Robinson v. Tindill

208 Conn.App. 255

264 A.3d 1063

Ellis ROBINSON et al.

v.William TINDILL et al.

AC 43995

Appellate Court of Connecticut.

Argued April 15, 2021

Officially released October 12, 2021

Michael A. Zizka, Hartford, for the appellants (defendants).

Joshua C. Shulman, Manchester, for the appellees (plaintiffs).

Elgo, Cradle and Clark, Js.

CRADLE, J.

This case arises from the erection of a fence by the defendants, William Tindill (Tindill) and Erika Tindill, between their property and the adjacent property owned by the plaintiffs, Ellis Robinson and Nicole Robinson. The defendants appeal from the judgment of the trial court rendered in favor of the plaintiffs after a hearing in damages and the court's prior order granting the plaintiffs’ motion for summary judgment as to liability and finding both defendants liable for trespass and Tindill liable for conversion. On appeal, the defendants claim that the court erred (1) in finding them liable for trespass because the fence at issue was a statutorily compliant divisional fence pursuant to General Statutes § 47-43, (2) in finding Erika Tindill liable for trespass, even though she played no role in erecting the fence, and (3) in finding Tindill liable for conversion because the plaintiffs failed to plead, or present any evidence in support of, a claim for conversion. We affirm in part and reverse in part the judgment of the trial court.

The following undisputed facts, as set forth by the court, and procedural history are relevant to our resolution of this appeal. The plaintiffs own property located at 113 Glen View Terrace in New Haven. The defendants reside at 119 Glen View Terrace. "The plaintiffs acquired their property in 2003, and ... Erika Tindill acquired her property, [where she resides with Tindill], in 2004. There is a chain-link fence located on a portion of the mutual boundary line between the plaintiffs’ and the defendants’ properties. This chain-link fence, which had been installed prior to when the parties acquired their respective premises, can be described as located between the backyards of the two lots. Over the years, the plaintiffs and the defendants each constructed their own privacy fences on opposite sides of the chain-link fence. The sides of these privacy fences were very close to, meaning within inches of, the chain-link fence, resulting in the chain-link fence being sandwiched between the two closely built privacy fences.

"On July 8, 2017 ... Tindill commenced a fence-building project. Between July 8 and 11, 2017, Tindill constructed a six foot high, approximately thirty foot long extension to his existing privacy fence. This extension made the [defendants’] entire privacy fence approximately sixty feet long. The privacy fence, as extended, runs along the mutual boundary line but is located entirely on Erika Tindill's property. To accommodate the post and panels for the extended privacy fence, Tindill removed the end corner post, as well as the supporting top metal rod, of the chain-link fence.’’ "[T]he plaintiffs never gave permission to, or authorized, Tindill to remove the fence post and top rod. There is no evidence that the removed fence parts have been reinstalled or replaced.’’

"Beginning on July 11, 2017, Tindill also constructed a three and one-half [foot] high split rail fence. The split rail fence extended from the privacy fence to a point in the vicinity of the sidewalk alongside Glen View Terrace. Thus, to summarize, from the undisputed facts, it appears that Tindill constructed three fences, total, along the mutual boundary line on three separate occasions: (1) the original privacy fence, (2) the extension to the privacy fence, and (3) the split rail fence. ...

"Tindill [averred that he] installed the split rail fence ‘along or near the [m]utual [b]oundary ....’ After Tindill constructed the split rail fence, the plaintiffs hired Michael D. Phipps, a licensed surveyor, to survey the neighboring properties and officially establish the location of the mutual boundary line. The survey map [that] Phipps prepared, which both parties have submitted along with their respective motions for summary judgment, indicates that the mutual boundary line is 100 feet in length. ... In an affidavit dated April 8, 2019, Phipps stated that the split rail fence [that] Tindill constructed encroaches on the plaintiffs’ property. ... Although it does not appear that the split rail fence encroaches on a large area of the plaintiffs’ property, the defendants do not dispute that a ‘few inches’ of the split rail fence posts may lie on the plaintiffs’ side of the mutual boundary line. ... The defendants have not submitted their own professionally prepared survey, do not dispute Phipps’ survey and, in fact, also rely on the survey in their efforts to prove their case.’’ (Citations omitted.) "It is undisputed that at least one of the vertical posts of the split rail fence [that] Tindill installed extends onto the plaintiffs’ property. There is no evidence to establish that the plaintiffs gave the defendants permission to install a fence post that would be located on the plaintiffs’ property.’’

