KIRK B. DAVIS ET AL.
PROPERTY OWNERS ASSOCIATION AT MOODUS LAKE SHORES, INC., ET AL.
April 17, 2018
for, inter alia, a judgment declaring that the plaintiffs
have an easement over certain of the named defendant's
real property, and for other relief, brought to the Superior
Court in the judicial district of Middlesex, where the court,
Aurigemma, J., granted the defendants' motion
for a nonsuit as to certain counts of the complaint;
thereafter, the matter was tried to the court, Domnarski,
J.; subsequently, the court denied the plaintiffs'
motions to preclude certain evidence; judgment for the
defendants, from which the plaintiffs appealed to this court.
W. Jezek, with whom, on the brief, was Deborah L. Barbi, for
the appellants (plaintiffs).
A. Bataille, for the appellees (defendants).
DiPentima, C. J., and Keller and Elgo, Js.
plaintiffs, Kirk B. Davis and Elyssa J. Davis, appeal from
the judgment of the trial court in favor of the defendant
Property Owners Association at Moodus Lake Shores,
Inc. The plaintiffs claim on appeal that
the court erred by (1) denying their motions in limine
seeking to preclude the defendants' experts from
testifying and (2) not finding that the plaintiffs had an
easement by implication over the defendants' property. We
affirm the judgment of the trial court.
January 19, 2012, the plaintiffs commenced a ten count action
against the defendants seeking to quiet title on a parcel of
land, a declaratory judgment for an easement, and monetary
damages for tortious conduct. In the first count of the
complaint, the plaintiffs sought a declaratory judgment
establishing an easement over the association's property.
In support, the plaintiffs alleged the following: In 2003,
the plaintiffs purchased a ‘‘certain . . . parcel
of land, with the buildings and other improvements thereon,
known as 38Hilltop Road, Moodus''; the association is
‘‘the incorporated association of owners of land
at Moodus Lake Shores, charged with the responsibility of
maintenance as a residential resort area''; the
plaintiffs are members of the association; the association
owns the parcel of land abutting the eastern edge of the
plaintiffs' property; Alan B. Collette is a member of the
board of directors and the current president of the
association; Donald Sama is a member of the board of
directors for the association; Gail Sama is a member of the
board of directors of the association and the current
secretary; since 1962, the only means of access to a public
road from the plaintiffs' property is by crossing over
the northwest corner of the association's parcel; between
1962 and 2007, the plaintiffs' and their predecessors had
‘‘unfettered access and egress'' from
their property to Hilltop Road via a driveway over the
northwest corner of the association's lot; in 2007, the
defendants installed wheel stops on the association's
parcel, affecting the plaintiffs' access to their
property; in 2009, the wheel stops were removed and the
plaintiffs installed a planter ‘‘on or near the
boundary line'' of the association's and the
plaintiffs' properties; in August, 2010, the defendants
removed the planter and built a fence that substantially
blocked the plaintiffs' ability to gain access to their
property; in November, 2011, the defendants extended the
fence, completely blocking off the plaintiffs' access and
entrapping their vehicles, leading to police involvement on
multiple occasions; the plaintiffs no longer have a practical
method of reaching a public road; and the defendants no
longer acknowledge that the plaintiffs have an easement over
the association's property.
second count, the plaintiffs sought a judgment quieting title
to a northwestern portion of the association's parcel
pursuant to General Statutes § 47-21. In count
three, the plaintiffs claimed that an easement by
implication over that northwestern portion of the
association's property is reasonably necessary for the
plaintiffs in order for the plaintiffs to have access to a
public road. In the fourth count, the plaintiffs claimed an
easement by prescription over the same portion of the
fifth count, the plaintiffs alleged that the defendants have
‘‘maliciously erected fences, barriers or other
structures blocking the access and egress rights of the
plaintiffs, and trapping their motor vehicles inside of said
fences and barriers . . . .'' In addition, the
plaintiffs alleged that the fences ‘‘have no
purposes and/or are useless to the defendants, '' and
have impaired the value of the plaintiffs' property and
diminished the plaintiffs' enjoyment of it. The
plaintiffs sought relief pursuant to General Statutes
§§ 52-570 and 52-480.''
counts six through nine, the plaintiffs brought causes of
action seeking monetary damages from the defendants. In count
six, the plaintiffs claimed that the defendants were liable
for the intentional infliction of emotional distress for
their conduct toward the plaintiffs associated with the
construction and alterations to the fence. In count seven,
the plaintiffs alleged that the defendants, by constructing
the fence, created an unreasonable risk of physical and
emotional harm. In the eighth count, the plaintiffs alleged
that the defendants' use of their property amounted to a
private nuisance. In the ninth count, the plaintiffs alleged
that the defendants were liable for civil conspiracy for
having performed the unlawful acts described in counts six,
seven, and eight.
