JMS Newberry, LLC v. Kaman Aerospace Corp.

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JMS NEWBERRY, LLC v. KAMAN AEROSPACE
CORPORATION ET AL.
(AC 35695)
DiPentima, C. J., and Alvord and Harper, Js.
Argued January 15—officially released April 22, 2014
(Appeal from Superior Court, judicial district of
Hartford, Scholl, J.)
Mary E. Mintel, with whom was Nicholas J. Harding,
for the appellant (plaintiff).
Michael J. Donnelly, with whom were Shawn G. Lisle
and Glenn M. Messemer, for the appellees (named
defendant et al.)
Opinion
ALVORD, J. The plaintiff, JMS Newberry, LLC,
appeals from the trial court’s rendering of summary
judgment in favor of the defendants Kaman Aerospace
Corporation and Kaman Corporation.1 On appeal, the
plaintiff claims that the trial court erred in: (1) requiring
the plaintiff to ‘‘provide detailed solutions to the envi-
ronmental issues’’ caused by the defendants despite
there being no such requirement when bringing a claim
pursuant to General Statutes § 22a-16; (2) concluding
that the plaintiff failed to demonstrate that the defen-
dants’ property ‘‘was altered so as to discharge’’ water
onto the plaintiff’s property ‘‘in a different course than
its natural flow’’; and (3) ‘‘finding that the defendants
did not commit a trespass in failing to remedy a situa-
tion, when under a duty to do so, that resulted in a
property invasion.’’ We affirm the judgment of the
trial court.
The record reveals the following undisputed facts.
The defendants own approximately eighty-six acres of
property in the town of Bloomfield. The defendants
have occupied this property since the 1950s, and have
owned it since 2008.2 The plaintiff owns six parcels of
land on the north side of East Newberry Road, across
the street from the defendants’ property located on the
south side of East Newberry Road. The defendants’ and
plaintiff’s properties do not abut, and East Newberry
Road runs between them.
Since the 1950s, there has been a flat, grassy meadow,
referred to as a ‘‘flight line,’’ approximately 400 feet
wide running adjacent to East Newberry Road on the
defendants’ property. Since 1980, neither the defen-
dants nor their predecessor in interest, the United
States government, have installed any impervious mate-
rial onto the flight line or graded it to shed water. The
plaintiff has been aware that water has been ‘‘coming
down’’ from the defendants’ property onto its property
since at least 1986. Water from the defendants’ property
does not flow directly onto the plaintiff’s property, but
the water flows onto East Newberry Road. In late
August, 2011, after tropical storm Irene, a tenant at the
plaintiff’s property noticed water runoff coming over
East Newberry Road and causing erosion by flooding
on the plaintiff’s property.
On September 16, 2011, an attorney acting on behalf
of the plaintiff contacted the defendants and ‘‘alerted
[them] to the flooding problem.’’ Thereafter, on Novem-
ber 28, 2011, the plaintiff commenced the present action
against the defendants seeking damages and injunctive
relief for the ‘‘erosion of the soil and banks’’ at the
plaintiff’s property. In its complaint, the plaintiff
asserted that the ‘‘unnatural grading’’ of the defendants’
property had resulted in ‘‘sheet flow water runoff’’ flow-
ing from the defendants’ property onto East Newberry
Road, where it then flowed onto the plaintiff’s property
and caused damage.3 The plaintiff claimed that the
defendants ‘‘failed to remedy’’ and ‘‘[continue] to main-
tain’’ this unnatural grading. The plaintiff alleged six
counts against the defendants, including a cause of
action pursuant to § 22a-164 and trespass.5 The defen-
dants filed an amended answer on July 26, 2012, denying
the plaintiff’s substantive allegations and asserting mul-
tiple special defenses.
On September 24, 2012, the defendants filed a motion
for summary judgment on all claims asserted against
them. The plaintiff filed a memorandum in opposition
to the motion on October 26, 2012, and a motion for
partial summary judgment as to liability only on Novem-
ber 9, 2012. The defendants filed a memorandum in
further support of their motion for summary judgment
on November 8, 2012, and a memorandum in opposition
to the plaintiff’s motion for partial summary judgment
on November 30, 2012. Thereafter, the plaintiff filed a
memorandum in further support of its motion for partial
summary judgment on December 13, 2012. The court
heard oral argument on the motions on December 17,
2012. In a written memorandum of decision released
on April 3, 2013, the court granted the defendants’
motion for summary judgment and denied the plaintiff’s
motion for partial summary judgment. The plaintiff sub-
sequently filed a motion to reargue, which was denied
on May 3, 2013. This appeal followed.
