Opinion
KNLCV186036674S
09-03-2019
Glenn HEAVANS, TRUSTEE OF the HEAVANS FAMILY TRUST U/A 01/15/18 v. John KATA, Jr.
UNPUBLISHED OPINION
OPINION
Murphy, J.
This memorandum of decision addresses claims brought by the plaintiff, Glenn Heavans, Trustee of the Heavans Family Trust U/A 01/15/18, against the defendant, John Kata, Jr. through duly served complaint dated August 6, 2018.
The first count of the complaint seeks damages asserted under trespass, claiming that the defendant unlawfully entered upon the plaintiff’s land and placed a shed upon the land.
The second count of the complaint is a claim for injunction seeking a cease and desist, prohibiting and restraining the defendant from entering upon the plaintiff’s land, as more particularly described in Exhibit A, attached to plaintiff’s complaint, and from altering or otherwise disturbing said property.
On April 15, 2019, the plaintiff moved for default for defendant’s failure to comply with a discovery order entered by the court on March 12, 2019. Default was entered on April 15, 2019. On May 29, 2019 the matter was claimed to a hearing in damages to the court, which hearing was held on August 6, 2019. The defendant neither appeared nor participated in that hearing. For the following reasons, the court finds this matter in favor of the plaintiff, awards fair, just and reasonable damages and a permanent injunction more particularly described hereafter.
In determining the issues presented, the court has thoroughly reviewed the allegations of the complaint, along with evidence elicited through the direct examination of the plaintiff and expert witness Eric Seitz and the exhibits entered into evidence by the plaintiff. Upon deliberation, the court finds the following relevant facts to have been proved at the hearing.
The plaintiff, Glenn Heavans, Trustee of the Heavans Family Trust U/A 01/15/18, is the rightful owner of and in possession of land situated in the town of Voluntown, County of New London and State of Connecticut, and bounded as set forth in the attached Exhibit "A" ("Subject property"). (Exs. 1, 2, 3, 4 and 5.)
The defendant owns property adjacent to the subject property. The defendant entered upon plaintiff’s land and without permission, placed thereon a shed, tractor and boat. (Ex. 8.)
Plaintiff notified the defendant of the encroachment upon the subject property by the placement of the boat, tractor and shed and requested the removal of the structure(s) and personal property from the subject property. Despite repeated requests to remove the structure and/or personal property said structure and/or personal property remain upon and/or encroaching upon the subject property resulting in a continuous trespass and interruption to the plaintiff of the use and enjoyment of the subject property.
It is likely that the defendant’s trespass will continue unless the court acts to restrain the defendant’s trespass.
The entry of default against the defendant has many consequences for the defendant. "A default admits the material facts that constitute a cause of action ... and entry of default, when appropriately made, conclusively determines the liability of the defendant. Ratner v. Willametz, 9 Conn.App. 565, 579, 520 A.2d 621 (1987) ... Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn.App. 245, 253, 557 A.2d 927 [cert. denied, 212 Conn. 802, 560 A.2d 984] (1989) ... Voluntown v. Rytman, 27 Conn.App. 549, 557, 607 A.2d 896, cert. denied, 223 Conn. 913, 614 A.2d 831 (1992)." (External citation omitted.) Bank of America, FSB v. Franco, 57 Conn.App. 688, 693 (2000).
The court however, has "an independent duty of review in connection with a default that is limited to verification that the allegations of the complaint (as deemed admitted) entitle plaintiff to relief, subject to proof of damages ... although the threshold is low, the court nonetheless has to ensure that the facts alleged, accepting them as true do constitute a cognizable cause of action before awarding damages on any such claim." Jarvis v. HBA Home Improvement, LLC, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 16-6027420 (December 15, 2016) citing Whitaker v. Taylor, 99 Conn.App. 719, 727, 916 A.2d 834, 840 (2007).
Accordingly, through the default, the defendant has admitted that plaintiff is the owner and possessor of the subject property and further that defendant unlawfully entered upon the subject property and placed a shed upon the land.
These admissions entitle the plaintiff to a finding of trespass against the defendant. Moreover, the admissions as to liability were fully consistent with the evidence adduced from the credible testimony of the plaintiff and the plaintiff’s expert witness and further with Exhibits 1 through 9, presented at the hearing in damages. At the hearing, the plaintiff produced sufficient evidence of the defendant’s continuous trespass upon the subject property despite repeated requests to remove the shed and other personal property unlawfully upon the subject property. The defendant having been defaulted, the plaintiff is entitled to a recovery under all well-pleaded theories. The court finds the plaintiff has properly pleaded trespass under count one and has set forth the necessary allegations and proof upon which to grant an injunction under count two.
Accordingly, the court awards nominal damages in the amount of $1,500.00 as against the defendant under count one and as to count two the court orders the defendant, John Kata, Jr., to remove at his own cost and expense, the shed and boat from the land of the plaintiff, otherwise described herein as the subject property and more particularly described in the attached Exhibit A, on or before October 18, 2019. In removing the subject shed and boat, the defendant shall not damage the subject property. If the defendant fails to remove the shed and boat from the plaintiff’s property on or before October 18, 2019, the plaintiff is permitted to remove the shed and boat from the subject property without liability for any incidental damage caused to the shed or boat in the removal thereof. In the event that the plaintiff has to remove the shed and boat, the defendant shall be liable for the cost of said removal and the court shall retain jurisdiction to hear evidence regarding an award to compensate the plaintiff for said cost of removal. Excepting as is necessary to remove the shed and boat from the subject property, the defendant, John Kata, Jr., is permanently enjoined from entering the land of the plaintiff, the subject property, as more particularly described in the attached Exhibit A.
Attachment
EXHIBIT A
That certain parcel of land with the buildings and improvements thereon, located in The Town of Voluntown, County of New London and the State of Connecticut, located southerly of Beach View Extension (private road) said tract or parcel being further bounded and described as follows;
BEGINNING at a T-bar, at the southwesterly corner of land now or formerly of the Phillip Belisle and Sandra B. Belisle and at the northwesterly corner of the parcel herein described;
THENCE Easterly, bounded northerly by lands now or formerly of Phillip Belisle and Sandra B. Belisle, a distance of 200 feet more or less to a point;
THENCE Southerly along the westerly edge of Beach Pond, a distance of 55.0 feet more or less to a point;
THENCE Southwesterly, bounded southeasterly by lands now or formerly of April Heavens Woodcock, a distance of 175 feet more or less to an iron pipe;
THENCE Northerly, bounded westerly by lands now or formerly of Glenn Heavens, a distance of 37.21 feet to an iron pipe;
THENCE Northerly, bounded westerly by lands now or formerly of John Kata, a distance of 34.14 feet to an iron pipe;
THENCE South 73° 21’54" West, bounded southerly by lands now or formerly of John Kata, a distance of 99.34 feet to an iron pipe;
THENCE North 01° 28’22" East, bounded westerly by lands now or formerly of John B. Connel, a distance of 52.68 to an iron pipe;
THENCE North 44° 43’57" East, along the southerly line of said Beach View Extension, a distance of 54.88 to the point and place of beginning;