Duksa v. City of Middletown

• Decision Date: 07 February 1984
• Citation: 192 Conn. 191,472 A.2d 1
• Court: Connecticut Supreme Court
• Parties: Joseph DUKSA v. CITY OF MIDDLETOWN et al.

Page 1

472 A.2d 1

192 Conn. 191

Joseph DUKSA v. CITY OF MIDDLETOWN et al.

Supreme Court of Connecticut.

Argued Nov. 4, 1983.

Decided Feb. 7, 1984.

Francis O'Neill, City Atty., Middletown, for appellants (defendants).

William C. Galligan, Newington, for appellee (plaintiff).

Before PETERS, HEALEY, PARSKEY, SHEA and MENT, JJ.

ARTHUR H. HEALEY, Associate Justice.

This is the second appeal in this case and certain material facts outlined in that opinion need not be repeated here. See Duksa v. Middletown, 173 Conn. 124, 376 A.2d 1099 (1977) (Duksa I ). In 1970, the plaintiff owned a farm of about 100.5 acres in a part of the defendant city of Middletown (city) zoned for industry. In that year he granted the city an easement and right of way for a sewer across his land in return for the right to tie into the sewer without cost. The permanent sewer easement occupies 2.1 acres with approximately 1200 feet running in a north-south direction. There was already a 75 foot wide easement for a natural gas pipeline which ran across the farm. The farm is not level, sloping from west to east down to a river. Because of this sloping character, the sewer was built in an embankment which cut a portion of the farm into two pieces. This embankment is seventeen to eighteen feet high at its easterly end, is very steep and cannot be climbed or driven over. Approximately 62.65 acres are located south and east of the sewer easement while approximately 35.75 acres are located north and west of that easement. Neither the sewer easement nor the gas line easement can be built upon. Under existing zoning regulations, structures may not occupy more than 30 percent of the land. ¹

In Duksa I, we observed that the plaintiff complained as soon as the city began to bring fill to construct the embankment. He brought suit, "alleging that the city and its agents failed to disclose that the construction of the sewer would entail building an embankment, that he was unable to read construction maps and relied on the defendants to explain to him the effect of granting the easement, and that he was induced to execute the grant in reliance on their representation." Duksa I, supra, 125, 376 A.2d 1099. He sought to have the grant set aside as to the portion involving the embankment and he claimed damages and other relief. Duksa I, supra. In that action, the trial court found the issues for the plaintiff and awarded him money damages. We found error in part and ordered a new trial.

Although we determined that the parties were not equal in bargaining power, we said that "that alone is not sufficient to justify rescission of [this] contract." Duksa I, supra, 127, 376 A.2d 1099. After discussing the negotiations between the plaintiff and the city, we decided that " '[t]he unintentional nondisclosure of facts [by the city's agent, the defendant Frank Opalacz] as to which there is a duty of disclosure' ... justifies rescission." Duksa I, supra, 128, 376 A.2d 1099. We further determined that "the city had a duty to disclose at least the fact that the sewer would be built in an embankment, and thus the plaintiff was entitled to rescission or to damages." (Citations omitted.) Duksa I, supra, 129, 376 A.2d 1099. We also concluded that the trial court had used an incorrect measure of damages and, finding error in part, we affirmed the judgment except as to the amount of damages and ordered a new trial limited to damages.

In remanding on the issue of damages, we said that "[t]he plaintiff might elect to rescind his contract and receive the value of the entire easement under the theory that the easement had been effectively condemned and taken by the city, or he could elect to receive damages equal to the difference between the actual value of the right to tie in and the value as represented." (Citations omitted.) Duksa I, supra, 129, 376 A.2d 1099. The trial court's memorandum of decision on the present appeal, in referring specifically ² to this language, said: "Plaintiff did not pursue the latter but instead put on appraisal testimony the thrust of which was to establish the value of the subject property before and after the taking of the permanent easement for the installation of the sanitary sewer trunk line together with temporary construction work area rights to drain and construct pipes and end walls and to relocate existing farm roadways." It pointed out that the plaintiff testified about damages sustained to his dairy farming interests on the property during the construction of the sewer easement for which he also sought damages.

