Lyme Land Conservation Trust, Inc. v. Platner ( 2019 )

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LYME LAND CONSERVATION TRUST, INC. v.
BEVERLY PLATNER ET AL.
(SC 20071)
Robinson, C. J., and Palmer, McDonald,
Mullins, Kahn and Ecker, Js.
Syllabus
Pursuant to statute (§ 51-183c), a judge who has tried a case without a jury
in which a new trial is granted, or in which the judgment is reversed
by the Supreme Court, may not again try the case.
The defendant property owner appealed from the trial court’s judgment
rendered following a hearing in damages that was held on remand in
connection with the plaintiff conservation trust’s claim that the defen-
dant had wilfully violated a conservation easement in contravention of
the statute (§ 52-560a [b]) prohibiting encroachment on such an ease-
ment. After a trial to the court, which found that the defendant had
violated the easement, the court ordered the defendant to restore the
property to its prior condition in accordance with a plan proposed by
the plaintiff’s expert at a cost of approximately $100,000. The court also
awarded the plaintiff $350,000 in punitive damages pursuant to § 52-560a
(d), which permits damages of up to five times the cost of restoration,
and ordered further hearings to address the specific manner and timing
of implementation of the restoration plan. At a subsequent hearing, at
which experts for both parties proposed differing courses of action to
effectuate restoration, the trial court ordered a new restoration plan
but did not take evidence as to the cost of the new restoration plan or
revisit its punitive damages award. The defendant thereafter appealed,
and this court concluded that, although the trial court had properly
found that the defendant violated the easement and that the new restora-
tion plan was authorized and supported by sufficient evidence, the trial
court’s punitive damages award under § 52-560a (d) lacked the requisite
evidentiary foundation. Specifically, that award had been compliant with
§ 52-560a (d) at the time it was initially issued, as it was based on
evidence that restoration costs would be approximately $100,000, but,
when the trial court adopted the new restoration plan with no evidence
of its cost, the ratio of actual damages to punitive damages could not be
determined. Accordingly, this court reversed the trial court’s judgment
as to damages and remanded the case to the trial court with direction
to take evidence as to the cost of the new plan to fashion a new damages
award that was within the framework of § 52-560a (d). On remand, the
defendant filed a motion to disqualify the trial judge, K, from further
participation in the proceedings pursuant to § 51-183c, which K denied.
K concluded that he was not disqualified because this court had not
ordered a new trial but reversed only a portion of the trial court’s
judgment and remanded on two precise matters, affirming the judgment
in all other respects. K also denied the defendant’s motions to open the
judgment and to allow new evidence regarding the implementation of
the restoration plan, and, after the parties presented expert testimony
as to the cost of the new restoration plan, K found that its cost was
$242,244 and again awarded $350,000 in punitive damages. On the defen-
dant’s appeal, held:
1. K was required to disqualify himself from the proceedings held on remand
after the first appeal, this court having determined that its decision in
the first appeal reversing the trial court’s judgment in part and remanding
the case to the trial court with direction to take evidence and to recalcu-
late damages fell within the ambit of § 51-183c and, therefore, required
a different trial judge to preside over the case on remand: this court
construed § 51-183c in a manner to advance its policy of requiring the
disqualification of a judge in order to protect against a lack of impartiality
or an appearance thereof and concluded that § 51-183c was applicable
when a judgment is reversed in part and fewer than all of the issues
must be retried, including situations, such as in the present case, in
which the judgment is reversed as to damages and remanded for a new
trial only on the issue of damages; accordingly, the trial court’s judgment
was reversed with respect to the award of damages, and the case was
remanded for a recalculation of damages, before a different judge, con-
sistent with this court’s opinion in the first appeal.
2. This court declined to address the defendant’s claims that K improperly
denied her motions to open the judgment and to allow new evidence
and improperly awarded the plaintiff $350,000 in punitive damages on
the ground that the plaintiff failed to prove the cost of the new restoration
plan, as those claims could not be analyzed or adjudicated independently
of the disqualification issue because they emanated from rulings that
resulted from the same trial judge’s improper presiding over the proceed-
ings on remand; a new judge on remand will make his or her own
determinations regarding the merits of the motion to open and what
evidence will or may be submitted in support of the claims and defenses
raised by the parties, and the plaintiff may adopt a different litigation
strategy involving different evidence on remand.
