Lyme Land Conservation Trust, Inc. v. Platner

         Argued May 2, 2019

         Superior Court, Judicial District of New London, Joseph Q. Koletsky, Judge Trial Referee.

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          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.

          OPINION

         McDONALD, J.

         [334 Conn. 282] 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 Platner^[1] 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

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the issue of damages. The defendant challenges the judgment as to both the damages awarded to the plaintiff, Lyme Land Conservation Trust, [334 Conn. 283] 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.

         [334 Conn. 284] 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.

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          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 [334 Conn. 285] 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 ...