Leabo v. Leninski, 2433

• Decision Date: 27 November 1984
• Docket Number: No. 2433,2433
• Citation: 2 Conn.App. 715,484 A.2d 239
• Court: Connecticut Court of Appeals
• Parties: Karl B. LEABO et al. v. Steven LENINSKI et al.

Page 239

484 A.2d 239

2 Conn.App. 715

Karl B. LEABO et al. v. Steven LENINSKI et al.

No. 2433.

Appellate Court of Connecticut.

Argued Oct. 3, 1984.

Decided Nov. 27, 1984.

[2 Conn.App. 716] Peter C. Barrett, Branford, for appellant-cross appellee (named defendant).

Gordon A. Evans, New Haven, with whom, on brief, was Richard H. Lamere, New Haven, for appellees-cross appellants (plaintiffs).

Before HULL, BORDEN and SPALLONE, JJ.

BORDEN, Judge.

This is a suit to quiet title to a private road known as Walden Hill Road, in Guilford, in which the plaintiffs also sought injunctive relief and damages. The trial court rendered a judgment declaring that the plaintiffs have a right of way over Walden Hill Road and awarding them exemplary damages. The defendant Steven Leninski, ¹ who owns the fee to the road, appeals ² from this judgment, and the plaintiffs, who are owners of lots abutting the road, cross appeal.

This case is a subsequent chapter of what the trial court described as a long and bitter feud between the plaintiff Karl B. Leabo and the defendant, which has already resulted in one Supreme Court decision. Leabo v. Leninski, 182 Conn. 611, 438 A.2d 1153 (1981). Some of the facts of that case are pertinent here. In 1959, the Guilford zoning commission approved a subdivision plan of certain property owned by the estate of George T. Sperry located in the Sachem's Head section of Guilford. The subdivision consisted of six lots situated north of Falcon Road and a small piece of rocky shore, known as the "Second Piece," located south of Falcon Road. Falcon Road runs east and west along the beach on Long Island Sound and west of Walden Hill Road. The estate also owned additional property not included in the subdivision plan. That property consisted of a 2.23 acre parcel located on the east side of Walden Hill Road and a small beach, approximately 1300 square feet in area, located south of Falcon Road and east of the "Second Piece." Leabo v. Leninski, supra, 612, 438 A.2d 1153.

The trial court here found the following facts, which are not disputed in this appeal: The estate sold the six lots, Walden Hill Road and the "Second Piece" to Falcon, Inc. Falcon, Inc., conveyed the six lots and the "Second Piece" to the plaintiffs or their predecessors in interest. Each deed granted the owners rights to the beach and conveyed a right of way "for all purposes whatsoever, over, upon, through and across Walden Hill Road." All successive deeds reconveying the lots granted a similar right of way to Walden Hill Road. Walden Hill Road is fifty feet wide but only the middle twenty feet are paved and used as a traveled way by the lot owners. "Tree lawns" were planted on the unpaved portions of the road by the lot owners, who maintained those areas and the paved portion of the road.

In 1975, Leabo learned that the Sperry estate's remaining land in the area, including the 2.23 acre parcel adjoining Walden Hill Road and the small beach to the southeast of the road, was for sale. Leabo consulted with his attorney and with the Sachem's Head Association, the local zoning authority; both advised him that conversion of the four summer cottages on the 2.23 acre lot to year-round use would violate existing zoning ordinances. After hearing that the defendant was interested in purchasing the property and winterizing the four summer cottages, Leabo had his attorney send the defendant a letter advising him that such a conversion would be in violation of the zoning ordinances and that Leabo would oppose it.

Three days later, the defendant purchased the 2.23 acre lot and small beach. His deed made his rights to the beach subservient to those of the other lot owners and granted him an easement to use the road similar to that granted to the plaintiffs or their predecessors in interest.

The defendant's actions following his purchase of the property have been the subject of prior litigation. See Leabo v. Leninski, supra; Zoning Commission v. Leninski, 34 Conn.Sup. 66, 376 A.2d 771 (1976). He began to convert a three car garage on the ground floor of one of the cottages into an apartment and was ordered to stop by the local zoning authority and the court. After he refused to stop, he was held in contempt and ordered to undo the conversion.

