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*********************************************** 
LYME LAND CONSERVATION TRUST, INC. v.

BEVERLY PLATNER ET AL.

(SC 20071)

Robinson, C. J., and Palmer, McDonald,

Mullins, Kahn and Ecker, Js.

Syllabus

Pursuant to statute (§ 51-183c), a judge who has tried a case without a jury

in which a new trial is granted, or in which the judgment is reversed

by the Supreme Court, may not again try the case.

The defendant property owner appealed from the trial court’s judgment

rendered following a hearing in damages that was held on remand in

connection with the plaintiff conservation trust’s claim that the defendant had wilfully violated a conservation easement in contravention of

the statute (§ 52-560a [b]) prohibiting encroachment on such an easement. After a trial to the court, which found that the defendant had

violated the easement, the court ordered the defendant to restore the

property to its prior condition in accordance with a plan proposed by

the plaintiff’s expert at a cost of approximately $100,000. The court also

awarded the plaintiff $350,000 in punitive damages pursuant to § 52-560a

(d), which permits damages of up to five times the cost of restoration,

and ordered further hearings to address the specific manner and timing

of implementation of the restoration plan. At a subsequent hearing, at

which experts for both parties proposed differing courses of action to

effectuate restoration, the trial court ordered a new restoration plan

but did not take evidence as to the cost of the new restoration plan or

revisit its punitive damages award. The defendant thereafter appealed,

and this court concluded that, although the trial court had properly

found that the defendant violated the easement and that the new restoration plan was authorized and supported by sufficient evidence, the trial

court’s punitive damages award under § 52-560a (d) lacked the requisite

evidentiary foundation. Specifically, that award had been compliant with

§ 52-560a (d) at the time it was initially issued, as it was based on

evidence that restoration costs would be approximately $100,000, but,

when the trial court adopted the new restoration plan with no evidence

of its cost, the ratio of actual damages to punitive damages could not be

determined. Accordingly, this court reversed the trial court’s judgment

as to damages and remanded the case to the trial court with direction

to take evidence as to the cost of the new plan to fashion a new damages

award that was within the framework of § 52-560a (d). On remand, the

defendant filed a motion to disqualify the trial judge, K, from further

participation in the proceedings pursuant to § 51-183c, which K denied.

K concluded that he was not disqualified because this court had not

ordered a new trial but reversed only a portion of the trial court’s

judgment and remanded on two precise matters, affirming the judgment

in all other respects. K also denied the defendant’s motions to open the

judgment and to allow new evidence regarding the implementation of

the restoration plan, and, after the parties presented expert testimony

as to the cost of the new restoration plan, K found that its cost was

$242,244 and again awarded $350,000 in punitive damages. On the defendant’s appeal, held:

1. K was required to disqualify himself from the proceedings held on remand

after the first appeal, this court having determined that its decision in

the first appeal reversing the trial court’s judgment in part and remanding

the case to the trial court with direction to take evidence and to recalculate damages fell within the ambit of § 51-183c and, therefore, required

a different trial judge to preside over the case on remand: this court

construed § 51-183c in a manner to advance its policy of requiring the

disqualification of a judge in order to protect against a lack of impartiality

or an appearance thereof and concluded that § 51-183c was applicable

when a judgment is reversed in part and fewer than all of the issues

must be retried, including situations, such as in the present case, in

which the judgment is reversed as to damages and remanded for a new

trial only on the issue of damages; accordingly, the trial court’s judgment
was reversed with respect to the award of damages, and the case was

remanded for a recalculation of damages, before a different judge, consistent with this court’s opinion in the first appeal.

2. This court declined to address the defendant’s claims that K improperly

denied her motions to open the judgment and to allow new evidence

and improperly awarded the plaintiff $350,000 in punitive damages on

the ground that the plaintiff failed to prove the cost of the new restoration

plan, as those claims could not be analyzed or adjudicated independently

of the disqualification issue because they emanated from rulings that

resulted from the same trial judge’s improper presiding over the proceedings on remand; a new judge on remand will make his or her own

determinations regarding the merits of the motion to open and what

evidence will or may be submitted in support of the claims and defenses

raised by the parties, and the plaintiff may adopt a different litigation

strategy involving different evidence on remand.

