LYME LAND CONSERVATION TRUST, INC.
Beverly PLATNER et al.
May 2, 2019
Court, Judicial District of New London, Joseph Q. Koletsky,
Judge Trial Referee.
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).
Pritchard, pro hac vice, with whom were Tracy M. Collins, New
London and Timothy D. Bleasdale, and, on the brief, Edward B.
OConnell, New London, for the appellee (named plaintiff).
C. J., and Palmer, McDonald, Mullins, Kahn and Ecker, Js.
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 courts 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
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., 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 courts 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., at 741, 159 A.3d
666. 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., at 741-42,
159 A.3d 666. Approximately 14.3 of the propertys 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.
Conn. 284] In 2007, the defendant began making a series of
changes to the protected area, despite the plaintiffs
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.
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
attorneys fees under § 52-560a. Id., at 744, 159
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
areas 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 courts initial restoration plan
(plan one), which was developed by the plaintiffs 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 plaintiffs 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., at 762 and n.17, 159 A.3d 666. The court also
ordered further hearings to address the ...