Lyme Land Conservation Trust, Inc. v. Platner
| Decision Date | 31 December 2019 |
| Docket Number | SC 20071 |
| Citation | 221 A.3d 788,334 Conn. 279 |
| Court | Connecticut Supreme Court |
| Parties | LYME LAND CONSERVATION TRUST, INC. v. Beverly PLATNER et al. |
Wesley W. Horton, with whom were Brendon P. Levesque and, on the brief, Kari L. Olson, Hartford and Janet P. Brooks, Middletown, for the appellant (named defendant).
John F. Pritchard, pro hac vice, with whom were Tracy M. Collins, New London and Timothy D. Bleasdale, and, on the brief, Edward B. O'Connell, New London, for the appellee (named plaintiff).
Robinson, C.J., and Palmer, McDonald, Mullins, Kahn and Ecker, Js.
General Statutes § 51-183c precludes a judge who tried a case without a jury from trying the case again after a reviewing court reverses the judgment. The dispositive issue in this appeal is whether that statute applies when this court reverses the trial court's judgment as to damages only and remands the case to the trial court to take new evidence and recalculate damages.
The defendant Beverly Platner1 appeals from the judgment of the trial court, rendered following our reversal in part and remand in Lyme Land Conservation Trust, Inc. v. Platner , 325 Conn. 737, 159 A.3d 666 (2017), for further proceedings on the issue of damages. The defendant challenges the judgment as to both the damages awarded to the plaintiff, Lyme Land Conservation Trust,
Inc.,2 and injunctive relief directing the defendant to remedy a violation of a conservation restriction on her property pursuant to a restoration plan ordered by the trial court. The defendant claims that the trial judge improperly denied her motion to disqualify himself from retrying the damages issue, and, as a result, both the damages award and injunction were improper. We agree with the defendant on the issue of disqualification and reverse the trial court's judgment as to damages and remand for new proceedings before a new judge consistent with our original remand order.
Our prior decision in this case and the record of the subsequent proceedings provide the following relevant facts and procedural history for the resolution of this appeal.3 The defendant has owned 66 Selden Road in Lyme (property) since 2007. Id., at 741, 159 A.3d 666. The plaintiff holds a conservation restriction (easement) on the property, which, consistent with General Statutes § 47-42a (a),4 prohibits the defendant from making certain changes to the property that would disturb its " ‘natural ... condition’ ...." Id., at 741–42, 159 A.3d 666. Approximately 14.3 of the property's 18.7 acres are subject to the easement. Id., at 742, 159 A.3d 666. This protected area includes a large meadow and a smaller woodlands area. Id.
In 2007, the defendant began making a series of changes to the protected area, despite the plaintiff's efforts to persuade the defendant that the changes violated the easement. With respect to the meadow, those changes included: regular mowing; installing an irrigation system; adding top soil; aerating; planting seed for grass typical of a residential lawn; applying lime, fertilizers, fungicides, herbicides, and pesticides; and removing "truckloads of grass and soil" to create " ‘tree rings’ " where the defendant planted ornamental shrubs, plants, and flowers. Id., at 743, 159 A.3d 666. As a result, the previously existing native grasses were eradicated. Id. In the woodlands, the defendant began mowing the understory—the plants that grow on a forest floor. Id. and n.6.
In 2009, the plaintiff filed this action, alleging in the operative complaint that the foregoing activities were actual or intentional violations of the easement and constituted a willful violation of General Statutes § 52-560a. Id., at 743–44, 159 A.3d 666. The plaintiff sought injunctive relief to prevent further violations of the easement and to require restoration of the property to its prior condition, as well as statutory punitive damages and attorney's fees under § 52-560a. Id., at 744, 159 A.3d 666.