Argued May 2—officially released December 31, 2019

Procedural History

Action to enjoin the named defendant from violating

certain conservation restrictions on certain of the

named defendant’s real property, and for other relief,

brought to the Superior Court in the judicial district of

New London, where the court, Cosgrove, J., granted

the plaintiff’s motion to withdraw the complaint as to

the defendant Joseph G. Standart III et al. and to withdraw the claim for a declaratory judgment; thereafter,

the court, Devine, J., granted the motion of the attorney

general to intervene as a plaintiff; subsequently, the

intervening plaintiff filed a complaint, and the named

defendant filed counterclaims as to the plaintiff’s second amended complaint and the intervening plaintiff’s

complaint; thereafter, the case was tried to the court,

Hon. Joseph Q. Koletsky, judge trial referee, who, exercising the powers of the Superior Court, rendered judgment for the plaintiff and for the intervening plaintiff

on their complaints and on the named defendant’s counterclaims, from which the named defendant appealed;

subsequently, the court, Hon. Joseph Q. Koletsky, judge

trial referee, issued certain orders as to the injunctive

relief granted, and the named defendant filed an

amended appeal; thereafter, this court reversed in part

the judgment of the trial court and remanded the case

to that court with direction to recalculate the award of

attorney’s fees and damages; subsequently, the court,

Hon. Joseph Q. Koletsky, judge trial referee, denied the

named defendant’s motions to disqualify, to open the

judgment, and to allow evidence; thereafter, the court,

Hon. Joseph Q. Koletsky, judge trial referee, issued

certain orders, and the named defendant appealed.

Reversed in part; vacated in part; further proceedings.

Wesley W. Horton, with whom were Brendon P. Levesque and, on the brief, Kari L. Olson and Janet P.

Brooks, for the appellant (named defendant).

John F. Pritchard, pro hac vice, with whom were

Tracy M. Collins and Timothy D. Bleasdale, and, on

the brief, Edward B. O’Connell, for the appellee

(named plaintiff).
Opinion

McDONALD, J. General Statutes § 51-183c precludes

a judge who tried a case without a jury from trying the

case again after a reviewing court reverses the judgment. The dispositive issue in this appeal is whether

that statute applies when this court reverses the trial

court’s judgment as to damages only and remands the

case to the trial court to take new evidence and recalculate damages.

The defendant Beverly Platner1 appeals from the judgment of the trial court, rendered following our reversal

in part and remand in Lyme Land Conservation Trust,

Inc. v. Platner, 325 Conn. 737, 159 A.3d 666 (2017),

for further proceedings on the issue of damages. The

defendant challenges the judgment as to both the damages awarded to the plaintiff, Lyme Land Conservation

Trust, Inc.,2 and injunctive relief directing the defendant

to remedy a violation of a conservation restriction on

her property pursuant to a restoration plan ordered by

the trial court. The defendant claims that the trial judge

improperly denied her motion to disqualify himself from

retrying the damages issue, and, as a result, both the

damages award and injunction were improper. We

agree with the defendant on the issue of disqualification

and reverse the trial court’s judgment as to damages

and remand for new proceedings before a new judge

consistent with our original remand order.

Our prior decision in this case and the record of the

subsequent proceedings provide the following relevant

facts and procedural history for the resolution of this

appeal.3 The defendant has owned 66 Selden Road in

Lyme (property) since 2007. Id., 741. The plaintiff holds

a conservation restriction (easement) on the property,

which, consistent with General Statutes § 47-42a (a),4

prohibits the defendant from making certain changes

to the property that would disturb its ‘‘ ‘natural . . .

condition’ . . . .’’ Id., 741–42. Approximately 14.3 of

the property’s 18.7 acres are subject to the easement.

Id., 742. This protected area includes a large meadow

and a smaller woodlands area. Id.

In 2007, the defendant began making a series of

changes to the protected area, despite the plaintiff’s

efforts to persuade the defendant that the changes violated the easement. With respect to the meadow, those

changes included: regular mowing; installing an irrigation system; adding top soil; aerating; planting seed

for grass typical of a residential lawn; applying lime,

fertilizers, fungicides, herbicides, and pesticides; and

removing ‘‘truckloads of grass and soil’’ to create ‘‘ ‘tree

rings’ ’’ where the defendant planted ornamental

shrubs, plants, and flowers. Id., 743. As a result, the

previously existing native grasses were eradicated. Id.

In the woodlands, the defendant began mowing the

understory—the plants that grow on a forest floor. Id.
and n.6.

In 2009, the plaintiff filed this action, alleging in the

operative complaint that the foregoing activities were

actual or intentional violations of the easement and

constituted a willful violation of General Statutes § 52-

560a. Id., 743–44. The plaintiff sought injunctive relief

to prevent further violations of the easement and to

require restoration of the property to its prior condition,

as well as statutory punitive damages and attorney’s

fees under § 52-560a. Id., 744.

