Geiger v. Carey , 170 Conn. App. 459 ( 2017 )

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APPENDIX
GORDON GEIGER ET AL. v. FRANCIS CAREY*
Superior Court, Judicial District of Litchfield
File No. CV-11-5007327-S
Memorandum filed February 25, 2015
Proceedings
Memorandum of decision after completed trial to
court. Judgment for defendant in part on complaint
and in part on counterclaim.
Gordon Geiger, self-represented, the plaintiff.
Elizabeth Geiger, self-represented, the plaintiff.
James P. Steck, for the defendant.
Opinion
J. MOORE, J.
I
Introduction
The plaintiffs, Elizabeth and Gordon Geiger, mother
and son, have brought suit against the defendant, Fran-
cis Carey, their next door neighbor, in three counts:
trespass, violation of Connecticut’s tree cutting statute,
General Statutes § 52-560, and malicious erection of a
structure, pursuant to General Statutes § 52-570. The
first two counts claim that the defendant came onto
the plaintiffs’ property, cut down a tree, and built a
retaining wall. The third count avers that the defendant
built a so-called ‘‘spite fence’’ between the parties’1
properties, blocking the plaintiffs’ lake view and reduc-
ing sunlight available to the plaintiffs’ garden. The plain-
tiffs request money damages, including the costs of two
surveys and the cost of removing the retaining wall and
returning the plaintiff’s land to its original state, as
well as an order requiring the defendant to remove the
alleged ‘‘spite fence’’ and punitive damages.
The defendant has denied that he is liable under all
counts of the plaintiffs’ complaint, has asserted that the
statute of limitations, General Statutes § 52-577, bars, as
untimely, the allegations of the first two counts, and
has filed a counterclaim. The defendant’s counterclaim
sounds in seven counts: private nuisance, three separate
trespass counts, quiet title, intentional infliction of emo-
tional distress, and negligent infliction of emotional dis-
tress. The defendant seeks injunctive relief, including
orders enjoining the plaintiffs’ nuisance, prohibiting the
plaintiffs from interfering with the defendant’s use of
his property and of a common right-of-way, requiring
the plaintiffs to remove unsightly and potentially dan-
gerous items from the right-of-way, barring the plaintiffs
from using the right-of-way for storage of the plaintiffs’
property, and requiring the removal of a tree house/
tree platform structure, as well as monetary damages,
punitive damages, and an order quieting title.
The court rules for the defendant and against the
plaintiffs on counts one and two of the revised com-
plaint. In regard to count three of the revised complaint,
the court orders the defendant to remove one section
of the fence between the parties’ properties, that section
closest to the street, according to the schedule set
forth below.
The court rules as follows as to the counterclaim.
While Gordon Geiger maintains his right, so long as he
is a tenant or owner of 58 Tyler Lake Heights Road, to
pass and repass on the right-of-way, the court perma-
nently enjoins Gordon Geiger from stopping or loitering
on the right-of-way. The court also permanently enjoins
Gordon Geiger from placing any barriers, barricades,
or items on the right-of-way. Further, the court orders
Gordon Geiger to take down his tree platform,
according to the schedule set forth below. Finally, the
court awards damages in the amount of $400 to the
defendant for the damage to his arborvitae.
II
Procedural History
The plaintiffs initiated a cause of action against the
defendant in small claims court, by means of a summons
and complaint filed on July 25, 2011. On August 18,
2011, the defendant filed, and the court granted a motion
to transfer this matter to the Superior Court. The law
firm of Lockaby and Perrault filed an appearance in
place of each plaintiff on June 25, 2013. On December
5, 2013, the plaintiffs filed a revised complaint in this
case in response to the defendant’s request to revise.
The December 5, 2013 revised complaint is the opera-
tive complaint in this matter.
The defendant filed his answer, special defenses, and
counterclaim on February 7, 2014. On April 17, 2014, the
plaintiffs moved to strike the defendant’s counterclaim,
arguing that its allegations were not closely related
enough to the allegations of the complaint. This court,
J. Moore, J, denied that motion on September 29, 2014.
On July 10, 2014, Lockaby and Perrault moved for
permission to withdraw its appearance for Gordon Gei-
ger. The court, Pickard, J., granted its motion on July 28,
2014. On August 6, 2014, Lockaby and Perrault moved to
withdraw its appearance for Elizabeth Geiger. The
court, Pickard, J., granted this motion on August 25,
2014. Gordon Geiger, who is not a lawyer, filed an
appearance on August 21, 2014, purportedly on behalf
of ‘‘all plaintiffs.’’2 Elizabeth Geiger filed an appearance
on the date of the trial.
Trial took place before this court on October 21, 2014.
The plaintiffs filed an answer to the counterclaim just
before trial on that day. Upon request of the defendant,
the court undertook a site visit on November 3, 2014.
Gordon Geiger and the defendant were present, each
on his own property, during the site visit. On November
5, 2014, the plaintiffs filed a motion to submit additional
evidence, which the court denied on February 4, 2015.
Two instances of the proof not conforming to the
plaintiff’s operative complaint occurred during trial.
The first deals with the statute of limitations as it may
apply to the counterclaim. The plaintiffs never filed a
special defense to the defendant’s counterclaim, but,
during trial, Gordon Geiger raised a statute of limita-
tions defense to certain aspects of the counterclaim.
Trial Transcript, 66:25–67:1, October 21, 2014. The sec-
ond has to do with the plaintiffs’ claim for malicious
erection of a structure. In the revised complaint, the
plaintiffs allege malicious erection by the defendant of
which authorizes money damages for the owner of the
burdened property. The plaintiffs’ revised complaint
does not allege a violation of General Statutes § 52-480,
which allows for injunctive relief in favor of the owner
or lessee of property to remedy a malicious structure
as defined in § 52-570. The plaintiffs’ revised complaint,
however, seeks injunctive relief, in the form of an order
requiring the immediate removal of the fence.
‘‘[I]t is the established policy of the Connecticut
courts to be solicitous of pro se litigants and when it
does not interfere with the rights of other parties to
construe the rules of practice liberally in favor of the
pro se party.’’3 (Internal quotation marks omitted.) Rowe
v. Goulet, 89 Conn.App. 836, 841, 875 A.2d 564 (2005).
Under Practice Book § 10-62, in ‘‘all cases of material
variance between allegation and proof, an amendment
may be permitted at any stage of the trial.’’ Moreover,
the trial court has discretion to allow an amendment
of a pleading before, during, or after trial to conform
to the proof. New Hartford v. Connecticut Resources
Recovery Authority, 291 Conn. 433, 486, 970 A.2d 592
(2009). One significant factor for the court to consider
in deciding whether to exercise its discretion to allow
an amendment to a pleading is any potential injustice
that may result. Summitwood Development, LLC v.
Roberts, 130 Conn. App. 792, 800, 25 A.3d 721, cert.
denied, 302 Conn. 942, 29 A.3d 467 (2011), cert. denied,
U.S. , 132 S. Ct. 1745, 182 L. Ed. 2d 530 (2012).
There would not be any injustice to the defendant were
the court to allow these two amendments.
In regard to the statute of limitations issue, it is note-
worthy that when Gordon Geiger raised this issue as
an objection to evidence proffered by the defendant,
the defendant’s counsel, in arguing against the objec-
tion, did not raise the issue of whether such a defense
had been pleaded.
Further, as of the trial date, the defendant had been
on notice for more than ten months of the claim for
injunctive relief being advanced by the plaintiffs. This
prayer for relief, which could only be awarded under
§ 52-480, was contained in the revised complaint filed
on December 5, 2013. Finally, the defendant, being the
plaintiffs’ next door neighbor, was aware that the lessee
Gordon Geiger, rather than the owner Elizabeth Geiger,
who lives presently in Maine, was the party who alleg-
edly was directly and immediately harmed by the build-
ing of the fence.
In light of the foregoing, the court will consider the
plaintiffs’ response to the counterclaim to be amended
to include a special defense of the statute of limitations
and the plaintiffs’ prayer for relief to include a claim
under § 52-480 for injunctive relief.
III
Contentions of the Parties
A
The Plaintiffs’ Contentions
The plaintiffs alleged the following facts in the
revised complaint.
Elizabeth Geiger is the owner of 58 Tyler Lake
Heights, Goshen, Connecticut. Gordon Geiger is her
son, has full possession rights to the property, and is her
successor in interest there. The defendant’s property is
adjacent to that of the plaintiffs.
