trees from the permitted and non-permitted locations was not privileged because the condition precedent placed on the permission to enter the permitted and non-permitted locations by its owner, the State, acting through Mr. Geddes, was never met. Therefore, this Court concludes that the defendants' acts of cutting and removing trees from the permitted and non-permitted locations constituted acts of trespass.

This conclusion is consistent with the hypothetical example contained in § 892A, as set forth above. Here, like there, the possessor of the permitted and non-permitted locations, the State, through its agent, Mr. Geddes, gave the defendants permission to enter those locations only if the consent of the owner of the abutting property, later discovered to be the State, was obtained. Therefore, the defendants were not privileged to enter either the permitted or the non-permitted location for the purpose of cutting and removing trees until the State had given its consent to do so. The State never gave its consent to enter the abutting property, and thus never gave its consent to enter the permitted and non-permitted locations for the specific purpose of cutting and removing trees.

The State has thus met its burden of proving that the defendants' conduct in cutting and removing trees from all three parcels of land here at issue — the permitted location, the non-permitted location and the abutting property — all constituted acts of trespass. It thus is entitled to summary judgment against all defendants except Lamar Advertising of Hartford on the issue of liability as to Counts Four, Six, Eight and Ten of the Complaint.

III. REMAINING COUNTS

Counts One, Three, Five, Seven and Nine allege that the defendants' clear-cutting of shrubs and trees on the three properties here at issue damaged the State. As to these counts, the State argues that it is entitled to summary judgment because Lamar and Long Hill have admitted that they cut and removed trees from the permitted location, contrary to stipulation number 7 of the permit, and they have also admitted that they cut and removed trees from the non-permitted location and the abutting State property without obtaining a permit to do so from the Commissioner of Transportation (the "Commissioner"), as required by General Statutes §§ 13a-140 and 23-65(f).

Long Hill opposes the State's Motion as to Count Nine, and argues in support of its own Motion for Summary Judgment on that Count: (1) that Section 13a-140 is inapplicable to any alleged conduct on the abutting State property; and (2) that the State, acting through its agent, Mr. Geddes, orally authorized all of the work that was performed at both the permitted and the non-permitted locations, thereby "superseding" the permit's prohibition of tree removal at those locations.

The State responds, in its Objection to Long Hill's Motion with respect to Count Nine: (1) that Mr. Geddes had no authority to give any oral authorization to perform tree removal work on the abutting State property; (2) that Section 13a-140 does not authorize Mr. Geddes to orally approve the cutting and removal of trees from a State highway or public grounds, and it was "incumbent upon Lamar and Long Hill to know the limits of Mr. Geddes's authority" as to the permitted and non-permitted locations; (3) that based upon their responsibility to know the extent of Mr. Geddes's actual authority, Mr. Geddes could not have had the apparent authority to authorize the work done on the abutting State property; (4) that Long Hill cannot establish that it relied upon Mr. Geddes's purported apparent authority as the basis for the work done on the abutting State property; and (5) that Long Hill is not relieved from liability for the work performed on the abutting State property without a written permit by virtue of Mr. Geddes' knowledge that Long Hill intended to perform that work because Mr. Geddes had no supervisory role over the abutting State property. In reply, Long Hill argues: (1) that Mr. Geddes' testimony does not indicate that he lacked apparent authority to act on behalf of the State as to either the permitted location, the non-permitted location, or the abutting State property; (2) that field changes to a permit are typically made by an employee such as Mr. Geddes whenever a permit is issued, and those changes are made without a new permit being issued; and (3) that the State itself represented to Long Hill that the abutting State property was private property.

The Lamar Entities oppose the State's Motion for Summary Judgment as to Count One, stating claims against Lamar Advertising of Hartford, on the same basis as they opposed it as to Count Two, to wit: that the Motion is premature in view of the continuing pendency of Lamar Advertising of Hartford's Motion to Dismiss for lack of subject-matter jurisdiction. Again, the Court agrees, and hereby concludes that any ruling on this aspect of the State's Motion, as well as the Lamar Entities' countering Motion for Summary Judgment with respect to Count One, must await the adjudication, and possible denial, of the pending Motion to Dismiss.

The Lamar Entities oppose the State's Motion as to Three, Five and Seven, and argue in support of their own Motion on those Counts: (1) that Section 13a-140 is inapplicable to any alleged conduct on the abutting State property; and (2) that the State, through Mr. Geddes, orally authorized the work performed at the permitted and the non-permitted locations.