The case was tried to the court, Hon. Joseph Q. Koletsky, judge trial referee. The court held that the defendant had not merely violated the easement but had

‘‘completely subvert[ed] and eviscerate[d] the clear purpose of the conservation restriction’’ by ‘‘wilful[ly] . . .

caus[ing] great damage to the protected area’s natural

condition’’ and had ‘‘destroyed considerable [and

diverse] vegetation . . . .’’ (Internal quotation marks

omitted.) Id., 745. The court issued an injunction, requiring the defendant to restore the property to its prior

condition. Id., 744–45. The court’s initial restoration

plan (plan one), which was developed by the plaintiff’s

expert witness, called for, among other things, the

defendant to remove the irrigation system from the

meadow and remove the lawn by means of a sod cutter.

Id., 762. The defendant would then replant the soil with

a variety of native grasses and mow only infrequently.

Id. As to the woodlands, the defendant was required

to plant native shrubs and to stop mowing altogether,

allowing the understory to reestablish itself naturally.

Id. The plaintiff’s expert estimated that plan one would

cost approximately $100,000. Id.

The court awarded the plaintiff $350,000 in punitive

damages pursuant to § 52-560a (d), which permits the

court to award damages of up to five times the ‘‘ ‘cost

of restoration’ ’’ for violations of a conservation restriction. Id., 762 and n.17. The court also ordered further

hearings to address the specific manner and timing of

implementing plan one. Id., 763.

At the subsequent hearing regarding implementation,

experts for both parties proposed differing courses of

action to effectuate the restoration. Id., 763. The court

ultimately ordered a new plan (plan two), which was

a hybrid of the competing approaches proposed by the

parties. Id. Instead of removing the lawn with a sod

cutter, the court ordered the defendant to plant plugs

of native grasses that would overtake the nonnative

species. Id. The court asked the parties to submit specific planting proposals to execute this new strategy,

and after the parties did so, the court ordered the defendant to follow the proposal submitted by the plaintiff.

Id. Although the court changed what would be required

of the defendant to achieve restoration from plan one

to plan two, it did not take evidence as to the cost of

plan two or revisit its award of $350,000 in punitive
damages, which was based on plan one. Id. The defendant appealed from the judgment of the trial court to

the Appellate Court, and the appeal was transferred to

this court. Id., 746 n.9.

In that appeal, the defendant claimed, among other

things, that the trial court improperly (1) found that

the defendant had violated the easement, and (2)

ordered relief that was either legally unauthorized or

lacking in evidentiary support. Id., 741. We concluded

that the trial court had properly found that the defendant violated the easement and that the restoration plan

that the court ordered was authorized and supported

by sufficient evidence. Id., 764–65. We agreed with the

defendant, however, that the trial judge improperly

awarded damages under § 52-560a (d) without the requisite evidentiary foundation. We concluded that ‘‘the trial

court’s damages award . . . was compliant with § 52-

560a (d) at the time it initially was issued. . . . [T]he

award was anchored in the evidence that restoration

costs would be $100,000 or more and, accordingly, did

not run afoul of the statutory maximum ratio of punitive

damages to actual damages. When the court later

adopted a different restoration plan, however, with no

evidence of its cost, its earlier award lost its mooring

and the ratio of punitive damages to actual damages

became unknown. If the restoration plan ultimately

ordered by the court costs less than $70,000 to implement, the court’s award of $350,000 would include a

punitive portion that exceeds the fivefold maximum

authorized by § 52-560a (d). Upon remand, the trial

court should take evidence as to the cost of the plan

that it ordered and fashion a new damages award

that is within the statutory parameters.’’ (Emphasis

added.) Id., 764. The rescript to our opinion ordered as

follows: ‘‘The judgment is reversed as to the award of

. . . damages pursuant to § 52-560a (d), and the case

is remanded for a recalculation of . . . damages consistent with this opinion; the judgment is affirmed in

all other respects.’’5

(Emphasis added.) Id., 765.

On remand, the defendant filed a motion to disqualify

Judge Koletsky from further participation in the proceedings pursuant to § 51-183c and Practice Book § 1-

22.6

Judge Koletsky summarily denied the motion. In a

subsequent articulation, he offered the following reason

for denying the motion: ‘‘Because the Supreme Court

did not order a new trial but rather reversed only certain

portions of the judgment and remanded for [a] hearing

on two precise matters, affirming the judgment in all

other respects, the court concluded it was not disqualified from hearing the matter.’’

