Franc v. Bethel Holding Co., (AC 15764)

• Court: Appellate Court of Connecticut
• Writing for the Court: LAVERY, C. J.
• Citation: 73 Conn. App. 114,807 A.2d 519
• Parties: FRANK FRANC ET AL. v. BETHEL HOLDING COMPANY ET AL.
• Decision Date: 22 October 2002
• Docket Number: (AC 15764)

73 Conn. App. 114
807 A.2d 519

FRANK FRANC ET AL.
v.
BETHEL HOLDING COMPANY ET AL

(AC 15764)

Appellate Court of Connecticut

Argued February 26, 2002

Officially released October 22, 2002

Lavery, C. J., and Schaller and Peters, Js.

73 Conn. App. 115

Jerome A. Mayer, for the appellant-appellee (named defendant)

T. Stevens Bliss, for the appellees-appellants (plaintiffs).

Opinion

LAVERY, C. J.

The defendant Bethel Holding Company appeals from the judgment, rendered after a trial to the court, awarding $270,000 in compensatory damages and $100,000 in punitive damages to the plaintiffs, Frank

73 Conn. App. 116

Franc and Anna Franc, for nuisance and the loss of lateral support for their properties.¹ The plaintiffs have filed a cross appeal from that judgment. The defendant claims on appeal that (1) the court's award of compensatory damages was improper because it was based (a) on a valuation of two separately owned properties as if they were one unified parcel and (b) on an assumption that one property was landlocked, which was inconsistent with another finding of the court, (2) the court improperly allowed the plaintiffs to amend their complaint during the trial, (3) the court improperly rejected the defendant's statute of limitations defense and (4) the court's punitive damages award was improper because (a) the evidence was insufficient to establish that the defendant acted recklessly and (b) the award was in excess of the plaintiffs' attorney's fees and costs. In their cross appeal, the plaintiffs claim that the court improperly awarded damages rather than the injunctive relief they requested and improperly ordered that a safety fence be erected on their property instead of on the defendant's property. We agree that the court's punitive damages award was improper, but otherwise disagree with both parties' claims and affirm the judgment of the court

The following facts and procedural history are relevant to the appeal and cross appeal. The parties own various parcels of real property in Bethel that border one another. The defendant owns about 5.5 acres of commercial property on which a retail nursery operates. Frank Franc (Frank) owns a fifteen acre parcel

73 Conn. App. 117

(parcel) that is situated to the south of the defendant's property. The parcel is undisturbed woodland that is zoned for residential use. To the east of the defendant's property is a narrow strip of commercially zoned land (strip). It is about fifty feet in width and 350 feet in length, comprising about 0.4 acres. The strip abuts the parcel on its southern end and Stony Hill Road, also known as Route 6, on its northern end. At the time of the events giving rise to this litigation, the strip was owned by Anna Franc (Anna), who is Frank's sister. After the litigation commenced, Anna quitclaimed the strip to herself and Frank. To the south of the parcel is additional property (homestead) on which Frank, Anna and their brother, Ambrose, long have resided. The three siblings together own the homestead. The homestead's southern border is Walnut Hill Road

Construction of the nursery commenced on the defendant's property in 1986. That construction involved major excavation and blasting work that resulted in the loss of lateral support for both the parcel and the strip. The defendant or its agent excavated to the boundaries with the plaintiffs' properties and in some cases encroached onto those properties. The resultant topography is such that a twenty to twenty-five foot sheer, almost vertical cliff exists along much of the boundary between the strip and parcel and the defendant's property. The cliff runs about 150 feet along the western boundary of the strip and about 300 feet along the northern boundary of the parcel. The slopes of the cliff are unstable and continue to ravel and erode. It is expected that such raveling and erosion will continue until the slopes eventually stabilize. The tops of the slopes will move farther inward onto the plaintiffs' properties as this occurs, as much as twenty-five feet.

In July, 1988, the plaintiffs initiated an action alleging nuisance and loss of lateral support for the parcel and

73 Conn. App. 118

the strip. They sought damages and injunctive relief.² After a trial held from December, 1994, to February, 1995, the court awarded the plaintiffs $270,000 in compensatory damages³ and $100,000 in punitive damages, but denied the requested injunctive relief. Additional facts and procedural history will be set forth as necessary for the resolution of the issues.