In its Objection to the Lamar Entities' Motion, the State incorporates its memorandum of law in support of its own Motion for Summary Judgment and its Objection to Long Hill's Motion for Summary Judgment, and further argues (1) that Mr. Geddes "clearly articulated that his purported oral approval to cut and remove trees" from the permitted and non-permitted locations "was contingent upon Lamar and Long Hill having obtained prior permission from the owner of the abutting property to cut and remove trees from that parcel;" (2) that Lamar and Long Hill had the duty to determine who owned the abutting State property and to obtain the owner's permission to cut and remove trees from that property; and (3) that Mr. Geddes had no duty to determine who owned the abutting State property since it lies outside of the highway right-of-way and Mr. Geddes's responsibility was limited to reviewing the permit application.

The parties' arguments raise some confusion as to what the applicable and controlling statutes are for resolving the alleged claims in Counts Three, Five, Seven and Nine. The defendants appear to argue that these counts seek relief only under § 13a-140, but a reading of the entire complaint, in light of our rules of practice, indicates otherwise.

Practice Book § 10-1 provides, in relevant part, as follows: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." Practice Book § 10-3(a) provides in relevant part: "When any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." "Our general practice in this state is to require fact pleading only. Amore v. Frankel, 228 Conn. 358, 370 n. 2, 636 A.2d 786 (1994) . . . In addition, [the Appellate Court has] held that Practice Book § 10-3 is directory rather than mandatory, and its primary purpose is to ensure that a defendant is sufficiently apprised of the applicable statute during the proceedings . . . Finally . . . [the Appellate Court has] held that when a party mentions a statute, or the concepts embodied therein, several times prior to trial, the opposing party was sufficiently apprised that the statute's applicability was claimed." (Citations omitted; internal quotation marks omitted.) Florian v. Lenge, 91 Conn.App. 268, 274, 880 A.2d 985 (2005). "As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Internal quotation marks omitted.) Burton v. Stamford, 115 Conn.App. 47, 65, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).

The Complaint references three different statutes. Counts One, Three, Five, Seven and Nine all allege that the individual defendants named in them did not comply with the provisions of Section 13a-140. The prayer for relief is consistent with this allegation in claiming damages pursuant to that section. Further, each of the counts at issue is labeled: "Violation of Conn. Gen. Stat. § 13a-140." But "labels placed on the allegations by the parties [are] not controlling." Ganim v. Smith Wesson Corp., 258 Conn. 313, 780 A.2d 98 (2001). Therefore, that the labels of Counts One, Three, Five, Seven and Nine suggest that each count only alleges a violation of Section 13a-140 is not controlling when construing the claims raised by those counts.

In addition to a claim for damages under Section 13a-140, the prayer for relief also contains claims for damages under two other statutes, Sections 23-65 and 52-560, plus common-law damages for trespass. Section 52-560 provides damages when any person cuts, destroys or carries away any trees, timber or shrubbery of another without license. That statute, however, "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.) Koennicke v. Maiorano, 43 Conn.App. 1, 29, 682 A.2d 1046 (1996). Therefore, because the present motions seek summary judgment as to liability only, and not as to damages, the Court need not consider Section 52-560 in resolving these motions.

Sec. 52-560. Damages for cutting trees, timber or shrubbery. Exclusion. 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 his land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.

Unlike Section 52-560, Section 23-65 does create an independent cause of action. See Kondrat v. Brookfield, 97 Conn.App. 31, 40, 902 A.2d 718, cert. denied, 280 Conn. 926, 908 A.2d 1087 (2006) (under the "tree warden statutes," the cutting of branches of a particular tree "presumably would have subjected a defendant to liability to pay a fine" under § 23-65(b)); Mitchell v. Meriden, 3 Conn. Cir.Ct. 498, 502, 217 A.2d 487 (1965) ("Section 23-65 (b) . . . provides for a fine and civil suit"). Therefore, at least one of the two groups of counts in the Complaint — either Counts Two, Four, Six, Eight and Ten or Counts One, Three, Five, Seven and Nine — must be construed as purporting to allege the facts necessary to prove violations of Section 23-65.

Counts Two, Four, Six, Eight and Ten plainly and unambiguously allege common-law claims for trespass. Consistent with that cause of action, the final remaining claim in the prayer for relief is for "damages for trespass." By process of elimination, then, the non-trespass counts, Counts One, Three, Five, Seven and Nine, must be construed to state claims for violations of both Section 23-65 and Section 13a-140. This construction of the Complaint is consistent with Practice Book § 10-1, which requires fact pleading, as well as Practice Book § 10-3, which requires that statutes on which claims are grounded be identified by number to provide notice of such claims to the defendants. That Section 23-65 was identified only in the prayer of relief, and not in the individual counts of the Complaint to which it applies, still provides adequate notice to the defendants of the grounds for the State's claims. As a result, under our rules of practice, the statutory claims for damages must be applicable to the counts presently at issue, Counts One, Three, Five, Seven and Nine. Therefore, in resolving the present motions as to those counts, this Court must consider Sections 13a-140 and 23-65.