After her motion to disqualify was denied, the defendant moved to open the judgment and to allow evidence

regarding plan two. She asserted that plan two was no

longer necessary or workable because the property had

restored itself naturally in the three growing seasons
that had passed since the trial court’s order. Judge

Koletsky denied both motions.

In subsequent proceedings before Judge Koletsky on

the issue of statutory punitive damages, both parties

presented expert testimony as to the cost of plan two.

Judge Koletsky found that the cost of plan two was

$242,244 and set punitive damages at $350,000, the same

amount he had awarded previously. This appeal

followed.7

The defendant raises three issues in this appeal. First,

she claims that the trial court improperly denied her

disqualification motion because § 51-183c and Practice

Book § 1-22 precluded Judge Koletsky from retrying the

issue of damages after our reversal in part and remand

in her first appeal. Second, the defendant claims that

the trial court improperly denied her motion to open

the judgment because it was an abuse of discretion to

implement, in 2017, a restoration plan that was based

on the property’s 2015 condition without considering

how the property had changed in the intervening two

years. Third, the defendant claims that the trial court

improperly awarded the plaintiff $350,000 in damages

because, on remand, the plaintiff failed to meet its burden of proving the ‘‘cost of restoration’’ as required for

a damages award under § 52-560a. We agree with the

defendant that Judge Koletsky was required to disqualify himself under § 51-183c. In light of this conclusion,

we do not reach the other issues.

I

The defendant contends that our decision and direction to the trial court in her first appeal brings the

remand proceeding within the scope of § 51-183c and

therefore required a different trial judge to preside over

the case on remand. We agree.

Whether § 51-183c requires a judge to be disqualified

in circumstances such as these is a matter of statutory

construction over which we exercise plenary review.

See, e.g., Cambodian Buddhist Society of Connecticut,

Inc. v. Planning & Zoning Commission, 285 Conn. 381,

422–23, 941 A.2d 868 (2008). ‘‘When construing a statute,

[o]ur fundamental objective is to ascertain and give

effect to the apparent intent of the legislature. . . . In

other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied

to the facts of [the] case . . . . [General Statutes] § 1-

2z directs us first to consider the text of the statute itself

and its relationship to other statutes. If, after examining

such text and considering such relationship, the meaning of such text is plain and unambiguous and does

not yield absurd or unworkable results, extratextual

evidence of the meaning of the statute shall not be

considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the

legislative history and circumstances surrounding its
enactment, [including] the legislative policy it was

designed to implement . . . .’’ (Internal quotation

marks omitted.) Smith v. Rudolph, 330 Conn. 138, 143,

191 A.3d 992 (2018).

Section 51-183c is one of several provisions in our

law that dictates when a judge must be disqualified to

protect against a lack of impartiality or the appearance

thereof, unless the parties otherwise consent. See, e.g.,

General Statutes §§ 51-39, 51-183h and 54-33f (a); Code

of Judicial Conduct, Canon 2.11; State v. Shabazz, 246

Conn. 746, 768–69, 719 A.2d 440 (1998), cert. denied,

525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999);

see also Ajadi v. Commissioner of Correction, 280

Conn. 514, 527–28, 911 A.2d 712 (2006) (‘‘the appearance

and the existence of impartiality are both essential elements of a fair exercise of judicial authority’’ [internal

quotation marks omitted]). Section 51-183c addresses

this concern in a particular context, providing in relevant part: ‘‘No judge of any court who tried a case

without a jury in which a new trial is granted, or in

which the judgment is reversed by the Supreme Court,

may again try the case. . . .’’ (Emphasis added.)

Neither party expressly addresses whether § 51-183c

is ambiguous.8 Unlike the trial court’s position, which

rested on a categorical interpretation of the statute—

that a partial reversal falls outside the statute’s scope—

the parties’ arguments focus on whether the statute

applies under the particular facts of this case. They

offer competing positions on whether our decision in

the first appeal resulted in a ‘‘reversal’’ of the judgment

and whether the remand ordered a new trial (i.e., ‘‘again

try the case’’). The defendant argues that the first appeal

‘‘clearly was a reversal and there clearly was an order to

take evidence. That is what trials are for.’’ The plaintiff

argues that the first appeal did not result in a reversal

and that the remand was not for a trial because we

remanded not to correct an error of the trial court but

only for further fact-finding to determine whether an

error had occurred. We agree with the defendant.

