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Michael J. Urfirer v. Vincent P. Annunziata
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO SET ASIDE THE VERDICT, ETC.
I. Background
The plaintiff Michael Urfirer has moved, pursuant to Practice Book § 16–35, to set aside a jury verdict rendered on December 9, 2010 in favor of the defendant Vincent Annunziata on the plaintiff's claim of trespass, for judgment notwithstanding the verdict, or for a new trial.
Annunziata owned property benefitted by a view easement which easement burdened a portion of the Urfirer property. The language of the easement, which the parties agreed was not ambiguous, stated:
․ no building or structure shall be erected or situated, nor any object of any kind placed or allowed to be situated, nor any tree, bush or other vegetation allowed to extend above an elevation of 24.95 feet as measured vertically above the datum level known as the National Geodetic Vertical Datum–1929, on the easement premises. This covenant is intended to afford and preserve a view of Cos Cob Harbor for the benefit [of the property owned by the defendant.]'
* * *
[the defendant] shall have the right to enter onto the [plaintiff's property] to remove any structure, improvement or object and to remove, trim or prune (as ․ [the defendant] shall in their sole discretion determine) any tree, bush or other vegetation in violation of this covenant.
The cost of trimming or removing trees or vegetation was to be borne by the defendant. The cost of curing other violations was to be borne by the plaintiff. The height restriction in the easement language, 24.95 feet above National Geodetic Vertical Datum–1929 referred to a level roughly known as mean sea level. The parties agreed that this meant that trees, shrubbery and branches within the easement area and higher than approximately ten feet above ground at the most inland portion of the easement area would be in violation of the easement.
In the summer of 2004 Annunziata asked Urfirer, who was beginning the building of a new house on his premises, to bring the trees on or branching into the easement area into compliance with the terms of the easement. Urfirer asked Annunziata to agree that a double row of cedar trees on the easement be allowed to remain so as to comply with another neighbor's wish to have the cedars maintained in place to provide some screening for the home construction project. Urfirer claimed an oral agreement to this effect was made; Annunziata said there was no such agreement, and the jury found, in an interrogatory response, that no oral agreement existed. Urfirer also claimed that the branches of another cedar (the “corner cedar,” presumably because it grew on unburdened Urfirer property close to the easement line) and other trees including one or two tall white pine trees intruding into the easement area were trimmed into compliance in 2004. Annunziata agreed trimming took place, but did not agree everything was in compliance in 2004. Communications from Annunziata about the easement were not responded to by Urfirer after October 2004. The double row of cedars remained untouched.
In June 2006 Annunziata had the easement area surveyed. The survey showed that the double row of cedar trees growing in the easement area exceeded the height restriction (actually only five of these trees were precisely measured, but apparently all were of the same general height) and Anunziata testified that branches from other trees were in violation of the easement. Thereafter, Annunziata hired some men to cut the double row of cedars to the ground, cut the corner cedar down and cut branches which extended into the easement area of two white pine trees. This was done on Sunday June 18, 2006 when the new house was nearing completion, but no one was at the Urfirer property.
Urfirer commenced this action in trespass seeking compensatory and punitive damages.
The standards guiding a trial court in determining a motion to set aside a verdict are quite familiar.
The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles.
Purzycki v. Fairfield, 244 Conn. 101, 106–07 (1998). The court must consider the evidence and all inferences drawn therefrom in a light most favorable to the successful party. Craine v. Trinity College, 259 Conn. 625, 635 (2002); Gaudio v. Griffin Health Services, 249 Conn. 523, 534 (1998). A motion to set aside should not be granted unless the jurors could not reasonably and legally reach the verdict they reached. Craine, supra, 259 Conn. 636. A court is empowered to set aside a jury verdict when it is contrary to law or unsupported by the evidence; however, recognizing that it may impinge of the parties' rights to a jury trial, the verdict should not be set aside where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. Carusillo v. Associated Woman's Health Specialists, P.C., 72 Conn.App. 75, 83 (2002). In arriving at its verdict, the jury considered and answered two jury interrogatories:
1. Has the plaintiff proved by a preponderance of the evidence that the defendant committed a trespass in June 2006 by acting beyond his rights under the view easement as written in the deeds either by cutting down the ‘corner cedar’ or cutting the branches of one or both white pine trees?
