Cavanagh v. Richichi

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WILLIS CAVANAGH v. JOSEPH RICHICHI,
COTRUSTEE, ET AL.
(AC 44344)
Bright, C. J., and Clark and DiPentima, Js.
Syllabus
The plaintiff sought a partition by sale, pursuant to statute (§ 52-500 (a))
of certain real property in which he and the defendants each held an
ownership interest. Between the years 2001 and 2019, the defendants
B, G, and N Co. invested hundreds of thousands of dollars for the upkeep,
maintenance, and improvement of the waterfront property to support
a marine based business and also paid all of the real estate taxes on
the property. The trial court found that the plaintiff and the defendants
M and P had been passive owners and had minimal interests in the
property as compared to B, G, and N Co. and determined that the
equitable distribution of the minimal interests of the plaintiff and M and
P to B, G, and N Co. in exchange for just compensation would better
promote the relative interests of the parties. Thereafter, the court
accepted an appraisal of the fair market value of the property and
awarded the plaintiff one third of that amount, reduced by a credit to
B, G, and N Co. for certain investments in the property and a set off
for the real estate taxes paid. The court declined to award the plaintiff
compensation for B, G, and N Co.’s use and occupancy of the property.
On the plaintiff’s appeal to this court, held:
1. The trial court did not abuse its discretion in calculating its award of just
compensation to the plaintiff: contrary to the plaintiff’s argument, the
court was not prohibited from crediting B, G, and N Co. for the costs
of improvements to the property in the absence of an agreement with
the plaintiff to share the cost of those improvements as there was no
marital relationship among the parties; moreover, the plaintiff provided
no authority for his assertion that the court was required to calculate
the amount of credit to B, G, and N Co. on the basis of the amount of
their expenditures for improvements rather than the extent to which
those expenditures enhanced the fair market value of the property;
furthermore, the court reasonably considered in its calculation the mar-
ket value of the property, the plaintiff’s interest in the property, and the
costs and labor associated with the improvements, maintenance and
repairs made by B, G, and N Co. during their occupancy of the property
and found that much of the investment between 2000 and 2009 was
necessary for the property to be useable and, thus, that these expenses
benefited all the co-owners of the property.
2. The trial court did not abuse its discretion in declining to award the
plaintiff compensation for B, G, and N Co.’s use and occupancy of the
property: the plaintiff failed to prove the reasonable value owed to him
by B, G and N Co.; the court’s finding that the testimony of the plaintiff’s
real estate valuation expert as to the fair market rental value of the
property was not credible was fully supported by the evidence, including
the expert’s use of a fair market value of the property that differed from
the court approved appraisal, the expert’s determination of the fair
market rental value as if the plaintiff and B, G, and N Co. were the
landlord and tenants under a long-term ground lease rather than analyz-
ing comparable rentals, and the failure of the expert’s analysis to con-
sider the actual condition of the property, although it assumed a maritime
commercial use of the property.
Argued January 3—officially released May 10, 2022
Procedural History
Action for the partition of certain of the parties’ real
property, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the defendant New
NRB #3 Corporation et al. filed a counterclaim; there-
after, Patrick D. McCabe, cotrustee of the Hillard E.
Bloom Revocable Trust, was substituted for the named
defendant; subsequently, the case was tried to the court,
Heller, J.; judgment for the defendant New NRB #3
Corporation et al. on the complaint and on the counter-
claim, from which the plaintiff appealed to this court.
Affirmed.
Douglas J. Varga, for the appellant (plaintiff).
Joseph DaSilva, Jr., with whom, on the brief, was
Marc J. Grenier, for the appellees (defendant New NRB
#3 Corporation et al.).
Opinion
CLARK, J. In this partition action, the plaintiff and
counterclaim defendant, Willis Cavanagh (plaintiff),
appeals from the judgment of the trial court ordering
an equitable distribution of the property located at 120
Water Street in Norwalk (property). The trial court
found that the plaintiff’s interest in the property was
minimal and ordered him to quitclaim his undivided
one-third stake in the property to the defendants and
counterclaim plaintiffs Robert Bloom and John
Gardella, in their capacity as cotrustees of the Norman
R. Bloom Revocable Trust, and to New NRB #3 Corpora-
tion (New NRB) (collectively, defendants), for just com-
pensation.1 On appeal, the plaintiff claims that the trial
court erred in calculating the just compensation owed
to him by (1) finding that the defendants were entitled
to a credit of one third of the amount that they paid
for improvements to the property, and (2) failing to
award him any compensation for the defendants’ use
and occupancy of the property. We affirm the judgment
of the trial court.
We begin by setting forth the relevant facts, as found
by the trial court, in addition to the procedural history
in this matter. The property is a 0.7 acre waterfront
property located in the Norwalk Marine Commercial
zone in Norwalk. The property has approximately 70
feet of frontage on Water Street and 150 feet of frontage
on Norwalk Harbor. It is a narrow, mostly level, rectan-
gular shaped lot. The land component of the property
comprises about 75 percent of the parcel; the remaining
25 percent stretches into Norwalk Harbor. The property
is improved with a small two-story building, a bulkhead,
a boat lift, a sixty foot dock, and a sixty foot pier that
extends into the harbor.
In 2011, the plaintiff, who owns a one-third interest
in the property, commenced an action for a partition
by sale of the subject property. At that time, Joseph
Richichi and Leslie Miklovich, as cotrustees of the Hil-
lard E. Bloom Revocable Trust (Hillard Bloom Trust),
and the defendants, were named as defendants in light
of their ownership interests in the property.