We begin by setting forth our standard of review.
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . A material fact . . . [is] a
fact which will make a difference in the result of the
case. . . . [T]he scope of our review of the trial court’s
decision to grant the [moving party’s] motion for sum-
mary judgment is plenary.’’ (Internal quotation marks
omitted.) Romprey v. Safeco Ins. Co. of America, 310
Conn. 304, 312–13, 77 A.3d 726 (2013).
I
The plaintiff first claims that the trial court ‘‘erred in
requiring [it] to submit solutions to the environmental
issues caused by the [d]efendants, supported by specific
evidence, when [the] [p]laintiff was not required to do
so’’ under § 22a-16. The plaintiff asserts that it simply
should have been required to ‘‘show a protectable natu-
ral resource and that [the] [d]efendants, if not enjoined,
would impair this resource.’’ (Internal quotation marks
omitted.) We are not persuaded.
‘‘Section 22a-16 is a part of [the Connecticut Environ-
mental Protection Act of 1971 (act), General Statutes
§ 22a-14 et seq.,] and was passed by the legislature to
enable persons to seek redress in the court when some-
one is [polluting] our environment.’’ (Internal quotation
marks omitted.) Shukis v. Board of Education, 122
Conn. App. 555, 567, 1 A.3d 137 (2010). ‘‘General Stat-
utes § 22a-17, which describes the burden of proof for
claimants under § 22a-16, requires the plaintiff to prove
causation, which is essential to such a claim, by estab-
lishing that the conduct of the defendant, acting alone,
or in combination with others, has, or is reasonably
likely unreasonably to pollute, impair or destroy the
public trust in the air, water or other natural resources
of the state . . . . To establish a prima facie case under
[the act], the plaintiff must prove that the defendant’s
conduct was causing something more than a de minimis
impairment of the environment.’’ (Citation omitted;
emphasis altered; footnote omitted; internal quotation
marks omitted.) Fort Trumbull Conservancy, LLC v.
Alves, 140 Conn. App. 155, 163–64, 57 A.3d 898, cert.
denied, 308 Conn. 929, 64 A.3d 120 (2013). A review of
the trial court opinion reveals that the court clearly
gave two alternative bases for its holding that ‘‘[w]ithout
an evidentiary basis [the plaintiff’s] claim under [the
act] fails.’’ The trial court determined that the plaintiff
‘‘ha[d] not identified ‘the alteration’ it claims.’’ The trial
court additionally stated that the plaintiff had not identi-
fied ‘‘what ‘repair’ is necessary to fix it.’’
The plaintiff argued before the trial court that the
defendants’ ‘‘refusal to repair the alteration on [their]
property that leads to the flooding of the [plaintiff’s
property] is an actionable offense’’ for purposes of the
act because ‘‘[d]iverting surface water off one’s prop-
erty onto another’s, thereby causing the erosion of that
property owner’s soil, constitutes impairment of a natu-
ral resource.’’ Under the circumstances of this case, to
prevail on its claim under the act, the conduct that the
plaintiff was required to establish was that the defen-
dants were maintaining an alteration to their property
that diverted surface water. This conduct requires the
existence of an alteration. Moreover, ‘‘[a] plaintiff can-
not meet its burden [under the act] simply by demon-
strating that a natural resource of the state has been,
or likely will be, polluted . . . .’’ Fort Trumbull Con-
servancy, LLC v. New London, 135 Conn. App. 167,
182, 43 A.3d 679, cert. denied, 307 Conn. 905, 53 A.3d
220 (2012). Accordingly, while the plaintiff is correct
that there is no requirement under the act that it must
provide a detailed analysis of solutions prior to trial,
we nonetheless affirm the court’s judgment on the dis-
positive alternate ground that by failing to identify the
claimed alteration,6 the plaintiff has not met its burden
of establishing that the conduct of the defendants unrea-
sonably polluted and impaired the waters and natural
resources of the state and the public trust therein.
