Hamer v. Byrne

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Hamer v. Byrne

CHRISTOPHER J. HAMER ET AL. v.
MARIAN BYRNE ET AL.
(AC 46367)
Alvord, Elgo and Clark, Js.

Syllabus

The plaintiffs appealed from the judgment of the trial court finding, inter
alia, that they had not proved their cause of action for adverse possession
of certain property owned by the defendant M. The plaintiffs own real
property on Evergreen Avenue in Westport, with a rear property line that
abuts the property of M, who installed a stockade fence along that property
line. M owns the strip of land along Evergreen Avenue that provides access
to M’s property, the plaintiffs’ property, and to the property of the defendant
J, that is located across the access strip from the plaintiffs’ property. The
access strip is encumbered by deed language that provides the plaintiffs
and J with rights over the access strip for purposes of ingress and egress
and for all purposes for which a public highway can be used. The plaintiffs
claimed, inter alia, that the court erred in its determination that the fence
erected between the properties by M was not a spite structure. The defen-
dants M, and her two adult children P and R, cross appealed from, inter
alia, the trial court’s judgment for the plaintiffs on the count of their counter-
claim, that alleged that the actions of the plaintiff C constituted the commis-
sion of a prima facie tort. Held:

The trial court did not err in rendering judgment for M on the plaintiffs’
cause of action asserting the erection of an alleged spite fence, as the court
properly concluded that the plaintiffs failed to sustain their burden of proof
with respect to all of the elements necessary to state a cause of action
under the statutes (§§ 52-480 and 52-570) governing the malicious erection
of a structure.

The trial court did not err in concluding that three fixed objects located
near Evergreen Avenue and within the access strip, namely, a fence erected
by J and mailboxes owned by J and M, did not materially and substantially
interfere with the plaintiffs’ use and enjoyment of their easement rights, as
the plaintiffs were still able to use the access strip for ingress to and egress
from the dominant estate and they failed to demonstrate that the three fixed
objects interfered with their reasonable use or expansion of the access strip
as a public highway.

The trial court’s finding that the plaintiffs failed to establish by clear and
convincing evidence their claim of adverse possession of a strip of land
between their property and M’s property was not clearly erroneous.

The trial court did not err in rendering judgment for C on the count of the
counterclaim brought by M, P and R that alleged that C committed a prima
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Hamer v. Byrne
facie tort, because, even assuming that Connecticut recognizes prima facia
tort as a viable cause of action, the alleged conduct was adequately governed
by existing torts and was similar to the elements necessary to establish
the traditional torts of intentional and/or negligent infliction of emotional
distress and M, P and R conceded that they failed to prove the element that
any emotional distress that they suffered by C’s conduct was severe.

The trial court did not improperly award only nominal damages to P and
R with respect to the count of their counterclaim alleging vexatious litigation
against C with respect to a prior action that C had brought in 2019 that the
court found was vexatious as to P and R, as the court based its award on
evidence that established that neither P nor R incurred attorney’s fees
defending themselves in the prior action and they failed in their burden of
proving the nature and extent of their loss for compensatory damages.
Argued October 22, 2024—officially released March 4, 2025

Procedural History

Action seeking, inter alia, a permanent injunction,
and other relief, brought to the Superior Court in the
judicial district of Bridgeport, where the named defen-
dant et al. filed a counterclaim; thereafter, the case was
tried to the court, Hon. Robert L. Genuario, judge trial
referee; judgment in part for the defendants on the
complaint and judgment in part for the plaintiffs on the
counterclaim, from which the plaintiffs appealed and
the named defendant et al. cross appealed to this court.
Affirmed.
Edward N. Lerner, with whom, on the brief, was
George K. Guarino, for the appellants-appellees (plain-
tiffs).
Alan R. Spirer, for the appellees-appellants (named
defendant et al.).
Joseph R. Ciollo, for the appellee (defendant Janis
Melone).
Opinion

ALVORD, J. This appeal centers on three adjacent
properties located in Westport. The plaintiffs, Christo-
pher J. Hamer and Cynthia Hamer, appeal from the
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Hamer v. Byrne

judgment of the trial court rendered in favor of the
defendants, Janis Melone, Marian Byrne, Jack Precious,
and Rachel Precious, on all but one portion of one count
of the plaintiffs’ cause of action.1 In their appeal, the
plaintiffs claim that the court erred in (1) denying the
plaintiffs’ claim that Marian improperly erected a spite
fence; (2) not awarding the plaintiffs damages in con-
nection with the construction of the spite fence; (3) not
ordering the removal of Janis’ mailbox, Janis’ fence,
and Marian’s mailbox from the easement area; and (4)
finding that the plaintiffs had not sustained their burden
and proven their cause of action for adverse possession.
The Byrnes cross appeal from the judgment of the court,
rendered in part in favor of the plaintiffs, on the Byrnes’
counterclaim. In their cross appeal, the Byrnes claim
that the court erred in (1) failing to find that Christo-
pher’s actions constituted the commission of a prima
facie tort and (2) awarding only nominal damages to
Rachel and Jack with respect to their vexatious litiga-
tion claim. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. To aid the reader, we include a
reproduction of a trial exhibit (plaintiff’s exhibit 32),
an aerial photographic image of the properties at issue,
as an appendix to this opinion. This dispute involves
parties who own three adjacent parcels located on Ever-
green Avenue in Westport. Marian owns a 2.5 acre par-
cel (Byrne property), the majority of which is located
1
In the interest of simplicity, we refer to Christopher Hamer, Cynthia
Hamer, Janis Melone, Marian Byrne, Jack Precious, and Rachel Precious
individually by their first names. We refer to Christopher and Cynthia collec-
tively as the plaintiffs. Also, we refer to Janis, Marian, Jack, and Rachel
collectively as the defendants. Janis’ name has been spelled as both Janice
and Janis in various documents in this case; for convenience, we use the
spelling that is consistent with the summons and complaint. Further, we
refer to Marian, Jack, and Rachel, all of whom live on the Byrne property,
collectively as the Byrnes.
The plaintiffs also named Ryan Verlin and Nicole Vines Verlin as defen-
dants but subsequently withdrew the action as to them.
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behind the two other lots that are on Evergreen Avenue.
Marian now resides with her adult children, Rachel and
Jack, on the Byrne property. Marian holds title to a
strip of land, which is 27.7 feet wide along Evergreen
Avenue and is 187 feet long (access strip). The access
strip provides access to the three properties at issue
here.
Christopher and Cynthia own a parcel (Hamer prop-
erty) that lies between the bulk of the Byrne property
and Evergreen Avenue. The Hamer property lies adja-
cent to the access strip. Janis owns a property (Melone
property) on the opposite side of the access strip from
the Hamer property. The rear property line of the Hamer
property abuts the property line of the Byrne property
for approximately ninety-five feet. The access strip
owned by Marian is encumbered by deed language
which provides the plaintiffs and Janis with rights over
the access strip ‘‘for purposes of ingress and egress and
all purposes for which a public highway can be used.’’
There is a brook and a pond on the Byrne property.
The residential building and the bulk of the Byrne prop-
erty is mostly located on the south side of the pond.
The land on the north side of the pond abuts the Hamer
property and other properties located on Evergreen
Avenue. There is a drop in elevation between the prop-
erty line that divides the Hamer and Byrne properties
and the brook and pond. Similar to other properties
fronting on Evergreen Avenue, there exists significant
vegetation, including shrubbery, deciduous trees, and
brush, on the land between the Hamer property and
the brook and pond.
The Hamer property has a view of the pond and the
Byrne property (to the south of the pond). The view of
the pond from the Hamer property varies by season:
there is less obstruction of the view at times of the year
when there are fewer leaves on the vegetation between
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Hamer v. Byrne