The first question that arises is whether § 51-183c

applies when we reverse a judgment in part and remand

the case to the trial court for reconsideration of fewer

than all of the issues in the case. This appears to be

the consideration that led the trial court to deny the

motion to disqualify. Because § 51-183c refers to ‘‘the

judgment’’ and retrial of ‘‘the case’’—not reversal of

‘‘any part of the judgment’’ and retrial of ‘‘any issue in

the case’’—it could be read to apply only when this

court reverses the judgment in its entirety and orders

a new disposition of all of the legal claims between the

parties. Such a construction, though plausible, plainly

would not serve the clear purpose of the statute. There

is no logical basis to distinguish disqualification concerns that might arise from a judge’s retrying a case in

which the judgment was reversed as to all of the claims
and, for example, an appellate reversal requiring retrial

on all but one of the claims, or a reversal as to all of

the claims tried to the court but not those tried to the

jury.9

In the absence of legislative history supporting

such a counterintuitive result, we interpret the statute

in a manner to advance the policy it is intended to

effectuate. See State v. Scott, 191 Conn. App. 315, 356,

214 A.3d 871 (2019) (‘‘the concern present in these situations [is that] ‘[s]ome may argue that a judge will feel

the motivation to vindicate a prior conclusion when

confronted with a question for the second or third

time’ ’’ [internal quotation marks omitted]) (quoting

Liteky v. United States, 510 U.S. 540, 562, 114 S. Ct.

1147, 127 L. Ed. 2d 474 [1994] [Kennedy, J., concurring

in the judgment]), cert. denied, 333 Conn. 917, 216 A.3d

651 (2019). The Appellate Court has previously recognized as much. See Barlow v. Commissioner of Correction, 166 Conn. App. 408, 423–24, 142 A.3d 290 (rejecting

argument that § 51-183c did not apply because rescript

stated habeas court’s judgment was ‘‘ ‘reversed in

part’ ’’), appeal dismissed, 328 Conn. 610, 182 A.3d 78

(2018); see also Rosato v. Rosato, 255 Conn. 412, 425

n.18, 766 A.2d 429 (2001) (applying § 51-183c in case

in which this court had reversed judgment only with

respect to financial orders in dissolution action and

remanded for hearing to resolve questions about party’s pension).

Given our conclusion that § 51-183c applies when a

judgment is reversed in part and fewer than all of the

issues in the case must be retried, we next consider

whether reversing the judgment in part for a new proceeding only as to damages falls within that description.

To try a case, or to conduct a ‘‘trial,’’ is defined as ‘‘[a]

formal judicial examination of evidence and determination of legal claims in an adversary proceeding.’’ Black’s

Law Dictionary (11th Ed. 2019) p. 1812; see also 75 Am.

Jur. 2d 205, Trial § 1 (2018) (‘‘the judicial investigation

and determination of the issues between the parties to

an action’’). The mechanism of a bifurcated trial is well

established in the law; see General Statutes § 52-205;

and has long been understood to include a ‘‘trial’’ in

which one stage determines liability and the other stage

determines damages.10 See, e.g., Hall v. Burns, 213

Conn. 446, 483, 569 A.2d 10 (1990) (involving bifurcated

trial on issues of liability and damages); Lamb v. Burns,

202 Conn. 158, 159, 520 A.2d 190 (1987) (same); O’Shea

v. Mignone, 50 Conn. App. 577, 582, 719 A.2d 1176

(same), cert. denied, 247 Conn. 941, 723 A.2d 319 (1998);

American Law of Product Liability (3d Ed. Rev. 2019)

§ 51:99 (addressing separate ‘‘trial’’ for damages);

Black’s Law Dictionary, supra, p. 1812 (defining bifurcated trial as ‘‘[a] trial that is divided into two stages,

such as for guilt and punishment or for liability and

damages’’). In some cases, the issue of liability is not

in dispute, and the only issue being tried is damages.

On remand for a new trial after appeal, a new trial could
be ordered solely on the issue of damages. See, e.g.,

Peck v. Jacquemin, 196 Conn. 53, 73, 491 A.2d 1043

(1985) (ordering ‘‘new trial’’ limited to issue of damages); Smith v. Whittlesey, 79 Conn. 189, 193–94, 63

A. 1085 (1906) (same). A trial in damages, sometimes

known in this state as a hearing in damages, has all the

hallmarks of a trial, including taking evidence, examining witnesses, finding facts, and applying the law to

those facts. See Practice Book §§ 17-34 through 17-40.