2. Has the plaintiff proved by a preponderance of the evidence that there existed an oral agreement made around July 2004 altering the terms of the written view easement?
Both interrogatories were unanimously answered in the negative, and as per the Jury Interrogatory form, the jury then returned a verdict for the defendant.
Urfirer offers three reasons for granting his motion: (1) that no reasonable jury could have concluded that Annunziata was acting within his rights under the easement as explained in the jury charges in removing the corner cedar and white pine branches; (2) that the jury was improperly influenced by evidence concerning Annunziata's disabled daughter and (3) the court improperly placed the burden on the plaintiff to prove that the defendant acted outside the scope of the easement.
A. Whether the Jury's verdict was unreasonable in light of the evidence
The court instructed the jury as follows:
This Court interprets the easement to allow the defendant at his discretion to remove any tree that is in violation of the easement whether that tree is growing out of the ground in the easement area or elsewhere, if removal is a reasonable exercise of discretion rather than to trim or prune, and is consistent with the duty to minimize the burden of the easement on the plaintiff's property. A tree is in violation of the easement if any part of it intrudes into easement area at an elevation above 24.95 feet above the National Geodetic Vertical Datum. However, the view easement does not give the defendant any right to remove, trim or prune a tree no part of which extends into the view easement.
Urfirer contends that no reasonable jury could find Annunziata's decision to cut down the corner cedar when, “at most [there was a] slight intrusion of a few branches into the view easement area” a reasonable exercise of discretion. The court finds this assertion to understate the evidence about non-compliance. There was conflicting evidence about whether the corner cedar was trimmed into compliance in 2004. A witness for the plaintiff said it was; the defendant testified to the contrary.
However, there was uncontradicted evidence that in 2006 the corner cedar violated the easement restrictions, and uncontradicted evidence that the double row of cedars and branches of the white pine trees were also in violation. There was no evidence to the contrary.
Urfirer did not claim he did any cutting or pruning in the easement area after October 2004. The only evidence about the condition of the view easement came from the June 2006 survey which Annunziata ordered, and Annunziata's own testimony. In that testimony Annunziata stated every branch that was cut in June 2006 was “overhanging into the view easement,” and that he was “100% positive” that the branches cut were in violation of the easement.
With that uncontradicted testimony it was entirely reasonable for the jury to conclude that the double row of cedars, the corner cedar and the branches of the two white pine trees were in violation of the view easement. Indeed, the plaintiff concedes the removal of the cedars was appropriate. The view easement permitted Annunziata to “remove, trim or prune” any tree in violation of the easement in his sole discretion. In addition, the jury was charged that Annunziata's discretion must be exercised reasonably and consistent with a duty to minimize the burden of the easement on Urfirer's property.
There was testimony from Annunziata that removing the offending branches of the corner cedar significantly disfigured the tree, and as a result, he exercised his discretion to cut the entire tree down. With respect to the white pine branches, he determined not to cut the trees down, but to only remove portions of the branches that overhung into the view easement area. While reasonable people can disagree, in both cases the court finds, based on the evidence, it was not unreasonable for the jury to conclude that Annunziata had exercised the explicit discretion given him in a reasonable fashion and in a manner consistent with the easement language as interpreted by the court in its jury charge. Nor is there sufficient basis to conclude that the jury disregarded the court's instructions.