the pond and the Hamer property than seasons when
the vegetation is thriving. The view enhances the enjoy-
ment of the Hamer property.
The Hamer residence is located toward the northern
side of their property, which allows space for a side
yard and a paved driveway area immediately abutting
the access strip. There is a garage on the Hamer prop-
erty, which is located toward the back of the property
and abuts the access strip. An area of the Hamer prop-
erty that lies between the garage and the Byrne/Hamer
property line is used at various times for storing per-
sonal property.
‘‘Marian and her family have lived on the Byrne parcel
and Marian has owned an interest in the Byrne parcel
since 1995. [Janis] has owned her property since 1988,
however, she moved out of the property and began
renting it approximately around 2007 or 2008. ‘‘The
plaintiffs have lived on the Hamer property since 2017.
Cynthia was the sole titleholder until 2020, when she
quitclaimed an interest in the Hamer property to Chris-
topher.
‘‘In 2019, [Christopher], alone, brought an action
against Marian, Rachel, Jack, [Janis] and two of [Janis’]
tenants. [Christopher] was self-represented at the time
he brought the action. The 2019 action by [Christopher]
alleges many of the facts that are the basis of the subject
action brought by [the plaintiffs] against the same defen-
dants. . . . Subsequent to the filing of the 2019 action,
the [plaintiffs] retained counsel. Rather than amending
the complaint and pleadings filed by the self-repre-
sented [Christopher], counsel, on behalf of [Christo-
pher], withdrew the 2019 action and began the subject
action.’’
In July, 2020, the plaintiffs commenced the present
action. The complaint alleged the following: in count
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one, the plaintiffs acquired, by virtue of adverse posses-
sion, a strip of land between the Hamer and Byrne
properties; in count two, the defendants interfered with
their easement rights; in counts three and four, Marian
constructed a spite fence; in counts five and six, the
plaintiffs are entitled to damages and equitable relief
by way of an injunction against the Byrnes for wrongful
acts committed on the Hamer property; and, in count
seven, the Byrnes spoliated evidence. The Byrnes filed
a counterclaim alleging, in counts one through six, that
an action filed by Christopher in 2019 was vexatious
and brought without probable cause, entitling them to
damages, and, in count seven, that Christopher commit-
ted wrongful acts directed against them which ‘‘consti-
tute the commission of a prima facie tort.’’

Following a trial to the court, Hon. Robert L. Gen-
uario, judge trial referee, the court issued a memoran-
dum of decision in which it rendered judgment ‘‘in favor
of Marian on counts one, three and four of the [plain-
tiffs’] complaint’’; ‘‘in favor of Marian, Rachel, and Jack
on counts five, six and seven of the [plaintiffs’] com-
plaint’’; ‘‘in favor of the [plaintiffs] and against Marian
on the second count of the [plaintiffs’] complaint, only
in so far as it order[ed] Marian to remove the pole in
the location of the former utility pole and relocate her
mailbox’’ adjacent to Janis’ mailbox; ‘‘in favor of [Janis],
Rachel, and Jack on the remaining claims of the second
count’’; ‘‘in favor of Marian, Rachel, and Jack on the
seventh count of the [plaintiffs’] complaint’’; ‘‘in favor
of the [plaintiffs] and against Marian on counts one and
two of her counterclaim’’; ‘‘in favor of Rachel and Jack
on counts three, four, five and six respectively on their
complaint,’’ in addition to awarding ‘‘damages of $1 on
each count to each Rachel and Jack’’; and ‘‘in favor of
the [plaintiffs] on the seventh count of the counterclaim
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Hamer v. Byrne

. . . .’’ This appeal and cross appeal followed. Addi-
2

tional facts will be set forth as necessary.

I

THE PLAINTIFFS’ APPEAL

On appeal, the plaintiffs claim that the court erred
in rendering judgment in favor of the defendants on the
plaintiffs’ cause of action asserting the erection of a
spite fence, adverse possession of a parcel, and
encroachment on an easement. We address each in turn.

A

The plaintiffs first claim the court erred in rendering
judgment in favor of Marian on the plaintiffs’ cause of
action regarding her alleged spite fence. Specifically,
they argue that the court, in determining that Marian
did not construct a spite fence, erred by failing to find
that the fence was constructed maliciously, is intended
to injure the enjoyment of the plaintiffs’ land, and is
useless to Marian. Marian responds that the evidence
adequately supports the court’s findings. We agree with
Marian.

We begin by setting forth the relevant standard of
review that guides our analysis of the plaintiffs’ claim.
‘‘When the factual basis of a trial court’s decision . . .
is challenged, our function is to determine whether, in
light of the pleadings and evidence in the whole record,
In a separate action, which was later consolidated in the trial court,
2