On June 26, 2013, Richichi and Miklovich filed an
answer to the complaint, agreeing with the plaintiff that
a partition by sale, with an equitable distribution of the
proceeds, would better serve the interests of the co-
owners than a partition in kind. On July 8, 2013, how-
ever, the defendants filed an answer, counterclaim, and
cross claim in which they argued that a physical division
of the property was not appropriate and that a partition
by sale would not be in the interest of the owners. They
alleged that the plaintiff’s interest in the property was
minimal, and, therefore, they were entitled to an order
requiring the plaintiff to convey his interest in the prop-
erty to them in exchange for fair compensation. The
defendants also asserted the right to a set off against
any fair compensation due to the plaintiff for the amounts
that they had spent for the upkeep, maintenance, and
improvement of the property. The defendants asserted
the same claims as cross claims against Richichi and
Miklovich.
On December 22, 2014, Patrick D. McCabe filed a
notice of death of Richichi, and McCabe thereafter suc-
ceeded Richichi as a cotrustee of the Hillard Bloom
Trust.2 On October 15, 2015, an amended complaint was
served and filed to reflect this new interest, in addition
to correcting a service issue as to Gardella, as cotrustee
of the Norman Bloom Trust. Various counterclaims,
answers, special defenses, and replies were filed. Of
relevance to this appeal, the plaintiff filed revised spe-
cial defenses to the defendants’ operative counterclaim
on August 16, 2016, which included, among other spe-
cial defenses, that the defendants failed and refused to
pay reasonable rents or use and occupancy to him,
which amounts equal or exceed the value of any
improvements to the property.
The action was tried to the court on August 17 and
September 1, 2016, and January 10, 2017, and the court
set a briefing schedule at the close of evidence. In a
memorandum of decision dated September 5, 2017, the
trial court, Heller, J., evaluated whether a partition by
sale or an equitable distribution, pursuant to General
Statutes § 52-500 (a),3 was appropriate. With respect to
the plaintiff, the court found that, despite his ownership
of ‘‘an undivided one-third—or 33.33 percent—interest
in the . . . property,’’ he had ‘‘a minimal interest in the
. . . property’’ because, among other things, he failed
‘‘to contribute to the cost of the cleaning up [of] the
. . . property and constructing and installing the
improvements’’; he failed ‘‘to pay any portion of the
real estate taxes or the insurance premiums for the
property’’; he failed ‘‘to contribute to the cost of main-
taining the . . . property’’; and he ‘‘never sought access
to the property.’’ The court found that, ‘‘[w]hile [the
plaintiff] has acted to assert his ownership interest in
the . . . property—by prosecuting the 2002 quiet title
action and this partition action—he has done nothing
to enhance, protect or preserve the property itself.
Although he is the plaintiff in this action, he did not
testify or offer any evidence to show that he has been
anything other than a passive owner of the . . . prop-
erty.’’
In regard to the Hillard Bloom Trust cotrustees, the
court found that they own ‘‘an undivided one-sixth—
or 16.67 percent—interest in the . . . property.’’ The
court stated that McCabe or Miklovich, ‘‘individually or
in their capacity as cotrustees of the Hillard Bloom
Trust, have not had anything to do with the . . . prop-
erty.’’ The court stated that, like the plaintiff, ‘‘they did
not testify at trial or offer any evidence to show that
they are not merely passive owners.’’ The court found
that they, too, had ‘‘a minimal interest in the . . . prop-
erty.’’
With respect to the defendants, the court found that
the Norman Bloom Trust cotrustees owned an undi-
vided one-sixth interest in the property and that New
NRB, an oyster and shellfishing company operated by
Bloom, owned an undivided one-third interest in the
property. Having found that the plaintiff and the Hillard
Bloom Trust cotrustees had minimal interests in the
property, the court had to determine, in accordance
with § 52-500 (a), whether a sale would promote the
interests of the defendants. If a sale did not promote
their interests, the court could order an equitable distri-
bution of such property. If a sale would promote their
interests, an equitable distribution would not be appro-
priate. The court ultimately concluded that, pursuant
to § 52-500 (a), the sale of the property would not pro-
mote the interests of the defendants, and it accordingly
found that ‘‘the equitable distribution of the minimal
interests of [the plaintiff] and the Hillard Bloom Trust
cotrustees to the [the defendants] in return for just
compensation [would] better promote the interests of
the owners of the . . . property than would a partition
by sale.’’
Instead of determining just compensation at that
time, the court’s memorandum of decision ‘‘direct[ed]
the [defendants] to provide a current appraisal of the
. . . property, prepared by . . . [Ronald] McInerney,
for the consideration of the court and all parties within
sixty days of the date of [its] memorandum of decision.’’4
The court indicated that the parties would then be heard
with respect to the just compensation to be paid to the
plaintiff and to the Hillard Bloom Trust cotrustees for
their interests in the property.
On October 27, 2017, the defendants filed an updated
appraisal completed by McInerney dated October 25,
2017, which the trial court, Hon. Kevin Tierney, judge
trial referee, accepted on December 20, 2017. The Octo-
ber 25 appraisal valued the property at $1,325,000. On
March 16, 2018, before the hearing on just compensation
was held, the Hillard Bloom Trust cotrustees entered
into a stipulation with the defendants to resolve their
claim to just compensation.
On October 8, 2019, the court held a hearing on the
just compensation to be paid to the plaintiff, the defen-
dants’ claim that they were entitled to contributions
for the amounts that they had spent for the upkeep,
maintenance, and improvement of the property, and
the plaintiff’s claim that he should be compensated for
the defendants’ use and occupancy of the property. The
court reserved decision at the conclusion of the hearing
and set a posthearing briefing schedule.