Around April, 2006, Gordon Geiger returned home
from out of state and discovered that a 400 year old
oak tree in the rear of the plaintiffs’ property had been
cut down. When Gordon Geiger asked the defendant
what had happened, the defendant told him the tree
was on the defendant’s land and he had a right to cut
it down.
On or about April, 2006, Gordon Geiger discovered
that the defendant had built a retaining wall, measuring
approximately thirty-five feet long and four feet high,
near where the oak tree had grown. A large amount of
backfill was contained within the retaining wall.
On or about October, 2008, the defendant admitted
that both the oak tree and the retaining wall were on
the plaintiffs’ property and not the defendant’s property.
As a result, the plaintiffs hired a surveyor to determine
on whose land the oak tree had stood and the retaining
wall had been built. Upon information and belief, the
defendant removed the survey markers while Gordon
Geiger was at work. In June, 2009, a subsequent survey
was conducted by another surveyor which preliminarily
found that both the oak tree and the retaining wall were
on the plaintiffs’ land. This conclusion was confirmed
by a third survey conducted on June 17, 2010.
The above described actions of the defendant consti-
tute trespass on Elizabeth Geiger’s property ownership
rights and on Gordon Geiger’s property possession
rights.
The defendant’s action in cutting down the oak tree
was a wilful violation of § 52-560.
After receipt of a demand letter from counsel then
representing the plaintiffs, dated on or about July 30,
2009, the defendant built a fence measuring over six
feet in height, in violation of state and city ordinance,
and approximately 160 feet long. The defendant erected
this fence maliciously, with the intent to injure enjoy-
ment of the plaintiffs’ land. This fence serves no purpose
for the defendant other than to annoy and/or injure the
plaintiffs in their use of their land. The fence blocks
the view of Tyler Lake from the plaintiffs’ land and
prevents adequate sunlight for the plaintiffs’ gardens.
The fence is a ‘‘spite fence’’ under § 52-570.
B
The Defendant’s Contentions
The defendant asserts the tort statute of limitations,
§ 52-577, as a defense to the allegations pertaining to
the cutting down of the oak tree and the building of
the retaining wall.
The defendant alleges the following facts in his coun-
terclaim.
The defendant’s property abuts the plaintiffs’ along
the west and northwesterly boundaries of the defen-
dant’s property. A thirty-five-foot right-of-way runs from
Park Road along the defendant’s easterly boundary line,
then turning first northwesterly and then southwesterly
along the plaintiffs’ boundary line. Both the defendant
and the plaintiffs have a deeded right to use the right-
of-way to pass and repass. The right-of-way is the only
means of access to the defendant’s building lot 07–10A–
015–00.4
The defendant obtained a survey of his property on
or about April 2013.
The plaintiffs committed a private nuisance in the
following ways. Upon information and belief, the plain-
tiff knowingly destroyed, disturbed, or removed some
of the defendant’s survey markers. As a result, the sur-
veyor has had to come to the defendant’s property three
separate times to replace the markers. The plaintiffs
have littered their property and the right-of-way with
broken, rusty appliances, a junk car, construction equip-
ment, jugs of unknown chemicals, garbage, an indoor
range installed outdoors, and unfinished excavations,
causing the plaintiffs’ property and the right-of-way to
be unsafe and unsightly. The condition of the plaintiffs’
property negatively impacts the value and marketability
of the defendant’s property, as well as unreasonably
interferes with his use and enjoyment of his property
and the right-of-way. Unless this nuisance is enjoined,
the defendant will suffer irreparable harm for which he
has no adequate remedy at law.
The counterclaim has alleged three different catego-
ries of trespass.
First, to the extent that items described in the second
to last paragraph were placed within the right-of-way,
they interfere with the defendant’s ability to pass and
repass over the right-of-way as set forth in his deed.
Gordon Geiger has intentionally placed other items in
the right-of-way, including vehicles, boulders, a spindle
wheel, a chair, and a coffee cup. On several occasions,
Gordon Geiger has harassed and annoyed the defendant
while sitting on the chair at the spindle wheel. This
conduct blocks the defendant’s access to his building
lot.
Second, Gordon Geiger continues to place debris, fill,
boulders, and snow at the entrance to the defendant’s
driveway to impede access to the defendant’s home.
Additionally, Gordon Geiger, in the winter of 2013 to
2014, dumped snow on top of screening trees and
shrubs along the defendant’s back boundary line, killing
the trees.
Third, the plaintiffs have built a tree platform on the
westerly boundary of the defendant’s property, which
encroaches approximately 1.5 feet upon the defen-
dant’s property.
The defendant moves to quiet title, claiming that the
tree platform, unless enjoined and restrained, will cause
grave and irreparable injury to the defendant by depriv-
ing the defendant of the use of that portion of his prop-
erty on which the platform encroaches. There is no
adequate remedy at law for this encroachment.
Gordon Geiger has intentionally inflicted emotional
distress upon the defendant by engaging and continuing
to engage in a pattern of harassing behavior, including
(1) sitting on the tree platform and verbally harassing,
staring at, intimidating, and making noises at the defen-
dant; (2) accosting and continuing to accost the defen-
dant in the defendant’s backyard; and (3) on or about
January 31, 2014, parking his truck for more than five
minutes in the right-of-way just outside the defendant’s
window, and staring into the defendant’s home. The
defendant is uncomfortable using his own backyard
and makes all effort to minimize the time he spends in
his backyard.
The plaintiffs have negligently inflicted emotional dis-
tress upon the defendant through all of the actions set
forth above.
IV
Findings of Fact
The court informed the parties at the beginning of the
trial that it would separate out relevant from irrelevant
evidence. Trial Tr., 15:1–6. That being said, a plethora
of information was introduced that was not probative
of any issues raised in the pleadings. The court’s find-
ings of fact pertain to only that evidence that is relevant
to the pleadings. The court finds the following facts.
A
Background Facts5
The parties are next door neighbors on Tyler Lake
in Goshen. Elizabeth Geiger is record owner of her
property, 58 Tyler Lake Heights (the Geiger Property),
although she currently lives in Bass Harbor, Maine. Her
son, Gordon Geiger, is a tenant in possession of the
Geiger Property, providing property maintenance and
tax payments as consideration to his mother in lieu of
rent.6 The defendant lives just to the east of the plain-
tiffs, at 3 Park Road, Goshen (the Carey Property),
abutting the Geiger Property. The parties also share and
have rights to use a common right-of-way that provides
access to the Geiger Property and to a building lot
owned by the defendant (the Carey Building Lot). The
Carey Building Lot is located behind and slightly to the
east of the Carey Property. Use of the right-of-way, also
called the thirty-five foot passway, by the parties, is the
source of many of the issues between the parties. It is
located just to the east of the defendant’s gravel drive-
way, and proceeds away from Park Road, parallel to
the defendant’s driveway, providing access to the Carey
Building Lot, before taking an almost 90 degree turn
left to provide access to the back of the Geiger Property.
The right-of-way, therefore, sits behind both the Geiger
and the Carey Properties.
B
Facts Pertaining to the Plaintiffs’ Counts One and Two
Neither the plaintiffs nor the defendant put in exact
evidence of when the oak tree at issue was removed.
Gordon Geiger, however, testified that he discovered
that the tree was down when he returned home from
living out of the state on or about April, 2006. Therefore,
the felling of the oak tree took place before April, 2006.
The defendant’s exhibit D confirms the defendant’s tes-
timony that this tree was originally damaged in a storm,
split more or less down the middle, and that it fell,
at least partially, onto the defendant’s property. The
downed tree crushed a shed, which was located on the
property of either the defendant or the plaintiffs. The
court finds credible the defendant’s testimony that he
called Elizabeth Geiger in Maine and that she told him
to cut the tree up.7 The court also finds credible the
defendant’s testimony that he cut the tree into ‘‘manage-
able sections to get it off of’’ his property. Trial Tr.,
48:26–49:16. This testimony is confirmed by the fact
that those portions of the tree not on the Carey Property
remain next to the retaining wall on the Geiger Property.
