BEAR, J.
The plaintiff, Peter C. Kores, appeals from the judgment of the trial court awarding him only nominal damages in his successful action against the defendants, Thomas L. Calo and Gail M. Calo. On appeal, the plaintiff claims that the court improperly (1) concluded that Kemp Road in Winchester, also known as Calo's Way, was a private road, (2) treated the defendants' motion for articulation and to set aside the verdict as a motion to set aside the judgment, and (3) failed to award him attorney's fees and awarded him only nominal damages. We affirm the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of the plaintiff's claims on appeal. The plaintiff purchased 252 Kemp Road in 1999. The defendants purchased 254 Kemp Road in
After the defendants purchased 254 Kemp Road, problems between them and the plaintiff began to develop. Thomas Calo discharged the snowplow operator the neighbors had been using and informed him that he would be trespassing if he again attempted to plow the road. He also objected to the plaintiff's attempt to create an additional driveway on the plaintiff's property on the alleged ground that it would involve disturbing the road, to which the defendants claimed ownership, and he prevented the plaintiff's contractor from cutting the additional driveway. The police were called numerous times by each of the parties. Thomas Calo asserted that the plaintiff drove recklessly and that he caused damage to the road. The plaintiff asserted that the road was deteriorating because the defendants failed to maintain it properly. The plaintiff testified that Thomas Calo, in the winter months, also blocked access to one end of the road by parking a vehicle in the middle of it and by piling snow there as well. There was photographic evidence admitted to support this allegation. The plaintiff also complained that Thomas Calo, who is a state police trooper, frightened a visitor to the plaintiff's home by shining a light into the visitor's car and telling the visitor that she was not allowed to park on the road. The plaintiff also testified that two of his older daughters moved from the family home because of the stress of the situation between the plaintiff and the defendants and that Thomas Calo intimidated and yelled at the plaintiff's wife, whom the plaintiff described as a sixty-two year old woman who was five feet, two inches tall, weighing 115 pounds.
The defendants also did not want the plaintiff parking his vehicles on the road in front of his home at 252 Kemp Road, and they stated that they believed that the plaintiff was trespassing by so doing. In an attempt to stop the plaintiff from parking
The plaintiff brought the present action, claiming in count one that he had an easement of necessity over the road and that the defendants repeatedly interfered with or obstructed his use of that easement and, in count two, that the actions of the defendants amounted to a nuisance. The plaintiff sought a determination of the rights of the parties to the road pursuant to General Statutes §§ 47-31(f) and 52-29, an order enjoining the defendants from obstructing or otherwise interfering with the plaintiff's use of the easement, monetary damages, costs and any other relief that the court would consider just. After a trial to the court, in its August 20, 2008 memorandum of decision, the court found as to count one that (1) the defendants owned the road subject to the plaintiff's easement, (2) the plaintiff had a right to park his vehicle on the road in front of his home as long as it did not interfere with the passage of vehicles, (3) the plaintiff had a right to construct another driveway as long as he repaired any damage to the road caused by such construction and (4) the defendants' interference with these actions had violated the plaintiff's easement rights. As to count two, the court found that the defendants' parking of the camper in front of the plaintiff's home for nearly two years amounted to a private nuisance and that this prevented the plaintiff from selling his home. The court also found, however, that the nuisance was temporary. The court enjoined the defendants from interfering with the plaintiff's easement rights and awarded $27,000 in money damages to the plaintiff.
On August 28, 2008, the defendants filed a motion for a new trial,
On appeal, the plaintiff does not challenge the findings of the court but, instead, challenges the court's legal conclusion that Kemp Road was a private road and not a public road. He argues that the court's finding that the road was and is used seasonally by the general public as a major access to the beach is sufficient to satisfy the public acceptance element of the public road test. He also argues that the evidence demonstrated that the town exercised dominion and control over the road by installing a catch basin or storm drain and sanitary sewers on Kemp Road.
