Gaughan v. Higgins , 186 Conn. App. 618 ( 2018 )

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PETER GAUGHAN ET AL. v. PETER HIGGINS
(AC 40556)
DiPentima, C. J., and Elgo and Bear, Js.
Syllabus
The plaintiffs, P and J, who owned property that abutted property of the
defendant, sought, inter alia, to quiet title to a triangular strip of land
contiguous to all parcels and to which all of the parties claimed title.
The defendant filed counterclaims for quiet title and water damage.
Following a trial to the court, the trial court found in favor of the
plaintiffs on their claims for quiet title and trespass and on the defen-
dant’s counterclaims for quiet title and water damage. The court found
in favor of the defendant on the plaintiffs’ claim for slander of title and
awarded nominal damages for the defendant’s trespass but declined to
award punitive damages or attorney’s fees. From the judgment rendered
thereon, the defendant appealed and the plaintiffs cross appealed to
this court. Held:
1. The trial court properly credited the testimony of the plaintiffs’ expert
witness; it was clear on the basis of the record that the court credited
the conclusions of the plaintiffs’ expert witness regarding the plaintiffs’
ownership of the disputed area over the conclusions of the defendant’s
expert witness, and such a credibility determination was the responsibil-
ity and exclusive province of the trial court as fact finder.
2. The trial court’s factual findings were not clearly erroneous: that court
properly found that the disputed area was located on the plaintiffs’
property in light of the testimony of the plaintiffs’ expert and the surveys
admitted into evidence, its finding that the defendant showed P the
boundaries of the plaintiffs’ parcel, which included the disputed area,
was supported by P’s testimony that the court was free to credit, and
its finding that iron pins referenced in a 1991 warranty deed were located
on the property in the mid-1990s when a survey was performed was
supported by the testimony of the plaintiffs’ expert; moreover, although
the trial court’s finding that the iron pins were in the same location
prior to trial as they were in the mid-1990s was clearly erroneous,
as there was no support for that finding in the record, that isolated
misstatement of fact did not undermine the rest of the court’s findings,
and because that error did not affect this court’s conclusion that the
trial court’s finding as to the location of the plaintiffs’ property was not
clearly erroneous, it did not affect the outcome of this appeal.
3. The defendant could not prevail on his claim that the trial court’s finding
that he trespassed on the plaintiffs’ property was improper because it
was premised on the court’s erroneous conclusion that the plaintiffs
owned the disputed area; the trial court having properly determined
that the plaintiffs owned the disputed area, and the defendant not having
contested the other elements of the trespass action, the defendant’s
claim was untenable.
4. The trial court improperly awarded the plaintiffs the fees of their expert
witness as an element of their bill of costs; contrary to the plaintiffs’
claim, the defendant did not waive his objection to the plaintiffs’ bill
of costs, and because a land surveyor is not a listed expert witness
whose cost may be reimbursed pursuant to statute (§ 52-260 [f]), the
trial court lacked authority to award costs to the plaintiffs for their
expert witness fees.
5. The trial court properly denied the plaintiffs’ request for common-law
punitive damages and attorney’s fees; that court specifically found that
although the defendant trespassed on the plaintiffs’ property, his actions
in marking what he believed was the boundary line between his parcel
and the plaintiffs’ parcel stemmed from his mistaken belief that he
owned the disputed property, and although a trial court may find reckless
indifference without finding actual intention to do harm, that did not
mean that the court’s factual findings required it to conclude that the
defendant acted with reckless indifference.
6. The trial court properly determined that the defendant did not slander
the plaintiffs’ title to their property; the plaintiffs failed to provide any
legal authority indicating that the defendant’s delivery of a notice of
revocation concerning the disputed land through a state marshal consti-
tuted publication to a third party, the plaintiffs did not prove any pecuni-
ary loss as a result of the marshal being provided the notice to deliver
to the plaintiffs, and they did not demonstrate that the defendant acted
with reckless disregard for the truth by sending the notice to the
plaintiffs.
Argued September 13—officially released December 18, 2018
Procedural History
Action seeking, inter alia, to quiet title to certain real
property, and for other relief, brought to the Superior
Court in the judicial district of Tolland, where the defen-
dant filed a counterclaim; thereafter, the matter was
tried to the court, Cobb, J.; judgment for the plaintiffs
on the complaint in part and on the counterclaim in
part, from which the defendant appealed and the plain-
tiffs cross appealed to this court. Reversed in part;
further proceedings.
Edward Muska, for the appellant-cross appellee
(defendant).
Maria K. Tougas, for the appellees-cross appel-
lants (plaintiffs).
Opinion
ELGO, J. This quiet title action concerns a triangular
strip of land between the parties’ properties. The defen-
dant, Peter J. Higgins, appeals from the judgment of
the trial court, rendered after a bench trial, in favor of
the plaintiffs, Peter P. Gaughan and Jacqueline McGann.
On appeal, the defendant claims that the court improp-
erly (1) credited the testimony of the plaintiffs’ expert
witness, (2) found facts not supported by the record,
(3) found that the defendant trespassed on the plaintiffs’
property, and (4) awarded the plaintiffs the fees of their
expert witness as an element of the bill of costs. The
plaintiffs cross appeal, claiming that the court improp-
erly (1) denied their request for punitive damages and
(2) determined that the defendant did not slander the
plaintiffs’ title. We reverse the judgment of the trial
court with respect to the defendant’s fourth claim and
affirm the judgment in all other respects.
The record reveals the following facts and procedural
history. The plaintiffs are the owners of real property
known as 8 White Road in Ellington. The defendant is
the owner of real property known as 51 South Road in
Ellington, an abutting property to the north.