Argued May 2—officially released December 31, 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 with-
draw 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 sec-
ond amended complaint and the intervening plaintiff’s
complaint; thereafter, the case was tried to the court,
Hon. Joseph Q. Koletsky, judge trial referee, who, exer-
cising the powers of the Superior Court, rendered judg-
ment for the plaintiff and for the intervening plaintiff
on their complaints and on the named defendant’s coun-
terclaims, 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).
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 judg-
ment. 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 recalcu-
late damages.
The defendant Beverly Platner1 appeals from the judg-
ment 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 dam-
ages 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 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., 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 vio-
lated the easement. With respect to the meadow, those
changes included: regular mowing; installing an irriga-
tion 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. Kolet-
sky, judge trial referee. The court held that the defen-
dant had not merely violated the easement but had
‘‘completely subvert[ed] and eviscerate[d] the clear pur-
pose 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, requir-
ing 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 restric-
tion. 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 spe-
cific planting proposals to execute this new strategy,
and after the parties did so, the court ordered the defen-
dant 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 defen-
dant 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 defen-
dant 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 requi-
site 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 imple-
ment, 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 statutory parameters.’’ (Emphasis
added.) Id., 764. The rescript to our opinion ordered as
follows: ‘‘The judgment is reversed as to the award of
. . . damages pursuant to § 52-560a (d), and the case
is remanded for a recalculation of . . . damages con-
sistent with this opinion; the judgment is affirmed in
all other respects.’’5 (Emphasis added.) Id., 765.
On remand, the defendant filed a motion to disqualify
Judge Koletsky from further participation in the pro-
ceedings pursuant to § 51-183c and Practice Book § 1-
22.6 Judge Koletsky summarily denied the motion. In a
subsequent articulation, he offered the following reason
for denying the motion: ‘‘Because the Supreme Court
did not order a new trial but rather reversed only certain
portions of the judgment and remanded for [a] hearing
on two precise matters, affirming the judgment in all
other respects, the court concluded it was not disquali-
fied from hearing the matter.’’
After her motion to disqualify was denied, the defen-
dant moved to open the judgment and to allow evidence
regarding plan two. She asserted that plan two was no
longer necessary or workable because the property had
restored itself naturally in the three growing seasons
that had passed since the trial court’s order. Judge
Koletsky denied both motions.
In subsequent proceedings before Judge Koletsky on
the issue of statutory punitive damages, both parties
presented expert testimony as to the cost of plan two.
Judge Koletsky found that the cost of plan two was
$242,244 and set punitive damages at $350,000, the same
amount he had awarded previously. This appeal
followed.7
The defendant raises three issues in this appeal. First,
she claims that the trial court improperly denied her
disqualification motion because § 51-183c and Practice
Book § 1-22 precluded Judge Koletsky from retrying the
issue of damages after our reversal in part and remand
in her first appeal. Second, the defendant claims that
the trial court improperly denied her motion to open
the judgment because it was an abuse of discretion to
implement, in 2017, a restoration plan that was based
on the property’s 2015 condition without considering
how the property had changed in the intervening two
years. Third, the defendant claims that the trial court
improperly awarded the plaintiff $350,000 in damages
because, on remand, the plaintiff failed to meet its bur-
den of proving the ‘‘cost of restoration’’ as required for
a damages award under § 52-560a. We agree with the
defendant that Judge Koletsky was required to disqual-
ify himself under § 51-183c. In light of this conclusion,
we do not reach the other issues.
I
The defendant contends that our decision and direc-
tion to the trial court in her first appeal brings the
remand proceeding within the scope of § 51-183c and
therefore required a different trial judge to preside over
the case on remand. We agree.
Whether § 51-183c requires a judge to be disqualified
in circumstances such as these is a matter of statutory
construction over which we exercise plenary review.