Marian asserted four counts in her complaint alleging ‘‘that she has acquired
by way of prescriptive easement the right to travel over a corner of the
Hamer property.’’ The plaintiffs asserted four counts in their counterclaim,
which the court found to be duplicative of many of the counts asserted in
the plaintiffs’ complaint. The court rendered its ‘‘judgment in favor of the
[plaintiffs] on the first, second, third and fourth count of the Byrne com-
plaint,’’ and the court rendered ‘‘judgment in favor of Marian on the first,
second, third and fourth count on the counterclaim.’’
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these findings of fact are clearly erroneous. . . . A find-
ing of fact is clearly erroneous when there is no evi-
dence in the record to support it . . . or when although
there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed. . . . In
making this determination, every reasonable presump-
tion must be given in favor of the trial court’s ruling.’’
(Internal quotation marks omitted.) Errichetti v. Botoff,
185 Conn. App. 119, 125, 196 A.3d 1199 (2018).
The following additional facts, as found by the trial
court, are relevant to the plaintiffs’ claim. In 2019, Mar-
ian applied for and received a permit from the Westport
Conservation Commission (conservation commission)
to install a fence along a portion of the property line
between the Hamer property and the Byrne property.
Once the permit was issued, Marian installed a stockade
fence along that property line. This eight foot tall wood
fence is similar, in size and material, to that installed
by the plaintiffs along one of their property lines. The
fence blocks the view of the pond and brook on the
Byrne property from at least the ground level of the
Hamer property. Appraisers found that the fence
impairs the value of the Hamer property because it
blocks the view of the pond. The plaintiffs’ enjoyment
of their property was impaired by eliminating this view,
as well.
The following legal principles are relevant to our
resolution of this claim. ‘‘The Connecticut progenitor
of what have commonly been called the spite fence
cases appears to be Whitlock v. Uhle, 75 Conn. 423, 53
A. 891 (1903). . . . In [Whitlock], our Supreme Court
construed and applied the predecessors to General Stat-
utes §§ 52-480 and 52-570 and set forth the elements
necessary to state a cause of action under §§ 52-480
and 52-570. The court held that the essential elements
are: (1) a structure erected on the [defendant’s] land; (2)
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Hamer v. Byrne

a malicious erection of the structure; (3) the intention
to injure the enjoyment of the adjacent landowner’s
land by the erection of the structure; (4) an impairment
of the value of adjacent land because of the structure;
(5) the structure is useless to the defendant; and (6)
the enjoyment of the adjacent landowner’s land is in
fact impaired. . . . The plaintiff bears the burden of
demonstrating each of these elements by a fair prepon-
derance of the evidence.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Errichetti
v. Botoff, supra, 185 Conn. App. 125–26.
‘‘Uselessness under § 52-480 focuses on whether the
structure serves an actual use, not whether the defen-
dants can merely assert a purpose for erecting the struc-
ture. See, e.g. . . . Harbison v. White, 46 Conn. 106,
109 (1878) (rejecting defense to malice element—that
structure screened defendants’ premises from persons
occupying plaintiff’s house—because ‘[t]o concede this
would be to nullify the statute; for it is not possible for
malice to conceive any kind or form of structure which
would not in some measure protect premises from
observation’).’’ (Citation omitted.) Id., 130. ‘‘Initially, we
note that when determining whether the plaintiff has
met his burden with respect to the second and third
elements of the Whitlock test, the court does not journey
deep into the defendant’s heart. . . . Whether a struc-
ture was maliciously erected is to be determined rather
by its character, location and use than by an inquiry
into the actual motive in the mind of the party erecting
it. . . . Similarly, assessing whether the defendants
possessed the requisite intent to injure relates to the
thing done, its purpose and effect, and does not depend
on the existence or nonexistence of personal spite or
ill-will. . . .
‘‘It is quite possible for a structure to bear on its face
. . . convincing evidence that it was intended for a
legitimate purpose, or that it was intended to injure the
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adjacent land and its owner. . . . The intention is not
the motive from which it may have sprung, but the
established purpose, from whatever motive, to use the
land in a manner not justified by its ownership, and
forbidden by law. . . . The intent to injure is deter-
mined mainly from the fact that the structure does
impair the value of the adjacent land and injure the
owner in its use, from the absence of any real usefulness
of the structure . . . to the defendant, and from the
character, location and surroundings of the structure
itself . . . . When a structure, useless to the owner,
injuring adjacent land and its owner, intended to work
such injury, is willfully erected, it is maliciously erected;
that is, it is erected in knowing disregard of the law
and the rights of others. . . . [O]nce it is established
that malice was the primary motive in [the fence’s]
erection, the fact that it also served to protect the
[defendants’] premises from observation must be
regarded as only incidental, since to hold otherwise
would be to nullify the statutes.’’ (Citations omitted;
internal quotation marks omitted.) Id., 127–29.
In its memorandum of decision, the court set forth
the six Whitlock elements, found facts relating to each,
and concluded that the plaintiffs failed to satisfy their
burden with respect to three of the six elements. The
court found that ‘‘the [plaintiffs] have sustained their
burden with regard to elements one, four, and six. With
regard to element one, Marian erected the structure, a
fence, on her property, with regard to element four,
there was a testimony of appraisers, which the court
finds credible, that the fence, which can best be
described as a solid stockade fence, eliminates the view
of the pond and, therefore, impairs the value of the
[plaintiffs’] property, and six . . . the [plaintiffs’] prop-
erty has been impaired by eliminating what one witness
described as a ‘breathtaking view.’ (The court does not
find the view breathtaking, but it certainly is pleasant.)’’
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The court then discussed elements ‘‘two, the mali-
cious erection of the structure, three, the intent to injure
the enjoyment of the adjacent landowner’s land by erec-
tion of the structure, and five, whether or not the struc-
ture is useless to the defendant.’’ The court found that
‘‘[i]t cannot credibly be said that a fence is useless to
Marian. Indeed, as the [plaintiffs’] witnesses testified,
there has always been some confusion as to the prop-
erty line between the Hamer property and the Byrne
property. The fact that the [plaintiffs] have asserted,
even unsuccessfully, a claim for adverse possession of
property owned by Marian undercuts their claim that
a fence marking the actual property line is useless.
Marian clearly wishes to give notice to the [plaintiffs]
and, indeed, to any subsequent property owners and
the world at large as to where the property line exists.
A fence further prevents the [plaintiffs] and subsequent
owners from occupying the property or utilizing the
property.’’ As to the malicious erection of the structure
and intent to injure the enjoyment of the plaintiffs’ land,
the court found that ‘‘Marian could have installed a less
obtrusive fence such as a picket fence, or a fence of a
lower height to accomplish the purpose of defining the
property line. . . . While the subject fence may not be
as attractive or visually pleasing as the fence along the
side yard property line, it is approximately the same
height and made of similar material. . . . The difficulty
in this case is that the usefulness of the solid stockade
fence, based upon the testimony of Marian, Rachel and
Jack is to provide privacy, not in general, but frankly
from the [plaintiffs]. Indeed, when Marian considered
installing a fence at the time the property was owned by
the [plaintiffs’] predecessor in title, she had a discussion
with that property owner and their disagreements were
resolved without the installation of a fence. Much of
the testimony in this case surrounded conduct by the
[plaintiffs], and in particular [Christopher], that [the
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Byrnes] find offensive and conduct by [the Byrnes] that
the [plaintiffs] find offensive. The testimony indicates
that prior to the fence, the [plaintiffs] did trespass on the
contested area. [Christopher] marked trees for removal.
[Christopher] tends to walk at night with a bright high-
powered flashlight, which he, at times, shines in the
direction of the Byrne property. There is frequent activ-
ity in the [plaintiffs’] backyard. Between the southside
of the [plaintiffs’] garage and the Byrne/Hamer property
line, the [plaintiffs] store personal property in what
might be described in an unsightly fashion. On one
occasion the [plaintiffs] or their children flew a drone
over the Byrne property in the area of the Byrne swim-
ming pool where some of the parties were relaxing.
There are bright lights on the Hamer garage, [shining]
both on the access strip, and also on the south side
facing the Hamer/Byrne property line.’’ (Citation omit-
ted.)
On appeal, the plaintiffs argue that the court made
erroneous findings as to the usefulness of the fence.3
They assert that the fence does not prevent light from
entering into nor drones from flying above the property,
and they contend that the court created ‘‘an exhaustive
3
The plaintiffs also argue that Connecticut courts have analyzed fences
in a manner whereby merely a section of the fence may be deemed a spite
fence. See, e.g., Geiger v. Carey, 170 Conn. App. 459, 487, 154 A.3d 1093
(2017); DeCecco v. Beach, 174 Conn. 29, 30–33, 381 A.2d 543 (1977). However,
the plaintiffs’ brief, purportedly advancing this argument, wholly lacks any
relevant analysis and therefore is inadequately briefed for this court’s review.
‘‘We repeatedly have stated that [w]e are not required to review issues that
have been improperly presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is required in order to
avoid abandoning an issue by failure to brief the issue properly. . . . [F]or
this court judiciously and efficiently to consider claims of error raised on
appeal . . . the parties must clearly and fully set forth their arguments in
their briefs. . . . The parties may not merely cite a legal principle without
analyzing the relationship between the facts of the case and the law cited.’’
(Internal quotation marks omitted.) Robb v. Connecticut Board of Veterinary
Medicine, 204 Conn. App. 595, 611, 254 A.3d 915, cert. denied, 338 Conn.
911, 259 A.3d 654 (2021).
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Hamer v. Byrne

