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NPC OFFICES, LLC v. WILLIAM KOWALESKI ET AL.

(AC 34612)

DiPentima, C. J., and Mullins and Mihalakos, Js.

Argued May 22—officially released August 26, 2014

(Appeal from Superior Court, judicial district of

Middlesex, Abrams, J.)

Michael S. Taylor, with whom, on the brief, were

William F. Gallagher and Hugh D. Hughes, for the

appellant-appellee (plaintiff).

Michelle M. Seery, with whom was William J. O’Sullivan, for the appellees-appellants (defendants).
Opinion

MIHALAKOS, J. This appeal arises from a dispute

between owners of adjoining commercial properties

over the use of a driveway. The plaintiff, NPC Offices

LLC, appeals from the judgment of the trial court rendered in favor of the defendants, William Kowaleski,

Sharon Kowaleski, and 184–188 South Main Street, LLC.

The plaintiff claims that the trial court improperly determined (1) that the plaintiff’s property was used for

purposes other than residential or professional offices,

(2) that such use permanently terminated the plaintiff’s

easement over the driveway, (3) that the plaintiff’s

breach of a right-of-way agreement was material, and

(4) that termination of the easement is not barred by

the doctrine of disproportionate forfeiture. On cross

appeal, the defendants appeal from the judgment of

the court in favor of the plaintiff on the defendants’

counterclaims of trespass and nuisance. The defendants

claim that the court incorrectly concluded that (1) the

defendants failed to demonstrate their exclusive possession of a disputed portion of the driveway, and (2)

the plaintiff’s use of the driveway was not unreasonable.

We affirm the judgment of the court.

The following facts, as found by the court, are relevant to this appeal. The plaintiff, a limited liability company of which Marc Aronson is the sole member, owns

an office building located at 192 South Main Street in

Middletown. Aronson operates a psychologist office.

The defendant 184–188 South Main Street, LLC, a limited liability company under the ownership and control

of the defendants William Kowaleski and Sharon

Kowaleski, owns an office building located at 184–188

South Main Street, which is situated on property abutting the plaintiff’s property. The defendants operate a

hair salon. The buildings are separated by a driveway,

located on the defendants’ property, which provides

access to a parking area behind both buildings.

The plaintiff’s claimed right of access to the driveway

stems from an agreement entered into by previous owners of the two properties. Created in 1960, the

agreement referred to the owners of the property

located at 184–188 South Main Street as the ‘‘First Parties’’ and the owners of the property at 192 South Main

Street as the ‘‘Second Parties.’’ It provided that ‘‘the

First Parties grant to the Second Parties and unto the

survivor of them, and unto such survivor’s heirs and

assigns forever the right (in common with the First

Parties’ heirs and assigns)to pass and re-pass by vehicle

or on foot over the entire length of said driveway running from South Main Street to the garages on the First

Parties’ premises, except that, in the event that [192

Main South Street] shall be used for purposes otherthan

residential or professional offices, the Second Parties’

right to use the said driveway shall terminate.’’ The

agreement was recorded and was the sole instrument
in either property’s chain of title governing the rights

and obligations of the parties as they relate to the driveway. The garages referenced in the agreement no longer

existed at the time of trial, but the driveway

remained intact.

In 1990, the defendants acquired their property and

the plaintiff acquired its property in 2008. Soon after,

the use of the driveway and the parking area behind the

offices became a source of frequent disputes, leading to

an acrimonious relationship between the parties. On or

about September 6, 2008, the defendants constructed

an iron fence behind the buildings along the properties’

common boundary in an effort to separate the properties’ respective parking areas. The fence severely

restricted access to and maneuverability in the parking

area behind the plaintiff’s property.

Thereafter, the plaintiff commenced the present

action and filed a complaint dated September 8, 2008.

The plaintiff’s operative complaint asserted, among

other things, a quiet title claim asking the court to find

that the erection of the fence violated the terms of the

agreement and to clarify the extent of the right-of-way,

and a claim seeking an injunction restoring the plaintiff’s rights underthe agreement. The defendants denied

the plaintiff’s claims and raised special defenses, including an assertion that the plaintiff’s property had been

used for purposes other than professional offices or

residential uses, thus terminating the right-of-way

agreement. The defendants also asserted counterclaims, including, among other things, claims of quiet

title asking the court to find that the agreement had

been terminated, civil trespass and private nuisance.

The plaintiff denied the defendants’ counterclaims and

raised special defenses.

After a trial, the court found that the right-of-way

agreement created an express easement for the benefit

of the plaintiff’s property. The court found that this

easement was in effect until the plaintiff’s property was

used by a mortgage brokerage, a home health care

agency and an appliance delivery coordination service.