In a memorandum of decision dated October 6, 2020,
the trial court, Heller, J., accepted the updated October,
2017 appraisal completed by McInerney and found that
the property had a fair market value of $1,325,000. The
court stated: ‘‘Absent any credit, setoff or other equita-
ble adjustment in favor of the [defendants], the value
of [the plaintiff’s] undivided one-third interest would
be $441,667.’’ However, the court explained that its ‘‘role
in this partition action does not end with a simple math-
ematical calculation.’’ It recognized that ‘‘[a] partition
action requires that the court balance the equities between
the parties.’’ (Internal quotation marks omitted.)
With respect to whether the defendants were entitled
to a setoff of the amounts that they spent for the upkeep,
maintenance, and improvement of the property, includ-
ing real estate taxes, the court explained that the defen-
dants introduced evidence that they had spent $893,900
in labor and out-of-pocket expenses between 2000 and
2019, to restore and improve the property so that it
could support a marine based business. The court found
that Bloom had prepared invoices from Tallmadge Sea
and Land, Bloom’s marine construction company that
completed most of the improvements, to New NRB, to
keep track of the improvements that were made to the
property and to support a claim for the value of the
improvements in a partition action. Bloom testified that
the invoices included a profit margin of around 10 per-
cent.
In light of the evidence before it, and balancing the
equities of the parties, the court ultimately found that
‘‘the [defendants] invested $728,609 in costs and labor
to restore the . . . property.’’5 (Footnote omitted.) The
court found that the defendants were ‘‘entitled to a
credit of one third of this amount—or $242,870—against
the just compensation to be paid to [the plaintiff].’’ The
court next found that the defendants paid ‘‘a total of
$206,265.28 in real estate taxes . . . .’’ The court stated:
‘‘[The plaintiff] does not dispute that the [defendants]
are entitled to set off one third of the total amount of
real estate taxes that they paid during the period 2001
through 2019 against the amount due to him. Accord-
ingly, there shall be an additional credit of $68,755 in
favor of the [defendants].’’ (Footnote omitted.) After
setting off all the credits to which the court found the
defendants were entitled, the court ordered the defen-
dants to pay just compensation to the plaintiff in the
amount of $130,042.
In regard to the plaintiff’s claim that the defendants
should compensate him for their use and occupancy
during the period January 1, 2020, through the present,
the court found that he ‘‘failed to offer credible evidence
to establish the fair market rental value of the . . .
property.’’ Accordingly, his claim was denied. This appeal
followed. Additional facts will be set forth as necessary.
I
The plaintiff first argues that the trial court abused
its discretion in calculating the plaintiff’s just compen-
sation by granting the defendants a credit of one third
of the costs they claimed for improvements. In particu-
lar, the plaintiff argues that, because he was neither
consulted about any improvements that were going to
be made to the property nor did he consent to them,
the defendants are not entitled, as a matter of law, to
an allowance for improvements in determining the just
compensation awarded to him. The plaintiff further
argues that, to the extent a credit for improvements was
permissible, the court erred in crediting the defendants
on the basis of ‘‘the alleged amount of their expendi-
tures, rather than the extent to which any such expendi-
tures enhanced the fair market value of the property.’’
In the plaintiff’s view, ‘‘[t]he proper measure of any credit
should have been calculated, if at all, with reference to
the extent to which any ‘improvements’ increased the
property’s value, not the amount of costs and labor
purportedly needed to make the improvements them-
selves.’’ We disagree.
We begin by setting forth our standard of review and
the legal principles that inform our discussion. A parti-
tion action is one of equity. As such, ‘‘[t]he determina-
tion of what equity requires is a matter for the discretion
of the trial court.’’ (Internal quotation marks omitted.)
DiCerto v. Jones, 108 Conn. App. 184, 188, 947 A.2d
409 (2008). ‘‘In determining whether the trial court has
abused its discretion, we must make every reasonable
presumption in favor of the correctness of its action.
. . . Our review of a trial court’s exercise of the . . .
discretion vested in it is limited to the questions of
whether the trial court correctly applied the law and
could reasonably have reached the conclusion that it
did.’’ (Internal quotation marks omitted.) Segal v. Segal,
86 Conn. App. 617, 630, 863 A.2d 221 (2004).
In Connecticut, the right to partition has long been
recognized as absolute. See Fernandes v. Rodriguez,
255 Conn. 47, 55, 761 A.2d 1283 (2000) (‘‘[t]he right
to partition is well settled and its history has been
documented thoroughly’’); Geib v. McKinney, 224
Conn. 219, 224, 617 A.2d 1377 (1992) (‘‘[t]he right to
partition has long been regarded as an absolute right,
and the difficulty involved in partitioning property and
the inconvenience to other tenants are not grounds for
denying the remedy’’). Prior to 2004, the only two modes
of relief available to parties in a partition action were
partition by division of real estate and partition by sale.
See Fernandes v. Rodriguez, supra, 57 (‘‘[o]n the basis
of the history of the right to partition, and in light of
the legislative treatment of that right, we have held
repeatedly that in resolving partition actions, the only
two modes of relief within the power of the court are
partition by division of real estate and partition by sale’’
(emphasis omitted)).
In 2004, however, a third mode of relief was added
by the legislature. ‘‘[T]he legislature enacted Public Acts
2004, No. 04-93, § 1, which added the following sentence
to General Statutes (Rev. to 2005) § 52-500 (a): ‘If the
court determines that one or more of the persons own-
ing such real or personal property have only a minimal
interest in such property and a sale would not promote
the interests of the owners, the court may order such
equitable distribution of such property, with payment
of just compensation to the owners of such minimal
interest, as will better promote the interests of the own-
ers.’ ’’ Fusco v. Austin, 141 Conn. App. 825, 833, 64
A.3d 794 (2013). Accordingly, as this court explained
in Fusco, § 52-500 (a), as amended, now ‘‘permits the
court to order an equitable distribution of the property
if it determines that one or more of the persons owning
the property have only a minimal interest in the property
and a sale would not promote the interest of the own-
ers.’’ (Emphasis omitted.) Id. If an equitable distribution
is ordered, ‘‘payment of just compensation to the own-
ers of such minimal interest’’ must be made. See General
Statutes § 52-500 (a); see also Fusco v. Austin, supra,
833.