Moreover, because a determination of damages is an

integral part of a trial, there is no appealable final judgment until damages have been determined. See Hylton

v. Gunter, 313 Conn. 472, 478, 97 A.3d 970 (2014) (‘‘[i]t

is well settled that a ‘judgment rendered only upon the

issue of liability without an award of damages is . . .

not a final judgment from which an appeal lies’ ’’).

Having concluded that a judgment that is reversed

as to damages and remanded for a new trial only on

the issue of damages falls within the scope of § 51-

183c, we next consider whether our reversal in part

and remand to the trial court in the first appeal in this

case meets these criteria. We conclude that they do.

Our rescript in the first appeal provided unequivocally: ‘‘The judgment is reversed as to . . . damages

pursuant to § 52-560a (d), and the case is remanded for

a recalculation of . . . damages consistent with this

opinion; the judgment is affirmed in all other respects.’’

(Emphasis added.) Lyme Land Conservation Trust,

Inc. v. Platner, supra, 325 Conn. 765. This direction

plainly constituted a reversal in part of the judgment,

limited to the trial court’s damages award.

Our order also plainly indicated that the remand proceeding would constitute a trial in damages. The

rescript called for a remand for a recalculation of damages ‘‘consistent with this opinion’’—that is, consistent

with our prior statements that ‘‘the court’s award of

statutory damages was not compliant with § 52-560a

(d) and must be recomputed based on the costs of the

actual restoration plan ordered’’; id.; and that, ‘‘[u]pon

remand, the trial court should take evidence as to the

cost of the plan that it ordered and fashion a new

damages award that is within the statutory parameters.’’ (Emphasis added.) Id., 764.

What took place at the remand proceeding before

Judge Koletsky, moreover, clearly was a trial in damages. Both parties put on expert witnesses—Pennington

Marchael for the plaintiff and Michael S. Klein for the

defendant. The plaintiff conducted a direct examination

of Marchael, in which the expert described in detail

each of the restoration procedures and how much they

would cost, ultimately opining that the cost of restoration would be $242,244. The defendant then cross-examined Marchael, challenging his level of expertise, bases

for and methods of calculations, and conclusion. After

unsuccessfully moving to dismiss the case, the defen-
dant presented its own evidence through its expert,

Klein. The court took evidence, and the parties objected

to the admission of certain testimony and documentary exhibits.

The court, acting as fact finder, credited Marchael’s

testimony and found that the cost of restoration was

$242,244. Mindful that § 52-560a limits punitive damages

to five times the cost of restoration, the court then

directed counsel to determine ‘‘a multiplier that transfers $242,244 to [$350,000] . . . to the extent that the

statute requires a multiplier . . . .’’ Having set punitive

damages at $350,000, the court then opined that ‘‘everybody’s got all the final judgments that they need’’ for

any further appellate review. In short, the proceeding

had all of the hallmarks of a trial in damages.

The plaintiff, however, correctly notes that one way

a reviewing court ‘‘may remand a case to the original

trial judge for additional proceedings without either

triggering § 51-183c or a dispute over its application is

by not disturbing the original judgment in any way and

making clear that the remand is for the purpose of

further factual findings.’’ Barlow v. Commissioner of

Correction, 328 Conn. 610, 614, 182 A.3d 78 (2018). This

circumstance typically arises where ‘‘the purpose of the

remand is not to correct error but to determine whether

error has occurred.’’ State v. Gonzales, 186 Conn. 426,

436 n.7, 441 A.2d 852 (1982). The plaintiff argues that the

remand ordered in the defendant’s first appeal reflects

such a purpose because our rescript, read in the context

of the broader opinion, reveals that our reversal ‘‘is

more properly understood as placing the award in limbo

pending collection of limited additional evidence’’ to

determine whether the damages award needed to be

adjusted to conform with § 52-560a (d). We disagree.

In our decision in the first appeal, we determined

that ‘‘the court’s award of statutory damages was not

compliant with § 52-560a (d) and must be recomputed

based on the costs of the actual restoration plan

ordered.’’ (Emphasis added.) Lyme Land Conservation

Trust, Inc. v. Platner, supra, 325 Conn. 765. We directed

the trial court to ‘‘take evidence as to the cost of the

plan that it ordered and fashion a new damages award

that is within the statutory parameters.’’ (Emphasis

added.) Id., 764. This holding unambiguously requires

a new trial in damages and plainly contemplates a new

judgment that will include the recomputed restoration

costs and an award of punitive damages compliant with

§ 52-560a (d).

