NPC Offices, LLC v. Kowaleski ( 2014 )

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NPC OFFICES, LLC v. WILLIAM KOWALESKI ET AL.
(AC 34612)
DiPentima, C. J., and Mullins and Mihalakos, Js.
Argued May 22—officially released August 26, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Abrams, J.)
Michael S. Taylor, with whom, on the brief, were
William F. Gallagher and Hugh D. Hughes, for the
appellant-appellee (plaintiff).
Michelle M. Seery, with whom was William J. O’Sulli-
van, for the appellees-appellants (defendants).
Opinion
MIHALAKOS, J. This appeal arises from a dispute
between owners of adjoining commercial properties
over the use of a driveway. The plaintiff, NPC Offices
LLC, appeals from the judgment of the trial court ren-
dered in favor of the defendants, William Kowaleski,
Sharon Kowaleski, and 184–188 South Main Street, LLC.
The plaintiff claims that the trial court improperly deter-
mined (1) that the plaintiff’s property was used for
purposes other than residential or professional offices,
(2) that such use permanently terminated the plaintiff’s
easement over the driveway, (3) that the plaintiff’s
breach of a right-of-way agreement was material, and
(4) that termination of the easement is not barred by
the doctrine of disproportionate forfeiture. On cross
appeal, the defendants appeal from the judgment of
the court in favor of the plaintiff on the defendants’
counterclaims of trespass and nuisance. The defendants
claim that the court incorrectly concluded that (1) the
defendants failed to demonstrate their exclusive pos-
session of a disputed portion of the driveway, and (2)
the plaintiff’s use of the driveway was not unreasonable.
We affirm the judgment of the court.
The following facts, as found by the court, are rele-
vant to this appeal. The plaintiff, a limited liability com-
pany of which Marc Aronson is the sole member, owns
an office building located at 192 South Main Street in
Middletown. Aronson operates a psychologist office.
The defendant 184–188 South Main Street, LLC, a lim-
ited liability company under the ownership and control
of the defendants William Kowaleski and Sharon
Kowaleski, owns an office building located at 184–188
South Main Street, which is situated on property abut-
ting the plaintiff’s property. The defendants operate a
hair salon. The buildings are separated by a driveway,
located on the defendants’ property, which provides
access to a parking area behind both buildings.
The plaintiff’s claimed right of access to the driveway
stems from an agreement entered into by previous own-
ers of the two properties. Created in 1960, the
agreement referred to the owners of the property
located at 184–188 South Main Street as the ‘‘First Par-
ties’’ and the owners of the property at 192 South Main
Street as the ‘‘Second Parties.’’ It provided that ‘‘the
First Parties grant to the Second Parties and unto the
survivor of them, and unto such survivor’s heirs and
assigns forever the right (in common with the First
Parties’ heirs and assigns) to pass and re-pass by vehicle
or on foot over the entire length of said driveway run-
ning from South Main Street to the garages on the First
Parties’ premises, except that, in the event that [192
Main South Street] shall be used for purposes other than
residential or professional offices, the Second Parties’
right to use the said driveway shall terminate.’’ The
agreement was recorded and was the sole instrument
in either property’s chain of title governing the rights
and obligations of the parties as they relate to the drive-
way. The garages referenced in the agreement no longer
existed at the time of trial, but the driveway
remained intact.
In 1990, the defendants acquired their property and
the plaintiff acquired its property in 2008. Soon after,
the use of the driveway and the parking area behind the
offices became a source of frequent disputes, leading to
an acrimonious relationship between the parties. On or
about September 6, 2008, the defendants constructed
an iron fence behind the buildings along the properties’
common boundary in an effort to separate the proper-
ties’ respective parking areas. The fence severely
restricted access to and maneuverability in the parking
area behind the plaintiff’s property.
Thereafter, the plaintiff commenced the present
action and filed a complaint dated September 8, 2008.
The plaintiff’s operative complaint asserted, among
other things, a quiet title claim asking the court to find
that the erection of the fence violated the terms of the
agreement and to clarify the extent of the right-of-way,
and a claim seeking an injunction restoring the plain-
tiff’s rights under the agreement. The defendants denied
the plaintiff’s claims and raised special defenses, includ-
ing an assertion that the plaintiff’s property had been
used for purposes other than professional offices or
residential uses, thus terminating the right-of-way
agreement. The defendants also asserted counter-
claims, including, among other things, claims of quiet
title asking the court to find that the agreement had
been terminated, civil trespass and private nuisance.
The plaintiff denied the defendants’ counterclaims and
raised special defenses.
After a trial, the court found that the right-of-way
agreement created an express easement for the benefit
of the plaintiff’s property. The court found that this
easement was in effect until the plaintiff’s property was
used by a mortgage brokerage, a home health care
agency and an appliance delivery coordination service.