In a partition action, a court is required to ‘‘balance
the equities between the parties.’’ Rissolo v. Betts Island
Oyster Farms, LLC, 117 Conn. App. 344, 353, 979 A.2d
534 (2009). As our Supreme Court has stated, ‘‘it is not
always true that each tenant in common or joint tenant
is entitled to equal shares in the real estate.’’ Fernandes
v. Rodriguez, supra, 255 Conn. 60. ‘‘Because a partition
action is an equitable action, the court has the authority
to determine an unequal award on the basis of the
evidence presented, including the value of the property
and the equitable interests of the parties.’’ Rissolo v.
Betts Island Oyster Farms, LLC, supra, 353–54; see
also Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950)
(‘‘[a]lthough each party was the owner of an undivided
one-half interest in the property, it does not follow that
he or she will necessarily be entitled to equal shares
of the moneys obtained from the sale’’); see also Hackett
v. Hackett, 42 Conn. Supp. 36, 40, 598 A.2d 1112 (1990),
aff’d, 26 Conn. App. 149, 598 A.2d 1103 (1991), cert.
denied, 221 Conn. 905, 600 A.2d 1359 (1992). Addition-
ally, as our Supreme Court has explained in the context
of our government takings jurisprudence, ‘‘[t]he ques-
tion of what is just compensation is an equitable one
rather than a strictly legal or technical one.’’ (Internal
quotation marks omitted.) Alemany v. Commissioner
of Transportation, 215 Conn. 437, 444, 576 A.2d 503(1990).
On appeal, the plaintiff takes exception to the court’s
award of just compensation.6 In his view, the court
abused its discretion by reducing his undivided one-
third interest of the appraised property by $242,870—
an amount the court found to be one third of the costs
of improvements that the defendants made to the prop-
erty. In support of his argument, the plaintiff maintains
that our Supreme Court’s decision in Neumann v. Neu-
mann, 134 Conn. 176, 55 A.2d 916 (1947), prohibited
the trial court from crediting the defendants for costs
of improvements to the property because Neumann
stands for the proposition that, in the absence of an
agreement to share the cost of improvements, a co-
owner is not responsible for a proportionate share of
the cost. We disagree.
In Neumann, ‘‘[a] wife, while living happily with her
husband, transferred to him an undivided one-half inter-
est in certain real estate in consideration of love and
affection. She subsequently built a dwelling house on
the land. In the course of its construction she was
obliged to borrow $3500 to complete the building, and
she executed, individually, a mortgage of the premises.’’
Id., 177. There was eventually a breakdown in the rela-
tionship, the parties separated, and the wife instituted
divorce proceedings. Id. The husband brought an action
for a partition or sale of the property. Id. The trial court
found that ‘‘[t]he [husband] owned an undivided one-
half interest in the entire premises, including the house,
and his interest was not subject to the mortgage; the
property does not lend itself to a partition; and a sale
and division of the proceeds will better promote the
interests of the parties.’’ Id., 177–78.
On appeal before our Supreme Court, the defendant
wife argued that the court should have ordered a physi-
cal division of the land instead of a sale and a division
of the proceeds. Id., 180. In determining whether a divi-
sion of the property would have been more appropriate
than a sale of the property, the court indicated that ‘‘a
determination as to the ownership of the house would
be a consideration which would enter into the question
whether a division of the property was practicable.’’
Id., 178. Our Supreme Court ultimately concluded that
the trial court was correct in ordering a sale of the
property. It stated: ‘‘No correction in the finding mate-
rial to the issues before us can be made. The court
has found that the defendant of her own volition and
without previously consulting her husband began the
construction of the house; that there never was any
agreement that the building was to belong to the defen-
dant; and that the plaintiff at no time agreed to reim-
burse the defendant for any moneys expended in the
construction of the house. Where one spouse puts up
a building on land owned in common by husband and
wife, without any understanding or agreement that
the other shall share the expense, the presumption that
it was for the joint benefit of both must prevail.’’
(Emphasis added.) Id., 178–79. The court also made
clear that the ‘‘obligation created by the mortgage would
be an issue in the supplementary proceedings’’ when
the court would determine the equitable divisions of
the proceeds of the sale. Id., 178.
On the basis of our review of Neumann, we find the
plaintiff’s reliance on it misplaced. The central holding
in Neumann was simply that there is a presumption that
improvements made during a marriage by one spouse
to property owned in common by both spouses are
made for the benefit of both spouses and that the spouse
who incurred expenses for those improvements is gen-
erally not entitled to a separate credit for those expenses,
in the absence of some agreement or understanding to
the contrary. It is manifest from the court’s decision
that the marital relationship between the parties was
essential to the court’s holding. The very presumption
discussed was predicated on the fact that the parties
were married at the time the expenditures were made.
Thus, in the present matter, the plaintiff’s contention
that the trial court was not permitted to credit the defen-
dants for improvements they made to the property,
without his consent to those improvements, must be
rejected, as no marital relationship was present.7 It also
bears reiterating that ‘‘[t]he determination of what
equity requires is a matter for the discretion of the
trial court’’ to be determined on a case-by-case basis.