The plaintiff contends, however, that we ‘‘required

the trial court’s original damages award to be ‘refashioned’ only if the new evidence established that the

cost of the restoration plan would be less than $70,000.’’

(Emphasis added.) It points to our statement that, ‘‘[i]f

the restoration plan . . . costs less than $70,000 . . .

the . . . $350,000 would . . . [exceed] the fivefold
maximum authorized by § 52-560a (d)’’ as demonstrating our recognition of the possibility that no error

would exist as long as the plan cost at least $70,000.

In doing so, the plaintiff mischaracterizes our use of

the word ‘‘if’’ and ignores our determination that there

was no evidence to support the award. Lyme Land

Conservation Trust, Inc. v. Platner, supra, 325 Conn.

764. If, on remand, the court were to determine that

the cost of plan two exceeds $70,000—and thus the

original $350,000 would have fallen within the permissible range of the statutory multiplier—it would not make

it any less of an error for the trial court to have previously entered the damages award without having

taken evidence to support the order. The trial court’s

damages award was not legally sound because there

was no evidence in the record establishing the cost of

plan two.

Finally, the rescript in the first appeal, which explicitly reversed the damages award, is materially different

from rescripts in which we have remanded a case to

determine whether an error occurred. See, e.g., Holland

v. Holland, 188 Conn. 354, 364 and n.6, 449 A.2d 1010

(1982) (§ 51-183c is not implicated by rescript

‘‘remand[ing] [the] case for the submission of additional

evidence by the parties and for a fully articulated memorandum of decision’’); see also State v. Gonzales, supra,

186 Conn. 436 (‘‘A new trial must be ordered if [two]

questions are answered in the affirmative; otherwise the

statement must be sealed and preserved as an exhibit

to enable the defendant, if he wishes, to seek further

judicial review. The case is remanded for further proceedings in accordance with this opinion.’’).

Our prior decision reversing the judgment in part and

remanding to the trial court to take evidence and to

recalculate damages falls within the ambit of § 51-183c.

Accordingly, Judge Koletsky was required to disqualify

himself on remand after the first appeal.

II

Although this conclusion would appear to dispose of

the defendant’s remaining claims because a new trial

in damages must be held by a different judge, the defendant contends this is not the case. First, the defendant

claims that Judge Koletsky improperly denied her

motion to open the judgment because it was an abuse

of discretion to implement, in 2017, a restoration plan

that was based on the property’s 2015 condition without

considering how the property had changed in the

intervening two years. Second, the defendant claims

that Judge Koletsky improperly awarded $350,000 in

damages on remand because the statutory multiplier

under § 52-560a applies only to the cost of ‘‘restoration’’

but plan two includes remedial requirements that do

not restore the property to its prior condition, and the

plaintiff did not put on any evidence on remand as to

how much of the total cost of plan two was for ‘‘resto-
ration.’’

The defendant’s claims in this regard cannot be analyzed or adjudicated independently of the disqualification issue because they ‘‘emanate from rulings that

resulted from the same trial court improperly presiding

over [the proceedings] on remand.’’ Gagne v. Vaccaro,

133 Conn. App. 431, 433 n.2, 35 A.3d 380 (2012), rev’d

on other grounds, 311 Conn. 649, 658, 90 A.3d 196 (2014).

At oral argument, the defendant conceded that, if we

were to conclude that Judge Koletsky should have been

disqualified, ‘‘the only reason’’ we would reach the issue

regarding the motion to open is if we ‘‘think [the defendant’s case for opening the judgment] was so strong

that the motion had to be granted.’’ In other words, it

would not matter that Judge Koletsky should have been

disqualified because no reasonable judge could have

denied the motion to open. We are not persuaded by

this argument for several reasons. It would be illogical

for us to decide whether to address an issue by deciding

the merits of the issue. Moreover, given the wealth of

reasons set forth in the plaintiff’s opposition to the

motion to open—procedural, substantive, and equitable—we are not prepared to conclude that none of

these reasons could ever provide a reasonable basis for

denying the motion.

With respect to her second remand related claim, the

defendant’s contention essentially is that the plaintiff

failed to meet its burden of proof to support any damages award above the statutory minimum of $5000. The

defendant asserts that we must reach this issue because,

if we were to agree with her, we would not order a

new trial but, rather, would direct that judgment be

rendered for the statutory minimum.

