Canton Village Const., Inc. v. Huntington, 4405

• Decision Date: 15 July 1986
• Docket Number: No. 4405,4405
• Court: Connecticut Court of Appeals
• Parties: CANTON VILLAGE CONSTRUCTION, INC. v. Kevin HUNTINGTON.

Page 1377

510 A.2d 1377

8 Conn.App. 144

CANTON VILLAGE CONSTRUCTION, INC. v. Kevin HUNTINGTON.

No. 4405.

Appellate Court of Connecticut.

Argued June 6, 1986.

Decided July 15, 1986.

Mark E. Lowell, Canton, for appellant (plaintiff).

James T. Flaherty, Hartford, for appellee (defendant).

Before DUPONT, C.J., and HULL and SPALLONE, JJ.

HULL, J.

The dispositive issues in this case concern the measure of damages for the negligent destruction of a beech tree and the adequacy of the evidence concerning such damages. The plaintiff brought a collection action against the defendant seeking some $5900 for excavation and related services it performed at the defendant's residential construction site. The defendant counterclaimed alleging, in part, that the plaintiff had negligently destroyed a beech tree in the process of excavating a driveway. Pursuant to a factfinder's findings, the trial court rendered judgment for the plaintiff in the amount of $3065.44 on its complaint and for the defendant on his counterclaim in the amount of $5090. The plaintiff appeals from the judgment rendered in the defendant's favor on the counterclaim.

The plaintiff objected to the factfinder's report asserting that he had not stated the underlying facts on which he based his finding that the tree had a value of $5090. This objection was upheld and the case was remanded to the factfinder on this issue. On remand, the factfinder filed a supplemental finding of facts including the following information: (1) that the defendant's witness, Oscar Stone, had worked as a horticultural consultant for two or three decades; (2) that he is a licensed arborist; (3) that based upon his observations and the use of a recognized formula, Stone was able fairly to approximate the value to particular real estate of trees of different kinds and sizes, predicated essentially on the aesthetic or environmental contribution of the tree to the property; (4) that the value of the underlying real property is not a significant element in determining the value of a tree on the real property; and (5) that Stone concluded that the tree contributed $5090 to the value of the land. The plaintiff objected to the acceptance of the supplemental finding of facts claiming that the finding of damages was invalid because an incorrect measure of damages was used and because the aesthetic and environmental value of the tree was not pleaded by the defendant in his counterclaim. This objection was overruled by the court.

The plaintiff now claims three grounds of error as follows: (1) that the court erred by failing to apply the appropriate measure of damages for destruction of the beech tree; (2) that the trial court erred by awarding any damages because there was an inadequate basis from which to measure them; and (3) the trial court erred by awarding damages based on the ornamental or aesthetic qualities of the tree because such damages were not specially pleaded.

The plaintiff's third claim of error is without merit. We conclude that the counterclaim, taking the facts it alleged favorably to the pleader, and viewing it in a broad fashion including the facts necessarily implied and fairly provable under it, sufficiently put the plaintiff on notice that the ornamental and aesthetic value of the tree would be claimed as damages. See Schmidt v. Yardney Electric Corporation, 4 Conn.App. 69, 74, 492 A.2d 512 (1985). Accordingly, the trial court did not err in considering the tree's ornamental or aesthetic qualities.

We consider the first and second grounds of error together. There are three possible measures of damages for loss of a tree in Connecticut. The distinctions between the measures are clearly...