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Geiger v. Carey

Court of Appeals of Connecticut

January 31, 2017

GORDON GEIGER ET AL.
v.
FRANCIS CAREY

          Argued December 7, 2016

         Appeal from Superior Court, judicial district of Litchfield, J. Moore.

          Gordon Geiger, self-represented, the appellant (named plaintiff).

          James P. Steck, for the appellee (defendant).

          Lavine, Beach and West, Js.

          OPINION

          PER CURIAM

         The plaintiffs, Gordon Geiger and Elizabeth Geiger, brought this action against the defendant, Francis Carey, their next door neighbor, seeking money damages, punitive damages, and an order requiring the defendant to remove a fence. The complaint sounded in three counts: (1) trespass; (2) violation of Connecticut's tree cutting statute, pursuant to General Statutes § 52-560; and (3) malicious erection of a structure, pursuant to General Statutes § 52-570. The defendant brought a counterclaim against the plaintiffs seeking injunctive relief, monetary damages, punitive damages, and an order of quiet title to the land under the fence and airspace above the fence. The counterclaim sounded in seven counts: (1) private nuisance; (2 through 4) trespass;[1] (5) quiet title; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress.

         On February 25, 2015, following a trial, the court rendered judgment by way of a memorandum of decision. As for the plaintiffs' complaint, the court rendered judgment in favor of the defendant and against the plaintiffs on counts one and two, and in favor of the plaintiffs and against the defendant on count three. The court ordered the defendant to remove one section of his fence and enjoined him from erecting another structure in its place. As for the defendant's counterclaim, the court rendered judgment in favor of Elizabeth Geiger and against the defendant on all counts; in favor of Gordon Geiger and against the defendant on counts one, six, and seven; and in favor of the defendant and against Gordon Geiger on counts two, three, four, and five. The court enjoined Gordon Geiger from stopping or loitering on the right-of-way that he shares with the defendant, and further enjoined him from placing barriers, barricades, or items on the right-of-way. The court ordered Gordon Geiger to remove a tree platform and enjoined him from erecting another structure in its place. The court further awarded the defendant damages in the amount of $400.

         The self-represented plaintiff, Gordon Geiger, claims on appeal that the court erred in: (1) awarding the defendant $400 for the damage to the trees; (2) restricting the plaintiff's use of the right-of-way; (3) accepting the defendant's land survey as evidence; (4) allowing the defendant to retain the majority of his fence; and (5) barring count one of his complaint based on a statute of limitations defense.

         We have examined the record on appeal and considered the briefs and the arguments of the parties, and conclude that the judgment of the trial court should be affirmed. Because the trial court thoroughly addressed the arguments raised in this appeal, we adopt its well reasoned decision as a proper statement of the facts and the applicable law on the issues. See Geiger v. Carey, 170 Conn.App. 462, A.3d (2015) (appendix). Any further discussion by this court would serve no useful purpose. See, e.g., Woodruff v. Hemingway, 297 Conn. 317, 321, 2 A.3d 857 (2010).

         The judgment is affirmed.

         APPENDIX

         GORDON GEIGER ET AL.

         v.

         FRANCIS CAREY [*]

         Memorandum filed February 25, 2015

         Superior Court, Judicial District of Litchfield File No. CV-11-5007327-S

         Memorandum of decision after completed trial to court. Judgment for defendant in part on complaint and in part on counterclaim.

         Gordon Geiger, self-represented, the plaintiff.

         Elizabeth Geiger, self-represented, the plaintiff.

         James P. Steck, for the defendant.

         OPINION

          J. MOORE, J.

         Proceedings

         I

         Introduction

         The plaintiffs, Elizabeth and Gordon Geiger, mother and son, have brought suit against the defendant, Francis Carey, their next door neighbor, in three counts: trespass, violation of Connecticut's tree cutting statute, General Statutes § 52-560, and malicious erection of a structure, pursuant to General Statutes § 52-570. The first two counts claim that the defendant came onto the plaintiffs' property, cut down a tree, and built a retaining wall. The third count avers that the defendant built a so-called ‘‘spite fence'' between the parties'[1]properties, blocking the plaintiffs' lake view and reducing sunlight available to the plaintiffs' garden. The plaintiffs request money damages, including the costs of two surveys and the cost of removing the retaining wall and returning the plaintiff's land to its original state, as well as an order requiring the defendant to remove the alleged ‘‘spite fence'' and punitive damages.