The following additional facts are relevant to our analysis. The court specifically found that "[a]lthough the court is persuaded by the evidence that ... Kemp Road has been used seasonally by the general public as a major access to the beach and that the municipality installed a storm drain in the road in the 1960s or early 1970s, the plaintiff failed to satisfy his burden of proving that the road is or was owned by the town." The court also found that there was "no question that [a] subdivision map [had been] filed [by the original owners]. Thus, there appears to have been at least an attempted dedication [of the road].... The evidence [however] is insufficient for the court to find that there was an acceptance of the road by the town. The installation of the storm drain... and the seasonal public use of the road does not prove an acceptance of the road where the other factors to be considered, i.e., the fact that the road remained a `paper road,'
"From early times, under the common law, highways have been established in this state by dedication and acceptance by the public.... The essential elements to be proved are the owner's unequivocal intention to dedicate the way to public use, and a general use by the public over a period long enough to indicate that it is acting on the basis of a claimed public right resulting from the owner's dedication.... Since both of these issues are questions of fact ... our function is limited to determining whether the decision of the trial court was clearly erroneous." (Citations omitted; internal quotation marks omitted.) Ventres v. Farmington, 192 Conn. 663, 666-67, 473 A.2d 1216 (1984).
"Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public.... Both the owner's intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public.... Thus, two elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public.... No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied.... Whether there has been a dedication and whether there has been an acceptance present questions of fact." (Citations omitted; internal quotation marks omitted.) Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 279, 429 A.2d 865 (1980).
In this case, the plaintiff initially argues that "[t]here is a presumption of dedication [of Kemp Road] to public use from the filing of the [original subdivision] map [with the town] absent a manifest intent [of the owner] to keep [it] private." The defendants argue that the court never found that the road actually had been dedicated to public use but, rather, found that the original owner had continued to own the road until the town took possession of it for nonpayment of taxes.
On the issue of dedication, the court specifically found that there was "no question that the subdivision map was filed. Thus, there appears to have been at least an attempted dedication." (Emphasis added.) The court then proceeded to determine that the evidence was insufficient for a finding that there had been an acceptance of the road. It made no further findings or conclusions regarding the owner's intent to dedicate the road for use by the public.
To prove that Kemp Road is a public road, the plaintiff was required to prove that the original owner manifested an unequivocal intent to dedicate the road to public use and that the town or the public accepted the dedication. Ventres v. Farmington, supra, 192 Conn. at 666-67, 473 A.2d 1216;
The plaintiff next claims that the court erred in treating the defendants' November 14, 2008 motion as a motion to set aside the judgment. He also argues that the defendants' failure to pay a filing fee with the submission of the motion is jurisdictional. He did not raise this issue at trial and does not explain whether his claim involves subject matter jurisdiction or personal jurisdiction, nor does he provide any analysis of his jurisdictional claim. Nevertheless, because a question of subject matter jurisdiction must be decided once raised; see Trumbull v. Palmer, 123 Conn.App. 244, 250, 1 A.3d 1121, cert. denied, 299 Conn. 907, 10 A.3d 526 (2010); we will review the jurisdictional claim only insofar as the court's subject matter jurisdiction is concerned. See St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn.App. 728, 740, 6 A.3d 1168 (2010) ("[p]ersonal jurisdiction is not like subject matter jurisdiction, which can be raised at any time" [internal quotation marks omitted]). After reviewing the record, we conclude that the court had subject matter jurisdiction despite the defendants' failure to pay a filing fee and that it acted within its discretion in considering the defendants' motion.