II
The plaintiff claims that the trial court ‘‘erred when
it concluded that the plaintiff failed to demonstrate
that the [defendants’] property was altered so as to
discharge onto the [plaintiff’s] property in a different
course than its natural flow.’’7 We do not find this argu-
ment to be persuasive.
The following procedural history is relevant to our
resolution of this claim. In the count of its complaint
seeking damages pursuant to the act, the plaintiff
alleged that the defendants’ ‘‘acts or omissions in
allowing the increased flow of surface water onto [the
plaintiff’s] property, which has led to erosion and depos-
its of soil and sediment into a wetland area . . . has
unreasonably polluted and impaired the waters and nat-
ural resources of the State of Connecticut and the public
trust therein.’’ The plaintiff argued before the trial court
that under Falco v. James Peter Associates, Inc., 165
Conn. 442, 335 A.2d 301 (1973), the defendants’ refusal
to repair the alteration that leads to the flooding of the
plaintiff’s property is an actionable offense for purposes
of the act because ‘‘[d]iverting surface water off one’s
property onto another’s, thereby causing erosion of that
property owner’s soil, constitutes impairment of a natu-
ral resource.’’ The court, however, determined that the
evidence submitted did ‘‘not provide a basis for such
a claim’’ because the plaintiff ‘‘ha[d] not presented any
evidence which would establish that [the defendants
are], in fact, diverting surface water off [their] prop-
erty,’’ and, furthermore, the plaintiff ‘‘ha[d] not identi-
fied the alteration it claims.’’ (Internal quotation marks
omitted.) The court concluded that ‘‘[w]ithout an evi-
dential basis [the plaintiff’s] claim under the [act] fails.’’
In Falco, our Supreme Court reiterated the well estab-
lished legal principle that ‘‘[a] landowner cannot use or
improve his land so as to increase the volume of the
surface waters which flow from it onto the land of
others, nor can he discharge surface waters from his
land onto the land of others in a different course from
this natural flow, if by so doing he causes substantial
damage.’’ (Internal quotation marks omitted.) Falco v.
James Peter Associates, Inc., supra, 165 Conn. 445–46.
The court went on to add that ‘‘[m]oreover, one who
maintains such an alteration in his land, though it was
created by his predecessor in title, may, after a request
to remove it, be held liable for the continuing injury.’’8
Id., 446.
Our review of the record in the present case supports
the court’s conclusion that the plaintiff failed to present
any evidence that would establish that the defendants
were maintaining an alteration that diverted surface
water off their property. The complaint attributed the
alleged ‘‘increase flow of water’’ across the plaintiff’s
property to the ‘‘unnatural grading’’ of the defendants’
property, which the plaintiff asserted that the defen-
dants ‘‘failed to remedy’’ and ‘‘continue[d] to maintain.’’
The evidence submitted by the defendants conclusively
establishes that neither they nor the United States gov-
ernment, their predecessor in interest, have altered the
defendants’ property since at least the 1980s.9 As our
Supreme Court succinctly noted, a land owner ‘‘incurs
no liability by reason of the fact that surface water
falling or running onto his land flows thence to the
property of others in its natural manner.’’ (Internal quo-
tation marks omitted.) Ferri v. Pyramid Construction
Co., 186 Conn. 682, 685, 443 A.2d 478 (1982).
Nevertheless, the plaintiff argues that it sufficiently
established through the affidavits of its expert, Robert
P. Pryor, that the defendants’ property previously was
altered from ‘‘a natural to a nonnatural state’’ by the
defendants’ or their predecessors in interest. ‘‘[I]t
remains . . . incumbent upon the party opposing sum-
mary judgment to establish a factual predicate from
which it can be determined, as a matter of law, that a
genuine issue of material fact exists.’’ (Internal quota-
tion marks omitted.) Macellaio v. Newington Police
Dept., 145 Conn. App. 426, 434, 75 A.3d 78 (2013). ‘‘Mere
assertions of fact . . . are insufficient to establish the
existence of [an issue of] material fact and, therefore,
cannot refute evidence properly presented to the court
[in support of a motion for summary judgment].’’ (Inter-
nal quotation marks omitted.) Nash v. Stevens, 144
Conn. App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn.