The defendant erected the retaining wall on the plain-
tiffs’ property. See Plaintiffs’ exhibit 1. The defendant
built the retaining wall in 2001. As with the oak tree,
Gordon Geiger discovered the retaining wall when he
returned to Goshen after living out of the state on or
about April, 2006. The court finds credible the defen-
dant’s testimony that the retaining wall was necessary
because a drainage area serving the backyards of both
parties would become blocked with silt, flooding both
properties and backing up their septic tanks. The court
also finds credible the defendant’s essentially uncontro-
verted testimony8 that he contacted Elizabeth Geiger
in Maine, explained the situation to her, and that she
told him ‘‘to do whatever you have to do to rectify the
situation; I [Elizabeth Geiger] can’t make it down there.’’
Trial Tr., 101:7–9. At that time, the Geiger Property was
rented to nonrelated tenants and Gordon Geiger was
living out of state.
The plaintiffs did not put on any evidence that the
defendant removed survey markers while Gordon Gei-
ger was at work.
C
Facts Pertaining to the Plaintiffs’ Count Three
The defendant built what can be described as a
wooden stockade fence between the parties’ properties.
It has three support cross beams and a flat, thinner
horizontal top beam. Further, the court had the opportu-
nity at the site visit to personally observe the fence and
finds that, in and of itself, the fence is not offensive to
the sight. Additionally, the court observed, during its
site visit, that the fence is similar to other fences in
the neighborhood.9 The fence is approximately 170 feet
long. Defendant’s exhibit A. Although the plaintiffs
claim that the height of the fence violates city and state
ordinances, the plaintiffs did not submit any such ordi-
nances as exhibits in the case. The fence has been built
entirely on the defendant’s property; Plaintiffs’ exhibit
1 and Defendant’s exhibit A; set back approximately
twenty inches from the property line. The completed
fence now sits between thirty feet; Defendant’s exhibit
A; to just less than forty feet; Plaintiffs’ exhibit 1; from
the northern edge of the street parallel to each party’s
property line and between ten feet; Defendant’s exhibit
A; to 17.5 feet; Plaintiffs’ exhibit 1; from the south side
of each party’s property line. The fence blocks the plain-
tiffs’ view of Tyler Lake, except for the first fifteen feet
or so from the plaintiffs’ property line. The fence also
prevents about 50 percent of the plaintiffs’ garden from
receiving sunlight coming from the northeast, but does
not block sunlight coming from other directions. Plain-
tiffs’ exhibits 1 and 10. The 50 percent or so of the
plaintiffs’ garden that is blocked from northeasterly
sunlight, however, looks, in an exhibit submitted by the
plaintiffs, drier than the areas of the garden that are
not blocked by the fence. Plaintiffs’ exhibit 10.
On its site visit, the court observed that Gordon Gei-
ger (1) stored firewood on his side of the fence, taking
advantage of the top horizontal cross beam as protec-
tion from the elements, and (2) built a children’s slide
on his side of the fence.
The defendant began building the fence from the rear
of his property toward the street in 2006. Early on in
the process, a portion of the fence was also built closer
to the street. Defendant’s exhibit K-2. He built the fence
at that time to block his view of and to place a barrier
between himself and objects that Gordon Geiger had
left in the rear portion of the right-of-way and in the
backyard of the Geiger Property. Gordon Geiger and/
or his agent were also excavating in that area at that
time. Defendant’s exhibit G-7. The defendant also ini-
tially built the fence because his niece had been hurt
by sharp objects on the property. In 2006, soon after
the defendant began to build the fence, Gordon Geiger
strung, on the defendant’s property and connected to
a ‘‘No Trespassing’’ sign erected by the defendant, a
wire fence between two completed sections of the
defendant’s fence. Defendant’s exhibit K-2. The defen-
dant later continued to build the fence from the back
to the front of the property, as his relationship with
Gordon Geiger broke down. As the defendant put it,
he wasn’t ‘‘seeing eye-to-eye’’ with Gordon Geiger, he
wanted complete separation from Gordon Geiger and,
as a result, he built the fence. Trial Tr., 78:1–4. The
defendant submitted ample evidence confirming multi-
ple activities undertaken by Gordon Geiger since the
building of the fence in the rear of the parties’ properties
from which a reasonable person would want to be shel-
tered. These activities include storage of unknown liq-
uids and large junk-like objects, and construction and
excavation activities. No such evidence was presented
as to that portion of the fence that is closest to the
street. Gordon Geiger’s view of Tyler Lake is blocked
by that portion of the fence closest to the street.
D
Facts Pertaining Generally to the Defendant’s
Counterclaim
The defendant offered no evidence that Elizabeth
Geiger committed any of the alleged acts set forth in
the counterclaim. All of the defendant’s proffered coun-
terclaim evidence pertained to acts allegedly committed
by Gordon Geiger.
E
Facts Pertaining to the Defendant’s Counterclaim
Count One
While the defendant submitted evidence that a survey
marker on his property had been buried; Defendant’s
exhibit K-1; there was no evidence submitted with per-
sonal knowledge that Gordon Geiger had buried the
marker.
While the defendant submitted substantial evidence
that Gordon Geiger had, from time to time, strewn the
right-of-way and his backyard with such items as bar-
rels, pipes, large junk items, rocks, wood, plastic jugs
of unknown liquid, and had performed filling operations
and excavations therein, the evidence concerning the
conditions alleged in count one (1) revealed that these
conditions occurred more than three years before the
counterclaim was filed, on February 7, 2014, and (2)
did not provide the court with clarity as to how long
such conditions persisted. For example, exhibit E,
which depicts a tremendous amount of junk immedi-
ately behind the defendant’s backyard, must have been
taken before the winter of 2010 to 2011, because it
shows healthy arborvitae which were, according to the
defendant, harmed in the winter of 2010 to 2011. More-
over, the defendant first testified that his exhibit F pho-
tos were taken in 2006 to 2007; trial tr., 52; but later
testified that they were taken between 2009 and 2010.
The defendant’s exhibit G consisted of a series of photo-
graphs taken between 2008 and 2010, with the exception
of G-7, which was taken in 2006. The defendant did not
testify as to how long any of these conditions persisted.
F
Facts Pertaining to the Defendant’s Counterclaim
Count Two
The defendant’s exhibit S-2, a photograph taken by
the witness Charles Barber, another neighbor, on March
25, 2011, depicts a boat, a car, a pickup truck, and a
backhoe appearing to be that of Gordon Geiger blocking
the defendant’s access to the Carey Building Lot. During
his testimony, Mr. Barber identified the right side of
defendant’s exhibit S-2 as illustrating the access to the
Carey Building Lot, but did not specifically identify the
vehicles as belonging to Gordon Geiger.
In 2006, Gordon Geiger moved a spindle table with
a coffee cup atop it and a folding lawn chair on the
right-of-way at a spot close to the defendant’s home for
over a month. Defendant’s exhibits M-1 through M-4;
Defendant’s exhibits S-3 and S-4. Gordon Geiger would
sit at the chair from time to time during this period.
This spindle table interfered with the defendant’s right
to pass and repass on the right-of-way, but the table
did not directly block the entrance to the Carey Build-
ing Lot.
The defendant submitted into evidence warranty
deeds to the Carey Property and the Carey Building Lot
as defendant’s exhibits R and Q, respectively. Each of
these exhibits evidence the defendant’s right to pass
and repass upon the right-of-way. The plaintiffs did not
submit any such documentary evidence. The defendant,
however, alleges in his counterclaim that Elizabeth Gei-
ger has a ‘‘deeded right to pass and repass over pass-
ways adjoining 58 Tyler Lake Heights . . . .’’ The
defendant also alleges that Gordon Geiger is a tenant at
this property. The court considers these two allegations,
taken together, to comprise a judicial admission that
Gordon Geiger had a right to pass and repass upon the
right-of-way. Gordon Geiger, however, does not have a
right to loiter upon the right-of-way.
Many of the items discussed in the second paragraph
of the ‘‘Facts Pertaining to the Defendant’s Counter-
claim Count One’’ impinge upon the defendant’s rights
to pass and repass over portions of the right-of-way.
With the exception of the items found in defendant’s
exhibit S-2, however, those items are not impeding
access to the Carey Building Lot or the Carey Property.
The defendant has not appeared and cannot appear in
a representative capacity to protect the rights of other
people potentially affected by these blockages, includ-
ing James D. and Pamela Hicks and Charles J. and Lisa
C. Barber. Defendant’s exhibit A.
G
Facts Pertaining to the Defendant’s Counterclaim
Count Three
Gordon Geiger has placed debris, fill, boulders, and
snow at the entrance to the defendant’s property. The
defendant’s exhibit I, 1–12 depicts snow blocking at
least a portion of the defendant’s driveway. This snow
dumping took place in the winter of 2013 to 2014. The
boulder/debris incident, depicted on defendant’s
exhibit S-8, occurred on July 19, 2010.
