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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 market 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 analyzing comparable rentals, and the failure of the expert’s analysis to consider 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; thereafter, 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 counterclaim, 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 Corporation (New NRB) (collectively, defendants), for just compensation.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, rectangular 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 Hillard 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 coowners than a partition in kind. On July 8, 2013, however, 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 property 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 succeeded 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 special defenses to the defendants’ operative counterclaim

on August 16, 2016, which included, among other special 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 maintaining 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 . . . property.’’

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 . . . property.’’ 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 . . . property.’’

With respect to the defendants, the court found that

the Norman Bloom Trust cotrustees owned an undivided 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 distribution of such property. If a sale would promote their

interests, an equitable distribution would not be appropriate. The court ultimately concluded that, pursuant

to § 52-500 (a), the sale of the property would not promote 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 October 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 defendants’ 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 equitable 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 mathematical 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, including real estate taxes, the court explained that the defendants 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 percent.

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. Accordingly, 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 defendants 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 compensation by granting the defendants a credit of one third

of the costs they claimed for improvements. In particular, 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 expenditures, rather than the extent to which any such expenditures 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 themselves.’’ We disagree.

We begin by setting forth our standard of review and

the legal principles that inform our discussion. A partition action is one of equity. As such, ‘‘[t]he determination 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 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.’ ’’ 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 owners.’’ (Emphasis omitted.) Id. If an equitable distribution

is ordered, ‘‘payment of just compensation to the owners 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). Additionally, as our Supreme Court has explained in the context

of our government takings jurisprudence, ‘‘[t]he question 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 onethird 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 property. In support of his argument, the plaintiff maintains

that our Supreme Court’s decision in Neumann v. Neumann, 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 coowner 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 interest 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 relationship, 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 onehalf 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 physical division of the land instead of a sale and a division

of the proceeds. Id., 180. In determining whether a division 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 material 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 defendant; and that the plaintiff at no time agreed to reimburse 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 generally 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 defendants 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 repeatedly has held that a trial court may take into consideration contributions, including improvements, that the

parties have made to the subject property in its determination 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, household 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 possession invokes the jurisdiction of a court of equity to

obtain contributions from the cotenant out of possession for funds expended for the betterment of the com-
mon interest, the cotenant out of possession may defensively 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 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 occupation 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 plaintiff 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 plaintiff 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, improvements 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 questions 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 plaintiff’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 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 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. 188

n.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 reimbursing 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 ultimate 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 property, 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 during 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 portion 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 Construction . . . began to clean up and restore the property 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 . . . property. 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 underground 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 commercial 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 operations on the property commenced.

The invoices for the repairs and improvements for

the period 2000 to 2019 totaled $893,900.11 In determining the amount, if any, that the plaintiff should contribute toward the cost of the improvements made, the

court balanced the equities and reasonably acknowledged 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 compensation due to [the plaintiff], it would also be inequitable 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 calculation any expenditures made by the defendants after
2009 (the time when the defendants began business

operations on the premises), or the amount of any profits 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 persons 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 occupation 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 axiomatic 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 assumptions and so significantly flawed that it cannot be considered 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’ criticisms 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.) Antonucci 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] reasonably 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 presumption . . . in favor of the trial court’s ruling.’’

(Internal quotation marks omitted.) Gianetti v. Norwalk Hospital, 304 Conn. 754, 766, 43 A.3d 567 (2012).

‘‘Where the trial court rejects the testimony of a plaintiff’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; McGuire 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)). Accordingly, 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 jurisdiction 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 McInerney, 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 contribution 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 ‘‘recognized 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 Boatyard’’ 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.