915, 76 A.3d 628 (2013). Pryor’s affidavits establish, at
best, that trees appear to have been removed from the
defendants’ property between 1934 and 1951.10 Although
Pryor avers that ‘‘[o]ther conditions being equal, mowed
grass areas exhibit a higher runoff potential than natural
meadows, which in turn exhibit a higher runoff poten-
tial than areas of forest and woodlands, [and] [t]here-
fore the [defendants’] property, as it was in 1928 or
1934, had a lower runoff potential than it does today,’’
these historical observations fall well short of establish-
ing material issues of fact concerning whether the
defendants are maintaining an unnatural grade11 on their
property or diverting surface water off of their property.
‘‘Although an affidavit by an expert may be considered
in opposition to a motion for summary judgment, con-
clusory affidavits, even from expert witnesses, do not
provide a basis on which to deny such motions.’’ (Inter-
nal quotation marks omitted.) Luciani Realty Partners
v. North Haven Academy, LLC, 119 Conn. App. 522,
528, 988 A.2d 930 (2010). Except for the plaintiff’s allega-
tions, there is no evidence in the record that the defen-
dants’ property had been altered so as to discharge
water off of their property in a different course than
its natural flow. Accordingly, the trial court was correct
in determining that the plaintiff failed to submit any
evidence that raised a question of material fact as to
the defendants’ potential liability under Falco.
III
Finally, the plaintiff claims that ‘‘the trial court erred
in finding that the defendants did not commit a trespass
in failing to remedy a situation, when under a duty to
do so, that resulted in a property invasion.’’ We disagree.
‘‘The essentials of an action for trespass are: (1) own-
ership or possessory interest in land by the plaintiff;
(2) invasion, intrusion or entry by the defendant affect-
ing the plaintiff’s exclusive possessory interest; (3) done
intentionally; and (4) causing direct injury.’’ (Emphasis
omitted; internal quotation marks omitted.) Caciopoli
v. Lebowitz, 131 Conn. App. 306, 316, 26 A.3d 136 (2011),
aff’d, 309 Conn. 62, 68 A.3d 1150 (2013). At argument
before the trial court on the motions for summary judg-
ment, the plaintiff argued that the defendants intention-
ally trespassed by failing to stop the intrusion of water
onto its property. The court, however, concluded that
‘‘[a] review of the evidence presented indicates that [the
defendants] ha[ve] taken no action [that] has caused
an increase in the flow of water onto [the plaintiff’s]
property therefore [the plaintiff] cannot support a claim
of trespass.’’ Now on appeal, the plaintiff claims that
the trial court failed to consider trespass law in the
context of an omission to act. It claims that under Falco
‘‘it is the defendants’ responsibility to keep water from
intruding onto the land of others in a different course
from [its] natural flow because [they] have chosen to
maintain an alteration in [their] land created by a prede-
cessor in title after a request to remove it.’’ (Internal
quotation marks omitted.) The plaintiff argues that ‘‘in
failing to stop this intrusion the defendants have inten-
tionally trespassed on to the [plaintiff’s] property.’’
As we established in part II of this opinion, the plain-
tiff failed to raise a genuine issue of material fact that
there was an alteration to the defendants’ property that
increased the volume of water flowing off of their prop-
erty. Accordingly, the plaintiff’s trespass claim does not
fall under Falco, nor can it trigger liability.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The town of Bloomfield also was a defendant before the trial court. It
was not a party to the motion for summary judgment at issue on appeal.
Therefore, we refer in this opinion to Kaman Aerospace Corporation and
Kaman Corporation as the defendants.
2
The defendants purchased the property from the United States govern-
ment. Prior to their purchase, the defendants operated as a government
contractor on the site.
3
The plaintiff also asserted that the runoff caused the soil on its property
to be washed into the adjacent wetlands, filling the wetlands with sediment.