The court concluded that the operation of these businesses constituted use of the property for purposes

other than residential or professional offices, thus terminating the easement. The court further found that no

prescriptive or implied easement existed on behalf of

the plaintiff. The court also rejected the defendants’

counterclaims of trespass and nuisance. This appeal

followed.1

I

We begin with the plaintiff’s claims regarding the

existence of an express easement over the defendant’s

driveway. The plaintiff claims that the trial court

improperly determined (1) that the plaintiff’s property

was used for purposes other than residential or profes-
sional offices, (2)that such use permanently terminated

the easement over the driveway, (3) that the plaintiff’s

breach of the right-of-way agreement was material, and

(4) that termination of the easement is not barred by

the doctrine of disproportionate forfeiture.2 We are

not persuaded.

This case involves an express easement. ‘‘[T]he determination of the intent behind language in [an easement

agreement], considered in the light of all the surrounding circumstances, presents a question of law on

which our scope of review is plenary.’’ (Internal quotation marks omitted.) Leposky v. Fenton, 100 Conn. App.

774, 778, 919 A.2d 533 (2007). ‘‘For a determination of

the character and extent of an easement created by

[agreement] we must look to the language of the

[agreement], the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties. . . . The language of the grant will

be given its ordinary import in the absence of anything

in the situation or surrounding circumstances which

indicates a contrary intent. . . . In order to resolve

ambiguities in the language, however, the situation and

circumstances existing at the time the easement was

created may also be considered.’’ (Citations omitted;

internal quotation marks omitted.) Id.

A

First, the plaintiff claims that the trial court improperly determined that the plaintiff’s property was used

for purposes other than residential or professional

offices. He argues that the mortgage brokerage, home

health care agency and appliance delivery coordination

service all used the property as professional offices.

We disagree.

In reviewing this claim, we defer to the trial court’s

factual findings regarding the operation of the businesses that were found to have terminated the easement. In order to determine whether those operations

constituted uses ‘‘for purposes other than residential

or professional offices,’’ in violation of the easement,

we look to the dictionary definitions of the relevant

terms. See Zirinsky v. Carnegie Hill Capital Asset

Management, LLC, 139 Conn. App. 706, 719–20, 58 A.3d

284 (2012)(applying dictionary definitions to determine

meaning of ‘‘permanent structure’’ in easement and

applying court’s findings as to structure’s character and

dimensions to determine whether structure constituted

permanent structure).

It is undisputed that 192 South Main Street was used

for nonresidential purposes and, therefore, the question

before us is whether the businesses operated out of the

property qualified as ‘‘professional offices.’’ ‘‘Professional’’ is defined as ‘‘[a] person who belongs to a

learned profession or whose occupation requires a high

level of training and proficiency.’’ Black’s Law Diction-
ary (9th Ed. 2009). ‘‘Office’’ is defined as ‘‘[a] place

where business is conducted or services are performed.’’ Black’s Law Dictionary (9th Ed. 2009). Combining these definitions, the unambiguous meaning of

‘‘professional office’’ as used in the easement is a place

where business is conducted or services are performed

by persons who belong to a learned profession or whose

occupation requires a high level of training and proficiency.3

The trial court found that a mortgage brokerage,

home health care agency and appliance delivery coordination service had been operated out of the plaintiff’s

property. The court further found that ‘‘each can be

operated without a prolonged course of specialized

instruction and study.’’ (Internal quotation marks omitted.) Applying these undisputed findings to the definition set forth previously, we conclude that the court

correctly determined that these businesses did not qualify as professional offices, as a high level of training

and proficiency was not required for their operation.

B

Next, the plaintiff claims that the trial court improperly determined that the property being used for purposes other than residential or professional offices

permanently terminated the easement over the driveway. Specifically, he argues that, in accordance with

the plain language of the easement, the plaintiff’s right

to make use of the driveway merely was suspended

during the time period of improper use and since has

been restored. We are not persuaded.

‘‘[A]n easement may be created which will terminate

upon the happening of an event or contingency, or

which may be terminated on the occurrence,[or] breach

. . . of a condition . . . and the limitation or condition

will ordinarily be enforced unless it is not sufficiently

definite . . . or is contrary to law or public policy. . . .

When the granting of an easement is conditioned on a

particular event, the easement is automatically terminated when that event occurs.’’ (Citations omitted;

internal quotation marks omitted.) Eis v. Meyer, 17

Conn. App. 664, 668, 555 A.2d 994, aff’d, 213 Conn. 29,

566 A.2d 422 (1989).

Here, the agreement creating the easement expressly

stated that ‘‘in the event that [192 Main South Street]

shall be used for purposes other than residential or

professional offices, the Second Parties’ right to use

the said driveway shall terminate.’’ (Emphasis added.)