I

The defendant claims first that the court improperly awarded the plaintiffs compensatory damages of $270,000 for nuisance and the loss of the lateral support of their properties. It argues that the award was improper because it was based on a valuation of the strip and the parcel together, as if they were one unified property. The defendant claims further that the award was based on an assumption that the parcel is landlocked, which assumption is inconsistent with the court's finding that the parcel may be accessed via the homestead. We disagree with each of these arguments.

A

The defendant claims that the court improperly based its compensatory damages award on a valuation of the parcel and the strip together, although at the time the

73 Conn. App. 119

damage was inflicted, Frank owned the parcel and Anna owned the strip. It argues that the court, without explicitly stating so, employed an "assemblage" theory of valuation that is improper where there is no unity of title between the properties to be valued. We agree that the court used an assemblage analysis, but disagree that it was improper.

The following additional facts are pertinent. The court arrived at its compensatory damages figure by comparing the value of the plaintiffs' properties before and after the loss of lateral support and making certain adjustments. See footnote 3. In its memorandum of decision, the court acknowledged that at the time of the defendant's excavation and the resultant damage, Anna was the owner of the strip and Frank was the owner of the parcel. It noted, however, that Frank had bargained for the purchase of the strip with the purpose of acquiring access to the parcel from Route 6. The court apparently credited Frank's testimony that he had intended to share ownership of the parcel at the time he arranged for its purchase, but somehow it had been titled in Anna's name only. The court noted further that after the lateral support litigation commenced, Anna and Frank "corrected" the ownership status with a quit-claim deed so that they now appear together as coowners of the strip. The court proceeded to determine the preexcavation value of the plaintiffs' two properties based on their highest and best use. It found that use to be development of the parcel as a residential subdivision, with access thereto provided by a road that could have been built across the strip leading to Route 6. On the basis of that contemplated use and expert valuation testimony, the court found that the properties, prior to being damaged, together were worth $300,000. Nowhere in its decision did the court state that it was taking an "assemblage" approach to valuation.

73 Conn. App. 120

In an action for damages to real property, "[t]he basic measure of damages ... is the resultant diminution in value.... In order to assess the diminution in value, however, the trial court must first determine the value of the property, both before and after the injury has occurred.... In actions requiring such a valuation of property, the trial court is charged with the duty of making an independent valuation of the property involved.... [N]o one method of valuation is controlling and ... the [court] may select the one most appropriate in the case before [it].... Moreover, a variety of factors may be considered by the trial court in assessing the value of such property. [T]he trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation.... The trial court has broad discretion in reaching such conclusion, and [its] determination is reviewable only if [it] misapplies or gives an improper effect to any test or consideration which it was [its] duty to regard. Such determinations are findings of fact, and therefore must stand unless clearly erroneous." (Citations omitted; internal quotation marks omitted.) Ratner v. Willametz, 9 Conn. App. 565, 584-85, 520 A.2d 621 (1987).

The defendant claims, and we agree, that the court effectively invoked the doctrine of assemblage when it valued the parcel based on the assumption that it would have been used in conjunction with the strip. "The doctrine of assemblage applies when the highest and best use of separate parcels involves their integrated use with lands of another. Pursuant to this doctrine, such prospective use may be properly considered in fixing the value of the property if the joinder of the parcels is reasonably practicable. If applicable, this doctrine allows a property owner to introduce evidence showing

73 Conn. App. 121

that the fair market value of his real estate is enhanced by its probable assemblage with other parcels." 4 P. Nichols, Eminent Domain (3d Ed. Rev. 2000, P. Rohan & M. Reskin, eds.) § 13.02 [9].

Our Supreme Court recently accepted the applicability of the assemblage doctrine for valuation purposes in the context of a condemnation case. See Commissioner of Transportation v. Towpath Associates, 255 Conn. 529, 767 A.2d 1169 (2001). In Towpath Associates, as in this case, it appears that the concept of assemblage was implicit in the trial court's analysis, rather than explicitly applied. Id., 547-48. According to the Supreme Court, "[t]he fact that the most profitable use of a parcel can be made only in combination with other lands does...