tenth count, the plaintiffs sought to remove Collette, Donald
Sama, and Gail Sama as directors of the association. In
support of this count, the plaintiffs stated, among other
things, that Collette, Donald Sama, and Gail Sama breached
their fiduciary duty to the association by ignoring valid
votes of the board of directors/members, failing to provide
full details of board actions and meeting minutes to members,
taking unauthorized actions, eliminating the bidding process
for roadwork contracts, ‘‘making or breaking
rules as they deem fit, '' removing other board
members, and ‘‘treating the [association] as
their own personal fiefdom by ignoring votes, ignoring
budgets, and holding secret or illegal meetings . . .
defendants answered on November 20, 2012, and denied the
plaintiffs' claims. In addition, the defendants raised
nine special defenses. Specific to the plaintiffs'
easement by implication claim, the defendants asserted that
the plaintiffs ‘‘could and can'' access
their property without crossing over the association's
25, 2014, the defendants filed a motion for nonsuit pursuant
to Practice Book §§ 13-14 and 17-31. The defendants
argued that, despite court orders to do so, the plaintiffs
had not provided evidence to support their causes of action
seeking damages for personal injuries and emotional distress.
The plaintiffs did not respond to this motion. On September
2, 2015, the court, Aurigemma, J., granted
this motion for nonsuit on counts six through nine, and the
portion of count five seeking monetary damages. See footnote
6 of this opinion.
a bench trial, the court found the following facts. The
plaintiffs purchased their lake front property in 1998; at
this time, there was a small seasonal house on the property.
The association's property, which is comprised of a
parking lot and a beach area, abuts the eastern edge of the
plaintiffs' property. Hilltop Road runs along the
northern edge of the plaintiffs' property.
the plaintiffs' predecessors in interest, Joseph A.
Querion and Frances B. Querion, purchased the parcel that now
comprises a majority of the plaintiffs' property, it
could be accessed only by foot. In order to gain vehicle
access to the lot, the Querions purchased a parcel of land
from the defendants' predecessors in interest. The
‘‘deed for the land acquired by the Querions, to
be used to access their property, did not contain any grant
of easement to use the adjoining land of the association for
purposes of ingress and egress. . . . Furthermore, there are
no later deeds or grants in the chains of title for the
plaintiffs' or [association's] property that
establish a right-of-way or easement over the defendants'
property in favor of the plaintiffs.''
‘‘A driveway was constructed in 1966, which
involved the removal of [a] ledge in the vicinity of Hilltop
Road. To prevent erosion of the driveway, an erosion wall
[made] of rocks was constructed in the vicinity of the
thirty-five foot long common boundary [between the
plaintiffs' and defendants' property].'' This
erosion wall was constructed entirely on the plaintiffs'
property. As this erosion wall was sited between the
historical driveway and the association's property,
‘‘the historical location of the subject driveway
was entirely on the plaintiffs' property, and no portion
was located on the [association's] property.''
2003, the plaintiffs renovated their property. The plaintiffs
extensively remodeled their house to convert it into a
larger, year-round residence. In addition, the plaintiffs
made alterations to the slope of their property and
constructed a new driveway. The regrading efforts eliminated
a two foot ledge between the plaintiffs' and the
association's properties. A portion of the new driveway
encroached on the association's property.
renovations to the plaintiffs' property made it possible
for vehicles to travel from the new driveway to the
‘‘vicinity of stairs on the [association's]
property, which provided access to the beach. Between 2006
and 2011, the parties discussed the issue of the
plaintiffs' new driveway and the stairs. Several
arrangements for protecting the safety of people using the
stairs [were put in place by both parties], including a curb
stop, a large planter, and a short barricade style fence.
None of these arrangements produced long-lasting results that
were acceptable to both parties. In September, 2011 . . .
Collette, president of the . . . association, consulted an
attorney about the rights and obligations of the association
regarding the safety of members using the beach area . . . .
In a letter to Collette, dated September 20, 2011, the
attorney [wrote]: ‘[T]he [a]ssociation is within its
legal rights and authority to act in connection with the use
of its property by any party. . . . [T]he [a]ssociation is
required to act in connection with the safety and protection
of its members. . . . [F]ailure [to] act may result in a
liability claim against the [a]ssociation. . . . Further,
failure of the [a]ssociation to assert its rights may result
in a future claim of easement by extended use.'