As stated previously, we look to the dictionary definition to determine the commonly approved usage of the

terms of an easement. Terminate means ‘‘[t]o put an

end to; to bring to an end.’’ Black’s Law Dictionary (9th

Ed. 2009). By its clear and unambiguous terms, the

easement was expressly designed to be extinguished if

the dominant property was used in a way other than
those specified. As discussed in part I A of this opinion,

that condition came to pass when the property was

occupied by various nonprofessional businesses.

Accordingly, the easement was terminated automatically, with no action by the defendants required to effect

said termination.4

C

Next, the plaintiff claims that the trial court improperly determined that the plaintiff’s breach of the rightof-way agreement was material. He argues that any

breach of the agreement was technical because it was

not wilful and the court’s finding to the contrary was

clearly erroneous. We conclude that whether the use of

the property for nonprofessional purposes constituted

a material breach of the agreement is irrelevant and,

therefore, we do not consider the plaintiff’s claim.

In its memorandum of decision, the court stated: ‘‘The

court concurs with precedent from other jurisdictions

that technical breaches of express easements should

not result in termination. . . . However, the court considers the breach at issue to be material rather than

technical and that the [right-of-way] [a]greement has

terminated.’’ (Citation omitted.)

Our review of controlling precedent finds no support

for the proposition that an easement subject to a condition subsequent can be terminated only by a material

breach. In Eis v. Meyer, supra, 17 Conn. App. 666–67,

this court considered an easement that was subject to

termination if any building on the dominant property

was enlarged. The trial court had determined that,

although a building on the dominant property been

enlarged, the easement was not terminated because the

enlargement was ‘‘insignificant.’’ Id., 667. This court

reversed the judgment of the trial court, holding that

the plain language of the easement controlled and, thus,

that the easement was terminated by any enlargement,

no matter its significance. Id., 669–70.

In the present case, any use of the 192 South Main

Street for purposes other than those expressed in the

easement was sufficient to terminate the easement,

regardless of whether the use could be characterized

as merely a technical breach. Accordingly, we need not

reconsider the court’s determination that the breach in

question was material, as it has no bearing on the outcome of the matter at hand.

D

Finally, the plaintiff claims that the trial court should

have determined that termination of the easement was

barred by the doctrine of disproportionate forfeiture.

We disagree, as this doctrine does not apply to the

circumstances of this case.

The doctrine of disproportionate forfeiture was enunciated by Chief Justice Peters in Aetna Casualty &
Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219

(1988), overruled on other grounds by Arrowood

Indemnity Co. v. King, 304 Conn. 179, 39 A.3d 712

(2012). The doctrine holds that ‘‘in appropriate circumstances, a contracting party, despite his [or her] own

default, may be entitled to relief from the rigorous

enforcement of contract provisions that would otherwise amount to a forfeiture.’’ Id., 414; see also 2

Restatement (Second) Contracts § 229, p. 185 (1981)

(‘‘[t]o the extent that the non-occurrence of a condition

would cause disproportionate forfeiture, a court may

excuse the non-occurrence of that condition unless its

occurrence was a material part of the agreed

exchange’’). In Murphy, the doctrine was applied in the

context of an insured’s failure to comply with the notice

requirements of an insurance contract, leading to a

denial of coverage. Aetna Casualty & Surety Co. v.

Murphy, supra, 417. The court held that this loss of

coverage constituted a disproportionate forfeiture

unless it was shown that the insurer was materially

prejudiced by the lack of timely notice. Id., 418. This

conclusion was premised on consideration of the following factors: (1) that insurance contracts are contracts of adhesion, (2) that coverage would be lost

despite dutiful payment of insurance premiums, and (3)

that lack of timely notice would not necessarily cause

prejudice by depriving an insurer of a fair opportunity

to investigate an accident or claim. Id., 415–16. Since

Murphy, the doctrine has been applied by our appellate

courts almost exclusively in the insurance context. See

Arrowood Indemnity Co. v. King, supra, 201; National

Publishing Co., Inc. v. Hartford Fire Insurance Co.,

287 Conn. 664, 675, 949 A.2d 1203 (2008); but see

Twenty-Four Merrill Street Condominium Assn., Inc.

v. Murray, 96 Conn. App. 616, 623, 902 A.2d 24 (2006)

(discussing doctrine of disproportionate forfeiture in

context of foreclosure of statutory lien).

We are not persuaded that the doctrine of disproportionate forfeiture is applicable to the present case. First,

no evidence was presented at trial to suggest that the

easement was a contract of adhesion or that the owners

of 192 South Main Street were in any way lacking in

bargaining power when agreeing to the terms of the

agreement. Second, unlike insurance policy holders

who paid premiums but never received coverage, the

owners of 192 South Main Street received the benefit

of using the easement for several decades before its

termination. Finally, for the reasons set forth in part I

C of this opinion, we are convinced that prejudice is

not a proper consideration in the context of express

easements.