         The defendant has denied that he is liable under all counts of the plaintiffs' complaint, has asserted that the statute of limitations, General Statutes § 52-577, bars, as untimely, the allegations of the first two counts, and has filed a counterclaim. The defendant's counterclaim sounds in seven counts: private nuisance, three separate trespass counts, quiet title, intentional infliction of emotional distress, and negligent infliction of emotional distress. The defendant seeks injunctive relief, including orders enjoining the plaintiffs' nuisance, prohibiting the plaintiffs from interfering with the defendant's use of his property and of a common right-of-way, requiring the plaintiffs to remove unsightly and potentially dangerous items from the right-of-way, barring the plaintiffs from using the right-of-way for storage of the plaintiffs' property, and requiring the removal of a tree house/ tree platform structure, as well as monetary damages, punitive damages, and an order quieting title.

         The court rules for the defendant and against the plaintiffs on counts one and two of the revised complaint. In regard to count three of the revised complaint, the court orders the defendant to remove one section of the fence between the parties' properties, that section closest to the street, according to the schedule set forth below.

         The court rules as follows as to the counterclaim. While Gordon Geiger maintains his right, so long as he is a tenant or owner of 58 Tyler Lake Heights Road, to pass and repass on the right-of-way, the court permanently enjoins Gordon Geiger from stopping or loitering on the right-of-way. The court also permanently enjoins Gordon Geiger from placing any barriers, barricades, or items on the right-of-way. Further, the court orders Gordon Geiger to take down his tree platform, according to the schedule set forth below. Finally, the court awards damages in the amount of $400 to the defendant for the damage to his arborvitae.

         II

         Procedural History

         The plaintiffs initiated a cause of action against the defendant in small claims court, by means of a summons and complaint filed on July 25, 2011. On August 18, 2011, the defendant filed, and the court granted a motion to transfer this matter to the Superior Court. The law firm of Locka by and Perrault filed an appearance in place of each plaintiff on June 25, 2013. On December 5, 2013, the plaintiffs filed a revised complaint in this case in response to the defendant's request to revise. The December 5, 2013 revised complaint is the operative complaint in this matter.

         The defendant filed his answer, special defenses, and counterclaim on February 7, 2014. On April 17, 2014, the plaintiffs moved to strike the defendant's counterclaim, arguing that its allegations were not closely related enough to the allegations of the complaint. This court, J. Moore, J, denied that motion on September 29, 2014.

         On July 10, 2014, Locka by and Perrault moved for permission to withdraw its appearance for Gordon Geiger. The court, Pickard, J., granted its motion on July 28, 2014. On August 6, 2014, Locka by and Perrault moved to withdraw its appearance for Elizabeth Geiger. The court, Pickard, J., granted this motion on August 25, 2014. Gordon Geiger, who is not a lawyer, filed an appearance on August 21, 2014, purportedly on behalf of ‘‘all plaintiffs.''[2] Elizabeth Geiger filed an appearance on the date of the trial.

         Trial took place before this court on October 21, 2014. The plaintiffs filed an answer to the counterclaim just before trial on that day. Upon request of the defendant, the court undertook a site visit on November 3, 2014. Gordon Geiger and the defendant were present, each on his own property, during the site visit. On November 5, 2014, the plaintiffs filed a motion to submit additional evidence, which the court denied on February 4, 2015.

         Two instances of the proof not conforming to the plaintiff's operative complaint occurred during trial. The first deals with the statute of limitations as it may apply to the counterclaim. The plaintiffs never filed a special defense to the defendant's counterclaim, but, during trial, Gordon Geiger raised a statute of limitations defense to certain aspects of the counterclaim. Trial Transcript, 66:25-67:1, October 21, 2014. The second has to do with the plaintiffs' claim for malicious erection of a structure. In the revised complaint, the plaintiffs allege malicious erection by the defendant of the fence between the two properties and cite § 52-570, which authorizes money damages for the owner of the burdened property. The plaintiffs' revised complaint does not allege a violation of General Statutes § 52-480, which allows for injunctive relief in favor of the owner or lessee of property to remedy a malicious structure as defined in § 52-570. The plaintiffs' revised complaint, however, seeks injunctive relief, in the form of an order requiring the immediate removal of the fence.

         ‘‘[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.''[3] (Internal quotation marks omitted.) Rowe v. Goulet, 89 Conn.App. 836, 841, 875 A.2d 564 (2005). Under Practice Book § 10-62, in ‘‘all cases of material variance between allegation and proof, an amendment may be permitted at any stage of the trial.'' Moreover, the trial court has discretion to allow an amendment of a pleading before, during, or after trial to conform to the proof. New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 486, 970 A.2d 592 (2009). One significant factor for the court to consider in deciding whether to exercise its discretion to allow an amendment to a pleading is any potential injustice that may result. Summit wood Development, LLC v. Roberts, 130 Conn.App. 792, 800, 25 A.3d 721, cert. denied, 302 Conn. 942, 29 A.3d 467 (2011), cert. denied, U.S., 132 S.Ct. 1745, 182 L.Ed.2d 530 (2012). There would not be any injustice to the defendant were the court to allow these two amendments.