See, e.g., Cambodian Buddhist Society of Connecticut,
Inc. v. Planning & Zoning Commission, 285 Conn. 381,
422–23, 941 A.2d 868 (2008). ‘‘When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case . . . . [General Statutes] § 1-
2z directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . When a statute is not plain and unam-
biguous, we also look for interpretive guidance to the
legislative history and circumstances surrounding its
enactment, [including] the legislative policy it was
designed to implement . . . .’’ (Internal quotation
marks omitted.) Smith v. Rudolph, 330 Conn. 138, 143,
191 A.3d 992 (2018).
Section 51-183c is one of several provisions in our
law that dictates when a judge must be disqualified to
protect against a lack of impartiality or the appearance
thereof, unless the parties otherwise consent. See, e.g.,
General Statutes §§ 51-39, 51-183h and 54-33f (a); Code
of Judicial Conduct, Canon 2.11; State v. Shabazz, 246
Conn. 746, 768–69, 719 A.2d 440 (1998), cert. denied,
525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999);
see also Ajadi v. Commissioner of Correction, 280
Conn. 514, 527–28, 911 A.2d 712 (2006) (‘‘the appearance
and the existence of impartiality are both essential ele-
ments of a fair exercise of judicial authority’’ [internal
quotation marks omitted]). Section 51-183c addresses
this concern in a particular context, providing in rele-
vant part: ‘‘No judge of any court who tried a case
without a jury in which a new trial is granted, or in
which the judgment is reversed by the Supreme Court,
may again try the case. . . .’’ (Emphasis added.)
Neither party expressly addresses whether § 51-183c
is ambiguous.8 Unlike the trial court’s position, which
rested on a categorical interpretation of the statute—
that a partial reversal falls outside the statute’s scope—
the parties’ arguments focus on whether the statute
applies under the particular facts of this case. They
offer competing positions on whether our decision in
the first appeal resulted in a ‘‘reversal’’ of the judgment
and whether the remand ordered a new trial (i.e., ‘‘again
try the case’’). The defendant argues that the first appeal
‘‘clearly was a reversal and there clearly was an order to
take evidence. That is what trials are for.’’ The plaintiff
argues that the first appeal did not result in a reversal
and that the remand was not for a trial because we
remanded not to correct an error of the trial court but
only for further fact-finding to determine whether an
error had occurred. We agree with the defendant.
The first question that arises is whether § 51-183c
applies when we reverse a judgment in part and remand
the case to the trial court for reconsideration of fewer
than all of the issues in the case. This appears to be
the consideration that led the trial court to deny the
motion to disqualify. Because § 51-183c refers to ‘‘the
judgment’’ and retrial of ‘‘the case’’—not reversal of
‘‘any part of the judgment’’ and retrial of ‘‘any issue in
the case’’—it could be read to apply only when this
court reverses the judgment in its entirety and orders
a new disposition of all of the legal claims between the
parties. Such a construction, though plausible, plainly
would not serve the clear purpose of the statute. There
is no logical basis to distinguish disqualification con-
cerns that might arise from a judge’s retrying a case in
which the judgment was reversed as to all of the claims
and, for example, an appellate reversal requiring retrial
on all but one of the claims, or a reversal as to all of
the claims tried to the court but not those tried to the
jury.9 In the absence of legislative history supporting
such a counterintuitive result, we interpret the statute
in a manner to advance the policy it is intended to
effectuate. See State v. Scott, 191 Conn. App. 315, 356,
214 A.3d 871 (2019) (‘‘the concern present in these situa-
tions [is that] ‘[s]ome may argue that a judge will feel
the motivation to vindicate a prior conclusion when
confronted with a question for the second or third
time’ ’’ [internal quotation marks omitted]) (quoting
Liteky v. United States, 510 U.S. 540, 562, 114 S. Ct.