The following additional facts are relevant to our resolution of the plaintiff's claim. After the court issued its August 20, 2008 memorandum of decision awarding the plaintiff "money damages in the amount of $27,000," the defendants, on November 14, 2008, filed a motion for articulation and to set aside the verdict. The defendants asked the court to articulate the basis for the $27,000 monetary award and to vacate the award on the ground that the plaintiff had failed to prove any damages with reasonable certainty. Following a hearing on the motion, the court, on August 27, 2009, issued a memorandum of decision in which it stated that, because there was not a "verdict" in this court trial, it was treating the defendants' motion as a motion to set aside the judgment pursuant to Practice Book § 17-4 and that the motion was timely filed pursuant to General Statutes § 52-212a. The plaintiff claims that the court did not have the authority to do this, especially when the defendants did not pay the required filing fee for a motion to set aside the judgment. See Practice Book § 17-4(b) ("[u]pon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the judicial authority"); see also General Statutes (Rev. to
Before turning to the merits of the plaintiff's claim, we note the settled principles that guide our review of the jurisdictional question. "[A] determination regarding a trial court's subject matter jurisdiction is a question of law, [and, therefore] our review is plenary." (Internal quotation marks omitted.) Sastrom v. Psychiatric Security Review Board, 291 Conn. 307, 314, 968 A.2d 396 (2009).
In Plasil v. Tableman, 223 Conn. 68, 79-80, 612 A.2d 763 (1992), our Supreme Court determined that the trial court in that case had not been "deprived of subject matter jurisdiction by the [movant's] failure to pay an entry fee with the reserved process...." The court explained: "Assuming that the trial court clerk had a statutory duty to collect the entry fee pursuant to § 52-259(a), we conclude, as did the trial court, that the plaintiff should not be penalized for the clerk's inaction, and that the clerk's inaction did not deprive the trial court of subject matter jurisdiction." Id., at 76, 612 A.2d 763. The court also explained: "The clerks of the court are merely recording officers; and if they make a mistake, the court may amend it. Their function is merely ministerial." (Internal quotation marks omitted.) Id., at 77, 612 A.2d 763. We also point out that Practice Book § 17-4(b) and § 52-259c (a) of our General Statutes permit a court to waive the filing fee.
We are mindful that when a clerk returns a pleading for nonpayment of the filing fee, the movant must resubmit the pleading and pay the filing fee in a timely manner to avoid possible dismissal. In this case, however, the clerk did not return the motion, and the court did not order payment of the fee. Accordingly, we conclude that the defendants' failure to pay a filing fee did not deprive the court of subject matter jurisdiction.
The plaintiff also claims that the court did not have the authority to treat the defendant's motion as a motion to set aside the judgment. We do not agree.
"[A] civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of a judgment.... A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: `Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed....' Practice Book § 17-4 states essentially the same rule." (Citations omitted; internal quotation marks omitted.) Fitzsimons v. Fitzsimons, 116 Conn.App. 449, 454-55, 975 A.2d 729 (2009). "It is familiar law that a court has the inherent authority to open, correct or modify its judgments.... The provisions of § 52-212a do not operate to strip the court of its jurisdiction over its judgments, but merely operate to limit the time period in which a
In Fitzsimons v. Fitzsimons, supra, 116 Conn.App. at 455 n. 5, 975 A.2d 729, the court explained that the plaintiff in that case had not titled his motion as a motion to open or vacate the judgment. Nevertheless, the court stated that it was clear from the substance of the motion that "the defendant had notice of the plaintiff's requested relief." Id. The court then concluded: "Under these circumstances and lacking any claim, much less analysis, of prejudice by the defendant, we will not exalt form over substance." Id., citing Rome v. Album, 73 Conn.App. 103, 111-12, 807 A.2d 1017 (2002) ("We must look to the substance of the claim rather than the form.... We do not look to the precise relief requested, but to whether the request apprised the nonmovant of the purpose of the motion." [Internal quotation marks omitted.]).
Given the plain language of the relief requested by the defendants in their postjudgment motion, there can be no question that the plaintiff had notice of what the defendants were seeking. Additionally, in light of the trial court's continuing jurisdiction over its judgments and its authority to act substantively to set aside a judgment within four months of its rendition, we conclude that the court in this case had the authority to treat the defendants' postjudgment motion as a motion to set aside the court's judgment.