         In regard to the statute of limitations issue, it is noteworthy that when Gordon Geiger raised this issue as an objection to evidence proffered by the defendant, the defendant's counsel, in arguing against the objection, did not raise the issue of whether such a defense had been pleaded.

         Further, as of the trial date, the defendant had been on notice for more than ten months of the claim for injunctive relief being advanced by the plaintiffs. This prayer for relief, which could only be awarded under § 52-480, was contained in the revised complaint filed on December 5, 2013. Finally, the defendant, being the plaintiffs' next door neighbor, was aware that the lessee Gordon Geiger, rather than the owner Elizabeth Geiger, who lives presently in Maine, was the party who allegedly was directly and immediately harmed by the building of the fence.

         In light of the foregoing, the court will consider the plaintiffs' response to the counterclaim to be amended to include a special defense of the statute of limitations and the plaintiffs' prayer for relief to include a claim under § 52-480 for injunctive relief.

         III

         Contentions of the Parties

         A

         The Plaintiffs' Contentions

         The plaintiffs alleged the following facts in the revised complaint.

         Elizabeth Geiger is the owner of 58 Tyler Lake Heights, Goshen, Connecticut. Gordon Geiger is her son, has full possession rights to the property, and is her successor in interest there. The defendant's property is adjacent to that of the plaintiffs.

         Around April, 2006, Gordon Geiger returned home from out of state and discovered that a 400 year old oak tree in the rear of the plaintiffs' property had been cut down. When Gordon Geiger asked the defendant what had happened, the defendant told him the tree was on the defendant's land and he had a right to cut it down.

         On or about April, 2006, Gordon Geiger discovered that the defendant had built a retaining wall, measuring approximately thirty-five feet long and four feet high, near where the oak tree had grown. A large amount of backfill was contained within the retaining wall.

         On or about October, 2008, the defendant admitted that both the oak tree and the retaining wall were on the plaintiffs' property and not the defendant's property. As a result, the plaintiffs hired a surveyor to determine on whose land the oak tree had stood and the retaining wall had been built. Upon information and belief, the defendant removed the survey markers while Gordon Geiger was at work. In June, 2009, a subsequent survey was conducted by another surveyor which preliminarily found that both the oak tree and the retaining wall were on the plaintiffs' land. This conclusion was confirmed by a third survey conducted on June 17, 2010.

         The above described actions of the defendant constitute trespass on Elizabeth Geiger's property ownership rights and on Gordon Geiger's property possession rights.

         The defendant's action in cutting down the oak tree was a wilful violation of § 52-560.

         After receipt of a demand letter from counsel then representing the plaintiffs, dated on or about July 30, 2009, the defendant built a fence measuring over six feet in height, in violation of state and city ordinance, and approximately 160 feet long. The defendant erected this fence maliciously, with the intent to injure enjoyment of the plaintiffs' land. This fence serves no purpose for the defendant other than to annoy and/or injure the plaintiffs in their use of their land. The fence blocks the view of Tyler Lake from the plaintiffs' land and prevents adequate sunlight for the plaintiffs' gardens. The fence is a ‘‘spite fence'' under § 52-570.

         B

         The Defendant's Contentions

         The defendant asserts the tort statute of limitations, § 52-577, as a defense to the allegations pertaining to the cutting down of the oak tree and the building of the retaining wall.

         The defendant alleges the following facts in his counterclaim.

         The defendant's property abuts the plaintiffs' along the west and northwesterly boundaries of the defendant's property. A thirty-five-foot right-of-way runs from Park Road along the defendant's easterly boundary line, then turning first northwesterly and then southwesterly along the plaintiffs' boundary line. Both the defendant and the plaintiffs have a deeded right to use the right-of-way to pass and repass. The right-of-way is the only means of access to the defendant's building lot 07-10A-015-00.[4]

         The defendant obtained a survey of his property on or about April 2013.

         The plaintiffs committed a private nuisance in the following ways. Upon information and belief, the plaintiff knowingly destroyed, disturbed, or removed some of the defendant's survey markers. As a result, the surveyor has had to come to the defendant's property three separate times to replace the markers. The plaintiffs have littered their property and the right-of-way with broken, rusty appliances, a junk car, construction equipment, jugs of unknown chemicals, garbage, an indoor range installed outdoors, and unfinished excavations, causing the plaintiffs' property and the right-of-way to be unsafe and unsightly. The condition of the plaintiffs' property negatively impacts the value and marketability of the defendant's property, as well as ...


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