In the winter of 2010 to 2011, snow was dumped onto
four large arborvitae; Defendant’s exhibits H-1 through
H-3; that the defendant had planted at the rear of his
property to provide a barrier between his property and
the plaintiffs’ property, and killed them. The defendant
valued each tree at $650.
H
Facts Pertaining to the Defendant’s Counterclaim
Count Four
The plaintiffs’ tree platform encroaches onto the
property of the defendant approximately 1.5 feet. Defen-
dant’s exhibit A. The defendant’s fence, over which
the tree platform extends, was built on the defendant’s
property twenty inches back from the parties’ prop-
erty line.
I
Facts Pertaining to the Defendant’s Counterclaim
Count Five
Gordon Geiger built the tree platform after the defen-
dant built his fence between the parties’ properties. The
tree platform sits well above the fence. Gordon Geiger
has placed two folding chairs; Defendant’s exhibit J-1;
and a park bench; Defendant’s exhibit J-2; on top of
the tree platform. Gordon Geiger testified that his ‘‘kids
play up there all the time’’; trial tr., 137:5–6; at least a
‘‘couple of times a week.’’ Trial Tr. 140:14. Gordon Gei-
ger admits being up on the tree platform ten times in
total. Trial Tr., 137:6–7, 140:16–18. Gordon Geiger has
installed a slide for his children on his side of the fence.
The tree platform sits approximately fifty feet from
the closest point of the defendant’s home; Defendant’s
exhibit A; and provides a bird’s eye view of the defen-
dant’s home, as well as of the lake.
J
Facts Pertaining to the Defendant’s Counterclaim
Counts Six and Seven
There is a tremendous amount of hostility between
Gordon Geiger and the defendant. It is almost palpable.
Observing the parties while on the site visit confirmed
this conclusion. Gordon Geiger has sat on his tree plat-
form, from which he can see the defendant’s home,
which is only fifty feet away at its closest point. Gordon
Geiger has admitted that he, albeit more than three
years before the counterclaim was filed, threw ashes
on the defendant’s truck after a disagreement about
the use of the right-of-way. The ashes are depicted on
defendant’s exhibits S-5 and S-6. This event occurred
in October, 2009. Gordon Geiger left boulders and
debris on the defendant’s driveway in July of 2010. The
defendant testified that Gordon Geiger parked outside
of his home on January 31, 2014, and stared into his
home for more than five minutes, but there is no photo-
graph of this event or other corroboration and the court
finds that the defendant did not present sufficient evi-
dence to establish that this event occurred as he
described.
Within the three year period before the counterclaim
was filed, Gordon Geiger (1) blocked at least a portion
of the defendant’s driveway entrance with snow, adding
that the defendant’s driveway rights were being
revoked, and (2) accosted the defendant, as well as
his guests, witnesses Charles Barber, Dana Curran and
Frances Kay Breakell, while the four were conversing
on the defendant’s property. During that encounter,
Gordon Geiger insulted Mr. Barber as the result of a
car accident he had been in, called Mr. Curran ‘‘Donna’’
instead of ‘‘Dana,’’ insulted the defendant for drinking
episodes, and told the group to get used to him, because
he was going to be around for forty years and didn’t
intend to be civil. Gordon Geiger also referred to himself
by means of using a racial slur.
V
Conclusions of Law, Rulings, and Orders of the Court10
As a threshold matter, the court needs to remind the
parties that ‘‘[t]he facts at issue are those alleged in the
pleadings.’’ (Internal quotation marks omitted.) Weiner
v. Clinton, 106 Conn. App. 379, 382, 942 A.2d 469 (2008).
Moreover, ‘‘[t]o properly raise a theory of liability in
the trial court, a party must articulate it in advance as
an ‘early warning,’ so that an opposing party may ‘frame
its presentation of evidence’ accordingly.’’ White v.
Mazda Motor of America, Inc., 313 Conn. 610, 620,
99 A.3d 1079 (2014). As mentioned above, the parties,
during trial, raised issues that often ran far afield of
what was alleged in the operative pleadings, both in
terms of the subject matter of the allegations advanced
and in terms of alleged misbehavior that had occurred
far outside of the statute of limitations. At times, each
side appeared bent on portraying the opposition in as
negative a light as possible. As a result, the court needs
to remind the parties that the court can only decide the
issues properly brought before it in written pleading
form; see New Haven Sand Blast Co. v. Dreisbach, 104
Conn. 322, 328–29, 133 A. 99 (1926); and cannot solve
all the problems on the border of 58 Tyler Heights Road
and 3 Park Road. Additionally, as mentioned above, the
court, in response to more than one objection based on
relevance, indicated to the parties that it would separate
out the relevant from the irrelevant evidence at the time
of the decision. Therefore, the conclusions of law set
forth in this section pertain only to those issues that
are both relevant and properly before the court.
A
Plaintiff’s Counts One and Two: Trespass and Violation
of Tree Cutting Statute
The elements of ‘‘an action for trespass are (1) owner-
ship or possessory interest in land by the plaintiff; (2)
invasion, intrusion or entry by the defendant affecting
the plaintiff’s exclusive possessory interest; (3) done
intentionally; and (4) causing direct injury.’’ (Internal
quotation marks omitted.) Bristol v. Tilcon Minerals,
Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007); see also
State v. Lamar Advertising of Hartford, Superior
Court, judicial district of Hartford, Docket No. CV–08–
5020325–S (October 21, 2010, Sheldon, J.). Our Supreme
Court has held that ‘‘[i]t is axiomatic that entry upon
property with permission of the owner, absent subse-
quent acts of abuse, is a defense to a claim of trespass.’’
Carothers v. Capozziello, 215 Conn. 82, 101, 574 A.2d
1268 (1990); see also State v. Lamar Advertising of
Hartford, supra. Further, ‘‘[o]ne who effectively con-
sents to conduct of another intended to invade his inter-
ests cannot recover in an action of tort for the conduct
or for harm resulting from it . . . .’’ (Internal quotation
marks omitted.) State v. Lamar Advertising of Hart-
ford, supra.
Connecticut’s tree cutting statute, General Statutes
§ 52-560, provides in relevant part: ‘‘Any person who
cuts, destroys or carries away any trees, timber . . .
standing or lying on the land of another . . . without
license of the owner . . . shall pay to the party injured
. . . three times the reasonable value of any other tree,
timber . . . but when the court is satisfied that the
defendant was guilty through mistake . . . it shall ren-
der judgment for no more than its reasonable value.’’
Section 52-560 embodies the common-law rule per-
taining to ‘‘an action for a trespass to the land to which
the trees in question were appurtenant.’’ Stanley v. Lin-
coln, 75 Conn. App. 781, 785, 818 A.2d 783 (2003). ‘‘[Sec-
tion 52-560] does not give a new and independent cause
of action, but prescribes the measure of damages in
cases where compensatory damages would, in the
absence of the statute, be recoverable.’’ (Internal quota-
tion marks omitted.) Id., 786. An action under § 52-560,
therefore, is an action in trespass with a specifically
prescribed measure of recovery of damages. As with
trespass, the plaintiff cannot recover if the defendant
had the ‘‘license,’’ or permission of, among others, the
owner. Failure to prove the elements of the underlying
trespass dooms an action under § 52-560.
The court finds for the defendant on both of the
plaintiffs’ trespass allegations: the alleged cutting down
of the 400 year old oak tree and the building of the
retaining wall, as well as on the claim of violation of
§ 52-560, the tree cutting statute. As explained in further
detail immediately below, the defendant entered the
plaintiff’s property with permission in regard to each
allegation, the claim for the fallen tree is barred by the
relevant statute of limitations, and both the cutting up
of the fallen tree and the construction of the retaining
wall, rather than harming the plaintiffs, provided a bene-
fit to the plaintiffs.
The plaintiffs have established an ownership (in the
case of Elizabeth Geiger) or possessory (in the case of
Gordon Geiger) interest in the land affected by the
alleged tree cutting and by the construction of the
retaining wall. The plaintiffs have also proven, by the
defendant’s admission, that he entered the Geiger Prop-
erty intentionally both to cut up the oak tree and to
conduct the construction of the retaining wall. The
plaintiffs cannot recover any damages from the defen-
dant for either allegation of trespass, however, because
Elizabeth Geiger gave her permission for the defendant
to enter her land to cut up the tree and to build the
retaining wall.