In 1969, the defendant’s parents owned both the plain-
tiffs’ and the defendant’s parcels and subdivided the
land into two parcels in order to convey the property
at 8 White Road to the defendant.1 The defendant’s
mother later deeded the property at 51 South Road to
the defendant. Prior to the subdivision of the property
in 1969, the defendant witnessed his father and an
unidentified gentleman walk the boundaries of what
became the 8 White Road property and place iron pins
in three of the property’s four corners.
In 1991, Peter Gaughan and his father, David
Gaughan, purchased the undeveloped 8 White Road
property from the defendant.2 Prior to purchasing the
property, Peter Gaughan walked the property with the
defendant, and the defendant pointed out the parcel’s
boundaries, including the three iron pins that were
located in the southeast, northeast, and northwest cor-
ners of the parcel.3
The disputed triangular strip of land between the
parties’ properties is approximately thirty-three feet
wide where it abuts South Road at the northwest bound-
ary corner to the plaintiffs’ property and decreases in
width to roughly five feet at the northeast boundary
corner of their property. The disputed strip includes
a hedgerow that runs almost all the way across the
boundary, which the defendant’s father planted in the
1940s. The plaintiffs believed that they owned the land
to the south of the hedgerow.
In 1997, after Peter Gaughan started clearing the 8
White Road property in order to construct a residence,
ing onto his property. In response, the defendant con-
structed a drainage swale just south of the hedgerow,
which alleviated the water issue. The plaintiffs did not
object to the defendant’s construction of the swale,
which the defendant maintained.
Years later, the defendant began to dispute the plain-
tiff’s ownership of the triangular strip of land that runs
along the boundary of their properties to the south of
the hedgerow. That dispute precipitated this quiet title
action commenced by the plaintiffs in 2016. Their com-
plaint contained four counts: quiet title, trespass, slan-
der to title, and adverse possession. In response, the
defendant asserted two counterclaims: quiet title and
water damage.4
In its June 12, 2017 memorandum of decision, the
court found in favor of the plaintiffs on their claims for
quiet title and trespass and on the defendant’s claims
for quiet title and water damage. The court found in
favor of the defendant on the plaintiffs’ claim for slander
of title. Specifically, the court found that the 1991 war-
ranty deed from the defendant to Peter Gaughan, grant-
ing him the 8 White Road parcel, is clear and
unambiguous, and includes the disputed area as defined
by the iron pins referenced in the deed that demarcate
three of the four corners of the property.5 As for the
plaintiffs’ trespass claim, the court found that, although
the defendant had trespassed on the plaintiffs’ property,
the plaintiffs did not provide the court with any evi-
dence of costs associated with remedying the alleged
injuries therefrom. The court therefore found that the
plaintiffs were entitled to $100 in nominal damages for
the defendant’s trespass but declined to award them
any punitive damages or attorney’s fees. From that judg-
ment, the defendant now appeals and the plaintiffs
cross appeal. Additional facts will be set forth as nec-
essary.
I
THE DEFENDANT’S APPEAL
A
In his first claim on appeal, the defendant essentially
challenges the court’s credibility determination. He
claims that the court improperly credited the testimony
of the plaintiffs’ surveyor expert witness in construing
the language of the plaintiffs’ deed. We do not agree.
‘‘[W]here the testimony of witnesses as to the location
of the land described in deeds is in conflict, it becomes
a question of fact for the determination of the court
which may rely upon the opinions of experts to resolve
the problem and it is the court’s duty to accept that
testimony or evidence which appears more credible.
. . . In determining credibility of the experts, the court
as the trier of fact could believe all, some or none of
the testimony. . . . Moreover, credibility determina-
tions are beyond the reach of an appellate court.’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) Har v. Boreiko, 118 Conn. App. 787,
796–97, 986 A.2d 1072 (2010). Nonetheless, the trial
court cannot ‘‘arbitrarily disregard, disbelieve or reject
an expert’s testimony in the first instance. . . . Where
the trial court rejects the testimony of [an] expert, there
must be some basis in the record to support the conclu-
sion that the evidence of the [expert witness] is unwor-
thy of belief.’’ (Citations omitted; internal quotation
marks omitted.) Builders Service Corp. v. Planning &
Zoning Commission, 208 Conn. 267, 294, 545 A.2d
530 (1988).
The court heard extensive testimony from the defen-
dant’s surveyor expert witness, Robert Saunders, who
explained in detail the basis for his conclusion that the
plaintiffs’ deed did not convey title of the disputed area
to the plaintiffs. The defendant argues that although the
court mentioned at closing arguments that Saunders’
testimony was ‘‘good’’ and ‘‘thorough,’’ it did not
address Saunders’ evidence and reasoning in its memo-
randum of decision.6
We conclude that the court did not arbitrarily disre-
gard Saunders’ testimony. It is clear on the basis of the
record and the court’s memorandum of decision that,
after considering all of the evidence before it, the court
chose to credit the conclusions of the plaintiffs’ expert
witness regarding the plaintiffs’ ownership of the dis-
puted area over that of Saunders. Making such a credi-
bility determination is the responsibility and exclusive
province of the trial court as the fact finder. Accord-
ingly, we reject the defendant’s claim.
B
The defendant next claims that certain factual find-
ings were not supported by the evidence in the record
and were clearly erroneous. We address each claim
in turn.
The following additional facts are relevant to the
defendant’s claims. The plaintiffs presented the expert
testimony of Russell Heintz, a licensed land surveyor.
