GORDON GEIGER ET AL.
December 7, 2016
from Superior Court, judicial district of Litchfield, J.
Geiger, self-represented, the appellant (named plaintiff).
P. Steck, for the appellee (defendant).
Lavine, Beach and West, Js.
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; (5) quiet title; (6) intentional
infliction of emotional distress; and (7) negligent
infliction of emotional distress.
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.
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.
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
judgment is affirmed.
GEIGER ET AL.
filed February 25, 2015
Court, Judicial District of Litchfield File No.
of decision after completed trial to court. Judgment for
defendant in part on complaint and in part on counterclaim.
Geiger, self-represented, the plaintiff.
Geiger, self-represented, the plaintiff.
P. Steck, for the defendant.
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'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.
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.
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.
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.
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.
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.
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.'' Elizabeth Geiger filed an appearance
on the date of the 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.
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.
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.'' (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.
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.
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.
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.
of the Parties
plaintiffs alleged the following facts in the revised
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
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.
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.
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.
above described actions of the defendant constitute trespass
on Elizabeth Geiger's property ownership rights and on
Gordon Geiger's property possession rights.
defendant's action in cutting down the oak tree was a
wilful violation of § 52-560.
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.
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
defendant alleges the following facts in his counterclaim.
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
defendant obtained a survey of his property on or about April
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