1147, 127 L. Ed. 2d 474 [1994] [Kennedy, J., concurring
in the judgment]), cert. denied, 333 Conn. 917, 216 A.3d
651 (2019). The Appellate Court has previously recog-
nized as much. See Barlow v. Commissioner of Correc-
tion, 166 Conn. App. 408, 423–24, 142 A.3d 290 (rejecting
argument that § 51-183c did not apply because rescript
stated habeas court’s judgment was ‘‘ ‘reversed in
part’ ’’), appeal dismissed, 328 Conn. 610, 182 A.3d 78(2018); see also Rosato v. Rosato, 255 Conn. 412, 425
n.18, 766 A.2d 429 (2001) (applying § 51-183c in case
in which this court had reversed judgment only with
respect to financial orders in dissolution action and
remanded for hearing to resolve questions about par-
ty’s pension).
Given our conclusion that § 51-183c applies when a
judgment is reversed in part and fewer than all of the
issues in the case must be retried, we next consider
whether reversing the judgment in part for a new pro-
ceeding only as to damages falls within that description.
To try a case, or to conduct a ‘‘trial,’’ is defined as ‘‘[a]
formal judicial examination of evidence and determina-
tion of legal claims in an adversary proceeding.’’ Black’s
Law Dictionary (11th Ed. 2019) p. 1812; see also 75 Am.
Jur. 2d 205, Trial § 1 (2018) (‘‘the judicial investigation
and determination of the issues between the parties to
an action’’). The mechanism of a bifurcated trial is well
established in the law; see General Statutes § 52-205;
and has long been understood to include a ‘‘trial’’ in
which one stage determines liability and the other stage
determines damages.10 See, e.g., Hall v. Burns, 213
Conn. 446, 483, 569 A.2d 10 (1990) (involving bifurcated
trial on issues of liability and damages); Lamb v. Burns,
202 Conn. 158, 159, 520 A.2d 190 (1987) (same); O’Shea
v. Mignone, 50 Conn. App. 577, 582, 719 A.2d 1176(same), cert. denied, 247 Conn. 941, 723 A.2d 319 (1998);
American Law of Product Liability (3d Ed. Rev. 2019)
§ 51:99 (addressing separate ‘‘trial’’ for damages);
Black’s Law Dictionary, supra, p. 1812 (defining bifur-
cated trial as ‘‘[a] trial that is divided into two stages,
such as for guilt and punishment or for liability and
damages’’). In some cases, the issue of liability is not
in dispute, and the only issue being tried is damages.
On remand for a new trial after appeal, a new trial could
be ordered solely on the issue of damages. See, e.g.,
Peck v. Jacquemin, 196 Conn. 53, 73, 491 A.2d 1043(1985) (ordering ‘‘new trial’’ limited to issue of dam-
ages); Smith v. Whittlesey, 79 Conn. 189, 193–94, 63
A. 1085 (1906) (same). A trial in damages, sometimes
known in this state as a hearing in damages, has all the
hallmarks of a trial, including taking evidence, examin-
ing witnesses, finding facts, and applying the law to
those facts. See Practice Book §§ 17-34 through 17-40.
Moreover, because a determination of damages is an
integral part of a trial, there is no appealable final judg-
ment until damages have been determined. See Hylton
v. Gunter, 313 Conn. 472, 478, 97 A.3d 970 (2014) (‘‘[i]t
is well settled that a ‘judgment rendered only upon the
issue of liability without an award of damages is . . .
not a final judgment from which an appeal lies’ ’’).
Having concluded that a judgment that is reversed
as to damages and remanded for a new trial only on
the issue of damages falls within the scope of § 51-
183c, we next consider whether our reversal in part
and remand to the trial court in the first appeal in this
case meets these criteria. We conclude that they do.
Our rescript in the first appeal provided unequivo-
cally: ‘‘The judgment is reversed as to . . . damages
pursuant to § 52-560a (d), and the case is remanded for
a recalculation of . . . damages consistent with this
opinion; the judgment is affirmed in all other respects.’’
(Emphasis added.) Lyme Land Conservation Trust,
Inc. v. Platner, supra, 325 Conn. 765. This direction
plainly constituted a reversal in part of the judgment,
limited to the trial court’s damages award.