Heintz testified that he began working with the plaintiffs
in 1997, when Peter Gaughan was constructing his home
on the 8 White Road property. In order to create his
own survey, Heintz utilized a 1996 survey certified by
land surveyor Barry Clarke to locate the pins referenced
in the 1991 warranty deed. Heintz testified that in 1997
he saw all three pins referenced in the 1991 warranty
deed, though he could not say which pins he used to
create his survey. Heintz also testified that in 1997 he
saw the northwest corner pin, but that it was gone when
he returned to the property in 2013. Additionally, Heintz
testified as to the methodology he used in coming to
the opinion that the disputed area was part of the land
deeded to the plaintiffs. He explained that he deter-
mined the area of land included in the deed description
by starting at the first pin called for in the deed and
working his way around the measurements of the prop-
erty from that point, following the deed description.
As part of his case, the defendant called Saunders, a
licensed land surveyor, as his expert witness. Saunders
testified as to his methodology, explaining that in order
to confirm that the pins in the ground were the pins
described in the deed, he had to establish the right of
way on White Road as the basis for the survey and
apply the deed distances from that point. On the basis
of this method, Saunders first established the southerly
line of the plaintiffs’ property based on research indicat-
ing that there had been a stone wall south of White
Road, across the street from the plaintiffs’ property.
From there, Saunders established that the southern
property line was thirty-three feet north of where the
stone wall had been, based on his research that White
Road was thirty-three feet wide.
Our review of the trial court’s factual findings is well
established. ‘‘[W]here the factual basis of the court’s
decision is challenged we must determine whether the
facts set out in the memorandum of decision are sup-
ported by the evidence or whether, in light of the evi-
dence and the pleadings in the whole record, those
facts are clearly erroneous. . . . The credibility of the
witnesses and the weight to be accorded to their testi-
mony is for the trier of fact. . . . [An appellate] court
does not try issues of fact or pass upon the credibility of
witnesses.’’ (Citation omitted; internal quotation marks
omitted.) Har v. Boreiko, supra, 118 Conn. App. 795.
‘‘A finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Because it is the trial court’s function to weigh
the evidence and determine credibility, we give great
deference to its findings.’’ (Internal quotation marks
omitted.) Lacic v. Tomas, 78 Conn. App. 406, 410–11,
829 A.2d 1, cert. denied, 266 Conn. 922, 835 A.2d 472(2003).
1
The defendant first argues that the court’s factual
finding as to the location of the plaintiffs’ property was
not supported by the evidence in the record and was
clearly erroneous. We disagree.
In its memorandum of decision, the court settled and
quieted title ‘‘in favor of the plaintiffs and against the
defendant [regarding] the property located at 8 White
Road, which includes the area in dispute in this case,
and is described in the 1991 warranty deed that is filed
in the Ellington land records at Volume 186, page 124.’’
Heintz’ testimony and the surveys admitted into evi-
dence as completed by Clarke and Heintz indicate that
the location of the plaintiffs’ property correlates with
the deed description and the pins described therein.
The court’s finding as to the location of the plaintiffs’
property and the disputed area is therefore supported
by the record and is not clearly erroneous.
2
The defendant next asserts that the court’s specific
finding that the defendant showed the plaintiff the
boundaries of the 8 White Road parcel, which included
the disputed area, was not supported by the defendant’s
testimony, and was therefore clearly erroneous. We
disagree.
The defendant argues that his testimony ‘‘directly
contradicted’’ the court’s finding, as he testified that
the area he showed the plaintiff did not include the
disputed area. However, Peter Gaughan testified at trial
that, prior to purchasing the property, he walked the
property with the defendant from ‘‘[p]in to pin to pin,’’
and that the disputed area was within the area that the
defendant showed him. The court, as fact finder, was
free to credit that testimony. Accordingly, the court’s
finding is supported by the record and is not clearly
erroneous.
3
The defendant also claims that the court’s finding
that ‘‘the iron pins referenced in the 1991 warranty deed
were located on the property in the mid-1990s when
the plaintiff had a survey done’’ was not supported by
Heintz’ testimony. We disagree.
The defendant broadly asserts that ‘‘[t]he testimony
of the [plaintiffs’] surveyor was clearly contradictory,
not consistent, and not credible. To rely on this for the
basis of a finding was clearly erroneous.’’7 The defen-
dant contends that Heintz testified that he had no spe-
cific memory of having seen the pin in the northwesterly
corner of the plaintiffs’ property when he visited the
property in 1996 or 1997, and that he did not take mea-
surements to verify the location of all the pins. Heintz,
however, also testified that he was certain that he saw
all three of the pins referenced in the 1991 warranty
deed when he visited the plaintiffs’ property in 1996 or
1997. Accordingly, there is support within the record
for the trial court’s finding that Heintz saw the pins
when he visited the property in 1996 or 1997. That
finding, therefore, is not clearly erroneous.
4
The defendant also argues that the trial court’s finding
that the pins ‘‘were in the same location prior to trial’’
as they were in the mid-1990s was contradicted directly
by the evidence. We agree.
Heintz testified that he saw the northwest corner pin
referenced in the deed in 1997, but that it was gone
when he went back to the property in 2013. As such,
the court’s finding that the pins were in the same loca-
tion prior to trial as they were in the mid-1990s is clearly
erroneous, as there is no support for the finding within
the record. Nevertheless, this isolated misstatement of
fact does not undermine the rest of the court’s findings,
and because it does not affect our conclusion that the
court’s finding as to the location of the plaintiffs’ prop-
erty was not clearly erroneous, it does not affect the
outcome of this appeal.