The court concluded that the operation of these busi-
nesses constituted use of the property for purposes
other than residential or professional offices, thus ter-
minating the easement. The court further found that no
prescriptive or implied easement existed on behalf of
the plaintiff. The court also rejected the defendants’
counterclaims of trespass and nuisance. This appeal
followed.1
I
We begin with the plaintiff’s claims regarding the
existence of an express easement over the defendant’s
driveway. The plaintiff claims that the trial court
improperly determined (1) that the plaintiff’s property
was used for purposes other than residential or profes-
sional offices, (2) that such use permanently terminated
the easement over the driveway, (3) that the plaintiff’s
breach of the right-of-way agreement was material, and
(4) that termination of the easement is not barred by
the doctrine of disproportionate forfeiture.2 We are
not persuaded.
This case involves an express easement. ‘‘[T]he deter-
mination of the intent behind language in [an easement
agreement], considered in the light of all the sur-
rounding circumstances, presents a question of law on
which our scope of review is plenary.’’ (Internal quota-
tion marks omitted.) Leposky v. Fenton, 100 Conn. App.
774, 778, 919 A.2d 533 (2007). ‘‘For a determination of
the character and extent of an easement created by
[agreement] we must look to the language of the
[agreement], the situation of the property and the sur-
rounding circumstances in order to ascertain the inten-
tion of the parties. . . . The language of the grant will
be given its ordinary import in the absence of anything
in the situation or surrounding circumstances which
indicates a contrary intent. . . . In order to resolve
ambiguities in the language, however, the situation and
circumstances existing at the time the easement was
created may also be considered.’’ (Citations omitted;
internal quotation marks omitted.) Id.
A
First, the plaintiff claims that the trial court improp-
erly determined that the plaintiff’s property was used
for purposes other than residential or professional
offices. He argues that the mortgage brokerage, home
health care agency and appliance delivery coordination
service all used the property as professional offices.
We disagree.
In reviewing this claim, we defer to the trial court’s
factual findings regarding the operation of the busi-
nesses that were found to have terminated the ease-
ment. In order to determine whether those operations
constituted uses ‘‘for purposes other than residential
or professional offices,’’ in violation of the easement,
we look to the dictionary definitions of the relevant
terms. See Zirinsky v. Carnegie Hill Capital Asset
Management, LLC, 139 Conn. App. 706, 719–20, 58 A.3d
284 (2012) (applying dictionary definitions to determine
meaning of ‘‘permanent structure’’ in easement and
applying court’s findings as to structure’s character and
dimensions to determine whether structure constituted
permanent structure).
It is undisputed that 192 South Main Street was used
for nonresidential purposes and, therefore, the question
before us is whether the businesses operated out of the
property qualified as ‘‘professional offices.’’ ‘‘Profes-
sional’’ is defined as ‘‘[a] person who belongs to a
learned profession or whose occupation requires a high
level of training and proficiency.’’ Black’s Law Diction-
ary (9th Ed. 2009). ‘‘Office’’ is defined as ‘‘[a] place
where business is conducted or services are per-
formed.’’ Black’s Law Dictionary (9th Ed. 2009). Com-
bining these definitions, the unambiguous meaning of
‘‘professional office’’ as used in the easement is a place
where business is conducted or services are performed
by persons who belong to a learned profession or whose
occupation requires a high level of training and profi-
ciency.3
The trial court found that a mortgage brokerage,
home health care agency and appliance delivery coordi-
nation service had been operated out of the plaintiff’s
property. The court further found that ‘‘each can be
operated without a prolonged course of specialized
instruction and study.’’ (Internal quotation marks omit-
ted.) Applying these undisputed findings to the defini-
tion set forth previously, we conclude that the court
correctly determined that these businesses did not qual-
ify as professional offices, as a high level of training
and proficiency was not required for their operation.
B
Next, the plaintiff claims that the trial court improp-
erly determined that the property being used for pur-
poses other than residential or professional offices
permanently terminated the easement over the drive-
way. Specifically, he argues that, in accordance with
the plain language of the easement, the plaintiff’s right
to make use of the driveway merely was suspended
during the time period of improper use and since has
been restored. We are not persuaded.
‘‘[A]n easement may be created which will terminate
upon the happening of an event or contingency, or
which may be terminated on the occurrence, [or] breach
. . . of a condition . . . and the limitation or condition
will ordinarily be enforced unless it is not sufficiently
definite . . . or is contrary to law or public policy. . . .
When the granting of an easement is conditioned on a
particular event, the easement is automatically termi-
nated when that event occurs.’’ (Citations omitted;
internal quotation marks omitted.) Eis v. Meyer, 17
Conn. App. 664, 668, 555 A.2d 994, aff’d, 213 Conn. 29,
566 A.2d 422 (1989).
Here, the agreement creating the easement expressly
stated that ‘‘in the event that [192 Main South Street]
shall be used for purposes other than residential or
professional offices, the Second Parties’ right to use
the said driveway shall terminate.’’ (Emphasis added.)