laundry list of ostensible ‘acceptable’ purposes to try
and mask [Marian’s] real purpose of taking away the
[plaintiffs’] view . . . and decreasing the financial
value of the Hamer property.’’ The plaintiffs further
indicate that the Byrnes’ residence is a far distance
from the Hamer property and that there exists a lot of
vegetation, and a significant elevation drop, between
the two properties. In addition, the plaintiffs argue that
‘‘[t]here was no evidence at trial that [Marian] had ever
raised the issue of any ‘personal property’ being
unsightly or ever sought to cure the issue in any way
with [the plaintiffs] prior to constructing the fence.’’
The plaintiffs further contend that the fence fails to
actually delineate the boundary between the two prop-
erties. Upon review of the evidence in the record, we are
not convinced that the court clearly erred in declining
to find the fence useless. Notably, the evidence supports
the court’s finding that the fence addresses the Byrnes’
goals to delineate the property line and support their
privacy because Christopher tended to trespass and
engage in activities on the Byrne property. Accordingly,
we conclude that the court’s finding that the fence was
not useless is not clearly erroneous.
The plaintiffs also argue on appeal that the court
made erroneous findings as to the malicious erection
of the structure and the Byrnes’ intent to injure the
plaintiffs’ enjoyment of their property.4 Because the
4
Specifically, they argue that ‘‘[t]he trial court erroneously chooses to
ignore without precedent or basis in fact that [Marian] weaponized the
threat of a fence to remove the water view not only against the [plaintiffs],
but those families that had lived in the Hamer house prior to [Marian] even
knowing who the [plaintiffs] were.’’ Furthermore, the plaintiffs maintain
that the ‘‘court heard voluminous evidence, on the record, of how [Marian]
has argued, threatened spite fences, verbally assailed minor children who
were alone in their own home, caused police involvement, lawyer involve-
ment, wrote her neighbor’s real estate broker before they even moved in
and made her neighbors fear and avoid her.’’ The plaintiffs contend that the
evidence also proves that Marian ‘‘was calculated in her attempts to conceal
that she was purposefully seeking to wipe out the water view for her neighbor
with the fence because she knew it was wrong and maliciously designed.’’
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court found the fence useful, both in its purpose and
effect, the court did not err in finding that there lacked
an intent to injure. See, e.g., DeCecco v. Beach, 174
Conn. 29, 32, 381 A.2d 543 (1977) (‘‘intent to injure is
determined . . . [inter alia] from the absence of any
real usefulness of the structure’’ (emphasis added)).
Other evidence the trial court considered regarding the
character and location of the fence, including the fact
that the fence is similar to one installed by the plaintiffs
along another property boundary, further supports the
court’s conclusion that the fence was not maliciously
erected. Upon review of the evidence and in giving
‘‘every reasonable presumption . . . in favor of the
trial court’s ruling,’’ we are not ‘‘left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Chase & Chase,
LLC v. Waterbury Realty, LLC, 138 Conn. App. 289,
296, 50 A.3d 968 (2012).
In sum, the court did not err with respect to any of
the findings challenged by the plaintiffs in connection
with the second, third, and fifth Whitlock elements, i.e.,
malice, intent to injure, and uselessness of the structure.
We therefore affirm the court’s conclusion that the
plaintiffs did not sustain their burden of proof as to all
of the elements necessary to state a cause of action
under §§ 52-480 and 52-570.5
The plaintiffs further argue that the evidence demonstrates that Marian
knew the fence would seriously injure the plaintiffs’ enjoyment of their
property. In addition, the plaintiffs contend that a less obtrusive fence could
have been constructed by Marian and that the court ‘‘incorrectly states that
the fence is made of the same material when in fact the evidence on the
record shows that the Byrne’s fence material is not the same.’’
5
The plaintiffs also claim that the court erred in not awarding the plaintiffs
damages relating to the spite fence. Specifically, they argue that ‘‘[t]he
evidence at trial established that significant damage was caused to the
Hamer property during and as a result of the installation of the spite fence
that took place on May 14 and May 15, 2019.’’ They contend that the fence
diminished the value of their house and their enjoyment of their property.
The plaintiffs failed to sustain their cause of action under § 52-570, and the
court did not clearly err by not awarding damages.
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B
The plaintiffs next claim that the court erred in failing
to order the removal of Janis’ mailbox, Janis’ fence,
and Marian’s mailbox from the easement area. They
contend that these fixed objects interfere with their use
and enjoyment of the easement guaranteed by their
deed, which allows the plaintiffs to use the easement
for ingress or egress and other purposes for which a
highway can be used. We are not persuaded.
Before we reach the merits of the plaintiffs’ claims,
we first set forth our standard of review and fundamen-
tal principles of law governing easements and the con-
struction of deeds. ‘‘[T]he determination of the intent
behind language in a deed, considered in the light of
all the surrounding circumstances, presents a question
of law on which our scope of review is . . . plenary.
. . . Thus, when faced with a question regarding the
construction of language in deeds, the reviewing court
does not give the customary deference to the trial
court’s factual inferences. . . . In contrast, [t]he deter-
mination of [the] reasonableness [of the use of an ease-
ment] is for the trier of fact. . . . This court [has]
observed that review of the court’s conclusion that [cer-
tain] plantings violated . . . easement rights involves
a mixed question of fact and law. [S]o-called mixed
questions of fact and law, which require the application
of a legal standard to the historical-fact determinations,
are not facts in this sense. . . . [Such questions
require] plenary review by this court unfettered by the
clearly erroneous standard. . . . When legal conclu-
sions of the trial court are challenged on appeal, we
must decide whether [those] . . . conclusions are
legally and logically correct and find support in the
facts that appear in the record.’’ (Citations omitted;
internal quotation marks omitted.) 57 Broad Street
Stamford, LLC v. Summer House Owners, LLC, 184
Conn. App. 834, 840–41, 195 A.3d 1143 (2018).
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‘‘It is well settled that [a]n easement . . . obligates
the possessor not to interfere with the rules authorized
by the easement. . . . [T]he benefit of an easement
. . . is considered a nonpossessory interest in land
because it generally authorizes limited uses of the bur-
dened property for a particular purpose. . . . [E]ase-
ments are not ownership interests but rather privileges
to use [the] land of another in [a] certain manner for
[a] certain purpose . . . . In determining the character
and extent of an easement created by deed, the ordinary
import of the language will be accepted as indicative
of the intention of the parties, unless there is something
in the situation of the property or the surrounding cir-
cumstances that calls for a different interpretation.
. . .’’ (Internal quotation marks omitted.) Freidheim v.
McLaughlin, 217 Conn. App. 767, 778–79, 290 A.3d 801
(2023). ‘‘The use of an easement must be reasonable
and as little burdensome to the servient estate as the
nature of the easement and the purpose will permit.
. . . Ordinarily when [judicial] opinions speak of the
use of an easement, it arises in right-of-way cases. Thus
use frequently involves the amount of traffic over the
easement or alterations to the land to make it passable.
. . . This is not to overlook, however, that [t]he owner
of an easement has all rights incident or necessary to its
proper enjoyment, [although] nothing more.’’ (Internal
quotation marks omitted.) Williams v. Green Power
Ventures, LLC, 221 Conn. App. 657, 670, 303 A.3d 13
(2023), cert. denied, 348 Conn. 938, 307 A.3d 273 (2024).
We begin our analysis by identifying the plaintiffs’
rights under the easement. Marian’s ownership of the
access strip is subject to the rights of the owners of
the Hamer property to utilize ‘‘the strip of land measur-
ing 27.70 feet by 180 feet adjoining Evergreen Avenue
as shown and depicted on Westport Town Clerk Maps
6750 and 8585 for purposes of ingress or egress and all
purposes for which a public highway can be used.’’ The
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easement thus sets forth the right to use the burdened
property for two particular purposes. See Zirinsky v.
Carnegie Hill Capital Asset Management, LLC, 139
Conn. App. 706, 717, 58 A.3d 284 (2012) (‘‘an easement
generally authorizes limited uses of the burdened prop-
erty for a particular purpose’’ (emphasis omitted; inter-
nal quotation marks omitted)). Specifically, it serves
(1) the purpose of ingress to or egress from the domi-
nant estate and (2) all purposes for which a public
highway can be used.
The following additional facts, which reasonably
could have been found by the court, are relevant to the
plaintiffs’ claim. The access strip is 27.7 feet wide and
180 feet long.6 A portion of the access strip is paved.
The paved portion is about ten to twelve feet wide,
except it is slightly wider where it turns into the Hamer
and Melone properties. A small part of the paved portion
extends onto the front southerly corner of the Hamer
property. The following structures were located near
Evergreen Avenue and within the access strip at the
time when the plaintiffs purchased the property: a utility
pole, Janis’ mailbox, and Marian’s mailbox. Janis’ fence,
which was constructed more than thirty years ago,
encroaches onto the access strip by a maximum of two
feet in some places. Janis’ fence is located toward the
rear of the Melone property and opposite the Hamer
garage and the Hamer parking area. Marian did not
object to the fence when it was installed. In 2019, Marian
6
The plaintiffs contend that ‘‘the trial court is mistaken about the dimen-
sions of the easement at issue. . . . The easement size is in reality 180 feet
by 27.7 feet.’’ We disagree. The court found that ‘‘[w]hile the access strip