C
The defendant next claims that the court erred in
finding that the defendant trespassed on the plaintiffs’
property because its finding is premised on the court’s
erroneous conclusion that the plaintiffs owned the dis-
puted area. We disagree.
‘‘[T]he scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court. To the extent that the trial court has made
findings of fact, our review is limited to deciding
whether such findings were clearly erroneous. When,
however, the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Bristol v. Tilcon Minerals,
Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007). Whether
the trial court properly concluded that the defendant
trespassed on the plaintiffs’ property is a question of
law subject to our plenary review. Id.It is well established that ‘‘[t]he essentials of an action
for trespass are: (1) ownership or possessory interest
in land by the plaintiff; (2) invasion, intrusion or entry
by the defendant affecting the plaintiff’s exclusive pos-
sessory interest; (3) done intentionally; and (4) causing
direct injury.’’ (Internal quotation marks omitted.) Id.In its memorandum of decision, the court determined
that the plaintiffs had an exclusive ownership interest in
the disputed area, and that the defendant intentionally
entered the plaintiffs’ property and caused injury. The
defendant argues that, on the basis of his first two
claims on appeal, the court’s finding that the plaintiffs
owned the disputed area is erroneous and, therefore,
the trial court’s conclusion that the defendant tres-
passed on the plaintiffs’ property is also erroneous. In
his brief, the defendant does not contest the court’s
findings as to the other elements of the trespass action.
Because we agree with the court’s conclusion that the
plaintiffs owned the disputed area; see part I B 1 of
this opinion; the defendant’s claim is untenable.
D
The final claim in the defendant’s appeal is that the
court erroneously awarded expert witness fees to the
plaintiffs as an element of the bill of costs.8 Specifically,
the defendant argues that the court should not have
awarded the plaintiffs $2500 in costs for payment of
expert witness fees because Heintz, a land surveyor
who testified at trial on behalf of the plaintiffs, did not
fall within the category of experts listed within General
Statutes § 52-260 (f).9 We agree.
The following facts and procedural history are rele-
vant to our discussion of this issue on appeal. On Febru-
ary 17, 2017, the plaintiffs filed a bill of costs in the
amount of $4256.33, which included reimbursement for
costs associated with Heintz’ expert fees in the amount
of $2500.10 After judgment was rendered in favor of the
plaintiffs, and within fourteen days, the defendant filed
an objection to the plaintiffs’ bill of costs, arguing that
Heintz’ fees were not taxable under our statutes.11 At
its nonarguable calendar, the court granted the plain-
tiffs’ bill of costs in the amount of $4256.33. The defen-
dant thereafter amended his appeal to include an appeal
of the ‘‘[o]rder of trial court judge taxing costs on August
11, 2017.’’
As a preliminary issue, the plaintiffs argue that the
defendant waived12 his right to contest the bill of costs
by failing to file an objection to the bill of costs within
the fourteen day period specified by Practice Book § 18-
5 (a)13 and failing to file a motion for review within the
twenty day period provided by Practice Book § 18-5
(b).14 The plaintiffs’ reliance on the defendant’s failure
to file a motion for review to support their claim of
waiver is misplaced. The requirement of a motion for
review appears to apply to the procedure by which
the clerk taxes costs, which are typically ministerial
assessments. See Traystman, Coric & Keramidas, P.C.
v. Daigle, 282 Conn. 418, 429–30, 922 A.2d 1056 (2007)
(‘‘the costs to be included in a bill of costs generally
are of a type that may be granted automatically by the
court clerk. . . . [I]t is implicit in our statutes govern-
ing recoverable costs, and our rules of practice
expressly contemplate, that the costs requested in a
bill of costs generally are intended to be of a type
that the court clerk may grant automatically.’’ [Citations
omitted; footnote omitted.]); Fengler v. Northwest Con-
necticut Homes, Inc., 215 Conn. 286, 291, 575 A.2d 696(1990) (‘‘[a]n examination of General Statutes § 52-257,
entitled ‘[f]ees of parties in civil actions,’ reveals that
most of the awards are automatic assessments, not
involving the discretion of the court’’); W. Horton, et
al., 1 Connecticut Practice Series: Superior Court Civil
Rules (2017–2018 Ed.) § 18-5, author’s comments, p. 872
(‘‘[a]s the clerk’s role is purely ministerial, discretionary
questions are to be determined by the court’’). Under
Practice Book § 18-5 (a), a timely written objection
triggers notice and the right to a hearing before the
clerk. Accordingly, the motion for review provides for
judicial review of the clerk’s ministerial assessments.
That process is not implicated here.
Expert witness fees are not subject to the clerk’s
ministerial assessments. ‘‘A review of the language of
General Statutes § 52-260 (f) indicates that the statute
does not provide for an automatic assessment; rather
. . . it states that the court shall determine a reason-
able fee . . . .’’ (Emphasis in original; internal quota-
tion marks omitted.) Boczer v. Sella, 113 Conn. App.
339, 344 n.6, 966 A.2d 326 (2009). Here, the record
reflects that the bill of costs and the objection were
referred directly to the court for its nonarguable calen-
dar. Because the court and not the clerk ruled on the
taxation of expert witness fees, no motion for review
was required. Accordingly, the defendant properly
appealed from the trial court’s ruling and did not waive
his claim that the fees were awarded improperly.
Having determined there was no waiver by the defen-
dant, we consider the defendant’s claim. ‘‘It is a settled
principle of our common law that parties are required to
bear their own litigation expenses, except as otherwise
provided by statute. . . . Because [c]osts are the crea-
ture of statute . . . and unless the statute clearly pro-
vides for them courts cannot tax them. . . .