This conclusion is consistent with the hypothetical example contained in § 892A, as set forth above. Here, like there, the possessor of the permitted and non-permitted locations, the State, through its agent, Mr. Geddes, gave the defendants permission to enter those locations only if the consent of the owner of the abutting property, later discovered to be the State, was obtained. Therefore, the defendants were not privileged to enter either the permitted or the non-permitted location for the purpose of cutting and removing trees until the State had given its consent to do so. The State never gave its consent to enter the abutting property, and thus never gave its consent to enter the permitted and non-permitted locations for the specific purpose of cutting and removing trees.

When engaging in statutory interpretation, "General Statutes § 1-2z . . . instructs [the court] that [its] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, [the court] [seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning . . . § 1-2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Citations omitted; internal quotation marks omitted.) State v. Orr, 291 Conn. 642, 651, 969 A.2d 750 (2009).

Section 23-65(b) provides, in relevant part, that: "(b) Any person, firm or corporation, other than a tree warden or deputy tree warden, who removes, prunes, injures or defaces any shrub or ornamental or shade tree, within the limits of a public way or grounds, without the legal right or written permission of . . . the Commissioner of Transportation, . . . or other authority having jurisdiction, may be ordered by the court in any action brought by the property owner or the authority having jurisdiction affected thereby to restore the land to its condition as it existed prior to such violation or shall award the landowner the costs of such restoration, including reasonable management costs necessary to achieve such restoration, reasonable attorneys fees and costs and such injunctive or equitable relief as the court deems appropriate. In addition, the court may award damages of up to five times the cost of restoration or statutory damages of up to five thousand dollars . . ." (Emphasis added.)

Connecticut courts have not often had occasion to consider Section 23-65(b), but the few cases that have considered it have done so only to the extent of establishing that, under the statute, by itself, persons or entities that violate § 23-65(b) can be subjected to liability to pay a fine under its terms. Kondrat v. Brookfield, supra, 97 Conn.App. 40; Stanley v. Lincoln, 75 Conn.App. 781, 790, 818 A.2d 783 (2003). Without any precedential guidance, then, this Court must consider the plain language of the statute, which requires anyone who removes, prunes, injures or defaces any shrub or ornamental shade tree within the limits of a public way or grounds to have either the legal right or written permission to do so.

Here, the undisputed facts show that the defendants obtained a written permit that allowed tree trimming within the permitted portion of the highway right-of-way, but expressly prohibited tree removal. The defendants did not obtain any other written permits. Therefore, there is no dispute that the defendants did not obtain written permission to remove shrubs and trees from any of the locations at issue, as required by Section 23-65(b). The only remaining unresolved issue, then, is whether the defendants had "the legal right" to remove shrubs and trees from the locations at issue.

The State does not explicitly allege that the defendants had no legal right to cut and remove trees from the State property at issue. But "[u]nder modern rules of pleading, slight linguistic ambiguity should not be fatal to a cause of action . . . and . . . pleadings should be read broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Pane v. Danbury, 267 Conn. 669, 677, CT Page 20363 841 A.2d 684 (2004), overruled on other grounds by Grady v. Somers, 294 Conn. 324, 349, 984 A.2d 684 (2009). Counts One, Three, Five, Seven and Nine allege that the defendants were not authorized to clear-cut shrubs and trees from the permitted location, and did not have a permit to clear-cut shrubs and trees from the non-permitted location or the abutting State property. Implicit in these allegations is the claim that the defendants did not have the legal right to perform such acts.

The State argues that the defendants did not have the legal right to cut and remove trees from the locations here at issue and that the defendants, in addition to violating Section 23-65(b), also violated Sections 13a-140(a) and 23-65(f) by failing to obtain written permission to cut and remove trees from those locations.

Section 13a-140(a) provides; in relevant part, that: "No person, firm or corporation, and no officer, agent or employee of any municipal or other corporation, shall cut, remove or prune any tree, shrub or vegetation situated partially or wholly within the limits of any [state] highway without first obtaining from said commissioner a written permit therefor . . . No such permit shall be issued by the commissioner unless the chief elected official of the municipality in which any tree with a diameter greater than eighteen inches is situated is notified in writing. The notice shall include the location and a description of such tree to be cut or removed . . . Any person, firm or corporation cutting, removing, damaging or pruning any tree, shrub or vegetation in violation of the provisions of this subsection, whether it was planted by the commissioner or not, without a permit from said commissioner, shall be fined not more than one thousand dollars for each such violation and shall be liable civilly for any damage in an action brought by said commissioner." (Emphasis added.) This statute plainly applies, by its express terms, to both the permitted and the non-permitted locations, which were within the highway right-of-way, but does not apply to the abutting State property, which was not.