'' After receiving this letter, the association
installed a fence along the common boundary.
court ruled in favor of the defendants on all remaining
counts. This appeal followed. Additional facts will be set
forth as necessary.
plaintiffs claim that the court erred by denying their
motions in limine seeking to preclude two of the
defendants' expert witnesses, John L. Heagle, a surveyor,
and Edward A. Dilport, a photogrammetrist, from
testifying at trial. The plaintiffs' main assertion is
that these experts should not have been allowed to testify
because they were disclosed too late. The defendants argue
that the plaintiffs were not prejudiced because they had
sufficient time to prepare before the experts testified and
had a chance to present rebuttal evidence. We agree with the
following additional facts are relevant to this claim. On
November 14, 2014, the plaintiffs filed a proposed scheduling
order, which the court accepted. This order required the
defendants to disclose their witnesses by April 1, 2014.
Trial commenced on November 12, 2014, and continued on
November 13, 18 and 19, 2014. The plaintiffs provided the
defendants with an overlay map created by their expert,
Ronald C. Hurlburt, a surveyor, as the trial commenced. After
a discussion with the parties in a chambers conference, the
court offered the defendants time to review this map and
consult an expert of their own. The defendants disclosed that
they planned to present the testimony of Heagle, a land
surveyor, on December 2, 2014. In response, on January, 16,
2015, the plaintiffs requested a continuance, seeking more
time to investigate the content of Heagle's proposed
testimony, which the court granted. The trial resumed on
September 15, 16 and 17, 2015.
December 2, 2014, the defendants disclosed Heagle, a land
surveyor and civil engineer, as an expert witness. Heagle was
expected to testify about ‘‘the boundary issues
and questions relevant to [the present case] and,
specifically, including the location and evidence pertaining
to the easement or right-of-way at issue.'' On
January 20, 2015, the defendants again filed a motion to
disclose Heagle as an expert witness, essentially listing the
same expected testimony.
January 20, 2015, the defendants disclosed Lemuel G. Johnson,
Jr., a photogrammetrist, as an expert. The defendants
disclosed that Johnson was ‘‘expected to testify
concerning aerial photographs taken of the property in 2001,
which . . . are maintained in the ordinary course of Golden
Aerial Survey's business and contained in its
photographic inventory not expressly for the purpose of this
litigation. In addition, [Johnson] is expected to testify
concerning digital photogrammetric elevation measurements
taken from the 2001 aerial photography of the subject site as
depicted on the photogrammetric map of the subject area. . .
. Finally, [Johnson] is expected to testify concerning the
contents of [the] photogrammetric map of the subject area on
[Hilltop Road] . . . .'' (Footnote added.)
concerns about Johnson's health, on June 4, 2015, the
defendants filed a motion to disclose Dilport, another
photogrammetrist and employee of Golden Aerial Surveys, Inc.
The listed subject matter of Dilport's expected testimony
was, in substance, the same as the proposed subject matter of
Johnson's testimony. Specifically, the defendants
disclosed that Dilport was expected to testify about the
location of the historic driveway by analyzing aerial
photographs taken in 2001.
plaintiffs deposed Heagle once on December 3, 2014, and,
again, on February 11, 2015. The plaintiffs deposed Dilport
on July 2, 2015. On September 4, 2015, the plaintiffs
disclosed Terry LeRoux, a photogrammetrist, as an expert
witness. The plaintiffs stated that LeRoux would be a
rebuttal witness and was expected to testify about high
resolution photographs and anaglyphs of the site.
September 11, 2015, the plaintiffs filed motions in limine to
preclude the testimony of Heagle and Dilport. The plaintiffs
premised their arguments in support of these motions on the
fact that Dilport and Heagle were disclosed late, and that it
would be prejudicial to allow them to testify because there
would not be sufficient time to prepare for their testimony.
They asserted that the late disclosure was particularly
harmful with respect to Dilport because the January 20, 2015
disclosure was the first time that the defendants had
mentioned that a photogrammetrist would testify. The
plaintiffs noted that the scheduling order accepted by the
court required the parties to disclose expert witnesses by
April 1, 2014. In addition, they argued that Practice Book
§ 13-4 prohibits the late disclosure of experts. The
defendants did not file a motion in opposition to the
plaintiffs' motions in limine. The court summarily denied
the plaintiffs' motions, without prejudice, and trial
resumed on September 15, 2015.
and Dilport both testified at trial. After Johnson and
Dilport testified, the plaintiffs presented the testimony of
LeRoux in rebuttal. The court found Johnson and Dilport to be
credible and relied on their opinions in making factual
findings. The court noted that LeRoux' testimony
‘‘generally agreed with Dilport's testimony
and opinions.'' The court found, however, that
LeRoux' lack of ‘‘any control point data . .