Accordingly, the [plaintiffs] can prevail only if the statu-
tory provisions on which [they rely] clearly empower
the trial court to tax the cost of the [expert’s] testi-
mony.’’ (Citations omitted; internal quotation marks
omitted.) Arnone v. Enfield, 79 Conn. App. 501, 531–32,
831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804(2003). ‘‘Thus, the [plaintiffs’] claim raises an issue of
statutory construction over which our review is ple-
nary.’’ Ludington v. Sayers, 64 Conn. App. 768, 779–80,
778 A.2d 262 (2001).
A land surveyor is not a listed expert witness whose
cost may be reimbursed pursuant to General Statutes
§ 52-260 (f). Consequently, Heintz’ fees cannot be reim-
bursed. See Arnone v. Enfield, supra, 79 Conn. App.
534 (prevailing party only authorized to recover costs
expressly authorized by statute, and ‘‘[a]n economist is
not a listed expert whose cost may be reimbursed under
§ 52-260 [f]’’); Lurie & Associates, Inc. v. Tomik Corp.,
37 Conn. App. 865, 868–69, A.2d 146 (1995) (prevailing
party only authorized to recover costs expressly author-
ized by statute, and ‘‘[n]owhere does § 52-260 provide
for expert witness fees when a handwriting expert is
called to testify as an expert witness’’). Accordingly,
we conclude that the trial court lacked authority to
award costs to the plaintiffs for Heintz’ expert fees.
II
THE PLAINTIFFS’ CROSS APPEAL
A
The plaintiffs first claim that the trial court improp-
erly failed to award them common-law punitive dam-
ages and attorney’s fees.15 We disagree.
The following additional facts are relevant to this
claim on appeal. Prior to litigation, the defendant
engaged in self-help remedies to mark what he believed
was the boundary line between his parcel and the plain-
tiffs’ parcel. On one occasion he sprayed bleach on the
grass along his claimed boundary of the disputed area,
killing the grass in that area. Thereafter, the defendant
twice used vinegar to mark his claimed boundary line.
The defendant also painted trees, fence poles, and other
markers with permanent orange paint to mark the prop-
erty that he claimed he owned within the disputed area.
Our Supreme Court consistently has ‘‘stated that [i]n
order to award punitive or exemplary damages, evi-
dence must reveal a reckless indifference to the rights
of others or an intentional and wanton violation of those
rights. . . . If the evidence discloses that a defendant
was recklessly indifferent to the rights of a plaintiff,
an actual intention to do harm to the plaintiff is not
necessary.’’ (Citations omitted; internal quotation
marks omitted.) Berry v. Loiseau, 223 Conn. 786, 811,
614 A.2d 414 (1992). Further, ‘‘common-law punitive
damages . . . are limited under Connecticut law to liti-
gation expenses, such as attorney’s fees less taxable
costs.’’ Hylton v. Gunter, 313 Conn. 472, 484, 97 A.3d
970 (2014). ‘‘Generally, attorney’s fees may not be recov-
ered, either as costs or damages, absent contractual
or statutory authorization. . . . Attorney’s fees may be
awarded, however, as a component of punitive dam-
ages. . . . To furnish a basis for recovery of such dam-
ages, the pleadings must allege16 and the evidence must
show wanton or wilful malicious misconduct, and the
language contained in the pleadings must be sufficiently
explicit to inform the court and opposing counsel that
such damages are being sought.’’ (Internal quotation
marks omitted.) Stohlts v. Gilkinson, 87 Conn. App.
634, 646, 867 A.2d 860, cert. denied, 273 Conn. 930, 873
A.2d 1000 (2005).
Our standard of review is well settled. ‘‘[T]he trial
court has broad discretion in determining whether dam-
ages are appropriate. . . . Its decision will not be dis-
turbed on appeal absent a clear abuse of discretion.’’
(Citation omitted; internal quotation marks omitted.)
Elm City Cheese Co. v. Federico, 251 Conn. 59, 90,
752 A.2d 1037 (1999). Furthermore, ‘‘in order to award
punitive damages, evidence must reveal a reckless indif-
ference to the rights of others or an intentional and
wanton violation of those rights. . . . Recklessness is
a state of consciousness with reference to the conse-
quences of one’s acts. . . . It is more than negligence,
more than gross negligence. . . . The state of mind
amounting to recklessness may be inferred from con-
duct. But, in order to infer it, there must be something
more than a failure to exercise a reasonable degree
of watchfulness to avoid danger to others or to take
reasonable precautions to avoid injury to them. . . .
Wanton misconduct is reckless misconduct. . . . It is
such conduct as indicates a reckless disregard of the
just rights or safety of others or of the consequences
of the action. . . . Whether the defendant acted reck-
lessly is a question of fact subject to the clearly errone-
ous standard of review.’’ (Citations omitted; internal
quotation marks omitted.) Franc v. Bethel Holding Co.,
73 Conn. App. 114, 137–38, 807 A.2d 519, cert. granted,
262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn
October 21, 2003).
At its core, the plaintiffs’ argument is that the court
improperly determined that the defendant’s conduct
did not amount to reckless indifference. Accordingly,
the plaintiffs attack the court’s factual finding, which
is subject to the clearly erroneous standard of review.
Id., 138.
In its memorandum of decision, the court stated: ‘‘The
court declines to award punitive damages. Although the
defendant trespassed on the plaintiffs’ property, the
court finds that his actions stemmed from his belief
that he owned the property and therefore he believed
that he had the right to mark within his own property.
