LYME LAND CONSERVATION TRUST, INC.
BEVERLY PLATNER ET AL.
May 2, 2019
to enjoin the named defendant from violating certain
conservation restrictions on certain of the named
defendant's real property, and for other relief, brought
to the Superior Court in the judicial district of New London,
where the court, Cosgrove, J., granted the
plaintiff's motion to withdraw the complaint as to the
defendant Joseph G. Standart III et al. and to withdraw the
claim for a declaratory judgment; thereafter, the court,
Devine, J., granted the motion of the attorney
general to intervene as a plaintiff; subsequently, the
intervening plaintiff filed a complaint, and the named
defendant filed counterclaims as to the plaintiff's
second amended complaint and the intervening plaintiff's
complaint; thereafter, the case was tried to the court,
Hon. Joseph Q. Koletsky, judge trial referee, who,
exercising the powers of the Superior Court, rendered
judgment for the plaintiff and for the intervening plaintiff
on their complaints and on the named defendant's
counterclaims, from which the named defendant appealed;
subsequently, the court, Hon. Joseph Q. Koletsky,
judge trial referee, issued certain orders as to the
injunctive relief granted, and the named defendant filed an
amended appeal; thereafter, this court reversed in part the
judgment of the trial court and remanded the case to that
court with direction to recalculate the award of
attorney's fees and damages; subsequently, the court,
Hon. Joseph Q. Koletsky, judge trial referee, denied
the named defendant's motions to disqualify, to open the
judgment, and to allow evidence; thereafter, the court,
Hon. Joseph Q. Koletsky, judge trial referee, issued
certain orders, and the named defendant appealed.
Reversed in part; vacated in part;
W. Horton, with whom were Brendon P. Lev-esque and, on the
brief, Kari L. Olson and Janet P. Brooks, for the appellant
F. Pritchard, pro hac vice, with whom were Tracy M. Collins
and Timothy D. Bleasdale, and, on the brief, Edward B.
O'Connell, for the appellee (named plaintiff).
Robinson, C. J., and Palmer, McDonald, Mullins, Kahn and
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.
defendant Beverly Platner 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.,  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
todisqualify 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.
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. The defendant has owned 66 Selden Road in
Lyme (property) since 2007. Id., 741. The plaintiff
holds a conservation restriction (easement) on the property,
which, consistent with General Statutes § 47-42a (a),
prohibits the defendant from making certain
changes to the property that would disturb its ‘‘
‘natural . . . condition' . . . .''
Id., 741-42. Approximately 14.3 of the
property's 18.7 acres are subject to the easement.
Id., 742. This protected area includes a large
meadow and a smaller woodlands area. Id.
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., 743. 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.
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., 743-44. 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., 744.
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., 745. The court issued an injunction, requiring
the defendant to restore the property to its prior condition.
Id., 744-45. 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., 762. 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.
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., 762 and n.17. The
court also ordered further hearings to address the specific
manner and timing of implementing plan one. Id.,
subsequent hearing regarding implementation, experts for both
parties proposed differing courses of action to effectuate
the restoration. Id., 763. 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., 746 n.9.
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., 741. 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., 764-65. 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 ‘‘the trial court's damages
award . . . was compliant with § 52-560a (d) at the time
it initially was issued. . . . [T]he award was anchored in
the evidence that restoration costs would be $100, 000 or
more and, accordingly, did not run afoul of the statutory
maximum ratio of punitive damages to actual damages. When the
court later adopted a different restoration plan, however,
with no evidence of its cost, its earlier award lost its
mooring and the ratio of punitive damages to actual damages
became unknown. If the restoration plan ultimately ordered by
the court costs less than $70, 000 to implement, the
court's award of $350, 000 would include a punitive
portion that exceeds the fivefold maximum authorized by
§ 52-560a (d). Upon remand, the trial court should
take evidence as to the cost of the plan that it ordered and
fashion a new damages award that is within the ...