Our order also plainly indicated that the remand pro-
ceeding would constitute a trial in damages. The
rescript called for a remand for a recalculation of dam-
ages ‘‘consistent with this opinion’’—that is, consistent
with our prior statements that ‘‘the court’s award of
statutory damages was not compliant with § 52-560a
(d) and must be recomputed based on the costs of the
actual restoration plan ordered’’; id.; and that, ‘‘[u]pon
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 statutory parame-
ters.’’ (Emphasis added.) Id., 764.
What took place at the remand proceeding before
Judge Koletsky, moreover, clearly was a trial in dam-
ages. Both parties put on expert witnesses—Pennington
Marchael for the plaintiff and Michael S. Klein for the
defendant. The plaintiff conducted a direct examination
of Marchael, in which the expert described in detail
each of the restoration procedures and how much they
would cost, ultimately opining that the cost of restora-
tion would be $242,244. The defendant then cross-exam-
ined Marchael, challenging his level of expertise, bases
for and methods of calculations, and conclusion. After
unsuccessfully moving to dismiss the case, the defen-
dant presented its own evidence through its expert,
Klein. The court took evidence, and the parties objected
to the admission of certain testimony and documen-
tary exhibits.
The court, acting as fact finder, credited Marchael’s
testimony and found that the cost of restoration was
$242,244. Mindful that § 52-560a limits punitive damages
to five times the cost of restoration, the court then
directed counsel to determine ‘‘a multiplier that trans-
fers $242,244 to [$350,000] . . . to the extent that the
statute requires a multiplier . . . .’’ Having set punitive
damages at $350,000, the court then opined that ‘‘every-
body’s got all the final judgments that they need’’ for
any further appellate review. In short, the proceeding
had all of the hallmarks of a trial in damages.
The plaintiff, however, correctly notes that one way
a reviewing court ‘‘may remand a case to the original
trial judge for additional proceedings without either
triggering § 51-183c or a dispute over its application is
by not disturbing the original judgment in any way and
making clear that the remand is for the purpose of
further factual findings.’’ Barlow v. Commissioner of
Correction, 328 Conn. 610, 614, 182 A.3d 78 (2018). This
circumstance typically arises where ‘‘the purpose of the
remand is not to correct error but to determine whether
error has occurred.’’ State v. Gonzales, 186 Conn. 426,
436 n.7, 441 A.2d 852 (1982). The plaintiff argues that the
remand ordered in the defendant’s first appeal reflects
such a purpose because our rescript, read in the context
of the broader opinion, reveals that our reversal ‘‘is
more properly understood as placing the award in limbo
pending collection of limited additional evidence’’ to
determine whether the damages award needed to be
adjusted to conform with § 52-560a (d). We disagree.
In our decision in the first appeal, we determined
that ‘‘the court’s award of statutory damages was not
compliant with § 52-560a (d) and must be recomputed
based on the costs of the actual restoration plan
ordered.’’ (Emphasis added.) Lyme Land Conservation
Trust, Inc. v. Platner, supra, 325 Conn. 765. We directed
the trial court to ‘‘take evidence as to the cost of the
plan that it ordered and fashion a new damages award
that is within the statutory parameters.’’ (Emphasis
added.) Id., 764. This holding unambiguously requires
a new trial in damages and plainly contemplates a new
judgment that will include the recomputed restoration
costs and an award of punitive damages compliant with
§ 52-560a (d).
The plaintiff contends, however, that we ‘‘required
the trial court’s original damages award to be ‘refash-
ioned’ only if the new evidence established that the
cost of the restoration plan would be less than $70,000.’’
(Emphasis added.) It points to our statement that, ‘‘[i]f
the restoration plan . . . costs less than $70,000 . . .
the . . . $350,000 would . . . [exceed] the fivefold
maximum authorized by § 52-560a (d)’’ as demonstra-
ting our recognition of the possibility that no error
would exist as long as the plan cost at least $70,000.
In doing so, the plaintiff mischaracterizes our use of
the word ‘‘if’’ and ignores our determination that there
was no evidence to support the award. Lyme Land
Conservation Trust, Inc. v. Platner, supra, 325 Conn.