is 27.7 feet wide, the paved portion of the access strip is significantly nar-
rower. The paved portion of the access strip is approximately ten to twelve
feet wide, except where it turns into the Hamer property and their parking
area, and where it turns to the Melone property and her parking area. A
small portion of the paved area continues off the access strip onto the front
southerly corner of the Hamer property where it meets Evergreen Avenue.’’
The court’s finding is consistent with the record.
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granted Janis a written license to continue Janis’ use
of the access strip for the limited purpose of maintaining
the fence. On appeal, the plaintiffs contend that all three
of the fixed objects interfere with their rights to use
the access strip for ingress, egress, and ‘‘all purposes
for which a public highway can be used.’’ Specifically,
the plaintiffs challenge the court’s conclusions that
Janis’ mailbox did not need to be moved from its current
position on the access strip and that Marian’s mailbox
did not need to be removed entirely from the access
strip in order for the plaintiffs to enjoy their easement
rights, because both mailboxes ‘‘[create] a poor
sightline for oncoming traffic.’’7 In addition, they chal-
lenge the court’s finding that the mailboxes and Janis’
fence did not violate their easement rights. They argue
that the three objects keep them from using the entirety
of the easement by ‘‘shrink[ing]’’ the portions of the
access strip that they may drive or walk on, in addition
to inhibiting them from expanding the width of the
paved portion of the access strip.
As an initial matter, we note that nothing in the lan-
guage of the deed provides for unlimited and ‘‘full use’’
of the access strip, nor does the deed state that fixed
objects cannot be placed on the easement. Additionally,
and more importantly, evidence admitted at trial estab-
lished that the plaintiffs are still able to use the access
strip for ingress to and egress from the dominant estate,
as they are entitled to do under the easement. The
plaintiffs have failed to demonstrate that the three fixed
objects interfere with their reasonable use or expansion
of the access strip as a public highway; to the contrary,
the evidence supports the court’s conclusion that the
7
The court found that Marian’s mailbox was ‘‘closer to the paved area of
the driveway and a reasonable expansion of the driveway might conflict
with the current location of Marian’s mailbox.’’ The court ordered Marian
to move her mailbox to another location but allowed her to keep the mailbox
within the access strip.
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objects, which are commonly found on public highways,
do not interfere with the plaintiffs’ ability to drive and
walk on the access strip nor do they inhibit the plaintiffs
from expanding the width of the paved portion of the
access strip. On the basis of the foregoing, we are not
persuaded that the court erred in concluding that the
fence and the mailboxes did not materially and substan-
tially interfere with the plaintiffs’ use and enjoyment
of the easement.
C
The plaintiffs’ final claim is that the court erred in
determining that the plaintiffs failed to sustain their
burden of proving that they adversely possessed a strip
of land between their property and the Byrne property.
We are not persuaded.
‘‘As a preliminary matter, we note that, [w]hen title
is claimed by adverse possession, the burden of proof is
on the claimant. . . . The essential elements of adverse
possession are that the owner shall be ousted from
possession and kept out uninterruptedly for fifteen
years under a claim of right by an open, visible and
exclusive possession of the claimant without license or
consent of the owner. . . . The use is not exclusive
if the adverse user merely shares dominion over the
property with other users. . . . Such a possession is
not to be made out by inference, but by clear and posi-
tive proof. . . . In the final analysis, whether posses-
sion is adverse is a question of fact for the trier. . . .
The doctrine of adverse possession is to be taken
strictly. . . .
‘‘Clear and convincing proof of the elements of an
adverse possession claim is an exacting standard . . .
that lies between the belief that is required to find the
truth or existence of the [fact in issue] in an ordinary
civil action and the belief that is required to find guilt
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in a criminal prosecution. . . . [The burden] is sus-
tained if evidence induces in the mind of the trier a
reasonable belief that the facts asserted are highly prob-
ably true . . . . In evaluating a claim of adverse pos-
session under that demanding standard, [e]very pre-
sumption is in favor of possession in subordination to
the title of the true owner. . . . That presumption is
rooted in the recognition that there are no equities in
favor of a person seeking to acquire property of another
by adverse holding. . . .
‘‘The demanding burden placed on a party claiming
adverse possession of the property of another reflects
the fact that such actions are disfavored. . . . As the
Supreme Court of Ohio explained, [a]dverse [p]osses-
sion represents the forced infringement of a landown-
er’s rights, a decrease in value of the servient estate,
the encouraged exploitation and development of land,
the generation of animosity between neighbors, a
source of damages to land or loss of land ownership,
the creation of forced, involuntary legal battles, and
uncertainty and perhaps the loss of property rights to
landowners with seisin. . . . Accordingly, we have rec-
ognized that adverse possession is disfavored. . . .
Moreover, [a] successful adverse possession action
results in a legal titleholder forfeiting ownership to an
adverse holder without compensation. . . . [T]hat is
why the elements of adverse possession are stringent.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Mulvey v. Palo, 226 Conn. App. 495,
500–503, 319 A.3d 211, cert. denied, 350 Conn. 902, 322
A.3d 1059 (2024); see also General Statutes § 52-575.
‘‘[T]he question of whether the elements of an adverse
possession claim have been established by clear and
convincing evidence is a factual one subject to the
clearly erroneous standard of review. . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
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is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . A trial
court’s findings in an adverse possession case, if sup-
ported by sufficient evidence, are binding on a
reviewing court . . . .’’ (Citation omitted; internal quo-
tation marks omitted.) Mulvey v. Palo, supra, 226 Conn.
App. 503.
In its memorandum of decision, the court found that
‘‘the [plaintiffs] have fallen far short of proving their
case for adverse possession of the contested strip.8
Indeed, even if the burden of proof was simply a prepon-
derance of the evidence, the court would conclude that
the [plaintiffs] have fallen short.
‘‘Because the [plaintiffs] have occupied the property
for less than fifteen years, they seek to demonstrate
that not only have they, but that two predecessors in
title have exercised such dominion and control over
the contested strip that, collectively, they have ousted
Marian of possession by an open, visible exclusive pos-
session under a claim of right. One predecessor had
purchased the property in 1995. She testified that she
and her tenants maintained a lawn area approximately
in the area of the contested strip. On cross-examination
that witness indicated that such use was with the con-
sent of Marian and her then husband. Some planting
may have been done in that strip by some of her tenants.
A subsequent owner testified that she had some dis-
putes with Marian and her then husband, and that, at
one time during her ownership beginning in 2011, Mar-
ian applied to the [conservation commission] for per-
mission to construct a fence. While that owner may
have cut the lawn in the contested area, she . . .
8
Specifically, the contested strip is ‘‘a strip of land ninety-five feet long
and four feet wide adjacent to the title property line between the Hamer
and Byrne [properties].’’
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acknowledge[d] that she did not own the property.
Indeed, to the extent she may have mowed the lawn in
this narrow strip, which is more visible from the Hamer
[property] than from the Byrne property, it was likely
with the consent of Marian and not under any claim of
right. Indeed, the [plaintiffs] are correct that a property
owner can assert a claim of adverse possession by tack-
ing together their ownership with the ownership of
prior title holders and demonstrating a continued unin-
terrupted adverse possession of fifteen years notwith-
standing the fact that their ownership was less than
fifteen years. . . . Nonetheless, the nature of the activ-
ity engaged in by the prior owners, and indeed the
[plaintiffs], up until shortly before this lawsuit was initi-
ated, do not evidence the type of activity necessary to
establish open, visible and exclusive possession under
a claim of right, and without the consent of the owner.
The better evidence indicates that Marian consented to
any seasonal lawn cutting or planting that was done by
prior owners; that she indicated to the prior owners
that the contested strip was her property; and that the
prior owners accepted such determination. Indeed, the
better evidence is that [Cynthia] was informed of the
location of the title boundary line at or about the time
she purchased the property and accepted that Marian
was the owner of the contested strip. The better evi-
dence is that the title holder of the property who sold
to [Cynthia] acknowledged with Marian the title prop-
erty line and did not assert ownership over the con-
tested area. The prior owner communicated to [Cyn-
thia] the actual location of the rear property line.
‘‘This is reflected in a series of emails between Marian
and [Cynthia], in which [Cynthia] acknowledges that
they have no interest in acquiring any of Marian’s prop-
erty. The statement was [preceded by] discussions con-
cerning the back property line and requests that Marian
agree not to put up a fence. All of this evidence is
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inconsistent with a claim that the [plaintiffs], coupled
with prior owners, have asserted dominion and control
over the property necessary to assert a claim of adverse
possession.’’ (Citation omitted; footnote added.)