This argument ignores the fact that a new judge at

a new trial will make his or her own decisions as to

what evidence will or may be submitted in support of

the claims and defenses raised by the parties. Nor does

it take into account that the plaintiff might adopt a

different litigation strategy involving different evidence.

We will not predict what will happen at a trial yet

to occur.

The judgment is reversed with respect to the award

of damages and the case is remanded for a recalculation

of damages, before a different judge, consistent with

this court’s prior opinion, and the orders denying the

defendant’s motions to open the judgment and to allow

evidence are vacated; the judgment is affirmed in all

other respects.

In this opinion the other justices concurred.

1

Joseph G. Standart and Clinton S. Standart were also named as defendants in the original complaint. The complaint was subsequently withdrawn

as to those defendants, and all references to the defendant in this opinion

are to Platner.

2 The attorney general intervened as an additional plaintiff in the original

trial and appeal to represent the public’s interest in a conservation restriction

on the defendant’s property. See Lyme Land Conservation Trust, Inc. v.
Platner, supra, 325 Conn. 740 n.2. The attorney general did not participate

in the remand proceedings, and, because this appeal concerns only the

issues on remand, the attorney general did not participate in this appeal.

3 A detailed account of the facts is set forth in our prior decision. See

Lyme Land Conservation Trust, Inc. v. Platner, supra, 325 Conn. 741–46.

4 General Statutes § 47-42a (a) provides in relevant part: ‘‘ ‘Conservation

restriction’ means a limitation, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument

executed by or on behalf of the owner of the land described therein . . .

whose purpose is to retain land or water areas predominantly in their

natural, scenic or open condition or in agricultural, farming, forest or open

space use.’’

5 We also reversed and remanded the trial court’s award of attorney’s

fees. See Lyme Land Conservation Trust, Inc. v. Platner, supra, 325 Conn.

765. In her brief to this court, the defendant concedes that orders for ‘‘attorney’s fees, a bill of costs, and postjudgment interest’’ entered by Judge

Koletsky are not at issue in this appeal.

6 Practice Book § 1-22 (a) provides in relevant part: ‘‘A judicial authority

shall, upon motion of either party or upon its own motion, be disqualified

from acting in a matter if . . . the judicial authority previously tried the

same matter and a new trial was granted therein or because the judgment

was reversed on appeal. . . .’’

7 The defendant appealed from the judgment of the trial court to the

Appellate Court, and the appeal was transferred to this court pursuant to

General Statutes § 51-199 (c) and Practice Book § 65-2.

8 The plaintiff has cited to Appellate Court cases concluding that § 51-

183c unambiguously applies exclusively to trials and not to all types of

adversarial proceedings. See Barlow v. Commissioner of Correction, 166

Conn. App. 408, 423, 142 A.3d 290 (2016), appeal dismissed, 328 Conn. 610,

182 A.3d 78 (2018); Board of Education v. East Haven Education Assn.,

66 Conn. App. 202, 216, 784 A.2d 958 (2001); Lafayette Bank & Trust Co.

v. Szentkuti, 27 Conn. App. 15, 19, 603 A.2d 1215 (1991), cert. denied, 222

Conn. 901, 606 A.2d 1327 (1992). Those cases have no bearing on the question

before us in the present case, which, for the reasons set forth in this opinion,

involves a materially different procedure on remand.

9 See, e.g., Steiner v. Bran Park Associates, 216 Conn. 419, 420 and n.1,

582 A.2d 173 (1990) (trial court bifurcated legal claim and equitable claims,

former to be tried to jury and latter to be tried to court); Dick v. Dick, 167

Conn. 210, 211–12, 355 A.2d 110 (1974) (trial court ordered bifurcated trial

in which issue of authenticity of defendant’s signature to agreement was

tried to jury and remaining equitable issues were tried to court).

10 We are mindful that a criminal trial also may be bifurcated as to guilt

and punishment, and we have concluded that a remand for resentencing is

not part of a ‘‘trial’’ under § 51-183c. This court reached that conclusion,

however, in reliance on a clear indication of legislative intent that is not

applicable to damages. Specifically, the court looked to other provisions in

the law from which it concluded that the legislature had demonstrated a

clear intent that sentencing did not fall within the ambit of § 51-183c. See

State v. Miranda, 260 Conn. 93, 132, 794 A.2d 506, cert. denied, 537 U.S.

902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). There are no corresponding

provisions for civil matters that would place damages outside the scope of

trial. See Practice Book §§ 15-1 through 24-33.