That his belief has now been found to be incorrect
does not establish reckless indifference and entitle the
plaintiffs to punitive damages.’’
The plaintiffs argue that the court’s reasoning was
incorrect and clearly erroneous because ‘‘regardless of
whether [the] defendant believed he was right or not,
the conduct he engaged in demonstrated a wanton dis-
regard of [the] plaintiffs’ rights . . . .’’ The plaintiffs
rely on our Supreme Court’s decision in Collens v. New
Canaan Water Co., 155 Conn. 477, 234 A.2d 825 (1967).
In Collens, the court stated: ‘‘Mere belief in the right of
the defendant to act as the court found it did act would
not necessarily prevent the award of such damages.
The injuries to the plaintiffs were inflicted in a spirit
of wanton disregard of their rights.’’ (Emphasis added.)
Id., 489.
The plaintiffs fail to establish how the reasoning in
Collens makes the trial court’s reasoning clearly errone-
ous. In Collens, the court concluded that ‘‘[t]he conduct
of the defendant would appear to be at least in reckless
disregard for the consequences it knew or should have
known would result, and, if this element is present,
an actual intention to do harm to the plaintiffs is not
necessary.’’ Id., 490. In the present case, the court spe-
cifically found, and the record supports its finding, that
the defendant’s actions stemmed from his mistaken
belief that he owned the disputed property. While the
plaintiffs are correct in pointing out that a trial court
may find reckless indifference without finding actual
intention to do harm, that does not mean that the court’s
factual findings required it to conclude that the defen-
dant acted with reckless indifference. On the basis of
our review of the record, we cannot conclude that the
court’s findings were clearly erroneous.
B
The plaintiffs’ final claim on cross appeal is that the
court improperly determined that the defendant did not
slander the title to their property. We disagree.
The following additional facts are relevant to this
claim on appeal. On August 10, 2014, the defendant
had a state marshal serve on the plaintiffs a ‘‘notice
of revocation’’ concerning the disputed area of land,
indicating that he would no longer permit them to utilize
that area.17 The notice was signed by the defendant and
served on Peter Gaughan by a marshal and a copy was
left for Jacqueline McGann at her usual place of abode
at 8 White Road.
‘‘[O]ur standard of review when the legal conclusions
of the trial court are challenged is plenary, and requires
us to determine whether the conclusions reached are
legally and logically correct and whether they find sup-
port in the facts set forth in the memorandum of deci-
sion.’’ Elm Street Builders, Inc. v. Enterprise Park
Condominium Assn., Inc., 63 Conn. App. 657, 669, 778
A.2d 237 (2001). ‘‘A cause of action for slander of title
consists of the uttering or publication of a false state-
ment derogatory to the plaintiff’s title, with malice,
causing special damages as a result of diminished value
of the plaintiff’s property in the eyes of third parties.
The publication must be false, and the plaintiff must
have an estate or interest in the property slandered.
Pecuniary damages must be shown in order to prevail
on such a claim.’’ (Internal quotation marks omitted.)
Id., 669–70. ‘‘[A]ctual malice requires a showing that a
statement was made with knowledge that it was false
or with reckless disregard for its truth. . . . A negligent
misstatement of fact will not suffice; the evidence must
demonstrate a purposeful avoidance of the truth. . . .
Further, proof that a defamatory falsehood has been
uttered with bad or corrupt motive or with an intent
to inflict harm will not be sufficient to support a finding
of actual malice . . . although such evidence may
assist in drawing an inference of knowledge or reckless
disregard of falsity.’’ (Internal quotation marks omit-
ted.) Fountain Pointe, LLC v. Calpitano, 144 Conn.
App. 624, 655–56, 76 A.3d 636, cert. denied, 310 Conn.
928, 78 A.3d 147 (2013).
In its memorandum of decision, the court reasoned
that ‘‘the plaintiffs have failed to prove their slander of
title claim because they have failed to establish that
notice was ‘published’ to anyone but the plaintiffs. It
was not recorded on the land records or distributed to
any third party. Accordingly, without distribution of the
notice to third parties there has not been, and could
not be, any ‘special damages as a result of diminished
value of the plaintiffs’ property in the eyes of third
parties.’ Also, the court finds that the plaintiffs have
not proved that in sending the plaintiffs the notice that
the defendant acted with reckless disregard for its
truth.’’
The plaintiffs argue that the court’s finding that the
notice was not published to anyone but the plaintiffs
was erroneous because the notice was distributed to a
marshal, who is a third party. In response, the defendant
argues that ‘‘[t]he notice was clearly intended to be
communicated to the [plaintiffs] and not to third parties,
and the state marshal was used as a means of delivery.’’
We agree with the defendant. The plaintiffs fail to pro-
vide any legal authority, and we are aware of none,
indicating that delivery through a state marshal consti-
tutes publication to a third party. We do not find the
plaintiffs’ argument persuasive that the possibility of
the marshal reading the notice is enough to constitute
publication to a third party.
Further, we agree with the trial court that the plain-
tiffs have failed to prove that there have been ‘‘any
‘special damages as a result of diminished value of the
plaintiffs’ property in the eyes of third parties.’ ’’ Look-
ing beyond our conclusion that the statement was not
published to a third party, there is no evidence in the
record to establish that the plaintiffs suffered pecuniary
loss as a result of the marshal being provided the notice
to deliver to the plaintiffs. In their brief, the plaintiffs
argue that they are entitled to pecuniary damages for
various reasons, but none establishes how the delivery
of the notice itself caused them damages.18
Finally, we agree with the trial court that the plaintiffs
failed to prove that the defendant acted with reckless
disregard for the truth by sending the notice to the
plaintiffs. The plaintiffs address this element in their
brief only by stating that malice was ‘‘demonstrated by
[the] defendant’s testimony that ‘things started getting
a little rough and there was no communication’ . . .