In support of their claim that the foregoing is clearly
erroneous, the plaintiffs maintain that they ‘‘success-
fully satisfied all elements of adverse possession and
proved [that] they acquired legal possession of the [con-
tested strip].’’ The plaintiffs contend that the court
‘‘erroneously fail[ed] to consider evidence on the record
at trial establishing [the plaintiffs’] adverse possession
claim.’’ Specifically, they claim that the following sup-
ports their adverse possession of the contested strip:
Marian applied to the conservation commission to put
up a fence, which demonstrates ‘‘the adversarial and
open nature of [their] acts upon the adverse possession
[of the contested strip]’’; Marian ‘‘testified at trial that
[she] did not know who was maintaining the property
at issue and she never gave notice to interrupt the
possession, maintaining and use of the [contested
strip]’’; and the plaintiffs ‘‘possessed the property as
their own, caring for it . . . .’’

After a thorough review of the record, we are not
left with a definite and firm conviction that a mistake
has been committed by the trial court regarding the
plaintiffs’ failure to prove the demanding standard of
their adverse possession claim. See Skelly v. Brucher,
134 Conn. App. 337, 344, 38 A.3d 261 (2012) (‘‘[t]he mere
existence of evidence tending to support a rejected
claim of adverse possession does not establish that the
court’s finding that the claim was not proven by clear
and convincing proof is clearly erroneous’’). Thus, we
conclude that the court’s finding that the plaintiffs failed
to establish their claim of adverse possession is not
clearly erroneous.
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II
THE BYRNES’ CROSS APPEAL
The Byrnes claim in their cross appeal that the court
erred in rendering judgment for Christopher on the
counts of the Byrnes’ counterclaim for prima facie tort
and vexatious litigation. We examine each in turn.
A
The Byrnes first claim that the court improperly
declined to adjudicate the count of their counterclaim
for prima facie tort. Specifically, the Byrnes argue that
the trial court erred in rejecting their claim that Christo-
pher committed prima facie tort. We are not persuaded.
We begin with our standard of review. Because this
claim challenges the trial court’s conclusion of law,
‘‘our review is plenary and we must decide whether [the
court’s] conclusions are legally and logically correct
and find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) New Haven v. G.
L. Capasso, Inc., 151 Conn. App. 368, 371, 96 A.3d
563 (2014).
The following facts are relevant to the Byrnes’ coun-
terclaim. In the seventh count of their counterclaim,
they allege that Christopher ‘‘has committed the follow-
ing wrongful acts directed at the defendants [Marian]
. . . [Rachel] and [Jack]:
a. [Christopher] has repeatedly screamed obscenities
at [Marian] and her children;
b. [Christopher] shines floodlights and directs flash-
light beams into the windows of the Byrne house;
c. [Christopher] shines floodlights from dusk until
dawn which lights cause annoyance and disturbance
to [the Byrnes];
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d. [Christopher] has cut trees and bushes on the
Byrne premises;
e. [Christopher] has destroyed areas of the driveway;
f. [Christopher] has spray-painted trees on the Byrne
premises;
g. [Christopher] has dumped debris in the wetland
areas of the Byrne premises;
h. [Christopher] has operated his car on unpaved
areas of the Byrne premises creating an unsightly and
muddy condition;
i. [Christopher] has obstructed [the Byrnes’] use of
the driveway;
j. [Christopher] has tampered with [Marian’s] mail-
box;
k. [Christopher] has used a flashlight to blind [Rachel]
while she was driving on the shared driveway; and
l. [Christopher] has posted personal identifying infor-
mation relating to [Marian] on the Connecticut Judicial
Branch website. . . .
‘‘Cumulatively, the foregoing actions have been
wrongfully and wilfully committed by [Christopher]
without legal excuse or justification to cause injury to
[Marian], to disrupt [Marian] in the peaceful enjoyment
of her home and to disturb the sanctity of the Byrne
household. . . . As a result of the foregoing wilful and
malicious acts committed by [Christopher], [Christo-
pher] has proximately caused and [Marian] has suffered
physical injuries and emotional distress and has been
injured by being denied the peaceful enjoyment of her
home.’’ The Byrnes sought to impose liability on the
plaintiffs, alleging that Christopher’s actions ‘‘constitute
the commission of a prima facie tort.’’
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At the outset, we note that § 870 of the Restatement
(Second) of Torts recognizes a cause of action for prima
facie tort. It provides: ‘‘One who intentionally causes
injury to another is subject to liability to the other for
that injury, if his conduct is generally culpable and not
justifiable under the circumstances. This liability may
be imposed although the actor’s conduct does not come
within a traditional category of tort liability.’’ 4
Restatement (Second), Torts § 870, p. 279 (1979). The
comments to § 870 explicitly establish that prima facie
tort is not intended to be used to avoid the elements or
defenses required of traditional torts: ‘‘the established
intentional torts and their established legal privileges
amount to [crystallizations] of the general principle
stated in this Section. In determining whether liability
should be imposed in a particular case for an estab-
lished intentional tort, neither court nor jury engages
afresh in balancing the conflicting interests of the par-
ties. That has already been done in the creation of the
legal rules of liability and privilege and all that is needed
is to determine the facts and apply these rules to them.’’
Id., comment (d), p. 281. Thus, not only must the injured
party prove the elements of § 870, but they must also
demonstrate that no other traditional torts would
address their injury.
Under the circumstances of this appeal, and even
assuming arguendo that Connecticut recognizes prima
facie tort as a viable cause of action,9 we conclude
9
The Byrnes acknowledge in their brief that there is no decision from
this court or our Supreme Court expressly recognizing prima facie tort as
a viable cause of action. In Connors v. Connolly, 86 Conn. 641, 86 A. 600
(1913), the court stated: ‘‘The undisputed facts disclose that the plaintiff
suffered damage in the loss of his employment, and that this damage was
intentionally caused. These facts shown, a prima facie cause of action was
made out against those who, thus acting with intent, caused the damage.