As stated previously, we look to the dictionary defini-
tion to determine the commonly approved usage of the
terms of an easement. Terminate means ‘‘[t]o put an
end to; to bring to an end.’’ Black’s Law Dictionary (9th
Ed. 2009). By its clear and unambiguous terms, the
easement was expressly designed to be extinguished if
the dominant property was used in a way other than
those specified. As discussed in part I A of this opinion,
that condition came to pass when the property was
occupied by various nonprofessional businesses.
Accordingly, the easement was terminated automati-
cally, with no action by the defendants required to effect
said termination.4
C
Next, the plaintiff claims that the trial court improp-
erly determined that the plaintiff’s breach of the right-
of-way agreement was material. He argues that any
breach of the agreement was technical because it was
not wilful and the court’s finding to the contrary was
clearly erroneous. We conclude that whether the use of
the property for nonprofessional purposes constituted
a material breach of the agreement is irrelevant and,
therefore, we do not consider the plaintiff’s claim.
In its memorandum of decision, the court stated: ‘‘The
court concurs with precedent from other jurisdictions
that technical breaches of express easements should
not result in termination. . . . However, the court con-
siders the breach at issue to be material rather than
technical and that the [right-of-way] [a]greement has
terminated.’’ (Citation omitted.)
Our review of controlling precedent finds no support
for the proposition that an easement subject to a condi-
tion subsequent can be terminated only by a material
breach. In Eis v. Meyer, supra, 17 Conn. App. 666–67,
this court considered an easement that was subject to
termination if any building on the dominant property
was enlarged. The trial court had determined that,
although a building on the dominant property been
enlarged, the easement was not terminated because the
enlargement was ‘‘insignificant.’’ Id., 667. This court
reversed the judgment of the trial court, holding that
the plain language of the easement controlled and, thus,
that the easement was terminated by any enlargement,
no matter its significance. Id., 669–70.
In the present case, any use of the 192 South Main
Street for purposes other than those expressed in the
easement was sufficient to terminate the easement,
regardless of whether the use could be characterized
as merely a technical breach. Accordingly, we need not
reconsider the court’s determination that the breach in
question was material, as it has no bearing on the out-
come of the matter at hand.
D
Finally, the plaintiff claims that the trial court should
have determined that termination of the easement was
barred by the doctrine of disproportionate forfeiture.
We disagree, as this doctrine does not apply to the
circumstances of this case.
The doctrine of disproportionate forfeiture was enun-
ciated by Chief Justice Peters in Aetna Casualty &
Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219
(1988), overruled on other grounds by Arrowood
Indemnity Co. v. King, 304 Conn. 179, 39 A.3d 712
(2012). The doctrine holds that ‘‘in appropriate circum-
stances, a contracting party, despite his [or her] own
default, may be entitled to relief from the rigorous
enforcement of contract provisions that would other-
wise amount to a forfeiture.’’ Id., 414; see also 2
Restatement (Second) Contracts § 229, p. 185 (1981)
(‘‘[t]o the extent that the non-occurrence of a condition
would cause disproportionate forfeiture, a court may
excuse the non-occurrence of that condition unless its
occurrence was a material part of the agreed
exchange’’). In Murphy, the doctrine was applied in the
context of an insured’s failure to comply with the notice
requirements of an insurance contract, leading to a
denial of coverage. Aetna Casualty & Surety Co. v.
Murphy, supra, 417. The court held that this loss of
coverage constituted a disproportionate forfeiture
unless it was shown that the insurer was materially
prejudiced by the lack of timely notice. Id., 418. This
conclusion was premised on consideration of the fol-
lowing factors: (1) that insurance contracts are con-
tracts of adhesion, (2) that coverage would be lost
despite dutiful payment of insurance premiums, and (3)
that lack of timely notice would not necessarily cause
prejudice by depriving an insurer of a fair opportunity
to investigate an accident or claim. Id., 415–16. Since
Murphy, the doctrine has been applied by our appellate
courts almost exclusively in the insurance context. See
Arrowood Indemnity Co. v. King, supra, 201; National
Publishing Co., Inc. v. Hartford Fire Insurance Co.,
287 Conn. 664, 675, 949 A.2d 1203 (2008); but see
Twenty-Four Merrill Street Condominium Assn., Inc.
v. Murray, 96 Conn. App. 616, 623, 902 A.2d 24 (2006)
(discussing doctrine of disproportionate forfeiture in
context of foreclosure of statutory lien).