The trial court awarded the plaintiff damages in the amount of $85,298 plus costs. It accepted the appraisal figures of the plaintiff's appraiser as its basis for finding that the value of the plaintiff's land had been diminished by $59,200 after the installation of the sewer trunk line. The plaintiff was also awarded "compensable costs of $26,098 resulting from the damages to his dairy interests during the four month period" of the sewer construction. ³ In pursuing this course, the trial court explicitly rejected the city's claim that "the court deal with the issue of damages as it would in a straight condemnation proceeding, that is to establish the value of the land before and after the 'taking' disallowing any other claims for damages such as those attributable to the interruption of the plaintiff's farming operation." It went on to say that damages in a condemnation proceeding are assessed as of the date of the taking which "means the accomplishment of the legal steps whereby the landowner's right of possession is terminated." The trial court concluded that there was no "taking" at that time in 1970 when the plaintiff granted the city an easement and right of way across his land for a sewer. This appeal followed.

On this appeal, the city claims that the trial court erred: (1) in awarding damages for the sewer easement; (2) in adopting the opinion of the plaintiff's appraiser as to the value of his land; (3) in concluding that there was a separate agreement between the plaintiff and the city obligating the city to reimburse him for expenses incurred by him in his farm business during the sewer construction; (4) in concluding that the plaintiff was entitled to reimbursement of certain expenses of his farm business as damages consequential to the taking and that he proved that such expenses were caused by the sewer construction; (5) in denying admission of a portion of a letter to the city by the plaintiff's former attorney and in refusing to permit the city to call the plaintiff to testify about that letter; (6) in denying the admission of a real estate option agreement on the issue of value and in refusing to permit the city to call the plaintiff to testify about that agreement; and (7) in denying the admission of evidence of the estimated cost of providing water service to the plaintiff's property at the time of the taking. ⁴ We find error.

We turn to the city's first claim, that the court erred in awarding damages for the sewer easement. The essential thrust of this claim is that because the plaintiff elected to rescind the contract he made with the city, he cannot have the benefits of rescission without assuming its burdens. Specifically, it argues that, as a condition precedent to rescission of the agreement with the city, the plaintiff must allege and prove that he had restored or offered to restore the city to its former position as nearly as possible. In arguing that there was no evidence that he had done so, the city points to the evidence that he had conveyed his interest in the property which included the right to connect to the sanitary sewer without cost. Additionally, the city claims that the plaintiff waived any right to damages for the breach of the agreement by which the city acquired the easement once he elected to rescind that agreement. The plaintiff having so elected that remedy, the city further maintains that he cannot have only the benefit of each of the optional remedies. The plaintiff's brief responds to none of these assertions.

"A definite election to rescind a contract is final and operates as a waiver of any claim for damages for any breach of the contract." Gordon v. Indusco Management Corporation, 164 Conn. 262, 266, 320 A.2d 811 (1973). "As a condition precedent to a rescission, the [plaintiff was] required to allege and prove that [he] had restored or offered to restore [the city] to its former condition as nearly as possible. Mandeville v. Jacobson, 122 Conn. 429, 433, 189 A. 596 [1937]; Loveland v. Aymett's Auto Arcade, Inc., 121 Conn. 231, 236, 184 A. 376 [1936]; Bitondi v. Sheketoff, 91 Conn. 123, 126, 99 A. 505 [1916]; 5 Corbin, Contracts § 1114." Keyes v. Brown, 155 Conn. 469, 476, 232 A.2d 486 (1967). There is nothing in the record, which we can find or to which the plaintiff has referred us, to indicate that the plaintiff has either alleged ⁵ or offered any evidence to prove that he has satisfied this condition precedent to the right to rescind. There can be no serious question that the right given in the easement grant of May 11, 1970, to the plaintiff and "his heirs, executors, administrators and assigns" to tie into the sanitary sewer without any cost was a valuable right. During the trial, a quitclaim deed of the subject property from the plaintiff to a corporate grantee (a family corporation owned by the plaintiff and his sons), which was executed, delivered and recorded in early 1974, was admitted as a full exhibit. ⁶

The trial court decided that the plaintiff did not elect to pursue the second option, i.e., to receive damages equal to the difference between the actual value of the right to tie in and the value as represented, but instead put on appraisal testimony to establish the value of the property before and after the taking of the permanent easement. It rejected the city's claim that the court treat the issue of damages as in "a straight...