The case was tried to the court, Hon. Joseph Q. Koletsky , judge trial referee. The court held that the defendant had not merely violated the easement but had "completely subvert[ed] and eviscerate[d] the clear purpose of the conservation restriction" by "wilful[ly] ... caus[ing] great damage to the protected area's natural condition" and had "destroyed considerable [and diverse] vegetation ...." (Internal quotation marks omitted.) Id., at 745, 159 A.3d 666. The court issued an injunction, requiring the defendant to restore the property to its prior condition. Id., at 744–45, 159 A.3d 666. The court's initial restoration plan (plan one), which was developed by the plaintiff's expert witness, called for, among other things, the defendant to remove the irrigation system from the
meadow and remove the lawn by means of a sod cutter. Id., at 762, 159 A.3d 666. The defendant would then replant the soil with a variety of native grasses and mow only infrequently. Id. As to the woodlands, the defendant was required to plant native shrubs and to stop mowing altogether, allowing the understory to reestablish itself naturally. Id. The plaintiff's expert estimated that plan one would cost approximately $100,000. Id.
The court awarded the plaintiff $350,000 in punitive damages pursuant to § 52-560a (d), which permits the court to award damages of up to five times the " ‘cost of restoration’ " for violations of a conservation restriction. Id., at 762 and n.17, 159 A.3d 666. The court also ordered further hearings to address the specific manner and timing of implementing plan one. Id., at 763, 159 A.3d 666.
At the subsequent hearing regarding implementation, experts for both parties proposed differing courses of action to effectuate the restoration. Id., at 763, 159 A.3d 666. The court ultimately ordered a new plan (plan two), which was a hybrid of the competing approaches proposed by the parties. Id. Instead of removing the lawn with a sod cutter, the court ordered the defendant to plant plugs of native grasses that would overtake the nonnative species. Id. The court asked the parties to submit specific planting proposals to execute this new strategy, and after the parties did so, the court ordered the defendant to follow the proposal submitted by the plaintiff. Id. Although the court changed what would be required of the defendant to achieve restoration from plan one to plan two, it did not take evidence as to the cost of plan two or revisit its award of $350,000 in punitive damages, which was based on plan one. Id. The defendant appealed from the judgment of the trial court to the Appellate Court, and the appeal was transferred to this court. Id., at 746 n.9, 159 A.3d 666.
In that appeal, the defendant claimed, among other things, that the trial court improperly (1) found that the defendant had violated the easement, and (2)
ordered relief that was either legally unauthorized or lacking in evidentiary support. Id., at 741, 159 A.3d 666. We concluded that the trial court had properly found that the defendant violated the easement and that the restoration plan that the court ordered was authorized and supported by sufficient evidence. Id., at 764–65, 159 A.3d 666. We agreed with the defendant, however, that the trial judge improperly awarded damages under § 52-560a (d) without the requisite evidentiary foundation. We concluded that " (Emphasis added.) Id., at 764, 159 A.3d 666. The rescript to our opinion ordered as follows: "The judgment is reversed as to the award of ... damages pursuant to § 52-560a (d), and the case is remanded for a recalculation of ... damages consistent with this opinion ; the judgment is affirmed in all other respects."5 (Emphasis added.) Id., at 765, 159 A.3d 666.
On remand, the defendant filed a motion to disqualify Judge Koletsky from further participation in the proceedings
pursuant to § 51-183c and Practice Book § 1-22.6 Judge Koletsky summarily denied the motion. In a subsequent articulation, he offered the following reason for denying the motion: "Because the Supreme Court did not order a new trial but rather reversed only certain portions of the judgment and remanded for [a] hearing on two precise matters, affirming the judgment in all other respects, the court concluded it was not disqualified from hearing the matter."
After her motion to disqualify was denied, the defendant moved to open the judgment and to allow evidence regarding plan two. She asserted that plan two was no longer necessary or workable because the property had restored itself naturally in the three growing seasons that had passed since the trial court's order. Judge Koletsky denied both motions.
In subsequent proceedings before Judge Koletsky on the issue of statutory punitive damages, both parties presented expert testimony as to the cost of plan two. Judge Koletsky found that the cost of plan two was $242,244 and set punitive damages at $350,000, the same amount he had awarded previously. This appeal followed.7
The defendant raises three issues in this appeal. First, she claims that the trial court improperly denied her disqualification...
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