Delahunty v. Targonski ( 2015 )

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KAREN DELAHUNTY v. AGNES TARGONSKI ET AL.
(AC 36839)
DiPentima, C. J., and Alvord and Bishop, Js.
Argued March 10—officially released July 28, 2015
(Appeal from Superior Court, judicial district of
Middlesex, Domnarski, J.)
John R. Williams, for the appellant (plaintiff).
Timothy Brignole, with whom, on the brief, was Juri
E. Taalman, for the appellees (defendants).
Opinion
DiPENTIMA, C. J. The plaintiff, Karen Delahunty,
appeals from the judgment of the trial court awarding
her $100 in nominal damages for trespass and awarding
the defendants, Agnes Targonski and Kizyszlof Targon-
ski, an easement by estoppel. On appeal, the plaintiff
claims that she was denied her state constitutional right
to a trial by jury.1 We conclude that the plaintiff waived
her right to a jury trial and therefore cannot prevail,
pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), on her unpreserved claim. Accord-
ingly, we affirm the judgment of the trial court.
The following facts, as set forth in the court’s memo-
randum of decision, and procedural history, are relevant
to the resolution of this appeal. In 2004, the plaintiff
obtained subdivision approval for land she owned on
Indian Hill Road in Haddam. This subdivision consisted
of two lots, designated ‘‘lot 1’’ and ‘‘lot 2,’’ and each
two acre lot had 200 feet of frontage on Indian Hill
Road. Later that year, she sold lot 2, located at 11 Indian
Hill Road, to the defendants. In between the two lots
was ‘‘an access strip 38 feet wide and approximately
440 feet long that had frontage on Indian Hill Road.’’
The closing occurred on or about July 26, 2004,
although neither the plaintiff nor her attorney attended.
‘‘The warranty deed for lot 2 did not contain a grant of
right-of-way or easement over the plaintiff’s access strip
for use as a driveway. The defendants were represented
by counsel at the closing and they expected, and under-
stood, that the right-of-way would be in the deed. The
defendants’ attorney never informed them, at the clos-
ing, that the deed did not contain a right-of-way. The
court [found] that, after the closing, and before they
constructed their house, the defendants did not have
actual knowledge that their deed did not contain a right-
of-way.’’
Soon thereafter, the defendants began the construc-
tion of a house on their property. After it was con-
structed, the defendants learned that a portion of their
house was too close to the required twenty foot setback.
As a result, they asked the plaintiff to convey a small
portion of the access strip to remedy the problem,
which the plaintiff did on August 25, 2005. In the fall
of 2005, the defendants entered into a contract for the
construction of a stone wall, which was built on the
southerly boundary of their driveway, which also is
the ‘‘approximate southerly boundary of the plaintiff’s
access strip.’’ The stone wall is approximately 230 feet
in length. The defendants also paved the driveway in
October, 2007.
The plaintiff commenced this action in October, 2008.
The operative complaint alleged various forms of tres-
pass, one count of nuisance and one count to quiet
title. Essentially, she alleged that the stone wall and
the paved driveway were built and that trees were
planted on her property without her permission, which
constituted a trespass. The plaintiff further claimed that
the defendants have parked motor vehicles on the
access strip, which she owns, and that the defendants
have operated trucks, logging equipment and other
large machinery on her property, and these activities
have been done without her permission, amounting to
a trespass. The plaintiff also alleged that the defendants
dumped and abandoned animal cages on the plaintiff’s
property without her authorization, and that the defen-
dants’ logging and farming activities generated offen-
sive noises and odors that interfered with her use of
her property, creating a nuisance.2 The defendants filed
an answer, special defenses and counterclaims against
the plaintiff.
Prior to trial and pursuant to Practice Book § 10-
11, the defendants moved for permission to cite in, as
necessary third parties, Kevin M. Gaffey and Jennifer
S. Gaffey (Gaffeys). The court granted the motion and
the defendants filed a third party complaint against the
Gaffeys, alleging that they owned the property known
as 5 Indian Hill Road, which abutted the plaintiff’s prop-
erty. The defendants further claimed that a three foot
high berm created on the Gaffey property created ero-
sion, sediment and washing of contaminated water
across the plaintiff’s property and onto their driveway.
