Lyme Land Conservation Trust, Inc. v. Platner

          Argued May 2, 2019

         Procedural History

         Action 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; further proceedings.

          Wesley W. Horton, with whom were Brendon P. Lev-esque and, on the brief, Kari L. Olson and Janet P. Brooks, for the appellant (named defendant).

          John 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 Ecker, Js.

          OPINION

          McDONALD, J.

         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 the issue of damages. The defendant challenges the judgment as to both the damages awarded to the plaintiff, Lyme Land Conservation Trust, 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 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.

         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., 741. 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., 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.

         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., 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.

         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., 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.

         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., 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.

         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., 762 and n.17. The court also ordered further hearings to address the specific manner and timing of implementing plan one. Id., 763.

         At the 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.

         In that 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 ...