B. Unfairly prejudicial evidence
Urfirer contends that allowing the introduction of evidence concerning Annunziata's disabled daughter Danielle improperly influenced the jury to decide on a verdict not based on the relevant evidence. Prior to the beginning of evidence the court ruled on the plaintiff's motion in limine to preclude the introduction of a video film clip of about a minute's duration which showed the condition of the property subject to the view easement looking from the Annunziata's house (specifically from the window of Danielle's second-floor bedroom) in the mid–1990s. The video, obviously not taken for litigation purposes, showed a brief glimpse of Danielle, the inside of the room, and the view over the easement area to Cos Cob Harbor. The court denied the motion in limine because it was evidence of the condition of the easement and the importance of the view to the defendant and the incidental inclusion of Danielle was not prejudicial.
During the trial there was testimony from Annunziata, elicited by his counsel on cross-examination (the defendant was called as a witness for the plaintiff's case) that Danielle's growing interest in boats around 2003 intensified Annunziata's interest in having the view easement fully cleared. Counsel for Annunziata argues that this testimony was sought to counter an apparent attempt by the plaintiff to show that Annunziata had “slept on his rights” for several years since moving into his house. While the testimony was somewhat at odds with Annunziata's professed interest in the view easement at the time he built the house, defense counsel was within his rights to elicit the testimony, there was no objection by plaintiff, and it was not unfairly prejudicial.
Urfirer does not point to any specific portions of the transcript to support the argument of unfair prejudice. Nevertheless, he contends that “Defendant's extensive introduction of evidence regarding his disabled daughter unfairly prejudiced the plaintiff's case.” The court does not recall that such extensive evidence occurred at all. Moreover, as the defendant points out, much of what discussion occurred came in the form of questions by Urfirer's counsel, a line of questioning which the court finally halted. Defendant's Memorandum, Exhibit 1, p. 40.1
After careful consideration, the court determines the references to the-disability were not extensive, were relevant, and not unfairly prejudicial.
C. Error in the Jury Charge
Urfirer also contends that it was error for the court to place the burden of proving Annunziata's noncompliance with the easement on the plaintiff, stating that the defendant should have pleaded his compliance with the easement as a special defense as to which he had the burden of proof. Urfirer's motion simply offers this contention without more, providing neither legal authority nor analysis in support thereof. Where an issue is merely mentioned, but not briefed beyond the bare assertion of the claim, it is deemed waived. Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 115 (1995). This principal, often cited in appellate decisions, also applies to claims raised in the trial court. Connecticut Light & Power v. Department of Public Utility, 266 Conn. 108, 120 (2003). That being said, because it is possible counsel misunderstood the import of the court stating that objections made during the charge conference did not have to be renewed after the charge had been given, and the fact that plaintiff filed a brief on the issue prior to the charge conference, the court will consider the plaintiff's contention.
Urfirer's original and amended complaint (the latter dated December 2, 2010) specifically made reference to the view easement that burdened his property and attached a copy of the easement language as Schedule B to the pleading. Dkt. Entry 143.00. In order to prove a claim of trespass which involved allegations of defendant's acts on or near the easement area, plaintiff necessarily had to establish that these acts were not permitted by the easement. Among other matters, plaintiff pleaded that the defendant cut down a tree and cut branches off another tree, the trunks of which were not growing in the easement area. This is essentially a claim of overburdening the easement. For these reasons, the court determines that the plaintiff was properly tasked with the burden of proof since the purpose of the easement, which was explicit in its language, was not in dispute. Zhang v. Omnipoint Communication Enterprises, Inc., 272 Conn. 627, 633 n.8 (2005) (“Typically, the owner of the servient estate has the burden of proving overburdening because the servient owner has asserted overburdening as a cause of action or as a reply to a special defense of an easement when the purpose of the easement is not in dispute”).
For the reasons stated above, the court concludes the plaintiff's motion should be, and hereby is, denied in all respects.
SO ORDERED.
TAGGART D. ADAMS
SUPERIOR COURT JUDGE
FOOTNOTES
FN1. Exhibit 1 collects assorted transcript pages which are consecutively numbered 29 through 40.. FN1. Exhibit 1 collects assorted transcript pages which are consecutively numbered 29 through 40.
Adams, Taggart D., J.
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Docket No: FSTCV064010474
Decided: February 25, 2011
Court: Superior Court of Connecticut.
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