On February 15, 2011, the Gaffeys filed a claim for
a jury trial. On April 18, 2013, however, the Gaffeys
moved for a court trial with respect to the third party
complaint. On April 29, 2013, in accordance with an
agreement of the parties, the court granted the motion
for a court trial filed by the Gaffeys. Later that spring,
on May 31, 2013, the defendants withdrew their third
party complaint against the Gaffeys.
A trial to the court occurred on January 23, 24, 28,
and February 11, 2014. The court issued a memorandum
of decision on April 8, 2014. It found that the defendants
had established, by clear and convincing evidence, an
easement by estoppel to use the access strip as a right
of way to their house and attached garage. This ease-
ment was for ingress and egress only, and not for the
parking of motor vehicles, and was limited to the paved
portion of the access strip. The court also found that
the construction of the stone wall and the planting
of trees by the defendants on the plaintiff’s property
constituted a trespass. The court rejected the other
claimed trespasses by the plaintiff, as well as her claims
for nuisance, punitive damages and injunctive relief.
For the trespass, it awarded the plaintiff $100 in nominal
damages. This appeal followed.
The sole claim raised by the plaintiff in her appeal
is that she was denied her state constitutional right to
a trial by a jury. Specifically, she argues that the case
was claimed for a jury trial, albeit by the Gaffeys, and
the denial of her right to a jury trial constituted struc-
tural error. She concedes that this claim was not pre-
served and seeks review under State v. Golding, supra,
213 Conn. 239–40. See, e.g., State v. Elson, 311 Conn.
726, 743, 91 A.3d 862 (2014) (bedrock principle of appel-
late jurisprudence that appellate courts generally will
not review unpreserved claims made for first time on
appeal). We conclude that, under the facts and circum-
stances of this case, she waived her right to a jury trial
and therefore her claim fails to satisfy the third prong
of Golding.
In State v. Golding, supra, 213 Conn. 239–40, our
Supreme Court stated that ‘‘a defendant can prevail on
a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation clearly exists and clearly
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt. In the absence of any
one of these conditions, the defendant’s claim will fail.
The appellate tribunal is free, therefore, to respond to
the defendant’s claim by focusing on whichever condi-
tion is most relevant in the particular circumstances.’’
(Emphasis in original; footnote omitted.) Golding
applies in civil as well as criminal cases. In re Yasiel
R., 151 Conn. App. 710, 720, 94 A.3d 1278, cert. granted
on other grounds, 314 Conn. 907, 99 A.3d 1169 (2014);
Bruno v. Bruno, 132 Conn. App. 339, 348–49, 31 A.3d
860 (2011); Lohnes v. Hospital of Saint Raphael, 132
Conn. App. 68, 79–80, 31 A.3d 810 (2011), cert. denied,
303 Conn. 921, 34 A.3d 397 (2012).
We are mindful that ‘‘[i]n the usual Golding situation,
the defendant raises a claim on appeal which, while
not preserved at trial, at least was not waived at trial.
. . . [A] constitutional claim that has been waived does
not satisfy the third prong of the Golding test because,
in such circumstances, we simply cannot conclude that
injustice [has been] done to either party . . . or that
the alleged constitutional violation clearly exists and
clearly deprived the defendant of a fair trial . . . . To
reach a contrary conclusion would result in an ambush
of the trial court by permitting the defendant to raise
a claim on appeal that his or her counsel expressly had
abandoned in the trial court.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Reddick, 153
Conn. App. 69, 80–81, 100 A.3d 439, appeal dismissed,
314 Conn. 934, 102 A.3d 85, and cert. denied, 315 Conn.
904, 104 A.3d 757 (2014); see also Mozell v. Commis-
sioner of Correction, 291 Conn. 62, 70–71, 967 A.2d 41
(2009); State v. Fabricatore, 281 Conn. 469, 481–83, 915
A.2d 872 (2007). Simply put, a constitutional claim that
has been waived does not satisfy the third prong of
Golding. State v. Jessie L. C., 148 Conn. App. 216, 231,
84 A.3d 936, cert. denied, 311 Conn. 937, 88 A.3d 551
(2014); see also State v. Santiago, 142 Conn. App. 582,
590, 64 A.3d 832, cert. denied, 309 Conn. 911, 69 A.3d
307 (2013).