Moreover, in regard to the fallen tree, the court finds
that the defendant did not cut down the tree as alleged.
The tree was first split virtually down the middle by a
storm, which resulted in a large part of the tree landing
on the Carey Property. The court finds that after con-
tacting Elizabeth Geiger, who gave him permission to
do so, the defendant cut portions of the tree into man-
ageable pieces and hauled them away from the prop-
erty. Even absent permission, the defendant was within
his rights to remove the portions of the tree that had
fallen on to the defendant’s property. See McCrann v.
Town Plan & Zoning Commission, 161 Conn. 65, 75,
282 A.2d 900 (1971). As a result, the plaintiffs did not
sustain their burden to prove that the defendant’s inten-
tional entry upon their land harmed them. Therefore,
the plaintiffs did not sustain their burden of proof in
regard to the elements of trespass and the allegations
of alleged tree cutting under the statute.11
Even if the plaintiffs had presented sufficient evi-
dence for a claim of trespass arising out of removal of
the tree, the claim is barred by the statute of limitations.
The dismantling of the tree took place before April,
2006, the time period in which Gordon Geiger returned
home to 58 Tyler Lake Heights Road and first noticed
that the tree had fallen. The operative statute of limita-
tions for trespass is § 52-577, which provides that ‘‘[n]o
action founded upon a tort shall be brought but within
three years from the date of the act or omission com-
plained of.’’ (Internal quotation marks omitted.) Rickel
v. Komaromi, 144 Conn. App. 775, 782, 73 A.3d 851
(2013). When analyzing whether a trespass claim is time
barred, ‘‘the only facts material to the trial court’s deci-
sion . . . are the date of the wrongful conduct alleged
in the complaint and the date the action was filed.’’
(Internal quotation marks omitted.) Id. Since the plain-
tiffs did not file their original small claims action until
July 25, 2011, and the tree was removed prior to April,
2006, the claim for the loss of the tree is barred by the
operation of § 52-577.12
The plaintiffs cannot recover on the trespass claim
pertaining to the retaining wall because the retaining
wall benefitted, rather than harmed, the plaintiffs. As
mentioned above, harm is an essential element of an
action in trespass. At the time that the defendant
secured the permission of Elizabeth Geiger to build the
retaining wall, the drainage area nearby would often
become silted over, flood the backyards of both parties,
and cause the septic tanks to back up in the yards of
both parties. The defendant explained this to Elizabeth
Geiger, who was then living in Maine. Gordon Geiger
also was living out of state at this time. Elizabeth Geiger
told the defendant, as mentioned above, to do whatever
he had to do to rectify the situation and that she couldn’t
make it down to Connecticut at that time. The defendant
undertook to remedy the situation at his own cost in
a manner that benefitted both him and the plaintiffs.
In the absence of harm, the plaintiffs cannot recover
on this aspect of their trespass claim.13
B
Plaintiff’s Count Three: Malicious Erection of Structure
under General Statutes §§ 52-570 and 52-480
General Statutes § 52-480 provides in relevant part:
‘‘An injunction may be granted against the malicious
erection, by or with the consent of an owner, lessee or
person entitled to the possession of land, of any struc-
ture upon it, intended to annoy and injure any owner
or lessee of adjacent land in respect to his use or disposi-
tion of the same.’’
General Statutes § 52-570 provides: ‘‘An action may
be maintained by the proprietor of any land against
the owner or lessee of land adjacent, who maliciously
erects any structure thereon, with intent to annoy or
injure the plaintiff in his use or disposition of his land.’’
These statutory sections set forth what are commonly
referred to as ‘‘spite fence’’ actions; Chase & Chase,
LLC v. Waterbury Realty, LLC, 138 Conn. App. 289,
302, 50 A.3d 968 (2012); one, § 52-480, for injunctive
relief that may be brought by an owner or lessee of
adjacent land and the other, § 52-570, for legal damages
that may be brought by the proprietor of land. The word
‘‘proprietor’’ means ‘‘[a]n owner . . . .’’ Black’s Law
Dictionary (9th Ed.2009). The elements essential to
prove each statutory section are the same. Each statute
requires the following: (1) the defendant to have built
a structure on said defendant’s land; (2) the erection
of the structure must have been malicious; (3) the defen-
dant must have intended to injure the enjoyment of
the adjacent landowner’s land by the erection of the
structure; (4) the structure must impair the value of
the plaintiff’s land; (5) the structure must be useless to
the defendant; and (6) the enjoyment of the plaintiff’s
land must be, in fact, impaired. Chase & Chase, LLC
v. Waterbury Realty, LLC, supra, 302. Our Supreme
Court has ruled that all or only a portion of a fence may
be maliciously erected. DeCecco v. Beach, 174 Conn. 29,
30–33, 381 A.2d 543 (1977). For the reasons set forth
below, the court holds that the plaintiffs have satisfied
their burden to show that one portion of the fence is a
maliciously erected structure and needs to be removed.
Deciding whether a structure has been erected mali-
ciously does not involve a journey deep into the defen-
dant’s heart. ‘‘Whether a structure was maliciously
erected is to be determined rather by its character,
location and use than by an inquiry into the actual
motive in the mind of the party erecting it.’’ Id., 32. As
mentioned above, the fence in this case is not offensive
to the sight. The plaintiffs’ exhibit 6 reveals, addition-
ally, that the defendant’s fence is similar to other fences
in the neighborhood. This conclusion was confirmed
for the court on its site visit. Much of this fence is
indeed useful to the defendant: the sections of the fence
farthest to the rear (away from the street) block the
defendant’s view of junk items and what the defendant
accurately described as ‘‘blight’’ left in the plaintiffs’
backyard or on the right-of-way by Gordon Geiger. The
middle and most of the sections of the fence closer
to the road provide a valuable privacy screen for the
defendant from Gordon Geiger’s home. Given the acri-
monious history between Gordon Geiger and the defen-
dant, this privacy screen is certainly useful.14 Further,
there was no evidence, direct or circumstantial, that
the building of these such portions of the fence was
undertaken maliciously or with intent to injure the
plaintiffs. Therefore, the plaintiffs have failed to prove
essential elements (2), (3), and (5) above of this cause
of action in regard to the overwhelming portion of
the fence.
The same, however, cannot be said for the very first
section of the fence, namely that section closest to the
road. This portion of the fence is depicted as the left of
two sections of the fence photographed in defendant’s
exhibit J-1. Once again, as stated above, Connecticut
case law instructs the court to review the character,
location, and use of the fence built to ascertain whether
the fence was maliciously erected. ‘‘It is quite possible
for a structure to bear on its face . . . convincing evi-
dence that it was intended for a legitimate purpose, or
that it was intended to injure the adjacent land and its
owner. . . . The intention is not the motive from which
it may have sprung, but the established purpose, from
whatever motive, to use the land in a manner not justi-
fied by its ownership, and forbidden by law.’’ (Internal
quotation marks omitted.) DeCecco v. Beach, supra, 174
Conn. 32.
The front most part of the fence, that part closest to
the road, sits approximately 17.5 feet from the property
line of each party that parallels the street. Plaintiffs’
exhibit 1. The plaintiffs’ front porch sits approximately
29.7 feet from his street side property line. Plaintiffs’
Exhibit 1. The defendant’s home sits approximately sev-
enty-five feet from his street side property line. Because
of where the parties’ homes are situated, the first sec-
tion of the fence serves no useful purpose as a screen
for the defendant from unsightly objects in the plaintiffs’
backyard or on the right-of-way, but does indeed block
the view of Tyler Lake from the plaintiffs’ property.
Plaintiffs’ exhibit 6, taken over the top of the fence,
demonstrates the view of the lake that the plaintiffs
would have if the fence were not there. The deprivation
from virtually the entire front yard of the plaintiffs of
the lake view denies the plaintiff tenant his full enjoy-
ment of the property. Further, such a deprivation is a
harm for which there is no adequate remedy at law.
Conversely, however, neither plaintiff presented any
evidence of legal damages arising from the fence, such
as testimony from an appraiser of a decrease in property
value as a result of the loss of the lake view. In sum,
Gordon Geiger has established the essential elements
of § 52-480 as set forth above, but not those of § 52-
570, for the front most single section of the fence
between the parties’ property. Therefore, the court
orders the defendant to remove the front most section
of the fence on or before June 30, 2015. For clarity’s
sake, the court reminds the parties that this section is
depicted as the left of the two fence sections found
on defendant’s exhibit J-1. The defendant is further
enjoined permanently from placing any additional struc-
ture on the site of this fence section ordered removed
by this court.