764. If, on remand, the court were to determine that
the cost of plan two exceeds $70,000—and thus the
original $350,000 would have fallen within the permissi-
ble range of the statutory multiplier—it would not make
it any less of an error for the trial court to have pre-
viously entered the damages award without having
taken evidence to support the order. The trial court’s
damages award was not legally sound because there
was no evidence in the record establishing the cost of
plan two.
Finally, the rescript in the first appeal, which explic-
itly reversed the damages award, is materially different
from rescripts in which we have remanded a case to
determine whether an error occurred. See, e.g., Holland
v. Holland, 188 Conn. 354, 364 and n.6, 449 A.2d 1010(1982) (§ 51-183c is not implicated by rescript
‘‘remand[ing] [the] case for the submission of additional
evidence by the parties and for a fully articulated memo-
randum of decision’’); see also State v. Gonzales, supra,186 Conn. 436 (‘‘A new trial must be ordered if [two]
questions are answered in the affirmative; otherwise the
statement must be sealed and preserved as an exhibit
to enable the defendant, if he wishes, to seek further
judicial review. The case is remanded for further pro-
ceedings in accordance with this opinion.’’).
Our prior decision reversing the judgment in part and
remanding to the trial court to take evidence and to
recalculate damages falls within the ambit of § 51-183c.
Accordingly, Judge Koletsky was required to disqualify
himself on remand after the first appeal.
II
Although this conclusion would appear to dispose of
the defendant’s remaining claims because a new trial
in damages must be held by a different judge, the defen-
dant contends this is not the case. First, the defendant
claims that Judge Koletsky improperly denied her
motion to open the judgment because it was an abuse
of discretion to implement, in 2017, a restoration plan
that was based on the property’s 2015 condition without
considering how the property had changed in the
intervening two years. Second, the defendant claims
that Judge Koletsky improperly awarded $350,000 in
damages on remand because the statutory multiplier
under § 52-560a applies only to the cost of ‘‘restoration’’
but plan two includes remedial requirements that do
not restore the property to its prior condition, and the
plaintiff did not put on any evidence on remand as to
how much of the total cost of plan two was for ‘‘resto-
ration.’’
The defendant’s claims in this regard cannot be ana-
lyzed or adjudicated independently of the disqualifica-
tion issue because they ‘‘emanate from rulings that
resulted from the same trial court improperly presiding
over [the proceedings] on remand.’’ Gagne v. Vaccaro,
133 Conn. App. 431, 433 n.2, 35 A.3d 380 (2012), rev’d
on other grounds, 311 Conn. 649, 658, 90 A.3d 196 (2014).
At oral argument, the defendant conceded that, if we
were to conclude that Judge Koletsky should have been
disqualified, ‘‘the only reason’’ we would reach the issue
regarding the motion to open is if we ‘‘think [the defen-
dant’s case for opening the judgment] was so strong
that the motion had to be granted.’’ In other words, it
would not matter that Judge Koletsky should have been
disqualified because no reasonable judge could have
denied the motion to open. We are not persuaded by
this argument for several reasons. It would be illogical
for us to decide whether to address an issue by deciding
the merits of the issue. Moreover, given the wealth of
reasons set forth in the plaintiff’s opposition to the
motion to open—procedural, substantive, and equita-
ble—we are not prepared to conclude that none of
these reasons could ever provide a reasonable basis for
denying the motion.
With respect to her second remand related claim, the
defendant’s contention essentially is that the plaintiff
failed to meet its burden of proof to support any dam-
ages award above the statutory minimum of $5000. The
defendant asserts that we must reach this issue because,
if we were to agree with her, we would not order a
new trial but, rather, would direct that judgment be
rendered for the statutory minimum.
This argument ignores the fact that a new judge at
a new trial will make his or her own decisions as to
what evidence will or may be submitted in support of
the claims and defenses raised by the parties. Nor does
it take into account that the plaintiff might adopt a
different litigation strategy involving different evidence.
We will not predict what will happen at a trial yet
to occur.
The judgment is reversed with respect to the award
of damages and the case is remanded for a recalculation
of damages, before a different judge, consistent with
this court’s prior opinion, and the orders denying the
defendant’s motions to open the judgment and to allow
evidence are vacated; the judgment is affirmed in all
other respects.