We recently discussed waiver in the context of a
claim made pursuant to the Golding doctrine. ‘‘[W]aiver
is [t]he voluntary relinquishment or abandonment—
express or implied—of a legal right or notice. . . . In
determining waiver, the conduct of the parties is of
great importance. . . . [W]aiver may be effected by
action of counsel. . . . When a party consents to or
expresses satisfaction with an issue at trial, claims aris-
ing from that issue are deemed waived and may not be
reviewed on appeal. . . . Thus, [w]aiver . . . involves
the idea of assent, and assent is an act of understand-
ing. . . .
‘‘It is well established that implied waiver . . . arises
from an inference that the defendant knowingly and
voluntarily relinquished the right in question. . . .
Waiver does not have to be express . . . but may con-
sist of acts or conduct from which waiver may be
implied. . . . In other words, waiver may be inferred
from the circumstances if it is reasonable to do so. . . .
It also is well established that any such inference must
be based on a course of conduct. . . . Relevant cases
inform us that a criminal defendant may implicitly waive
one or more of his or her fundamental rights. . . . In
some circumstances, a waiver of rights must be know-
ing, voluntary and intelligent, and it must be expressly
made. . . . In other circumstances, waiver can be
implied . . . [and] [t]he waiver can be made by counsel
. . . .’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) State v. Santiago, supra, 142
Conn. App. 595–96.
In criminal cases, our Supreme Court has held that
the defendant must personally waive the fundamental
right to a jury trial and there must be some affirmative
indication from the defendant, on the record, that he
or she knowingly, intelligently and voluntarily has
waived the right to a jury trial. State v. Gore, 288 Conn.
770, 777–78, 995 A.2d 1 (2008). It also has recognized,
however, that a lower standard for waiving the right to
a jury applies in civil cases. L & R Realty v. Connecticut
National Bank, 246 Conn. 1, 14, 715 A.2d 748 (1998)
(appropriate to apply lower standard in determining
enforceability of prelitigation contractual jury trial
waivers than for waivers in criminal case); see also
Fuentes v. Shevin, 407 U.S. 67, 94–95, 92 S. Ct. 1983,
32 L. Ed. 2d 556 (1972) (standards for waivers of rights
in criminal case would not necessarily apply to civil liti-
gation).
A party may forfeit the right to a jury trial in a civil
case if the right is not asserted in a timely manner, may
abandon the right to a jury trial if he or she chooses a
forum that does not afford the right to a jury trial, or
may waive the right to a jury trial. L & R Realty v.
Connecticut National Bank, supra, 246 Conn. 10; see
Anastasia v. Mitsock, Superior Court, judicial district
of New Haven, Docket No. CV-05-4012156-S (December
1, 2006) (42 Conn. L. Rptr. 453, 454) (summary of law
since 1899 that failure to claim civil action to jury within
thirty days of return date or within ten days after an
issue of fact has been joined amounts to voluntary and
intentional relinquishment of right to jury trial); see
also General Statutes §§ 51-239b and 52-215.
In the present matter, the plaintiff did not claim the
case for a jury trial. The Gaffeys, the third party defen-
dants, filed the claim for a jury trial. On April 18, 2013,
the Gaffeys filed a motion for a court trial and certified
that a copy of their motion was sent to the plaintiff’s
counsel.3 In a handwritten notation dated April 29, 2013,
the court granted the Gaffey’s motion ‘‘by agreement’’
and noted that the plaintiff’s counsel was present.4 The
motion to withdraw the third party complaint was filed
by the defendants on May 31, 2013. Most importantly,
the plaintiff appeared for a trial by the court and never
raised any objection to the proceedings, namely, the
absence of a jury. We conclude that, under the facts
and circumstances of this case, the plaintiff waived her
constitutional right to a jury trial.
Our conclusion is supported by our Supreme Court’s
decision in Keating v. Glass Container Corporation,
197 Conn. 428, 497 A.2d 763 (1985). In that case, the
plaintiff suffered injuries when a cap blew off a soda
bottle and struck her in the eye. Id., 429. She filed
an action for strict liability against Pepsi-Cola Bottling
Company of New Haven, Inc. (Pepsi), which was the
bottler of the soda, the retailer that sold her the soda,
the bottle manufacturer, and the cap manufacturer. Id.,
429–30. Pepsi and the retailer each filed a cross com-
plaint for indemnification against the other defendants.
Id., 430. The plaintiff’s case was tried before a jury,
which found for the plaintiff as to her claims against
Pepsi and the retailer. Id. After a court trial on the
indemnification actions, the court rendered judgment
ordering Pepsi to indemnify the retailer for any liability
incurred from the plaintiff’s judgment. Id.