. diminished the weight of his testimony.''
begin by setting forth the standard of review and principles
of law pertinent to this claim. ‘‘[T]he motion in
limine . . . has generally been used in Connecticut courts to
invoke a trial judge's inherent discretionary powers to
control proceedings, exclude evidence, and prevent
occurrences that might unnecessarily prejudice the right of
any party to a fair trial. . . . The trial court's ruling
on evidentiary matters will be overturned only upon a showing
of a clear abuse of the court's discretion. . . . We will
make every reasonable presumption in favor of upholding the
trial court's ruling, and only upset it for a manifest
abuse of discretion. . . . [Thus, our] review of such rulings
is limited to the questions of whether the trial court
correctly applied the law and reasonably could have reached
the conclusion that it did.'' (Citation omitted;
internal quotation marks omitted.) McBurney v.
Paquin, 302 Conn. 359, 378, 28 A.3d 272 (2011).
Book § 13-4 (h) provides: ‘‘A judicial
authority may, after a hearing, impose sanctions on a party
for failure to comply with the requirements of this section.
An order precluding the testimony of an expert witness may be
entered only upon a finding that: (1) the sanction of
preclusion, including any consequence thereof on the
sanctioned party's ability to prosecute or to defend the
case, is proportional to the noncompliance at issue, and (2)
the noncompliance at issue cannot adequately be addressed by
a less severe sanction or combination of sanctions.''
The plaintiffs argue that they were denied a fair trial
because the defendants disclosed Heager and Dilport too
late. The plaintiffs assert that the
defendants, by disclosing these experts in the manner in
which they did, engaged in the ‘‘cat and mouse
game'' that timely disclosure is meant to prevent.
See Pool v. Bell, 209 Conn. 536, 541, 551
A.2d 1254 (1989). In Pool, our Supreme Court decided
that a trial court's decision to preclude an expert
witness from testifying when a party elected to disclose that
witness only three weeks prior to the start of trial, having
consulted with that expert for more than one year and having
received a court order to disclose experts during that time,
was not an abuse of discretion on the basis of the facts of
that case. Id., 540-42. The present case does not
contain the same facts that supported affirming the
preclusion of the untimely disclosed expert in Pool.
In the present case, the plaintiffs received notice that the
defendants planned to call a surveyor ten months before trial
resumed and that the defendants planned to present the
testimony of a photogrammetrist nine months before trial
resumed. Unlike Pool, the plaintiffs in the present
case have failed to demonstrate that the lengthy delay
between the time of disclosure and the time when trial
resumed did not afford them an ample opportunity to rebut the
testimony at issue. This lengthy delay gave the plaintiffs
ample opportunity to mitigate any purported harm caused by
the timing of the defendants' disclosure. Indeed, the
record reveals that the plaintiffs took advantage of this
opportunity to do so. The plaintiffs were able to depose the
defendants' experts and they were also able to consult
their own expert in order to present rebuttal evidence.
defendants correctly assert that the plaintiffs could have
sought a continuance to seek more time to prepare for trial.
‘‘A continuance is ordinarily the proper method
for dealing with a late disclosure. . . . A continuance
serves to minimize the possibly prejudicial effect of a late
disclosure and absent such a request by the party claiming to
have been thus prejudiced, appellate review of a late
disclosure claim is not warranted.'' (Citations
omitted; internal quotation marks omitted.) Rullo v.
General Motors Corp., 208 Conn. 74, 79, 543 A.2d 279
(1988). If the plaintiffs believed that they needed
additional time, instead of filing motions in limine on the
ground that disclosure was untimely, or after those motions
were denied, the plaintiffs could have asked the court for
more time to prepare for trial. Regardless, they cannot
persuade us that the court abused its discretion by allowing
Heagle and Dilport to testify on the ground that the
defendants disclosed these witnesses late, when they never
alerted the court that they needed an additional continuance
for the purposes of rebutting the untimely disclosed
evidence. Also, although invited by the court, the plaintiffs
never renewed their objection when the defendants'
experts testified and in fact stipulated to the admissions of
Dilport's photogrammetric analysis and Heagle's
the court did not abuse its discretion by denying the
plaintiffs' motions in limine seeking to preclude the
testimony of Heagle and Dilport because by the time that
those motions were presented to the court, which was just
before the trial was set to resume, the plaintiffs could not
demonstrate how they were prejudiced.
plaintiffs' second claim is that the court erred by not
granting them an easement by implication. After examining the
record and the briefs and considering the arguments of the
parties, we are persuaded that the court correctly rendered
judgment in favor of the defendants. The issues raised by the
plaintiffs in this claim were resolved properly in the trial
court's thorough and well reasoned memorandum of
decision. We therefore adopt the memorandum of decision as
the proper statement of the relevant facts, issues and
applicable law with respect to this issue only. Davis
v.Property Owners Association at Moodus Lake
Shores, Inc., Superior Court, judicial district of
Middlesex, Docket No. CV-12-6006823-S (February 24, 2016)
(reprinted at 183 Conn.App. 704). It would serve ...