The court finds no basis for the award of punitive
damages as a result of the orders it has entered on
count three. See Bernardini v. Lombard, Superior
Court, judicial district of Litchfield, Docket No. CV-01-
0086276-S (March 14, 2003, Frazzini, J.) (34 Conn. L.
Rptr. 305) (granting motion to strike claim for punitive
damages because punitive damages are not available
under § 52-480).
C
Defendant’s Counterclaim
1
Claims Against Elizabeth Geiger
The defendant did not present any evidence against
Elizabeth Geiger, so judgment enters in favor of Eliza-
beth Geiger and against the defendant on all causes of
action contained in the counterclaim.
2
Statute of Limitations Issues
The general tort statute of limitations, § 52-577, gov-
erns all of the tortious causes of action presented in
the counterclaim except for the defendant’s claim of
negligent infliction of emotional distress:15 private nui-
sance, trespass, and intentional infliction of emotional
distress. Lambert v. Stovell, 205 Conn. 1, 4, 529 A.2d
710 (1987) (‘‘[t]he three year provision of § 52-577 is
applicable to all tort actions other than those excepted
therefrom by § 52-584 or other sections’’), superseded
on other grounds, Shortell v. Cavanagh, 300 Conn. 383,
15 A.3d 1042 (2011). Section 52-577 provides that ‘‘[n]o
action founded upon a tort shall be brought but within
three years from the date of the act or omission com-
plained of.’’ See also Rickel v. Komaromi, supra, 144
Conn. App. 782. ‘‘The three year limitation period of
§ 52-577, therefore, begins with the date of the act or
omission complained of, not the date when the plaintiff
first discovers an injury. . . . The relevant date of the
act or omission complained of, as that phrase is used
in § 52-577, is the date when the negligent conduct of
the defendant occurs and not the date when the plain-
tiffs first sustain damage. . . . Ignorance of his rights
on the part of the person against whom the statute has
begun to run, will not suspend its operation. . . . When
conducting an analysis under § 52-577, the only facts
material to the trial court’s decision . . . are the date
of the wrongful conduct alleged in the complaint and
the date the action was filed.’’ (Citation omitted; internal
quotation marks omitted.) Kidder v. Read, 150 Conn.
App. 720, 726–27, 93 A.3d 599 (2014).
3
Counterclaim Count One
As set forth above in the findings of fact section
pertaining to count one of the counterclaim, all of the
evidence submitted to support the private nuisance
cause of action related to events that took place more
than three years before the filing of the counterclaim,
on February 7, 2014. As a result, the defendant has
not presented any competent evidence from which to
satisfy the elements of a cause of action in private
nuisance.16 The defendant’s cause of action in private
nuisance is, thus, time barred under § 52-577 and judg-
ment enters in favor of Gordon Geiger and against the
defendant on the claim of private nuisance.
4
Statute of Limitations Issues in Other Tort Counts
Similarly, the following events offered by the defen-
dant as evidence to support the causes of action in
trespass, intentional infliction of emotional distress,
and negligent infliction of emotional distress cannot
support any of these claims because each of these
events occurred more than three years before the defen-
dant filed his counterclaim: the claims relating to Gor-
don Geiger sitting at the spindle wheel ‘‘table’’ in the
right-of-way (2006); Gordon Geiger placing boulders,
debris, and fill on the defendant’s driveway (July 19,
2010); and Gordon Geiger throwing ashes at the defen-
dant’s truck (October, 2009). Piteo v. Gottier, 112 Conn.
App. 441, 446, 963 A.2d 83 (2009) (‘‘the only facts mate-
rial to the trial court’s decision [related to a statute of
limitations defense] are the date of the wrongful con-
duct alleged in the complaint and the date the action
was filed’’ [internal quotation marks omitted]).
5
Counterclaim Count Two: Trespass I
Defendant’s Exhibit S-2 and the testimony of the wit-
ness Charles Barber demonstrate that Gordon Geiger
has stored a backhoe near the entrance to the Carey
Building Lot within the last three years.
6
Counterclaim Count Three: Trespass II
Gordon Geiger has intentionally, during the winter
of 2013 to 2014, blocked the entrance to the defendant’s
property with snow. Moreover, during the winter of
2010 to 2011, Gordon Geiger dumped snow onto four
large arborvitae meant to provide a barrier between the
defendant’s and the plaintiffs’ property, killing them.
Defendant’s exhibits H-1 through H-3 show large arbor-
vitae buried under very large mounds of snow. The
mounds of snow were so large that they could not have
been moved and left in the position they were in without
mechanical assistance. The snow was pushed onto the
arborvitae from the plaintiffs’ property. Gordon Geiger
employed a backhoe in and around this time period.
Gordon Geiger had motive to dump this snow on the
defendant’s barrier trees.17 Although Gordon Geiger
attempted to assert the statute of limitations as a
defense to this claim, he failed to sustain his burden
of proof because he did not provide any evidence that
these actions occurred more than three years before
February 7, 2014, the date on which the counterclaim
was filed. The court takes judicial notice of the fact
that the value of even large arborvitae is less than the
evidence offered and finds the value of the arborvitae
to be $100 each.
7
Counterclaim Count Four: Trespass III
Gordon Geiger’s tree platform encroaches onto the
defendant’s property. Additionally, the tree platform
was built so close to the defendant’s house, approxi-
mately fifty feet at the closest point, that it provides a
bird’s eye view into the defendant’s home. This consti-
tutes a stark, unreasonable, and intentional invasion of
the defendant’s privacy. Gordon Geiger’s children play
on the platform at least two times a week. Gordon
Geiger has also been up on the platform on several
occasions.
8
Conclusions of Law, Orders, and Rulings Common to
All Three Trespass Counts in the Counterclaim
Gordon Geiger did not submit any documentary evi-
dence proving the nature and extent of his right to
pass and repass on the right-of-way. The defendant has
judicially admitted, however, that Gordon Geiger, as a
tenant to Elizabeth Geiger, has such rights. The court
holds that Gordon Geiger, as long as he is a tenant at
58 Tyler Lake Heights Road, maintains, and, in the event
he were to become the owner of the Geiger Property
in the future, would maintain the rights to pass and
repass on the right-of-way. Gordon Geiger’s rights to
use the right-of-way are, however, limited to the right
to pass and repass on the right-of-way. The court holds
that Gordon Geiger does not have the right to sit on or
loiter on the right-of-way. The court also holds that
Gordon Geiger does not have the right to perform opera-
tions that change the composition of the right-of-way.
The court permanently enjoins Gordon Geiger from
(1) storing materials on the right-of-way, (2) blocking
access via the right-of-way to either the Carey Property
or the Carey Building Lot with items, (3) sitting or
loitering on the right-of-way, or (4) performing opera-
tions on the composition of the material in the right-of-
way. Such activities have created and/or would create
harm to the defendant for which there is no adequate
remedy at law.
The court finds that there is no adequate remedy at
law for the harm sustained by the defendant because
Gordon Geiger has blocked the entrance to the defen-
dant’s driveway or to the right-of-way with snow. The
court permanently enjoins Gordon Geiger from
blocking the entrance to either the defendant’s drive-
way or the street entrance to the right-of-way with
snow.
The court orders Gordon Geiger to pay the defendant
$400 in damages for the loss of the arborvitae. Payment
of this sum may be made over a twelve month period
of time from the date of this ruling.
The court finds that there is no adequate remedy at
law for the harm sustained by the defendant resulting
from the presence of the tree platform. The court orders
Gordon Geiger to remove the tree platform on or before
June 30, 2015. The court permanently enjoins Gordon
Geiger or anyone acting on his behalf, or on behalf of
Elizabeth Geiger, from building any similar structure
over any portion of the remaining fence.
9
Counterclaim Count Five: Quiet Title
Although captioned as a count to quiet title, count
five of the defendant’s counterclaim actually reads as
a request for the court to restrain and enjoin Gordon
Geiger’s use of the tree platform. The court disposed
of these issues in the previous section. To the extent
that the defendant is requesting the court to quiet title
to the fence and to the air space above it, the court
finds in favor of the defendant.