On appeal, Pepsi claimed that the trial court improp-
erly determined it did not have a right to a jury trial.
Id. In rejecting this claim, our Supreme Court concluded
that Pepsi had failed to make a timely objection. Id. At
the outset of its analysis, it noted that ‘‘[t]he reason for
requiring timely objections in judicial proceedings is
to enable the judge and opposing counsel to correct
possible errors . . . .’’ Id., 431. It then noted that the
record was ‘‘replete with inconsistencies’’ regarding
whether Pepsi had wanted a court trial or a jury trial
on its cross complaint and that Pepsi had failed to avail
itself of opportunities to clarify its position. Id. Our
Supreme Court noted that ‘‘[p]rior to the start of the
jury trial on the plaintiff’s complaint, had Pepsi wished
to preserve the issue for appeal, it could and should
have placed a formal objection on the record and sought
a determination by the trial judge as to its right to a
jury trial on the cross complaints.’’ Id., 432–33. Finally,
it noted that ‘‘Pepsi cannot now claim a new trial
because of a situation which was in part caused by its
failure to make a timely objection.’’ Id., 433–34.
Although the analysis in Keating was based on the
failure to object and preserve the claim at trial, rather
than on whether a claim was waived under Golding, it
is nevertheless applicable to the present case. The fail-
ure of the plaintiff to raise an objection at the start of
the court trial, after receiving notice that the third party
defendant had moved for a court trial and that there
had been no jury selection, combined with her active
and full participation in the ensuing trial, indicates that
she had acquiesced to a court trial and correspondingly
relinquished her right to a jury trial. She failed to object
at the start of the court trial, when there was time to
present the matter to the court, so that a possible error
could be addressed and corrected if necessary. Instead,
she remained silent and participated fully in the court
trial. Only after receiving nominal damages did the
plaintiff seek to exercise her right to a jury trial. Put
another way, the plaintiff now seeks a proverbial sec-
ond bite at the apple after receiving an award that was
less than she had hoped for. We cannot endorse such
a tactic, as it amounts to an ambush of both the trial
court and the opposing party. We will not reward the
plaintiff with a new trial based on a situation that was
caused in part by her failure to raise an objection. See id.
We conclude that, under these facts and circum-
stances, the plaintiff waived her right to a jury trial. As
a result, her claim fails under the third prong of Golding.
Mozell v. Commissioner of Correction, supra, 291 Conn.
70–71; State v. Fabricatore, supra, 281 Conn. 482; State
v. Reddick, supra, 153 Conn. App. 82.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Article first, § 19, of the Connecticut constitution provides: ‘‘The right
of trial by jury shall remain inviolate, the number of such jurors, which
shall not be less than six, to be established by law; but no persons shall,
for a capital offense, be tried by a jury of less than twelve jurors without
his consent. In all civil and criminal actions tried by a jury, the parties
shall have the right to challenge jurors peremptorily, the number of such
challenges to be established by law. The right to question each juror individu-
ally by counsel shall be inviolate.’’ See also Evans v. General Motors Corp.,
277 Conn. 496, 509–510, 893 A.2d 371 (2006).
2
The plaintiff sought temporary and permanent injunctions restraining
the defendants from continuing to trespass on the plaintiff’s property, tempo-
rary and permanent injunctions restraining the defendants from continuing
the nuisance conditions, monetary damages, punitive damages and a judg-
ment quieting title in her favor.
3
Specifically, the Gaffey’s motion for a court trial provided: ‘‘This case
was the subject of a trial management conference with Judge Aurigemma
on Tuesday, April 16, 2013, in advance of the May 2, 2013 trial date. At that
time, the third party plaintiffs indicated that they expected that the third
party complaint would be tried to a jury.’’ The Gaffeys, who originally had
sought a jury trial, changed their position and moved for a court trial.
4
We acknowledge that notice was sent to all parties on May 6, 2013, that
stated jury selection was to begin on May 29, 2013; however, if counsel had
failed to e-file a joint trial management report, then jury selection would
not commence on that date. Nevertheless, the plaintiff failed to take any
action or clarify whether there would be a court trial or a jury trial. See,
e.g., Keating v. Glass Container Corporation, 197 Conn. 428, 431–32, 497
A.2d 763 (1985).