Angered by the court order, he began a campaign of retaliation and malicious harassment against Leabo. He painted a cottage which was directly across from Leabo's property red, white and blue so that it resembled a crude version of the American flag; he erected two large wooden crosses, one in front of the painted cottage and the second on a hill directly across from Leabo's home; further, he posted a crude, oversized, homemade sign proclaiming the beach open to the public. Successful suits were brought by Leabo and other lot owners defining their beach rights and enjoining the posting of signs. See Leabo v. Leninski, supra; Zoning Commission v. Leninski, supra. This suit focuses on the plaintiffs' rights in Walden Hill Road, which the defendant subsequently purchased.

After purchasing Walden Hill Road, the defendant cut down the trees on some of the tree lawns to make room for the hundreds of cars and bicycles he expected after declaring the beach to be public. When Leabo continued to mow the tree lawn in front of his home, but within the defendant's roadway, the defendant called the police and had his attorney demand that Leabo cease his actions.

The defendant then proceeded to heap debris on the tree lawns. Leabo continued to remove the debris even after the defendant again called the police to order Leabo to stop. Thereafter, the defendant dug up the tree lawn in front of Leabo's home. Ultimately, the defendant brought in heavy construction equipment and placed boulders on the tree lawn in front of the plaintiffs' homes. The defendant himself placed some of the large boulders in front of Leabo's home, interfering with Leabo's access The plaintiffs brought this suit to quiet title under General Statutes § 47-31, and for other relief, naming as defendants Leninski and other lot owners who were interested parties. See footnote 1, supra. The complaint claimed, inter alia, adverse possession of the road, sought a determination of the rights of the parties to the road, and requested injunctive and monetary relief. The court concluded that the plaintiffs failed to prove title to the road by adverse possession but that they had an absolute right to make use of the traveled portion as well as the untraveled portion of Walden Hill Road, and that the defendant wilfully, wrongfully and unreasonably interfered with that right. The court further found that the defendant deliberately and maliciously interfered with the rights of the plaintiffs, especially Leabo, to the enjoyment of their homes, and that the Leabos bore the brunt of the defendant's malicious harassment, causing Leabo to suffer great mental anguish, inconvenience and expense. The court awarded all the plaintiffs exemplary damages of $13,541.10, on the basis of their legal expenses, but declined to award compensatory damages.

to his mailbox and to the entrance of his home.

I THE APPEAL

The defendant first argues that interference with the plaintiffs' rights of way was not pleaded as a theory of recovery and that the court, therefore, erroneously based its decision on this theory. The plaintiffs' complaint was in four counts, which the defendant suggests should be strictly construed as making only two claims of adverse possession and two claims of trespass, and as not claiming interference with rights of way. We disagree.

A formalistic or highly technical construction of pleadings is contrary to a proper view of pleading requirements. O'Brien v. Seyer, 183 Conn. 199, 210-11, 439 A.2d 292 (1981). "[S]light linguistic ambiguity" does not serve to nullify a cause of action which is sufficiently raised to notify the defendant of its existence. Schenck v. Pelkey, 176 Conn. 245, 255, 405 A.2d 665 (1978); Buckley v. Lovallo, 2 Conn.App. 579, 587, 481 A.2d 1286 (1984). "Justice is not served by accepting a claim of variance [between allegations and proof] from a party who at all times has been in a position of knowing the true state of facts." Schaller v. Roadside Inn, Inc., 154 Conn. 61, 67, 221 A.2d 263 (1966).

The first two counts of the complaint incorporate into the pleadings the deeds which conveyed the respective lots to each plaintiff. These deeds, which were attached to the complaint, recited the rights of way granted with the lots. Both the third and fourth counts state in part that the "plaintiffs have had their access to the paved portion of Walden Hill Road and their right of way restricted ...." (Emphasis added.) In conjunction with these allegations, the plaintiffs' claim for relief requested, inter alia, that the defendant be enjoined from further interference with "plaintiffs' access to the paved portion of Walden Hill Road and plaintiffs' right of way ...." (Emphasis added.)

Construing these allegations favorably to the pleaders; O'Connor v. Dory Corporation, 174 Conn. 65, 69, 381 A.2d 559 (1977); we conclude that they gave sufficient notice to the defendant that the plaintiffs were proceeding on the theory of interference with deeded rights of way as well as the theory of adverse possession of the road. Under these pleadings, the plaintiffs were not required to abandon one theory of recovery in order to pursue another.

The defendant also argues that the court erred in including certain attorney's fees in the exemplary damages award because the plaintiff did not prove them by evidence. The plaintiffs introduced into evidence a bill for legal services in the amount of $11,041.10, which the court used Exemplary damages ³ are limited to the amount which compensates the plaintiff for the expenses of litigation less taxable costs. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 127, 222 A.2d 220 (1966). Although...