(Internal quotation marks omitted.) DiCerto v. Jones,
supra, 108 Conn. App. 188 n.3.
Contrary to the plaintiff’s contention, this court repeat-
edly has held that a trial court may take into consider-
ation contributions, including improvements, that the
parties have made to the subject property in its determi-
nation of just compensation. See, e.g., Zealand v.
Balber, 205 Conn. App. 376, 393–94, 257 A.3d 411 (2021)
(‘‘[i]n light of those contributions, the court awarded
the plaintiff $25,000 as just compensation’’); Young v.
Young, 137 Conn. App. 635, 651, 49 A.3d 308 (2012)
(trial court properly considered plaintiff’s expenditures
related to upkeep, including mortgage payments, house-
hold repairs and grounds maintenance and taxes, against
countervailing claims for use and occupancy); Hackett
v. Hackett, 26 Conn. App. 149, 150, 598 A.2d 1103 (1991)
(following partition sale, party may ‘‘be compensated
out of the proceeds from the sale of the parties’ jointly
owned property for his past payments for mortgage,
insurance, taxes, improvements and repairs’’), cert.
denied, 221 Conn. 905, 600 A.2d 1359 (1992).
For example, in Hackett v. Hackett, supra, 42 Conn.
Supp. 39, the plaintiff requested the trial court to order
that he be paid out of the proceeds from the sale of the
parties’ jointly owned property for his past payments for
mortgage, insurance, taxes, improvements and repairs.
The plaintiff neither alleged nor attempted to prove
any agreement with the defendant to make any such
contributions. Id., 46.
The court explained that when ‘‘a cotenant in posses-
sion invokes the jurisdiction of a court of equity to
obtain contributions from the cotenant out of posses-
sion for funds expended for the betterment of the com-
mon interest, the cotenant out of possession may defen-
sively charge the cotenant in possession with a part of
the reasonable value of the occupancy or use by the
cotenant in possession and in some cases may hold the
cotenant in possession accountable for profits realized
from the premises.’’ (Emphasis in original.) Id., 50; see
also General Statutes § 52-404 (b) (‘‘[w]hen two or more
persons hold property as joint tenants, tenants in com-
mon or coparceners, if one of them occupies, receives,
uses or takes benefit of the property in greater propor-
tion than the amount of his interest in the property,
any other party and his executors or administrators may
bring an action for an accounting or for use and occupa-
tion against such person and recover such sum or value
as is in excess of his proportion’’).
In determining the equitable distribution of proceeds,
the court in Hackett noted that the parties were divorced
in 1978, and that the plaintiff ex-husband had been living
at the subject property with their children from 1978
to 1989. Hackett v. Hackett, supra, 42 Conn. Supp. 46.
He had ‘‘complete’’ use of the property and paid the
expenses for the premises. Id. The defendant ex-wife
lived in Waterbury. Id. The court found that ‘‘[t]he plain-
tiff and the defendant had a right to an undivided one
half of [the] real estate.’’ Id., 54. In balancing the equities
of how the sale proceeds should be paid out, however,
the trial court concluded that, ‘‘[a]s to the mortgage
payment, which includes the taxes and insurance, to
which [the defendant] has never contributed, her share
of this obligation [was] . . . 50 percent of $39,875,
which is $19,937.50.8 . . . It is, therefore, concluded
that the amount that the defendant must ‘contribute’
to the plaintiff out of the sales proceeds with reference
to the mortgage, taxes and insurance claim of the plain-
tiff is $19,937.50.’’9 (Footnote added.) Id. The court also
ordered the defendant to pay 50 percent of the repairs
and improvements made to the property by the plaintiff.
Id., 55. The court stated that ‘‘[i]t seems fair to the court
that from the defendant’s share of the sales proceeds
she ‘contribute’ 50 percent of these expenses, which
is $1687.50, whether any or all of them be called an
‘improvement’ or ‘repair.’ All appear to be reasonable.’’
Id. There was no discussion of how these repairs and
improvements affected the sale price of the property.
The defendant appealed.
On appeal to this court, the defendant in Hackett
argued that the trial court erred in ordering that the
plaintiff be compensated out of the proceeds from the
sale of the parties’ jointly owned property for his past
payments for mortgage, insurance, taxes, improve-
ments and repairs. See Hackett v. Hackett, supra, 26
Conn. App. 150. This court disagreed and stated that
the ‘‘trial court’s memorandum of decision thoughtfully
and comprehensively addresse[d] both the factual ques-
tions and the legal issue raised by the defendants.’’
Id., 151. We accordingly adopted the trial court’s ‘‘well
reasoned decision as a statement of the facts and the
applicable law.’’ Id.
With this as our backdrop, we next address the plain-
tiff’s contention that the court erred in crediting the
defendants for their expenditures for improvements
because it calculated the credit on the ‘‘the alleged
amount of their expenditures, rather than the extent to
which any such expenditures enhanced the fair market
value of the property.’’ In the plaintiff’s view, ‘‘the
proper measure of any credit should have been calcu-
lated, if at all, with reference to the extent to which
any ‘improvements’ increased the property’s value, not
the amount of costs and labor purportedly needed to
make the improvements themselves.’’ We disagree.