The essential elements of a quiet title action comprise
‘‘a statement of the plaintiff’s ownership of the land
described or of an interest in it, and of his title thereto
. . . [and a contrary claim] that his title or interest is
in controversy, that is, that it is so effected by claims
of the defendant as to justify the litigation.’’ (Citation
omitted.) Gager v. Carlson, 146 Conn. 288, 289, 150
A.2d 302 (1959). In a quiet title action, the court must
first ‘‘determine in which party record title lies . . . .’’
(Internal quotation marks omitted.) Har v. Boreiko, 118
Conn. App. 787, 794, 986 A.2d 1072 (2010). The court
holds that the defendant owns record title to the land
on which the fence is located. The court further holds
that the defendant owns the airspace above the fence,
which sits twenty inches onto the defendant’s property.
Unlike many other quiet title actions, there is no real
question as to which party owns the property on which
the fence sits or the airspace above the fence. Aside
from claiming at trial that the tree platform was not
trespassing on the defendant’s property, Gordon Geiger
did not advance any colorable claim to this property.
Therefore, the court holds that title to the property
where the fence is located and to the airspace above
such property belongs to the defendant.
10
Counterclaim Count Six: Intentional Infliction of
Emotional Distress and Counterclaim Count Seven:
Negligent Infliction of Emotional Distress
The court will first review the essential elements of
each cause of action.
‘‘In order for the plaintiff to prevail in a case for
liability under . . . [intentional infliction of emotional
distress], four elements must be established. It must be
shown: (1) that the actor intended to inflict emotional
distress or that he knew or should have known that
emotional distress was the likely result of his conduct;
(2) that the conduct was extreme and outrageous; (3)
that the defendant’s conduct was the cause of the plain-
tiff’s distress; and (4) that the emotional distress sus-
tained by the plaintiff was severe. . . . Whether a
defendant’s conduct is sufficient to satisfy the require-
ment that it be extreme and outrageous is initially a
question for the court to determine. . . . Only where
reasonable minds disagree does it become an issue for
the jury.’’ (Citation omitted; internal quotation marks
omitted.) Gagnon v. Housatonic Valley Tourism Dis-
trict Commission, 92 Conn. App. 835, 846, 888 A.2d
104 (2006).
‘‘Liability for intentional infliction of emotional dis-
tress requires conduct that exceeds all bounds usually
tolerated by decent society . . . . Liability has been
found only where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized commu-
nity. Generally, the case is one in which the recitation
of the facts to an average member of the community
would arouse his resentment against the actor, and lead
him to exclaim, Outrageous! . . . Appleton v. Board of
Education, 254 Conn. 205, 210–11, 757 A.2d 1059
(2000).’’ (Internal quotation marks omitted.) Reyes v.
Bridgeport, 152 Conn. App. 528, 543 n.13, 100 A.3d
50 (2014).
‘‘[I]n order to prevail on a claim of negligent infliction
of emotional distress, the plaintiff must prove that the
defendant should have realized that its conduct
involved an unreasonable risk of causing emotional dis-
tress and that that distress, if it were caused, might
result in illness or bodily harm. . . . Larobina v.
McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). The
elements of a claim of negligent infliction of emotional
distress are as follows: (1) the defendant’s conduct cre-
ated an unreasonable risk of causing the plaintiff emo-
tional distress; (2) the plaintiff’s distress was
foreseeable; (3) the emotional distress was severe
enough that it might result in illness or bodily harm;
and (4) the defendant’s conduct was the cause of the
plaintiff’s distress. Carrol v. Allstate Ins. Co., [262 Conn.
433, 444, 815 A.2d 119 (2003)]. [T]he elements of negli-
gent infliction of emotional distress do not require proof
of any particular level of intent. In fact, intent need not
be proven at all to establish a claim of negligent inflic-
tion of emotional distress. Stohlts v. Gilkinson, 87 Conn.
App. 634, 645, 867 A.2d 860, cert. denied, 273 Conn. 930,
873 A.2d 1000 (2005).
‘‘As to the first and second elements of the claim,
they essentially [require] that the fear or distress experi-
enced by the plaintiffs be reasonable in light of the
conduct of the defendants. If such [distress] were rea-
sonable in light of the defendants’ conduct, the defen-
dants should have realized that their conduct created
an unreasonable risk of causing distress, and they,
therefore, properly would be held liable. Conversely, if
the [distress] were unreasonable in light of the defen-
dants’ conduct, the defendants would not have recog-
nized that their conduct could cause this distress and,
therefore, they would not be liable. . . . Larobina v.
McDonald, supra, 274 Conn. 410.
‘‘The third element of the claim is [t]he foreseeability
requirement [which] is more specific than the standard
negligence requirement that an actor should have fore-
seen that his tortious conduct was likely to cause harm.
. . . In order to state a claim for negligent infliction of
emotional distress, the plaintiff must plead that the
actor should have foreseen that her behavior would
likely cause harm of a specific nature, i.e., emotional
distress likely to lead to illness or bodily harm. . . .
Olson v. Bristol–Burlington Health District, [87 Conn.
App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914,
870 A.2d 1083 (2005)] [(withdrawn by party after certifi-
cation granted)].’’ (Internal quotation marks omitted.)
Woodbury-Correa v. Reflexite Corp., Superior Court,
judicial district of New Britain, Docket No. CV-11-
6011794-S (December 15, 2014, Abrams, J.).
Although these two separate causes of action differ
in many regards, they share in common one factor: the
harm that must be proven in order for the counterclaim
plaintiff to succeed must be serious. Intentional inflic-
tion of emotional distress requires that the emotional
distress sustained be ‘‘severe.’’ Gagnon v. Housatonic
Valley Tourism District Commission, supra, 92 Conn.
App. 846. Negligent infliction of emotional distress
requires that the emotional distress be ‘‘severe enough
that it might result in illness or bodily harm . . . .’’
Carrol v. Allstate Ins. Co., supra, 262 Conn. 444. Inten-
tional infliction also requires that the conduct alleged
be ‘‘so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable
in a civilized community.’’ (Internal quotation marks
omitted.) Appleton v. Board of Education, supra, 254
Conn. 211.
Although the defendant testified that Gordon Geiger,
in January of 2014, parked his car on the right-of-way
outside of the defendant’s house and stared at him, the
court holds that the defendant did not sustain his bur-
den of proving that this event had occurred.
What remains for the defendant in terms of proven
evidence are two sets of events that occurred within
the last three years.18 Gordon Geiger blocked the defen-
dant’s driveway entrance with snow and told the defen-
dant that his driveway rights were being revoked.
Gordon Geiger accosted the defendant and three
friends, insulted one of them by referring to a car acci-
dent, made a slightly pejorative pun of the name of
another, insulted the defendant for drinking episodes,
and told the four that he intended to be around for
forty years, and that he didn’t intend to be civil. Gordon
Geiger also referred to himself by means of using a
racial slur.
In the court’s eyes, none of the harm allegedly arising
from these incidents rises to the level of ‘‘severe’’ emo-
tional distress, for purposes of the intentional infliction
of emotional distress count or emotional distress
‘‘severe enough that it might result in illness or bodily
harm’’ for purposes of the negligent infliction of emo-
tional distress count. Granted, the feelings engendered
by such encounters would not be pleasant, but they
are also not likely to cause severe emotional distress.
Moreover, although falling well below the standards of
decency of a civilized society, the conduct of Gordon
Geiger was not outrageous, intolerable, or atrocious.
As a result, the court finds for Gordon Geiger and
against the defendant in regard to both the intentional
and the negligent infliction of emotional distress counts.
The court finds no basis for the awarding of punitive
damages for any aspect of the counterclaim for which
recovery was allowed.
VI
Conclusion
The court rules for the defendant and against the
plaintiffs on counts one and two of the revised com-
plaint. In regard to count three of the revised complaint,
the court rules in favor of the plaintiffs and against the
defendant and orders the defendant to remove the one
section of the fence between the parties’ properties
closest to the street on or before June 30, 2015. The
defendant is further permanently enjoined from build-
ing another structure on the portion of the defendant’s
property where that portion of the fence is currently
located.
The court rules as follows as to the counterclaim.