Recovery, however, might be defeated by the establishment by these persons
of a justification, the burden being upon them to do so.’’ Id., 647. Although
this language may be construed to describe the elements of prima facie
tort, the court did not label the claim at issue as a prima facie tort, and no
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that the trial court properly rejected the Byrnes’ claim
because the alleged conduct is adequately governed by
existing torts. Specifically, as the trial court found, the
allegations made in the Byrnes’ seventh count largely
are similar to the elements necessary to establish the
traditional torts of intentional and/or negligent infliction
of emotional distress. By labelling their cause of action
as a ‘‘prima facie tort,’’ the Byrnes are seeking recovery
of damages that appear to be based on emotional dis-
tress without proving the elements of intentional and/or
negligent infliction of emotional distress.10 The Byrnes
themselves acknowledge that ‘‘[a] cause of action for
intentional infliction of emotional distress is unavail-
able to the Byrne defendants since the elements of the
cause of the action require the claimant to prove that
the emotional distress was severe. . . . The [Byrnes]
concede that they have not suffered severe emotional
distress. However, [Christopher’s] conduct represents a
continuing harassment of his neighbors, which conduct
exceeds the bounds that are acceptable in a civilized
society. The doctrine of prima facie tort is intended to
address the misconduct that is alleged in this case. This
is not to say that [Marian] did not experience stress and
anxiety as a result of [Christopher’s] tortious conduct.’’
appellate decision since Connors has had the opportunity to discuss whether
prima facie tort is a viable cause of action in Connecticut.
10
‘‘In order for the plaintiff to prevail in a case for liability under . . .
[intentional infliction of emotional distress], four elements must be estab-
lished. It must be shown: (1) that the actor intended to inflict emotional
distress or that he knew or should have known that emotional distress was
the likely result of his conduct; (2) that the conduct was extreme and
outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s
distress; and (4) that the emotional distress sustained by the plaintiff was
severe.’’ (Internal quotation marks omitted.) Appleton v. Board of Education,
254 Conn. 205, 210, 757 A.2d 1059 (2000). ‘‘[I]n order to prevail on a claim
of negligent infliction of emotional distress, the plaintiff must prove that
the defendant should have realized that its conduct involved an unreasonable
risk of causing emotional distress and that that distress, if it were caused,
might result in illness or bodily harm.’’ (Internal quotation marks omitted.)
Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003).
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We agree with the trial court that ‘‘[t]he recognition
of such a claim based upon the facts alleged and proved
in the case at bar would not be an expansion of Connect-
icut tort law, but rather a circumvention of existing law
which requires certain elements in order for a party to
recover for damages that include emotional distress.’’
Thus, we cannot conclude that the court erred in render-
ing judgment in favor of the plaintiffs on the Byrnes’
cause of action alleging prima facie tort.
B
The Byrnes also claim that the court improperly
awarded only nominal damages to Jack and Rachel with
respect to their vexatious litigation claim. We disagree.
Under General Statutes § 52-568, ‘‘[a]ny person who
commences and prosecutes any civil action or com-
plaint against another, in his own name or the name
of others, or asserts a defense to any civil action or
complaint commenced and prosecuted by another (1)
without probable cause, shall pay such other person
double damages, or (2) without probable cause, and
with a malicious intent unjustly to vex and trouble such
other person, shall pay him treble damages.’’
‘‘[T]he plaintiff in a vexatious [litigation] action, like
any other plaintiff, has the burden of proving damages.’’
(Internal quotation marks omitted.) Greene v. Keating,
197 Conn. App. 447, 453, 231 A.3d 1178 (2020). ‘‘In
reviewing a trial court’s award of compensatory dam-
ages, we have stated that [t]he trial court has broad
discretion in determining damages. . . . The determi-
nation of damages involves a question of fact that will
not be overturned unless it is clearly erroneous. . . .
To authorize a recovery of more than nominal damages,
facts must exist and be shown by the evidence which
affords a reasonable basis for measuring the [plaintiff’s]
loss. . . . The [plaintiff has] the burden of proving the
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nature and extent of the loss . . . . Mathematical exac-
titude in the proof of damages is often impossible, but
the plaintiff must nevertheless provide sufficient evi-
dence for the trier to make a fair and reasonable esti-
mate.’’ (Citations omitted; internal quotation marks
omitted.) Bhatia v. Debek, 287 Conn. 397, 418–19, 948
A.2d 1009 (2008).
The following additional facts are relevant to the
Byrnes’ counterclaim. ‘‘In 2019, [Christopher], alone,
brought an action against Marian, Rachel, Jack, [Janis]
and two of [Janis’] tenants. [Christopher] was self-repre-
sented at the time he brought the action. The 2019
action by [Christopher] alleges many of the facts that
are the basis of the subject action brought by [Christo-
pher] and [Cynthia] against the same defendants.’’ ‘‘Sub-
sequent to the filing of the 2019 action, the [plaintiffs]
retained counsel. Rather than amending the complaint
and pleadings filed by the self-represented [Christo-
pher], counsel on behalf of [Christopher], withdrew the
2019 action and began the subject action.’’
In their counterclaim, the Byrnes ‘‘assert[ed] two
counts each sounding in vexatious litigation alleging
that the 2019 action was vexatious and brought without
probable cause. They claim[ed] double damages pursu-
ant to [General Statutes §] 52-568 (1). Each also alleged
that the 2019 action was without probable cause and
was instituted with a malicious intent to unjustly vex
and trouble them. They therefore claim[ed] treble dam-
ages pursuant to . . . [§] 52-568 (2).’’
The court found that ‘‘the 2019 action was vexatious
as to Rachel and Jack, but not as to Marian.’’ As for
damages, the court found ‘‘[t]here [was] evidence that
in the defense of the 2019 action, legal fees in the
amount of $5600 dollars were incurred. However, the
evidence [was] also clear that the $5600 was paid by
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0 Conn. App. 1 ,0 31
Hamer v. Byrne