We are not persuaded that the doctrine of dispropor-
tionate forfeiture is applicable to the present case. First,
no evidence was presented at trial to suggest that the
easement was a contract of adhesion or that the owners
of 192 South Main Street were in any way lacking in
bargaining power when agreeing to the terms of the
agreement. Second, unlike insurance policy holders
who paid premiums but never received coverage, the
owners of 192 South Main Street received the benefit
of using the easement for several decades before its
termination. Finally, for the reasons set forth in part I
C of this opinion, we are convinced that prejudice is
not a proper consideration in the context of express
easements.
With these factors in mind, we conclude that the
doctrine of disproportionate forfeiture is not applicable
to the present case. Accordingly, the court acted prop-
erly in refusing to maintain the easement on this ground.
II
We now turn to the defendants’ claims on cross
appeal. They claim that the court erred in rendering
judgment for the plaintiff on their counterclaims of
trespass and nuisance. As the defendants failed to pre-
sent any evidence as to damages related to these counts,
we decline to review the merits of this claim.
At trial, the defendants asserted counterclaims of
civil trespass and private nuisance, seeking remedies
of a judgment declaring the easement to have been
terminated and monetary damages. Because such a
declaratory judgment was rendered in their favor at
trial, the defendants make no claim on appeal with
respect to equitable relief for these causes of action.5
With regard to monetary damages, ‘‘[i]t is axiomatic
that the burden of proving damages is on the party
claiming them. . . . When damages are claimed they
are an essential element of [that party’s] proof and must
be proved with reasonable certainty. . . .’’ (Internal
quotation marks omitted.) Ulbrich v. Groth, 310 Conn.
375, 441, 78 A.3d 76 (2013). Without any showing as to
how the alleged trespass and nuisance diminished the
value of the defendants’ property or necessitated finan-
cial expenditure on their part, the defendants, at best,
would be entitled to nominal damages. See Kelly v.
Ivler, 187 Conn. 31, 47, 450 A.2d 817 (1982).
In this case, the defendants failed to present any
evidence of damages at trial, a fact conceded by the
defendants’ counsel at oral argument before this court.
Therefore, a reversal of the court’s conclusion rejecting
the defendants’ trespass and private nuisance claims
would result only in an award of nominal damages to
the defendants. Our courts routinely have refused to
reverse a judgment and remand for a new trial when a
party is found to have prevailed on a claim but is not
awarded any damages. See, e.g., Hughes v. Lamay, 89
Conn. App. 378, 386 n.7, 873 A.2d 1055 (‘‘[a]lthough the
return of a plaintiff’s verdict established a technical
legal injury that entitled the plaintiff to at least nominal
damages, this court as a general rule will not reverse
and grant a new trial for a mere failure to award nominal
damages’’ [internal quotation marks omitted]), cert.
denied, 275 Conn. 922, 883 A.2d 1244 (2005). For similar
reasons of judicial economy, given the circumstances
of this case, we decline to consider the defendants’
claims that if successful would entitle them only to
nominal damages.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Subsequent to the plaintiff’s filing of this appeal, the defendants filed a
motion for articulation, which the court denied. The defendants subsequently
filed a motion for review with this court. On September 26, 2012, this court
granted the motion for review and granted in part the relief requested,
ordering the trial court to articulate whether it found that the strip of land
between the concrete pad and the parties’ common boundary line was part
of the driveway identified in the original right-of-way agreement. In an
October 1, 2012 memorandum of decision, the court explained that it did
find that portion of land to be a part of the driveway.
2
The plaintiff also argues for the first time on appeal that the defendants
waived their right to claim termination of the easement. The plaintiffs seek
review of this unpreserved claim pursuant to the plain error doctrine codified
at Practice Book § 60-5. Reversal pursuant to the plain error doctrine is ‘‘an
extraordinary remedy used by appellate courts to rectify errors committed
at trial that, although unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work a serious and manifest
injustice on the aggrieved party.’’ State v. Myers, 290 Conn. 278, 289, 963
A.2d 11 (2009). The plaintiff has not demonstrated that such a remedy is
appropriate in the present case, and therefore we decline to review the
plaintiff’s waiver claim.
3
The plaintiff asks us to adopt a broader definition of ‘‘professional office’’
that allows for any noncommercial business to be considered professional
in nature. As he has failed to identify any authority, legal or otherwise, for
his suggested definition, we decline to do so.
4
The plaintiff provides no Connecticut authority for the proposition that
the defendants were required to exercise a right of reentry in order to
extinguish the easement. Rather, the plaintiff has failed to distinguish this
case from Eis v. Meyer, supra, 17 Conn. App. 670, wherein this court held that
an easement subject to a condition subsequent was terminated automatically
upon the occurrence of that condition.
5
The defendants state in their brief: ‘‘In light of the separate determination
that the right to use the driveway has terminated and that the defendants
therefore have the exclusive right to the use of the rear of [their property],
the defendants do not believe that injunctive relief is any longer necessary
in the context of the existing trespass claim.’’