On the basis of our review of the relevant authorities,
we have not found, nor has the plaintiff directed us
to any authority, that would require the trial court to
calculate just compensation in such a highly technical
or precise manner. In fact, this court rejected a similar
claim in DiCerto v. Jones, supra, 108 Conn. App. 188n.3, in which the defendant claimed, among other
things, that ‘‘the court used an improper method for
dividing the net partition proceeds’’ by awarding ‘‘each
party half of the net partition proceeds after reimburs-
ing him only for his initial expenditures.’’ We stated
that ‘‘[t]he defendant’s argument [was] unpersuasive
because the equities in partition actions are balanced
by trial courts on a case-by-case basis. The fact that
other trial courts may have ruled differently in the ulti-
mate division of sale proceeds in a partition action does
not require, in itself, a similar result in the present
case.’’ Id.Here, in determining just compensation for the prop-
erty, the court reasonably considered, inter alia, the
market value of the property ($1,325,000); the interest
that the plaintiff had in the property (one third); and
the costs and labor associated with the improvements,
repairs, and maintenance made by the defendants dur-
ing their occupancy of the property. To be sure, the
trial court found that, ‘‘[b]y 2000, it was not possible
to operate any marine related business from the . . .
property without dredging the seabed and removing
all of the garbage, derelict boats, and debris left from
[previous] operations that had accumulated over the
years.10 The existing bulkhead had deteriorated. A por-
tion of the marine railway tracks and the old crane
were still there. Foundation pilings remained in the
water from a building that had been removed in the
1990s. . . . Bloom testified that everyone in the Bloom
family was aware of the work that needed to be done
on the . . . property.’’ (Footnote added.)
In or about 2000–2001, ‘‘Bloom, through his marine
construction company, Tallmadge Sea and Land Con-
struction . . . began to clean up and restore the prop-
erty with the help of his son and another man that he
worked with. He testified that the property was ‘a mess’
before they started clearing it. He was concerned at that
time that the Norwalk Harbor Management Commission
might take enforcement action against the . . . prop-
erty. They filled up many thirty yard dumpsters with
garbage and debris. They sent the derelict boats and
the old crane to a scrap yard. They cleaned up the
pilings on the land side of the property, where the
marine railway had been, and extracted the foundation
pilings that remained in the water with a crane or a
vibratory hammer.’’ (Footnote omitted.)
After obtaining permits in 2002–2003, the defendants
began making various improvements to the property.
In 2005, ‘‘Tallmadge Sea and Land removed the remains
of the old bulkhead and the marine railway tracks from
the . . . property. Using a crane that worked off land
and a vibratory hammer to drive the sheets into the
ground, they replaced the old bulkhead with a new
sheet steel bulkhead. They also replaced two telephone
poles, repaired the water line, and installed under-
ground power lines and frost-free hydrants. After the
new bulkhead was anchored, they installed a cap and
fender system, a travel lift for hauling boats, and a pier.
The pier is made of concrete, on wooden foundation
pilings. It is sixty feet long and six feet wide. It extends
into the water with an aluminum ramp and a wooden
floating dock. The wooden floating dock was installed
in October, 2006.
‘‘The seabed portion of the . . . property was dredged
in 2009 so that the property could be used for commer-
cial boats. . . . Prior to the dredging . . . commercial
fishing boats could not have been tied up to the pier
or the dock. Due to the sediment that had built up over
the years, even a personal pleasure boat would sit on
the seabed at low tide.’’ Following the completion of
the dredging in 2009, the defendants’ business opera-
tions on the property commenced.
The invoices for the repairs and improvements for
the period 2000 to 2019 totaled $893,900.11 In determin-
ing the amount, if any, that the plaintiff should contrib-
ute toward the cost of the improvements made, the
court balanced the equities and reasonably acknowl-
edged that, ‘‘[w]hile it would be inequitable to permit
the [defendants] to set off costs that were incurred
solely for . . . Bloom’s benefit against the just com-
pensation due to [the plaintiff], it would also be inequita-
ble to allow [the plaintiff] to contribute nothing when
much of the [defendants’] investment was necessary
for the property to be useable at all.’’12 (Emphasis added.)
Although the court did not make an explicit finding as
to the precise effect that the improvements had on the
market value of this unique waterfront property, the
court arrived at an amount that took into account these
equitable considerations by excluding from its calcula-
tion any expenditures made by the defendants after
2009 (the time when the defendants began business
operations on the premises), or the amount of any prof-
its reflected in the defendants’ invoices. As such, the
court found that between 2000 and 2009, the defendants
invested $728,60913 in costs and labor to restore and
improve the property and that they were entitled to a
credit of one third of this amount—or $242,870—to
be subtracted from the plaintiff’s undivided one-third
interest in the property ($441,667). It reasonably found
that these expenses ‘‘benefited all of the co-owners of
the . . . property.’’
On the record before us, we cannot conclude that
the court abused its equitable discretion in awarding
just compensation in this instance.
II
The plaintiff next argues that the trial court abused
its discretion in calculating just compensation by failing
to include any compensation for the defendant’s twenty
year exclusive use and occupancy of the property. We
disagree.
Section 52-404 (b) provides: ‘‘When two or more per-
sons hold property as joint tenants, tenants in common
or coparceners, if one of them occupies, receives, uses
or takes benefit of the property in greater proportion
than the amount of his interest in the property, any
other party and his executors or administrators may
bring an action for an accounting or for use and occupa-
tion against such person and recover such sum or value
as is in excess of his proportion.’’ See also Lerman v.
Levine, 14 Conn. App. 402, 408–409, 541 A.2d 523 (ouster
not prerequisite for entitlement to accounting for use
and occupancy), cert. denied, 208 Conn. 813, 546 A.2d
281 (1988).
Although § 52-404 (b) does not require a cotenant
who does not occupy the property to establish ouster
in order to be entitled to collect for use and occupancy,
the nonoccupying cotenant must establish more than
that he is a cotenant out of occupancy. At a minimum,
the party claiming entitlement to equitable relief for
use and occupancy must prove the reasonable value
owed to him by his cotenant. See Coughlin v. Anderson,
270 Conn. 487, 512, 853 A.2d 460 (2004) (‘‘[i]t is axiom-
atic that the burden of proving damages is on the party
claiming them’’ (internal quotation marks omitted)).