In this opinion the other justices concurred.
1
Joseph G. Standart and Clinton S. Standart were also named as defen-
dants in the original complaint. The complaint was subsequently withdrawn
as to those defendants, and all references to the defendant in this opinion
are to Platner.
2
The attorney general intervened as an additional plaintiff in the original
trial and appeal to represent the public’s interest in a conservation restriction
on the defendant’s property. See Lyme Land Conservation Trust, Inc. v.
Platner, supra, 325 Conn. 740 n.2. The attorney general did not participate
in the remand proceedings, and, because this appeal concerns only the
issues on remand, the attorney general did not participate in this appeal.
3
A detailed account of the facts is set forth in our prior decision. See
Lyme Land Conservation Trust, Inc. v. Platner, supra, 325 Conn. 741–46.
4
General Statutes § 47-42a (a) provides in relevant part: ‘‘ ‘Conservation
restriction’ means a limitation, whether or not stated in the form of a restric-
tion, easement, covenant or condition, in any deed, will or other instrument
executed by or on behalf of the owner of the land described therein . . .
whose purpose is to retain land or water areas predominantly in their
natural, scenic or open condition or in agricultural, farming, forest or open
space use.’’
5
We also reversed and remanded the trial court’s award of attorney’s
fees. See Lyme Land Conservation Trust, Inc. v. Platner, supra, 325 Conn.
765. In her brief to this court, the defendant concedes that orders for ‘‘attor-
ney’s fees, a bill of costs, and postjudgment interest’’ entered by Judge
Koletsky are not at issue in this appeal.
6
Practice Book § 1-22 (a) provides in relevant part: ‘‘A judicial authority
shall, upon motion of either party or upon its own motion, be disqualified
from acting in a matter if . . . the judicial authority previously tried the
same matter and a new trial was granted therein or because the judgment
was reversed on appeal. . . .’’
7
The defendant appealed from the judgment of the trial court to the
Appellate Court, and the appeal was transferred to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-2.
8
The plaintiff has cited to Appellate Court cases concluding that § 51-
183c unambiguously applies exclusively to trials and not to all types of
adversarial proceedings. See Barlow v. Commissioner of Correction, 166
Conn. App. 408, 423, 142 A.3d 290 (2016), appeal dismissed, 328 Conn. 610,
182 A.3d 78 (2018); Board of Education v. East Haven Education Assn.,
66 Conn. App. 202, 216, 784 A.2d 958 (2001); Lafayette Bank & Trust Co.
v. Szentkuti, 27 Conn. App. 15, 19, 603 A.2d 1215 (1991), cert. denied, 222
Conn. 901, 606 A.2d 1327 (1992). Those cases have no bearing on the question
before us in the present case, which, for the reasons set forth in this opinion,
involves a materially different procedure on remand.
9
See, e.g., Steiner v. Bran Park Associates, 216 Conn. 419, 420 and n.1,
582 A.2d 173 (1990) (trial court bifurcated legal claim and equitable claims,
former to be tried to jury and latter to be tried to court); Dick v. Dick, 167
Conn. 210, 211–12, 355 A.2d 110 (1974) (trial court ordered bifurcated trial
in which issue of authenticity of defendant’s signature to agreement was
tried to jury and remaining equitable issues were tried to court).
10
We are mindful that a criminal trial also may be bifurcated as to guilt
and punishment, and we have concluded that a remand for resentencing is
not part of a ‘‘trial’’ under § 51-183c. This court reached that conclusion,
however, in reliance on a clear indication of legislative intent that is not
applicable to damages. Specifically, the court looked to other provisions in
the law from which it concluded that the legislature had demonstrated a
clear intent that sentencing did not fall within the ambit of § 51-183c. See
State v. Miranda, 260 Conn. 93, 132, 794 A.2d 506, cert. denied, 537 U.S.
902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). There are no corresponding
provisions for civil matters that would place damages outside the scope of
trial. See Practice Book §§ 15-1 through 24-33.