[and that the] [d]efendant’s statements in the notice
were false because the [e]state of Mary Higgins never
owned the disputed property. It was deeded to [the]
[p]laintiffs prior to her death in 1991.’’ We find these
arguments unconvincing and fail to see how either alle-
gation, even if proved, amounts to a reckless disregard
for the truth in the context of the alleged slander of the
plaintiffs’ title. We therefore conclude that the plaintiffs
failed to establish that the court improperly determined
that the defendant did not slander the title to their
property.
The judgment is reversed only as to the award of
costs and the case is remanded for a recalculation of
the award of costs consistent with this opinion. The
judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
We note, as did the trial court in its memorandum of decision, that the
description of the 8 White Road parcel in the warranty deed from the
defendant’s parents to the defendant is the same as the description in the
1991 warranty deed from the defendant to Peter Gaughan.
2
Subsequently, David Gaughan transferred his interest in the property to
Peter Gaughan, who later transferred the property in common to his wife,
Jacqueline McGann. Those deeds are not at issue in this case.
3
The 1991 warranty deed provided to Peter Gaughan describes the 8
White Road property as follows: ‘‘Beginning at an iron pin set in the northerly
line of White Road, which point is the southeasterly corner of the premises
herein described and which point is the southwesterly corner of land now
or formerly of Tolisano; thence from said point and place of beginning in
a general northerly direction along land now or formerly of Tolisano, One
Hundred Sixty (160) feet more or less to an iron pin; thence in a general
easterly direction along other land now or formerly of Steven H. Higgins
and Mary B. Higgins, Four Hundred Fifteen (415) feet more or less to an
iron pin set in the general easterly line of South Road; thence in a general
southerly direction along the easterly side of South Road, Three Hundred
Thirty (330) feet more or less to the intersection of White Road; thence in
a general northeasterly direction along the northerly line of White Road, Four
Hundred Fifty (450) feet more or less to the point and place of beginning.’’
4
The defendant asserted a third claim for trespass in his answer, but he
withdrew the claim on the record during trial.
5
On appeal, both the plaintiffs and the defendant agree with the court
that the 1991 warranty deed from the defendant to Peter Gaughan is clear
and unambiguous.
6
The defendant refers to the following colloquy that occurred during
closing arguments:
‘‘The Court: So in order for me to find for [the defendant], I have to
choose your surveyor’s interpretation, correct?
‘‘[The Defendant’s Counsel]: That is correct. Yes.
‘‘The Court: Now, why would I do that? Because this is what I’m struggling
with. I mean, your expert witness was very good, and he seemed very
thorough and all of that. But my job is to interpret the deed, and the deed
that I need to interpret is exhibit 3.
‘‘[The Defendant’s Counsel]: Correct.
‘‘The Court: Correct?
‘‘[The Defendant’s Counsel]: Yes.
‘‘The Court: And in order to look at this deed, the cases say I have to
look at the language in the deed.
‘‘[The Defendant’s Counsel]: Um-hmm.
‘‘The Court: And where’s the case? I don’t see any language in this deed
that would require me to step out of the deed and look back to 1929, which
is what your surveyor wants me to do.’’
7
The defendant also argues that Heintz’ testimony that he saw the pins
on the property in 1996 or 1997 should not be credited because of what he
wrote on certain maps he prepared and because of where he set a property
pin in 2013. However, as we have discussed previously in this opinion,
making credibility determinations is within the province of the trial court.
See part I A of this opinion.
8
Although the trial court awarded costs in addition to those discussed in
part I D of this opinion, the plaintiff does not challenge those costs on
appeal, which we therefore do not disturb.
9
General Statutes § 52-260 (f) provides: ‘‘When any practitioner of the
healing arts, as defined in section 20-1, dentist, registered nurse, advanced
practice registered nurse or licensed practical nurse, as defined in section
20-87a, psychologist or real estate appraiser gives expert testimony in any
action or proceeding, including by means of a deposition, the court shall
determine a reasonable fee to be paid to such practitioner of the healing
arts, dentist, registered nurse, advanced practice registered nurse, licensed
practical nurse, psychologist or real estate appraiser and taxed as part of
the costs in lieu of all other witness fees payable to such practitioner of the
healing arts, dentist, registered nurse, advanced practice registered nurse,
licensed practical nurse, psychologist or real estate appraiser.’’
10
In their bill of costs, the plaintiffs cited General Statutes § 52-257 (b)
(1) for the proposition that the defendant may be taxed for the expense of
Heintz’ expert fees.
Section 52-257 (a) sets forth the costs available to the prevailing party in
a civil action in which the matter in demand is not less than fifteen thousand
dollars. Section 52-257 (b) provides in relevant part: ‘‘Parties shall also
receive: (1) For each witness attending court, the witness’ legal fee and
mileage . . . .’’
11
The defendant also objected to the plaintiffs’ bill of costs entry for a
‘‘court discretionary fee,’’ arguing that ‘‘there has been no finding that this
civil action was a difficult or extraordinary case.’’ The defendant, however,
has not contested on appeal this aspect of the trial court’s award.
12
In their brief, the plaintiffs specifically argue that the defendant ‘‘waived
his right’’ to contest the plaintiffs’ bill of costs, but the plaintiffs do not cite
to any authority to support their argument that the failure to follow Practice
Book procedure amounts to a waiver.
