126 Conn. App. 609
Conn. App. Ct.2011Background
- Kores filed a suit against Calo and Calo over Kemp Road (Calo's Way), within the Highland Lake Shores subdivision, alleging an easement of necessity and nuisance claims.
- 252 Kemp Road owner (Kores) and 254 Kemp Road owner (Calo) share a private gravel road that provides access to abutting lots; town did not maintain the road.
- Defendant predecessor acquired Kemp Road via tax foreclosure in 1988 and conveyed it to the Calos; the deed notes rights of way and subdivision map status.
- Prior to 2003, the parties and other nearby lot owners shared road maintenance and winter plowing; town reportedly installed a catch basin but did not plow the road.
- Trial court found: (i) defendants own the road subject to the plaintiff’s easement, (ii) plaintiff may park on the road if not blocking traffic, (iii) plaintiff may build another driveway with road repair, and (iv) defendants’ conduct violated the easement; nuisance found to be temporary; damages awarded $27,000.
- Defendants moved for a new trial and then for articulation and to set aside the verdict; the court later vacated the damages and awarded nominal damages of $100, treating the motion as a § 52-212a/§ 17-4 matter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kemp Road was a private road or a public road | Kemp Road was publicly used and town-installed infrastructure, indicating public acceptance. | There was no actual dedication or acceptance by the town; use was seasonal and unacknowledged as a public road. | Road remained private; no acceptance established. |
| Whether the court properly treated the postjudgment motion as a motion to set aside | Defendants failed to pay required filing fee; improper to treat as set aside. | Court had jurisdiction; could treat motion as set aside under § 52-212a and Practice Book § 17-4. | Court had subject matter jurisdiction and could treat as set aside. |
| Whether plaintiff was entitled to attorney’s fees and damages beyond nominal | Plaintiff incurred fees to prosecute nuisance and easement actions; damages should reflect these. | Fees could not be differentiated; damages vacated; nominal damages appropriate. | Not reviewable due to missing transcripts; nominal damages affirmed. |
Key Cases Cited
- Ventres v. Farmington, 192 Conn. 663 (1984) (dedication and acceptance elements; questions of fact; public road status)
- Meshberg v. Bridgeport City Trust Co., 180 Conn. 274 (1980) (two elements for valid dedication: intent and acceptance; questions of fact)
- Fitzsimons v. Fitzsimons, 116 Conn. App. 449 (2009) (opening/opening of judgments; substantial notice even if not formal)
- Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn.App. 735 (2005) (open/opening of judgments; continuing jurisdiction)
- Rome v. Album, 73 Conn.App. 103 (2002) (look to substance over form in postjudgment relief)