With these factors in mind, we conclude that the

doctrine of disproportionate forfeiture is not applicable

to the present case. Accordingly, the court acted properly in refusing to maintain the easement on this ground.
II

We now turn to the defendants’ claims on cross

appeal. They claim that the court erred in rendering

judgment for the plaintiff on their counterclaims of

trespass and nuisance. As the defendants failed to present any evidence as to damages related to these counts,

we decline to review the merits of this claim.

At trial, the defendants asserted counterclaims of

civil trespass and private nuisance, seeking remedies

of a judgment declaring the easement to have been

terminated and monetary damages. Because such a

declaratory judgment was rendered in their favor at

trial, the defendants make no claim on appeal with

respect to equitable relief for these causes of action.5

With regard to monetary damages, ‘‘[i]t is axiomatic

that the burden of proving damages is on the party

claiming them. . . . When damages are claimed they

are an essential element of [that party’s] proof and must

be proved with reasonable certainty. . . .’’ (Internal

quotation marks omitted.) Ulbrich v. Groth, 310 Conn.

375, 441, 78 A.3d 76 (2013). Without any showing as to

how the alleged trespass and nuisance diminished the

value of the defendants’ property or necessitated financial expenditure on their part, the defendants, at best,

would be entitled to nominal damages. See Kelly v.

Ivler, 187 Conn. 31, 47, 450 A.2d 817 (1982).

In this case, the defendants failed to present any

evidence of damages at trial, a fact conceded by the

defendants’ counsel at oral argument before this court.

Therefore, a reversal of the court’s conclusion rejecting

the defendants’ trespass and private nuisance claims

would result only in an award of nominal damages to

the defendants. Our courts routinely have refused to

reverse a judgment and remand for a new trial when a

party is found to have prevailed on a claim but is not

awarded any damages. See, e.g., Hughes v. Lamay, 89

Conn. App. 378, 386 n.7, 873 A.2d 1055 (‘‘[a]lthough the

return of a plaintiff’s verdict established a technical

legal injury that entitled the plaintiff to at least nominal

damages, this court as a general rule will not reverse

and grant a new trial for a mere failure to award nominal

damages’’ [internal quotation marks omitted]), cert.

denied, 275 Conn. 922, 883 A.2d 1244 (2005). For similar

reasons of judicial economy, given the circumstances

of this case, we decline to consider the defendants’

claims that if successful would entitle them only to

nominal damages.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Subsequent to the plaintiff’s filing of this appeal, the defendants filed a

motion for articulation, which the court denied. The defendants subsequently

filed a motion for review with this court. On September 26, 2012, this court

granted the motion for review and granted in part the relief requested,

ordering the trial court to articulate whether it found that the strip of land

between the concrete pad and the parties’ common boundary line was part
of the driveway identified in the original right-of-way agreement. In an

October 1, 2012 memorandum of decision, the court explained that it did

find that portion of land to be a part of the driveway.

2 The plaintiff also argues for the first time on appeal that the defendants

waived their right to claim termination of the easement. The plaintiffs seek

review of this unpreserved claim pursuant to the plain error doctrine codified

at Practice Book § 60-5. Reversal pursuant to the plain error doctrine is ‘‘an

extraordinary remedy used by appellate courts to rectify errors committed

at trial that, although unpreserved, are of such monumental proportion that

they threaten to erode our system of justice and work a serious and manifest

injustice on the aggrieved party.’’ State v. Myers, 290 Conn. 278, 289, 963

A.2d 11 (2009). The plaintiff has not demonstrated that such a remedy is

appropriate in the present case, and therefore we decline to review the

plaintiff’s waiver claim.

3 The plaintiff asks us to adopt a broader definition of ‘‘professional office’’

that allows for any noncommercial business to be considered professional

in nature. As he has failed to identify any authority, legal or otherwise, for

his suggested definition, we decline to do so.

4 The plaintiff provides no Connecticut authority for the proposition that

the defendants were required to exercise a right of reentry in order to

extinguish the easement. Rather, the plaintiff has failed to distinguish this

case from Eis v. Meyer, supra, 17 Conn. App. 670, wherein this court held that

an easement subject to a condition subsequent was terminated automatically

upon the occurrence of that condition.

5 The defendants state in their brief: ‘‘In light of the separate determination

that the right to use the driveway has terminated and that the defendants

therefore have the exclusive right to the use of the rear of [their property],

the defendants do not believe that injunctive relief is any longer necessary

in the context of the existing trespass claim.’’