13
The defendant argues that he timely filed an objection to the plaintiffs’
bill of costs within fourteen days of the trial court’s judgment. Practice
Book § 18-5 (a) provides in relevant part: ‘‘[C]osts may be taxed by the clerk
in civil cases fourteen days after the filing of a written bill of costs provided
that no objection is filed. If a written objection is filed within the fourteen
day period, notice shall be given by the clerk to all appearing parties of
record of the date and time of the clerk’s taxation. The parties may appear
at such taxation and have the right to be heard by the clerk.’’
The defendant essentially contends that because the plaintiffs became
the prevailing party when the judgment was rendered in their favor, their
bill of costs only became operative at that point, and his objection to the
bill of costs was therefore timely. Practice Book § 1-8 provides for a liberal
interpretation of the rules ‘‘where it shall be manifest that a strict adherence
to them will work surprise or injustice.’’ To conclude that parties must
object to a bill of costs filed before judgment has been rendered would
work surprise and injustice. ‘‘It is elementary that, whether fees and costs
are a matter of right or discretion, they ordinarily are awarded to the party
that prevails in the case and, until there is a prevailing party, they do not
arise.’’ Danbury v. Dana Investment Corp., 249 Conn. 1, 18, 730 A.2d 1128(1999). Accordingly, we decline to adopt the plaintiffs’ view that the defen-
dant failed to timely object to their bill of costs.
14
Practice Book § 18-5 (b) provides for judicial review of the clerk’s
assessment, stating: ‘‘Either party may move the judicial authority for a
review of the taxation by the clerk by filing a motion for review of taxation
of costs within twenty days of the issuance of the notice of taxation by
the clerk.’’
15
In their brief, after discussing punitive damages generally, the plaintiffs
argue that the court ‘‘further erred because it held that attorney’s fees could
not be awarded in a judgment of trespass.’’ While the plaintiffs mischaracter-
ize the court’s holding, we need not address their argument on attorney’s
fees separate from our discussion of punitive damages. The plaintiffs argue
that the court ‘‘should have awarded $22,000 in attorney’s fees as common-
law punitive [damages] in this case as a result of [the] defendant’s miscon-
duct.’’ Because we disagree with the plaintiffs’ argument that the court erred
in not awarding punitive damages, we need not address whether attorney’s
fees should have been awarded as a component of punitive damages.
16
In their second count claiming trespass, and as the sole basis for their
claim of punitive damages, the plaintiffs allege that ‘‘[o]ver the past several
years, the [d]efendant has unlawfully entered onto the disputed area without
license, and caused extensive property damage, including spraying poison
onto the grass, trees, and shrubs, and by defacing sheds and tampering with
other personal property stored therein. . . . As a result of the aforesaid
conduct by the [d]efendant, the [p]laintiffs have suffered damages.’’ In their
prayer for relief, the plaintiffs did not specifically request punitive damages.
They did request, inter alia, money damages and an award of reasonable
attorney’s fees and costs.
To the extent that the defendant claims the plaintiffs failed to properly
plead an award of attorney’s fees as a component of punitive damages,
this court recently stated that ‘‘[b]ecause punitive damages may include
attorney’s fees, we treat this claim for attorney’s fees as a request for punitive
damages. Although the plaintiff did not claim attorney’s fees in the form of
punitive damages but instead merely as ‘attorney’s fees,’ the defendant
necessarily [was] on notice that punitive damages were being claimed
because of the type of conduct pleaded and the fact that attorney’s fees,
[for this claim], could be obtained only through the awarding of punitive
damages.’’ (Internal quotation marks omitted.) Chioffi v. Martin, 181 Conn.
App. 111, 141–42 n.15, 186 A.3d 15 (2018); see also Stohlts v. Gilkinson, 87
Conn. App. 634, 647, 867 A.2d 860 (‘‘the plaintiffs’ amended complaint painted
a clear picture of an abutting landowner going to extreme measures to
harass his neighbor. The incidents recounted included but were not limited
to blocking their driveway, filing a false survey on the land records, building
an unsightly fence and digging with machinery from six in the morning until
ten thirty at night. Although the claim alleged was negligent infliction of
emotional distress, the underlying conduct was intentional harassment. The
defendants necessarily were on notice that punitive damages were being
claimed because of the type of conduct pleaded and the fact that attorney’s
fees, in this case, could be obtained only through the awarding of punitive
damages.’’ [Footnote omitted.]), cert. denied, 273 Conn. 930, 873 A.2d
1000 (2005).
17
The ‘‘notice of revocation’’ provided: ‘‘From the Estate of the former
Mary B. Higgins and now Executor and Owner by deed of record of the
said Estate, Peter J. Higgins. The permission and privilege given to Peter
P. Gaughan to conduct activity on an area of the said estate is revoked.
Any and all articles placed on the property with or without permission are
to be removed. Any articles that are not removed will be claimed as aban-
doned and will be removed by the current owner and successors of the
said property.’’
18
Specifically, the plaintiffs argue that they are entitled to pecuniary dam-
ages for three reasons: (1) the plaintiffs lost the use of the disputed area
because the defendant built the swale on the disputed area without the
town’s permission and the plaintiffs pay the property taxes on the property,
(2) Peter Gaughan testified that he does not believe he can sell the property
until the cloud on the title is resolved, and (3) the plaintiffs paid Heintz to
attempt to settle the dispute prior to litigation. We find those arguments
unavailing. Indeed, they all seem to be related to the underlying dispute
concerning the triangular strip of land and not as a result of the defendant’s
delivery of the notice to the plaintiffs through the marshal.