DocketNumber: No. CV 98 0128104
Judges: LEWIS, JUDGE.
Filed Date: 1/16/2003
Status: Non-Precedential
Modified Date: 4/17/2021
The case was remanded by the court to the attorney trial referee to determine the amount of punitive damages he had recommended be awarded to the defendant based only on the attorney's fees she incurred in prosecuting her counterclaim, not in defending against the complaint. Consequently, the referee conducted a hearing, found the hourly rates and the total hours spent to be reasonable, attributed 50% of the total legal fees to the counterclaim, and recommended that the defendant be awarded $59,912.50, which represented one half of the total legal fees she incurred both in defending the plaintiff's complaint and in pursuing the counterclaim.
The earlier memorandum pointed out that the attorney trial referee concluded that the plaintiff owes the defendant the following sums of money: (1) $8,712, representing one half of the expenses incurred by the defendant in maintaining the of way which is located entirely on her property; (2) $1,210 for repair of the defendant's lawn; (3) $1 nominal damages for removal of the defendant's fence; (4) $720 for removal of a forsythia bush (trebled as authorized by General Statutes §
It was also noted in the earlier memorandum of decision that the plaintiff had moved to correct the referee's report1 and had filed exceptions to the report, as authorized at the time by Practice Book §
As authorized by Practice Book §
The attorney trial referee determined as a matter of fact that the defendant, the owner of the servient estate, had not interfered in any way with the plaintiffs rights to use his access way or easement over her property.4 This finding is not challenged in the objections filed by the plaintiff. Hence, judgment for the defendant on the plaintiffs complaint is not contested. The plaintiff does challenge, however, the referee's findings that the plaintiff trespassed over and interfered with the defendant's use of her own property, and had engaged in the intentional infliction of emotional distress against the defendant.
Taking up first the issue of the extent of a right of way or access way easement, which is the subject of the first objection to the referee's report, the plaintiff argues that he has dominion over the full width of the right of way and is not confined to the paved portion of the easement. The plaintiff is the owner of the dominant estate, and the defendant owns the servient estate,5 meaning that the defendant is the owner of the fee over which the plaintiff has the right of way. The defendant has all the indicia of ownership subject to the plaintiff's right to use his right of way, as expressly stated in the reservation of CT Page 567 the right of way. Kelly v. Ivler,
It is well accepted that "[t]he use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit. . . . The owner of an easement has all rights incident or necessary to its proper enjoyment, but nothing more." (Citation omitted.) Peterson v. Oxford,
The extent of a right of way has also been discussed in more recent cases. For example, in Beneduci v. Valadares,
Thus, to summarize, the owner of the dominant estate has the right to free access and use of his easement without interference from the owner of the servient estate. The attorney trial referee's conclusion to that effect was not challenged in the plaintiffs objection. The owner of the servient estate, on the other hand, has the right to limit the owner of the right-of-way to the use stated in the reservation and to limit such use to the described bounds of the easement. The referee found that the plaintiff not only did not comply with this standard by trespassing on the defendant's property, but also that the plaintiff damaged her lawn, removed a fence, trimmed and damaged trees and removed a forsythia bush. The plaintiff does not, in his objections, deny that he did go on the defendant's lawn, trimmed or pruned some trees and foliage, and removed the forsythia bush.
As a general proposition, "[t]he duty of maintaining an easement so that it can perform its intended function rests on the owner of the easement absent any contrary agreement." Powers v. Grenier Construction,Inc.,
The other objection is a factual one and relates to whether there is sufficient evidence to justify the finding that plaintiff had caused the defendant to suffer damages as a result of intentional infliction of emotional distress. Four elements must be pleaded to establish a cause of action for intentional infliction of emotional distress. Appleton v.Board of Education,
In his report, the attorney trial referee noted that in addition to trespassing on the defendant's property and damaging her lawn and trees, removing bushes and a fence, the plaintiff had directed "verbally abusive language" at the defendant. The referee further found that this conduct on the part of the plaintiff was done intentionally with a reckless disregard of the defendant's rights and was designed to and did cause the defendant to suffer substantial emotional distress.
Since a transcript was furnished, the first inquiry is whether there is support in the record for the referee's findings of fact relative to the intentional infliction of emotional distress. The transcript contains testimony regarding damage to the defendant's lawn, bushes and trees caused by the plaintiff. In addition, there was a good deal of testimony regarding Mrs. Curtin's conduct towards the defendant, but the plaintiffs wife is not a party to this action. The defendant testified about an incident that occurred in the fall of 1992.7 At another point in the trial, the defendant described the only other examples of some kind of confrontation between her and the plaintiff.8 The issue is whether CT Page 569 these incidents involving Mr. Curtin and the defendant rise to the level of intentional infliction of emotional distress as discussed in Appletonv. Board of Education, supra,
A preliminary question is whether this issue is to be decided on the basis of the referee's findings of fact, or whether it is a matter of law. This very issue was addressed not more than five weeks ago inCampbell v. Plymouth,
The statements by the plaintiff quoted from the transcript do not amount to conduct that is beyond the bounds of socially tolerable behavior." Campbell v. Plymouth, supra,
Since it is the court's obligation "to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery;" Campbell v. Plymouth, supra,74 Conn. App. 78; this court is not able to accept the attorney trial referee's recommendation that the defendant recover $50,000 on her counterclaim for the alleged intentional infliction of emotional distress. The quoted conduct, which certainly displayed bad manners and caused distress to the defendant, does not rise to the level of extreme and outrageous conduct which would be "regarded as atrocious and utterly intolerable in a civilized community." Appleton v. Board of Education, supra,
Whether the plaintiff acted with reckless indifference to the rights of the defendant or with an intentional and wanton violation of those rights are factual findings of the attorney trial referee and may not be successfully challenged. As pointed out in Meadows v. Higgins,
The attorney trial referee determined as a matter of fact that the intentional or willful disregard of the defendant's rights had been sufficiently proven to justify punitive damages. There is nothing illogical or illegal about his conclusions. Hence, the referee's recommendations that judgment enter against the plaintiff on the complaint and that the defendant recover on her counterclaim are accepted in so far as these recommendations relate to physical damage to the defendant's property and punitive damages. Thus, judgment may enter for the defendant to recover on her counterclaim the amount of $10,643, and $59,912.50 as punitive damages representing legal fees in prosecuting the counterclaim, for a total judgment against the plaintiff of $70,555.50.
Costs are to be taxed in favor of the defendant by the clerk of this court in accordance with General Statutes §
So Ordered. CT Page 571
Dated at Stamford, Connecticut, this 16th day of January, 2003.
___________________ William B. Lewis, Judge