At trial, the plaintiff presented the testimony of
Michael D. McGuire, a real estate valuation expert, and
a written valuation analysis he prepared regarding the
fair market rental value of the property from January 1,
2000, to the present. McGuire calculated the fair market
rental value of the property as if the defendants were
occupying the property under a long-term ground lease.
McGuire concluded in the fair market rent valuation
analysis that the fair market rental value of the property
was $90,094 annually for the years 2000 through 2019.
The court, however, found McGuire’s valuation not
credible. It stated that ‘‘[the plaintiff] has failed to offer
credible evidence to establish the fair market rental
value of the . . . property.’’ The court agreed with the
defendants that the fair market rent valuation analysis
provided by McGuire was ‘‘based on arbitrary assump-
tions and so significantly flawed that it cannot be con-
sidered credible evidence of the fair market value rent
of the . . . property.’’
Although the plaintiff argues that his expert provided
a reasonable basis for determining fair market rent and
that the court erred in accepting the defendants’ criti-
cisms of his expert’s assumptions, it is well settled that
‘‘[t]he weight to be given the evidence and the credibility
of the witnesses are within the sole province of the
trial court.’’ (Internal quotation marks omitted.) Anto-
nucci v. Antonucci, 164 Conn. App. 95, 130, 138 A.3d
297 (2016). ‘‘The credibility and the weight of expert
testimony is judged by the same standard, and the trial
court is privileged to adopt whatever testimony [it] rea-
sonably believes to be credible.’’ (Internal quotation
marks omitted.) United Technologies Corp. v. East
Windsor, 262 Conn. 11, 26, 807 A.2d 955 (2002). ‘‘[T]he
trial judge . . . is free to accept or reject, in whole or
in part, the testimony offered by either party.’’ (Internal
quotation marks omitted.) LaBossiere v. Jones, 117
Conn. App. 211, 224, 979 A.2d 522 (2009). ‘‘Because it
is the trial court’s function to weigh the evidence and
determine credibility, we give great deference to its
findings. . . . In reviewing factual findings, [w]e do not
examine the record to determine whether the [court]
could have reached a conclusion other than the one
reached. . . . Instead, we make every reasonable pre-
sumption . . . in favor of the trial court’s ruling.’’
(Internal quotation marks omitted.) Gianetti v. Nor-
walk Hospital, 304 Conn. 754, 766, 43 A.3d 567 (2012).
‘‘Where the trial court rejects the testimony of a plain-
tiff’s expert, there must be some basis in the record to
support the conclusion that the evidence of the [expert
witness] is unworthy of belief.’’ (Internal quotation
marks omitted.) Builders Service Corp. v. Planning &
Zoning Commission, 208 Conn. 267, 294, 545 A.2d
530 (1988).
The court’s decision not to credit McGuire’s valuation
was fully supported by the evidence. In particular, the
court found McGuire’s valuation severely flawed
because, among other things, McGuire used a figure of
$1,400,000 for the fair market value of the property,
notwithstanding the October, 2017 appraisal; McGuire
determined the fair market rental value of the property
as if the plaintiff and the defendants were the landlord
and tenant, respectively, under a long-term ground
lease, rather than analyzing comparable rentals; McGu-
ire had no basis for assuming that the hypothetical ground
lease contained a ‘‘not less than’’ clause; and the fair
market rent valuation analysis failed to consider the actual
condition of the property, although it assumed a marine
commercial use of the property.14 These shortcomings,
which are reflected in the record, clearly bear on the
reliability of the valuation, and provide an adequate
basis for the court’s finding that McGuire’s valuation
was not credible.15 See Wyszomierski v. Siracusa, 290
Conn. 225, 244, 963 A.2d 943 (2009) (‘‘[w]here the factual
basis of an opinion is challenged the question before
the court is whether the uncertainties in the essential
facts on which the opinion is predicated are such as to
make an opinion based on them without substantial
value’’ (internal quotation marks omitted)). Accord-
ingly, we cannot conclude that the court erred in not
awarding the plaintiff compensation for the defendants’
use and occupancy of the property.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Joseph Richichi and Leslie Miklovich, in their capacity as cotrustees of
the Hillard E. Bloom Revocable Trust, were codefendants and cross claim
defendants in the underlying action. During the pendency of the action,
Richichi passed away, and Patrick D. McCabe succeeded Richichi as
cotrustee of the Hillard E. Bloom Revocable Trust. The trial court concluded
that McCabe and Miklovich, as cotrustees of the Hillard E. Bloom Revocable
Trust (Hillard Bloom Trust cotrustees), also had a minimal interest in the
subject property and ordered them to quitclaim their undivided one-sixth
interest in the property to the defendants for just compensation. Before the
hearing was held to determine the amount of just compensation to be paid
to the plaintiff and the Hillard Bloom Trust cotrustees, the Hillard Bloom
Trust cotrustees entered into a stipulation with the defendants to resolve
their claims for just compensation. The Hillard Bloom Trust cotrustees did
not participate in this appeal.
2
Hereinafter we refer to McCabe and Miklovich, as cotrustees of the
Hillard Bloom Trust, as the ‘‘Hillard Bloom Trust cotrustees.’’
3
General Statutes § 52-500 (a) provides: ‘‘Any court of equitable jurisdic-
tion may, upon the complaint of any person interested, order the sale of
any property, real or personal, owned by two or more persons, when, in
the opinion of the court, a sale will better promote the interests of the
owners. If the court determines that one or more of the persons owning
such real or personal property have only a minimal interest in such property
and a sale would not promote the interests of the owners, the court may
order such equitable distribution of such property, with payment of just
compensation to the owners of such minimal interest, as will better promote
the interests of the owners.’’
