Caciopoli v. Lebowitz, 32103.

• Decision Date: 06 September 2011
• Docket Number: No. 32103.,32103.
• Court: Connecticut Court of Appeals
• Parties: Dominic CACIOPOLIv.Jeffrey LEBOWITZ.

131 Conn.App. 306

26 A.3d 136

Dominic CACIOPOLI

v.Jeffrey LEBOWITZ.

No. 32103.

Appellate Court of Connecticut.

Argued May 26, 2011.Decided Sept. 6, 2011.

Frank B. Cochran, New Haven, for the appellant (defendant).David S. Doyle, North Branford, for the appellee (plaintiff).DiPENTIMA, C.J., and BEACH and SCHALLER, Js.BEACH, J.

The defendant, Jeffrey Lebowitz, appeals from the judgment of the trial court in favor of the plaintiff, Dominic Caciopoli, finding that the defendant had trespassed on the plaintiff's land and awarding damages. The defendant claims that the court erred by (1) improperly expanding the tort of trespass, (2) denying his motion for judgment, (3) denying his special defenses of waiver and equitable estoppel, (4) finding that the element of intent with respect to the tort of trespass was satisfied and (5) its award of damages. We affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant. “The plaintiff ... purchased real property located at 490 Three Corners Road in Guilford, Connecticut, in October, 1978. He chose this property because it was isolated and private. The plaintiff's property was surrounded by forest on all sides, except for the area of the lot though which his driveway passed. In May, 2005, the defendant ... purchased property located at 480 Three Corners Road, which is adjacent to the property owned by the plaintiff. The property line between the two homes was unmarked. The plaintiff's home is more than 100 yards from the property line between the two lots, and the plaintiff's view of the home located at 480 Three Corners Road was obstructed.

“In August, 2005, the defendant hired Tanner's Tree Service, LLC [ (Tanner's Tree Service) ], to clear standing dead trees from the wooded area between the two homes. The defendant believed these dead trees were on his property because they were in a grassy area located between the two homes that had been maintained by the previous owners of 480 Three Corners Road. The defendant directed Tanner's Tree Service to remove all dead timber, both standing and on the ground, to remove some small saplings and remove some larger trees to provide more sunlight and enlarge the areas surrounding his house.

“Prior to the commencement of this landscaping work, the defendant failed to determine the actual location of the property line between the two homes. He went to the plaintiff's home to speak with him regarding the property line, but was told to return when the plaintiff was home. He did not consult his warranty deed or documents available at the town hall. The defendant discovered a marker near the plaintiff's mailbox and incorrectly assumed this marked the property line. In actuality, the property line is twenty-five feet from the house. When the plaintiff learned of the removal of the trees, he went to the defendant's home. The defendant understood that the plaintiff was irate and that the plaintiff pointed out the actual property line. The next day, Tanner's Tree Service returned to complete the work on the plaintiff's property. The removal of the trees and brush left the plaintiff with an unobstructed view of the defendant's house.

“On August 30, 2005, the plaintiff sent the defendant a letter, in which he suggested that the plaintiff and the defendant should jointly choose ‘reasonably mature evergreens' and have them planted to recapture some of the lost privacy. In November, 2005, the defendant paid a nursery to plant three white pine trees on the plaintiff's property to obscure his view of the defendant's home. These trees did little to create a sense of isolation and privacy that the plaintiff had prior to the defendant's trespass.

“In the spring of 2007, the plaintiff had the property line marked. On May 30, 2007, the defendant sent the plaintiff a letter in which he admitted he was mistaken in assuming the location of the property line. On November 13, 2007, the defendant sent another letter to the plaintiff. In that letter, the defendant admitted that he had trees removed that were partly on the plaintiff's property. In the fall of 2007, the plaintiff undertook an extensive landscaping project in a failed attempt to restore his lost privacy. During that project, the trees purchased by the defendant were moved closer to the plaintiff's house.”

In 2008, the plaintiff commenced an action alleging trespass. The defendant filed an answer with special defenses. The plaintiff later filed an amended complaint adding a count seeking treble damages pursuant to General Statutes § 52–560. Following a trial to the court, the court in its memorandum of decision found that the plaintiff had proven the elements of an intentional trespass action. The court awarded the plaintiff $150,000 for the diminution in the value of his property caused by the defendant's trespass, plus taxable costs. The court declined to award any damages for the value of timber removed. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court erred in that its damage award improperly expanded the tort of trespass. We disagree.

The court awarded the plaintiff compensatory damages in the amount of $150,000 for the diminution in the value of his property caused by the defendant's trespass. The defendant argues that the damage award was improper. ¹ He argues that § 52–560 limits the scope of damages recoverable in timber trespass actions, and that diminution in value is not an appropriate measure of damages.

Section 52–560 provides in relevant part: “Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another ... without license of the owner ... shall pay to the party injured ... 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.”

Common law provides at least three remedies for intentional trespass in situations in which trees have been removed. In an action for timber trespass, “[i]t is an appropriate remedy either for the recovery of damages for the mere unlawful entry upon the plaintiff's land; for the recovery of the value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel. For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees,² a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of.” Eldridge v. Gorman, 77 Conn. 699, 701, 60 A. 643 (1905). “This is the common-law rule. Under the facts as disclosed by this record, the proper measure of damages is either the market value of the tree, once it is severed from the soil, or the diminution in the market value of the plaintiffs' real property caused by the cutting.” (Internal quotation marks omitted.) Canton Village Construction, Inc. v. Huntington, 8 Conn.App. 144, 147, 510 A.2d 1377 (1986). Cases subsequent to Eldridge which allowed for damages for diminution in market value, either in principle or in practice,³ include Canton Village Construction, Inc. v. Huntington, supra, at 146–48, 510 A.2d 1377, and Stanley v. Lincoln, 75 Conn.App. 781, 787, 818 A.2d 783 (2003) (“[t]he proper measure of damages, therefore, is either the market value of the trees, once they are severed from the soil, or the diminution in the market value of the real property caused by the cutting”). Of particular interest is the case of Palmieri v. Cirino, 90 Conn.App. 841, 880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005). In that case, damages were not allowed for the replacement cost of arborvitae trees, but this court recognized that damages for the diminution in value of the land may have been available. Id., at 850–51, 880 A.2d 172.

Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 158–61, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006), raises but does not decide the issue of whether § 52–560 preempts common law. In that case, the cross claim plaintiffs alleged that the cross claim defendants intentionally trespassed on property and cut trees. Id., at 158, 881 A.2d 937. The cross claim plaintiffs sought treble damages pursuant to § 52–560 based on the replacement cost of the cut trees. Id. No evidence was presented as to the value of the trees or the diminution in value of the land. Our Supreme Court questioned a statement in Stanley v. Lincoln, supra, 75 Conn.App. at 788–89, 818 A.2d 783, that suggested that the statute provided for remedies other than the value of the trees, and clarified that “although damages for the reduction in pecuniary value of the land—determined by the replacement cost of the trees, if appropriate—were available under the common law, the plain language of § 52–560 authorizes treble damages only for the value of the trees as commodities, not for the reduction in the pecuniary value or for the replacement cost of the trees.” Ventres v. Goodspeed Airport, LLC, supra, at 160, 881 A.2d 937. In a footnote, however, the Supreme Court stated that no party made a common-law claim in that case, so the court did not need to decide whether § 52–560 preempted the common-law cause of action. Id., at...