The court rules for the plaintiff Elizabeth Geiger and
against the defendant for all counts of the counterclaim
as they relate to Elizabeth Geiger. The court rules in
for Gordon Geiger and against the defendant for counts
one, six, and seven of the counterclaim. The court rules
for the defendant and against Gordon Geiger for counts
two, three, four, and five of the counterclaim. The court
orders that while Gordon Geiger maintains his right, so
long as he is a tenant or owner of 58 Tyler Lake Heights
Road, to pass and repass on the right-of-way, the court
permanently enjoins Gordon Geiger from stopping or
loitering on the right-of-way. The court also perma-
nently enjoins Gordon Geiger from placing any barriers,
barricades, or items on the right-of-way. Further, the
court orders Gordon Geiger to take down his tree plat-
form on or before June 30, 2015, and permanently
enjoins him from erecting a similar structure over the
fence between the parties’ property. Finally, the court
awards damages in the amount of $400 to the defendant
for the damage to his arborvitae, to be paid by Gordon
Geiger to the defendant within twelve months of this
ruling.
* Affirmed. Geiger v. Carey, 170 Conn. App. 459, A.3d (2017).
1
When the court refers to ‘‘the parties,’’ the court means Gordon and
Elizabeth Geiger, on one hand, and the defendant, on the other hand. When
the court refers to the ‘‘party,’’ the court means, based on the context, either
both Gordon and Elizabeth Geiger or the defendant.
2
Gordon Geiger’s attempt to appear on behalf of his mother is ineffective
under Connecticut law. ‘‘The authorization to appear pro se is limited to
representing one’s own cause and does not permit individuals to appear
pro se in a representative capacity.’’ Expressway Associates II v. Friendly
Ice Cream Corp. of Connecticut, 34 Conn. App. 543, 546, 642 A.2d 62, cert.
denied, 230 Conn. 915, 645 A.2d 1018 (1994). Elizabeth Geiger presented no
evidence aside from one small portion of testimony attempting to rebut one
aspect of a defense set forth. Therefore, because Gordon Geiger could not
put on evidence for Elizabeth Geiger, findings entered in favor of the plaintiff
shall only enter on behalf of Gordon Geiger.
3
‘‘[T]he right of self-representation [however] provides no attendant
license not to comply with relevant rules of procedural and substantive
law.’’ (Internal quotation marks omitted.) Rowe v. Goulet, 89 Conn. App.
836, 841, 875 A.2d 564 (2005).
4
This building lot is located to the rear of and to the east of the defen-
dant’s home.
5
The facts found in each subsection apply to the entire decision. Headings
employed by the court are used for illustrative purposes and for the conve-
nience of the reader.
6
Lockaby and Perrault’s motion for permission to withdraw as attorneys
for Elizabeth Geiger states that Elizabeth Geiger quitclaimed the property
to Gordon Geiger on July 23, 2009. The December 5, 2013 revised complaint,
however, identifies Elizabeth Geiger as the owner of the property and states
that Gordon Geiger has ‘‘full possession rights’’ to the property. At trial,
Gordon Geiger testified that his mother quitclaimed her interest to him ‘‘[i]n
a deed that’s not recorded with the town.’’ Gordon Geiger did not submit
the deed into evidence. Under General Statutes § 47-10, while an unrecorded
deed is effective between the parties to the deed, the failure to record the
deed renders it ineffective against other parties.
7
The defendant’s testimony in this regard was essentially uncontroverted.
When Elizabeth Geiger testified concerning this call and a similar call per-
taining to the retaining wall, she did not contradict the defendant’s testimony,
but simply said that she did not ‘‘recall any phone calls about that.’’ Trial
Tr., 156:14–17.
8
Please See footnote 7 of this opinion.
9
Connecticut law has long held that ‘‘a court has discretion to permit the
fact-finder, be it court or jury, to view the premises or a location relevant
to the trial. . . . Evidence obtained from views is substantive evidence and
can independently support a factual finding.’’ (Internal quotation marks
omitted.) Barber v. Skip Barber Racing School, LLC, 106 Conn. App. 59,
68, 940 A.2d 878 (2008).
10
All headings employed in the ‘‘Conclusions of Law, Rulings and Orders
of the Court’’ section are meant to be illustrative only and are used for the
reader’s convenience. The application of each such conclusion of law, ruling
and order is governed by what the court has written in the body of the
decision, rather than in the headings.
11
The plaintiffs were certainly hamstrung on issues of proof in this regard
as it appears from the testimony that neither one lived on the property until
April, 2006, and neither seemed to have any personal knowledge of facts
supporting their claims in counts one and two.
12
The three year statute of limitations does not apply to the retaining
wall, as its presence is alleged to be a continuing trespass. See Rickel v.
Komaromi, supra, 144 Conn. App. 775.
13
There was testimony at trial that much later piping and drainage activi-
ties of Gordon Geiger may have rendered the retaining wall remedy unneces-
sary, but such activities do not alter the court’s conclusion that the retaining
wall provided a very important benefit to the plaintiffs for many years after
Elizabeth Geiger gave the defendant permission to construct it.
14
It is noteworthy that the fence has proven useful to Gordon Geiger as
well. He has built a swing and a slide for his children on his side of the
fence. Trial Tr., 136:24–137:2. During the court’s site visit, the court observed
that Gordon Geiger stores firewood up against the fence. Moreover, defen-
dant’s exhibits K-2 and K-3, taken in conjunction with the defendant’s testi-
mony, demonstrate that the parties shared a desire for physical separation,
as Gordon Geiger built a wire fence demarking the property line between
two sections of the defendant’s wooden fence in 2006.
15
The defendant’s negligent infliction of emotional distress claim is gov-
erned by the statute of limitations found in General Statutes § 52-584 because
it involves a personal injury caused by a party’s negligence. Rivera v. Double
A Transportation, Inc., 248 Conn. 21, 31, 727 A.2d 204 (1999). Section 52-
584 limits claims to those brought within two years of injury or the discovery
of harm, but places an outer limit of three years from the date of the
occurrence of the act or omission alleged. In contrast, the defendant’s
intentional infliction of emotional distress claim, as an intentional tort, is
governed by the three year statute of limitations found in § 52-577. Burke
v. Klevan, 130 Conn. App. 376, 377 n.1, 23 A.3d 95 (2011), cert. denied, 302
Conn. 936, 28 A.3d 990, cert. denied, U.S. , 132 S. Ct. 1637, 182 L. Ed.
2d 234 (2012).
16
‘‘ ‘[I]n order to recover damages in a common-law private nuisance
cause of action, a plaintiff must show that the defendant’s conduct was the
proximate cause of an unreasonable interference with the plaintiff’s use
and enjoyment of his or her property. The interference may be either inten-
tional . . . or the result of the defendant’s negligence.’ Rickel v. Komaromi,
[supra, 144 Conn. App. 783]. ‘Whether the interference is unreasonable
depends upon a balancing of the interests involved under the circumstances
of each individual case . . . the fact finder must take into consideration
all relevant factors . . . the fact finder deems relevant to the question of
whether the interference is unreasonable.’ Petsey [v. Cushman, 259 Conn.
345, 361, 788 A.2d 496 (2002) ]. As to the intent element, ‘[i]f the creator of
the condition intends the act that brings about the condition found to be a
nuisance, the nuisance thereby created is said to be absolute and its creator
is strictly liable.’ Quinnett v. Newman, 213 Conn. 343, 348, 568 A.2d 786
(1990), overruled in part on other grounds, Craig v. Driscoll, 262 Conn. 312,
813 A.2d 1003 (2003).’’ Johanns v. Meriden, Superior Court, judicial district
of New Haven, Docket No. CV-13-6039855-S (December 1, 2014, Wilson, J.).
17
While the defendant did not present direct evidence of Gordon Geiger
dumping snow on to the arborvitae, the court finds that sufficient circumstan-
tial evidence was submitted to conclude that Gordon Geiger dumped snow
on to the arborvitae in the winter of 2010 to 2011. ‘‘Proof by circumstantial
evidence is sufficient where rational minds could reasonably and logically
draw the necessary inferences. . . . Each inferential fact need not be
proven by the quantum of proof required to find the ultimate fact.’’ (Citation
omitted.) Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281
Conn. 84, 110, 912 A.2d 1019 (2007).
18
As previously noted, the defendant’s intentional infliction of emotional
distress claim is governed by a three year statute of limitations, found in
§ 52-577. The defendant’s negligent infliction of emotional distress claim is
governed by the statute of limitations found in § 52-584, which has an outer
limit of three years from the date of the act of omission alleged to have
caused the harm to the party making the allegation.