4
The court previously credited the methodology used by Ronald McIner-
ney, an expert appraiser who testified on behalf of the defendants, as to
the fair market value of the property. The court noted, however, that almost
two years had passed since McInerney completed his appraisal and that the
court was not inclined to determine the amount of just compensation to be
paid to the plaintiff on ‘‘a stale appraisal.’’
5
The court noted that it calculated this amount ‘‘by subtracting $84,334
(the total of the post-2009 expenses reflected on the [defendants’] exhibit
I) from $893,900, and then reducing that amount ($809,566) by 10 percent
to eliminate the profit that Mr. Bloom testified was included in the invoiced
amounts.’’ The court subtracted the $84,334 from the amount because
Bloom’s business operations on the property commenced in 2009.
6
We note that the plaintiff does not challenge on appeal the trial court’s
findings that his interest in the property was minimal and that a sale would
not promote the interests of the owners.
7
The plaintiff similarly cites to Levay v. Levay, 17 Conn. Supp. 470, 473
(1952), which relies on Neumann, for his contention that he is not required
to contribute toward the improvements made to the property. The plaintiff’s
reliance on Levay, however, is misplaced for the same reason his reliance
on Neumann is misplaced. Furthermore, we note that this court is not
bound by decisions of the Superior Court. See In re Carla C., 167 Conn.
App. 248, 275, 143 A.3d 677 (2016) (‘‘our appellate courts are not bound to
follow the decisions of the trial court’’).
8
The plaintiff in Hackett claimed entitlement to a greater amount, arguing
that he had ‘‘paid the mortgage since September, 1978, without any contribu-
tion from the defendant [and that] this is twelve (12) years at an average
of approximately $475 per month for a total of $68,400.’’ (Internal quotation
marks omitted.) Hackett v. Hackett, supra, 42 Conn. Supp. 52. The court,
however, rejected this contention, stating that the plaintiff ‘‘does not point
out how he gets this figure of approximately $475 per month on the evidence
adduced in the present case. There is not in evidence in the present case
any cancelled check, any receipt, any book of record, any proof of any
payment claimed to have been made by the plaintiff.’’ Id. The court ‘‘recog-
nized that there may be cases where proof of such claims, as with damages,
are difficult, but it is relevant here to remember that ‘[t]he court must have
evidence by which it can calculate damages, which is not merely subjective
or speculative, but which allows for some objective ascertainment of the
amount.’ ’’ Id., 53. The court concluded that ‘‘[t]he only hard evidence before
the court of any figure of the mortgage that fairly extends over the entire
period from September, 1978, to the time of trial is the monthly payment
of $275 on principal and interest. Starting with September, 1978, and through
September, 1990, these monthly payments amount to a gross figure of about
$39,875.’’ Id., 53–54.
9
The court observed that at the trial, the defendant indicated that she
was not making a formal claim for entitlement to payment for use and
occupancy. See Hackett v. Hackett, supra, 42 Conn. Supp. 50.
10
The record discloses that the property historically had been used for
marine related business purposes. For example, the trial court found that
Wallace Bell, from whom Norman and Hillard Bloom acquired the property
in 1962, operated a boatyard on the property under the name ‘‘Bell’s Boat-
yard’’ until the late 1970s. After that time, the property was rented to ‘‘to
Maurice Marine, a company that hauled and maintained small pleasure
boats.’’
11
The court found that ‘‘[t]he invoices include a profit margin of around
10 percent.’’
12
As previously noted, the court credited the methodology that McInerney
used in reaching the market value of the property in this case. The record
discloses that McInerney testified that the sales comparison approach that
he used was the most pertinent method and explained, inter alia, that ‘‘for
a property like this, the main feature is that we take into consideration
and account for the differences between the subject and the comparables,
[which] would be location, size of the property, any of the site improvements
that are present in the subject and comparables, water access, how available
the water access is, utility of the lot, views.’’ (Emphasis added.) When asked
specifically, McInerney testified that his market value included the land and
improvements on the property. It was thus reasonable for the court to infer
from the evidence in the record that the restoration and improvements to
the property increased its value.
13
See footnote 5 of this opinion.
14
The court explained that ‘‘McGuire testified that he was not aware of
this court’s findings in the September, 2017 memorandum of decision that
it was not possible to operate any marine related business from the property
in 2000, or that commercial boats could not use the property until the seabed
portion was dredged in 2009.’’
15
Citing to Welsch v. Groat, 95 Conn. App. 658, 666–67, 897 A.2d 710(2006), the plaintiff also argues that the trial court failed to draw upon its
own judgment and experience in determining the reasonable fair rental
value. He argues that it ‘‘is difficult to understand how the trial court possibly
could conclude that a monthly rental of $7500—or at least an amount within
that range—would not constitute a fair market rental for the property.’’
This claim is without merit and deserves little discussion. Contrary to the
plaintiff’s contention, Welsch stands for the unremarkable proposition that
a court may rely on its common sense in drawing reasonable inferences
from the credible evidence before it. It does not, however, suggest that a
court may derive a proper value of use and occupancy based on its own
experience when there is no credible evidence in the record establishing
such value. A court ‘‘must have evidence by which it can calculate . . .
damages, which is not merely subjective or speculative, but which allows
for some objective ascertainment of the amount.’’ Bronson & Townsend
Co. v. Battistoni, 167 Conn. 321, 326–27, 355 A.2d 299 (1974). In the court’s
determination, the plaintiff presented no such credible evidence.