4
General Statutes § 22a-16 provides in relevant part: ‘‘[A]ny person, part-
nership, corporation, association, organization or other legal entity may
maintain an action in the superior court . . . for declaratory and equitable
relief against . . . any person, partnership, corporation, association, organi-
zation or other legal entity, acting alone, or in combination with others, for
the protection of the public trust in the air, water and other natural resources
of the state from unreasonable pollution, impairment or destruction . . . .’’
5
The plaintiff also alleged private nuisance, negligence, wrongful diversion
of surface waters, and a cause of action pursuant to General Statutes § 22a-
44 (b) against the defendants. The plaintiff has not challenged the trial
court’s granting of summary judgment with respect to these claims.
6
We address in full the plaintiff’s argument that it established that the
defendants’ property was altered so as to discharge water onto its property
in part II of this opinion.
7
In support of its argument, the plaintiff repeatedly cites to the court’s
discussion of Falco v. James Peter Associates, Inc., 165 Conn. 442, 335 A.2d
301 (1973), in relation to the plaintiff’s negligence and private nuisance
claims. The trial court, however, granted the defendants’ motion for summary
judgment on both the negligence and private nuisance claims because it
determined that those counts were barred by the statute of limitations. The
plaintiff has not challenged the court’s ruling with respect to the statute
of limitations.
8
At oral argument before this court, the parties disputed how we should
interpret our Supreme Court’s determination in Falco that the trial court’s
judgment as to damages should be reversed in part because ‘‘there [was] no
finding that the defendants were given notice of the condition and thereafter
refused to correct it.’’ Falco v. James Peter Associates, Inc., supra, 165
Conn. 446. The plaintiff asserted that under this holding it was simply
required to give the defendants notice of the flooding, while the defendants
argue that the plaintiff was required to give them notice of the alteration
of the land causing the flooding. In their briefs, however, the parties failed
to develop their arguments beyond a bare assertion of the claim. ‘‘[I]t is
well settled that claims on appeal must be adequately briefed . . . and
cannot be raised for the first time at oral argument before the reviewing
court.’’ (Internal quotation marks omitted.) Driska v. Pierce, 110 Conn. App.
727, 729–30 n.4, 955 A.2d 1235 (2008). Furthermore, ‘‘[a]nalysis, rather than
mere abstract assertion, is required in order to avoid abandoning an issue
by failure to brief the issue properly.’’ (Internal quotation marks omitted.)
Treglia v. Santa Fuel, Inc., 148 Conn. App. 39, 47, 83 A.3d 1222 (2014).
Accordingly, we decline to reach this claim.
9
The defendants submitted evidence to establish that they have not
installed any impervious material on the flight line or graded it to shed
water, and that the plaintiff has been aware that water has been coming
onto his property since at least 1986.
10
In his first affidavit, Pryor asserted that the defendants’ property is
uphill from the plaintiff’s property, that ‘‘mowed grass areas exhibit a higher
runoff potential than natural meadows, protected from mowing or grazing,’’
and that ‘‘[t]here are many factors which can affect the runoff characteristics
of grass surfaces.’’ Later on, in further support of their motion for partial
summary judgment, the plaintiff submitted another affidavit by Pryor, who
attested that, based upon old aerial photographs and maps that depicted
forests on the defendants’ land in 1928 and 1934, but not in 1951, ‘‘it [was]
[his] conclusion that the state of the [defendants’] property is not the same
as it was in 1928 or 1934.’’
11
In their reply brief, the plaintiff argues that ‘‘to grade’’ means ‘‘to level
off a smooth horizontal or sloping surface,’’ and that the defendants’ property
‘‘was not naturally the smooth sloping surface it is today; it was a wooded
area that was unnaturally graded into a field by the defendants’ predecessor
[in interest].’’ (Emphasis added.) Despite this assertion, the plaintiff has
offered no evidence that the alleged removal of the trees was accompanied
by or resulted in the leveling off of a smooth horizontal or sloping surface
on the defendants’ property. ‘‘While the court must view the inferences to
be drawn from the facts in the light most favorable to the party opposing
the motion . . . a party may not rely on mere speculation or conjecture as
to the true nature of the facts to overcome a motion for summary judgment.’’
(Internal quotation marks omitted.) Recall Total Information Management,
Inc. v. Federal Ins. Co., 147 Conn. App. 450, 456–57, 83 A.3d 664 (2014).