Marian and not by Rachel and Jack. There is no evi-
dence11 that Rachel and Jack were otherwise damaged
or harmed by the vexatious litigation against them in
2019 and, accordingly, the court awards each of them
$1 for each count in nominal damages. Accordingly,
judgment will enter in favor of Christopher on count[s]
one and two of the counterclaim. Judgment will enter
in favor of Rachel on count[s] three and four of the
counterclaim and the court awards $1 for nominal dam-
ages in favor of Rachel on each count. Judgment will
enter in favor of Jack on counts five and six of the
counterclaim, and the court will also award nominal
damages of $1 in favor of Jack.’’ (Footnote added.)
The Byrnes now argue that the trial court committed
two errors: ‘‘(1) [t]he trial court failed to appreciate that
the amount of attorney’s fees incurred in the defense
of a vexatious action does not need to be paid by the
party defending the action . . . and (2) [t]he trial court
failed to consider the damages incurred by Jack and
Rachel as a result of [Christopher’s] disregard of Jack
and Rachel’s right to be free from unjustifiable litigation
and the damage to their reputation.’’ The Byrnes assert
that ‘‘there is more to the defense of a litigation than
the payment of attorney’s fees.’’
We conclude that the evidence in the record supports
the trial court’s award of nominal damages. The court
based its award on evidence that established that nei-
ther Rachel nor Jack incurred fees defending them-
selves in the 2019 action. As for other compensatory
damages, Rachel and Jack had the burden of proving
the nature and extent of their loss. However, they failed
to provide evidence for the trial court to measure their
11
The Byrnes’ attorney’s fees were invoiced only to Marian, not her adult
children. Although Rachel and Jack claim that they will be reimbursing
Marian for their attorney’s fees, they have failed to provide any evidence,
such as a retainer agreement with their attorney or a written agreement
supporting their claim of future reimbursement to their mother.
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32 ,0 0 Conn. App. 1
Hamer v. Byrne

loss. Accordingly, we cannot say that the trial court’s
award was clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
Hamer v. Byrne

APPENDIX

A Terryville dentist, Ammar Idlibi, is being investigated by the
state Department of Public Health for doing unnecessary and medi-
cally unsound work on children.