On May 9, 2018, the plaintiffs commenced this action by way of a one count complaint, alleging that Tindill destroyed the chain-link fence that had existed on the boundary of the parties’ properties and constructed a "new, approximately six foot high wooden stockade fence’’ in its place. The plaintiffs further alleged that Tindill also constructed "an approximately three and one-half foot wood rail fence’’ along another portion of the parties’ property boundary. The plaintiffs alleged that Erika Tindill is the owner of the property at 119 Glen View Terrace and that, "acting through ... Tindill, [she] caused the fence to be built such that it encroaches on the land of [the] plaintiffs ....’’ The plaintiffs sought a declaratory judgment establishing the boundary line of the parties’ properties, an injunction requiring the defendants to remove their fence from the plaintiffs’ land, and damages for trespass.

On July 12, 2018, the defendants filed an answer and two special defenses to the plaintiffs’ complaint. In their first special defense, the defendants alleged that they were entitled to establish a divisional fence on the boundary of their property pursuant to General Statutes §§ 47-43 and 47-49, and, to the extent that it is located on the plaintiffs’ property, "such placement is partial and no greater than allowable pursuant to the aforesaid statutes.’’ In their second special defense, the defendants alleged that the plaintiffs had allowed the chain-link fence "to deteriorate and to become a useless, unsightly nuisance in violation of ... § 47-43.’’ They alleged that they were entitled to seek remedies for such nuisance pursuant to General Statutes § 47-51,¹ and that they were entitled to erect a divisional fence to replace it pursuant to §§ 47-43 and 47-49. The plaintiffs thereafter denied all of the allegations contained in the defendants’ special defenses.

In April, 2019, both parties filed motions for summary judgment, each arguing that they were entitled to judgment as a matter of law. In support of their motions, both parties filed memoranda of law, affidavits and exhibits. Both parties represented to the court that the essential facts underlying their claims were not in dispute. Following a hearing on the parties’ motions for summary judgment, the court, Domnarski, J ., issued a memorandum of decision filed October 8, 2019. The court rendered summary judgment in favor of the plaintiffs as to liability only, against both defendants on the plaintiffs’ claim of trespass, and against Tindill for conversion as to the plaintiffs’ claim related to the chain-link fence.

On February 20, 2020, the court, Frechette, J ., held a hearing in damages. On February 26, 2020, the court issued a written order awarding "injunctive relief in favor of the plaintiffs against the defendants as follows: within thirty days of the date of this order, at their sole expense, the defendants are to relocate the split rail fence and fence posts as depicted in exhibit 2, so as not to encroach on the plaintiffs’ property. The defendants are to also repair any damages to the plaintiffs’ property and restore it to its natural condition.’’ The court also awarded nominal damages to the plaintiffs of $50 for "conversion of the chain-link fence,’’ and nominal damages of $50 for trespass as to the split rail fence. This appeal followed.

I

The defendants first claim that, because the fence at issue was a divisional fence pursuant to § 47-43, the trial court erred in finding them liable for trespass. The defendants argue that the court erred in concluding that their fence was not a divisional fence because it was not centered on the mutual boundary line. They further contend that, although the fence was not centered on the property line, it was well within the limit of intrusion onto the plaintiffs’ property that is permitted by § 47-43. We are not persuaded.

In concluding that the defendants’ fence was not a divisional fence under § 47-43, the trial court set forth the following additional facts: "At some point in time, Phipps ... installed stakes in the ground, which Tindill believed to be on the boundary line. The defendants have submitted photographs that show the survey stakes and the defendants’ privacy fence. It is clear from one of the photographs that the defendants’ original privacy fence, and the 2017 extension thereto, were installed on the defendants’ side of the boundary line. ... [Thus] a majority of the length of the fences [that] Tindill constructed were not located on the dividing line of the two properties. The survey map shows that, where the split rail fence begins, in the vicinity of the privacy fence, it is located on the defendants’ side of the line. As the fence travels toward the sidewalk and the lot corner, however, it gradually approaches and then enters onto the plaintiffs’ property....