Section 23-65(f) provides, in relevant part, that: "Any person, firm or corporation, other than a tree warden or his deputy, who desires the cutting or removal, in whole or in part, of any tree or shrub or part thereof within the limits of any public road or grounds, may apply in writing to the town tree warden, the borough tree warden or the Commissioner of Transportation or other authority having jurisdiction thereof for a permit so to do. Upon receipt of such permit, but not before, he may proceed with such cutting or removal . . ." (Emphasis added.)

The plain and unambiguous language of these statutes provides guidelines for all persons or entities seeking permission to cut or remove any tree or shrub on certain State property. Section 23-65(f) applies to trees or shrubs on any public road or grounds, while § 13a-140(a) applies more narrowly to trees or shrubs on State highway property. Both statutes prohibit persons or entities from cutting or removing trees or shrubs on the applicable property prior to obtaining a permit for such cutting and removal. Section 13a-140(a) specifically requires that a "written permit" be obtained. Section 23-65(f) does not explicitly state that the permit must be "written," but does require that any persons or entities seeking permission to cut or remove trees or shrubs "apply in writing . . . for a permit" to do so. Thus, Section 23-65(f), like Section 13a-140(a), contains a formal written component.

Here, the defendants applied, in writing, for a permit to "trim and remove undesirable growth" along the eastbound interstate 84 right of way. The written permit that was issued pursuant to that application allowed only tree trimming, within only the permitted portion of the highway right of way, and expressly prohibited tree removal. No other permits were applied for in writing, and no other written permits were issued. The evidence shows that the defendants then trimmed, cut and removed trees within the permitted location, non-permitted location and abutting State property. Therefore, the defendants violated Section 13a-140(a) by failing to apply in writing for and to obtain a written permit to cut and remove trees in the permitted and nonpermitted locations along the highway right-of-way, and violated Section 23-65(f) by failing to apply in writing for a written permit to cut and remove trees at the permitted and the nonpermitted locations and on the abutting State property.

The only argument made by the defendants that could conceivably provide them the legal right to remove shrubs and trees from the locations at issue is that the State, through Mr. Geddes, orally gave them legal permission to remove shrubs and trees from those locations. That argument, however, is unpersuasive. Neither Section 13a-140(a) nor Section 23-65(f) makes an exception to the foregoing requirements that would allow the cutting and removal of trees or shrubs from the applicable State property after obtaining only oral permission to do so. Therefore, pursuant to statute, Mr. Geddes could not have had the authority, whether actual or apparent, to allow the defendants to cut and remove trees from any State property here at issue without violating Section 13a-140(a) and/or Section 23-65(f), as aforesaid. The defendants have not offered any evidence tending to show that they had either written permission or the legal right to remove shrubs and trees from any State property here at issue.

A final argument made by Long Hill is that it cannot be held liable for any statutory violations as to its conduct on the abutting State property because "it was the state itself that represented to [Long Hill] that such property was private property. The permit issued by the State specifically provides `trees border private property.'" On one hand, the evidence shows that the permit, as well as Mr. Geddes, when conversing with Long Hill's employee, Mr. Jacques referred to the abutting State property as private property. On the other hand, however, the evidence shows, in the form of an affidavit from Mr. Geddes, that he only included stipulation 7 in the permit, which referred to the abutting property as private property, based on Lamar's representation at the time of its application that the abutting property was private property. Because the State, acting through Mr. Geddes, only understood the abutting property to be private property, at the time, through Lamar, Long Hill's principal, this final argument by Long Hill is unpersuasive to the Court that Long Hill cannot be held liable for the alleged statutory violations.

For the foregoing reasons, the Court concludes that the State has met its burden of proving that the defendants: (1) violated Section 13a-140(a) by cutting and removing trees or shrubs situated partially or wholly within the limits of a State highway without first obtaining a written permit therefor, pursuant to that statute; (2) violated Section 23-65(f) by failing to apply in writing for and failing to receive, pursuant to that statute, a permit to cut or remove trees or shrubs within the limits of public grounds prior to proceeding with such cutting and removal; and (3) violated Section 23-65(b) by removing, pruning, injuring or defacing shrubs or ornamental or shade trees, within the limits of public ways or grounds, without the legal right or written permission to do so, pursuant to that statute. The Court thus concludes that all defendants except for Lamar Advertising of Hartford are liable for damages under Section 13a-140 with respect to their tree removal work at the permitted and the non-permitted locations, and for damages under Section 23-65 with respect to such tree removal work at those locations and upon the abutting State property.

IV. CONCLUSION AND ORDER

For all the reasons set forth herein, the plaintiff's Motion for Summary Judgment as to liability on Counts Three through Ten of the Complaint must be GRANTED, the defendants' Motions for Summary Judgment on those Counts must be DENIED, and all parties' Motions for Summary Judgment with respect to Counts One and Two, against Lamar Advertising of Hartford, must be deferred for later adjudication if and when that defendant's pending Motion to Dismiss is adjudicated and, if appropriate, denied.

IT IS SO ORDERED this 21st day of October 2010.