The plaintiff next claims that the court erred in not awarding attorney's fees to him. He also claims that the court improperly awarded him only nominal damages on his nuisance claim. He argues that the findings of the court regarding the lack of specificity in the attorneys' bills was clearly erroneous and that the court committed error when it reconsidered its original $27,000 award and changed it to an award of $100 in nominal damages. Although the arguments set forth by the plaintiff in his appellate brief and at oral argument before this court, in combination with our own review of the record, are superficially attractive, we are unable to review the plaintiff's claim adequately because he has not provided us with the transcripts of the hearing on the defendants' motion to set aside the judgment, which led the court to vacate the original damages award.
The following additional facts are relevant to our conclusion that the claim is not reviewable. After the defendants filed their November 14, 2008 motion, the court held a hearing on the motion and the plaintiff's opposition thereto.
On appeal, the plaintiff claims that the court improperly vacated the damages award and that it easily could have differentiated the fees incurred in the nuisance claim from the other fees. He also argues that it was "illogical and inconsistent" for the court to have found that the defendants had created a nuisance but then to have awarded no damages to him on that count except for $100.
In summary, although we recognize that the plaintiff's alleged circumstances might have entitled him to additional relief from the trial court, we cannot bridge the gaps in the record by resorting to speculation about the bases for the court's rulings in this case. See, e.g., Crelan v. Crelan, 124 Conn.App. 567, 571-72, 5 A.3d 572 (2010); State v. Dawes, 122 Conn.App. 303, 320 n. 2, 999 A.2d 794, cert. denied, 298 Conn. 912, 4 A.3d 834 (2010); Resurreccion v. Normandy Heights, LLC, 76 Conn.App. 642, 649, 820 A.2d 1116, cert. denied, 264 Conn. 917, 826 A.2d 1159 (2003). Accordingly, the plaintiff's claim that the court improperly failed to award him attorney's fees and awarded him only nominal damages is not reviewable.
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiff also testified that his property value had decreased from between $350,000 and $375,000 before Thomas Calo parked the camper in front of it, to being worth only between $250,000 and $275,000 after the camper was moved because the housing market had slowed down. The record also contains a December, 2003 bill from Torrington Diesel Corporation, in the amount of $1033, for time, labor and materials to begin construction on the plaintiff's new driveway, which construction Thomas Calo would not allow to continue at the time. The plaintiff also testified as to how this situation had affected his family, including his wife and his children and his relationship with them. We do not know, however, what weight the court gave this testimony.
"Once a nuisance is established under substantive law, damages are similar to those in many trespass cases.... Where the nuisance... is not permanent and has been or can be abated, damages are usually measured differently. The plaintiff usually recovers the depreciation in the rental or use value of his property during the period in which the nuisance exists, plus any special damages. Rental value and use value are not necessarily the same thing, and some courts allow a plaintiff who actually occupies the premises to recover the `use value,' or special value to him, but limit the recovery of the owner who does not occupy the premises to the more objective measure of rental value. Discomfort or inconvenience in the use of the property is, of course, relevant both to establish special damage and as evidence bearing on the loss of rental or use value." (Internal quotation marks omitted.) W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 89, pp. 637-39. Special damages have been interpreted as discomfort or inconvenience in the use of the property, the cost to repair or to restore the property, and for illness caused by the temporary nuisance. See id., p. 639; see also Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 41, 404 A.2d 889 (1978) ("in a nuisance case, the [trier of fact] may properly consider discomfort and annoyance").
As we stated in Kinsale, LLC v. Tombari, 95 Conn.App. 472, 476 n. 4, 897 A.2d 646 (2006), however, "[in] traditional nuisance law ... whether a nuisance is temporary or permanent is a question of fact and ... in making that determination, a fact finder may look at the permanent nature of the damages in assessing whether damages are of a permanent or temporary nature. Thus, the fact that the objects placed and erected by the defendants to annoy and to deter the plaintiffs could have been removed is not dispositive of the question of the temporary or permanent nature of the plaintiffs' damages. Rather, if a nuisance, albeit one that could be removed, causes a reduction in the sales price of a property burdened by the nuisance, the damages realized by the seller may be viewed as permanent. See Herbert v. Smyth, 155 Conn. 78, 230 A.2d 235 (1967)."