Opinion
DBDCV156017097S
12-03-2019
First Light Hydro Generating Company v. Allan Stewart et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Brazzel-Massaro, Barbara, J.
MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT
Brazzel-Massaro, J.
INTRODUCTION
On February 8, 2019 the plaintiff filed a motion for contempt with this court based upon the Defendants’ failure to remove the structures in accordance with the May 1, 2018 Supreme Court decision affirming the March 8, 2016 permanent injunction granted by the trial court, Truglia, J.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff is First Light Ct Housatonic LLC (First Light Housatonic) who is the successor to First Light Hydro Generating Company. The plaintiff is the owner of land comprising the bed and shoreline of the lake which covers an area of approximately 5650 acres in New Milford, Danbury, New Fairfield, Sherman and Brookfield. The plaintiff is a utility company that operates hydroelectric power generation facilities in Connecticut pursuant to licenses. The defendants, Allan Stewart and Donatella Arpaia, own property at 24 Sunset Drive, New Fairfield. The plaintiff’s property is contiguous to the southerly border of the property owned by the plaintiff.
The court overruled an objection to substituting First Light Housatonic which was filed on the date the matter was scheduled for a hearing on the motion for contempt. The defendants were provided an opportunity to submit law in support of their position to deny the substitution and dismiss the action for lack of subject matter jurisdiction. The court heard argument and overruled the objection.
Prior to the initiation of this legal action in 2015, the plaintiff issued permits dated December 6, 2013 and May 13, 2014, to the defendants for improvements to be built partially or entirely on the plaintiff’s land. The permits issued "expressly prohibit[ed] ‘any excavation, flooding, grading or filling except as-described’ in the permits, and ‘construction of any structures, fixtures or improvements except as described’ in the permits." In July 2014, the plaintiff notified the defendants that they were performing work in violation of the permits and asked them to cease the work with some further surveys to be completed. The defendants agreed to cease all further work but they did not do so and continued to construct in violation of the permits. The plaintiff filed this action seeking injunctive relief which was granted after three days of testimony and evidence before the trial court. At the conclusion of the trial, the court filed a Memorandum of Decision dated March 8, 2016, which made findings of fact including that the "plaintiff has sustained damages by virtue of the substantial permanent unauthorized improvements constructed by the defendants on the plaintiff’s land." (Memorandum of Decision p. 13.)
In addressing the appropriate remedy, the trial court ordered that the defendants "immediately remove" the portions of the structures that are located partially or entirely on the plaintiff’s property. (Memorandum of Decision p. 14.)
The defendants appealed the trial court decision and on May 1, 2018, the Supreme Court issued a decision affirming the trial court. The Supreme Court affirmed the finding that the defendants were trespassing on the plaintiff’s property and agreed with counsel for both parties that the injunctive relief as to the lower patio should be clarified to allow the removal of the pavers and rebuild, if they elect to do so, as a gravel or peastone sitting area, and to require removal of the portions of the abutting wall that exceeds the size which was allowed by the permit previously issued to the defendants. Other than these clarifications, the Supreme Court affirmed the trial court’s findings and orders to remove immediately the illegal structures as outlined in the trial court decision.
In the posttrial brief filed by the defendant, they argue that the Supreme Court did not require the removal of structures authorized by a May 13, 2014 Permit. This claim is made as if the court did not make findings of substantial intrusions onto the property of the plaintiff which were found to be improper and subject to removal. This court is addressing the orders of the Supreme Court in the May 1, 2018 decision which requires removal.
On May 1, 2018, the plaintiff immediately forwarded correspondence to the defendants requesting a plan and schedule for accomplishing the corrective work in accordance with the permanent mandatory injunction to be submitted by May 11, 2018. (Plaintiff’s Exh. 1.) The plaintiff informed the defendants that they would issue a permit to commence the work.
The defendant incorrectly refers to the date of this first correspondence as 2019, a year later.
As a result of the decision of the Supreme Court, which affirmed the trial court, the defendants were to remove and/or rectify the following: 1) the upper patio; 2) the masonry fireplace and hearth; 3) the masonry retaining wall abutting the upper patio area on the Candlewood Lake side of the patio; 4) the masonry retaining wall abutting the upper patio and fireplace labeled as "wall" on the Plaintiff’s exhibit 7; 5) the masonry steps to the upper patio area and the masonry steps abutting the retaining wall and upper patio area; 6) the lower patio (with the proviso that it could be rebuilt with gravel); 7) the masonry retaining wall abutting the lower patio area (with the allowance of a length of thirty feet); 8) all conduit, utility lines, electric fixtures and lines, high and low voltage lighting, drains and irrigation equipment; 9) the block wall to the west northwest of the house; and 10) the hot tub. (Plaintiff’s Exh. 4.)
The Supreme Court did not find that the injunction and order for removal was incorrect and other than the minor correction to the property of the lower patio and retaining wall the court concluded that the injunctive relief was proper. The judgment was affirmed with the only exception being the authorization to build the lower patio and abutting retaining wall with a length restriction.
After the correspondence from the plaintiff to enforce the injunctive relief originally ordered over two years prior, counsel for the defendants replied that he contacted his clients and also questioned whether there was a need for permits for the work on the plaintiff’s property and if so should they apply for Inland Wetlands permits. (Plaintiff’s Exh. 2.) The plaintiff responded on May 9, 2018, indicating that activity within First Light property is preempted but the plaintiff had already informed New Fairfield of the Supreme Court decision. The plaintiff again requested the plan or schedule for corrective action. (Plaintiff’s Exh. 3.)
On May 14, 2018, the defendants sent an email which informed the plaintiff’s employees that Abigail Adams had been retained and "met with Allen Stewart ... to prepare a new design that takes into consideration the 440 line and reworks existing patios, wall, etc." (Defendants’ Exh. A.) The plaintiff responded asking again for the plan that was to be submitted on May 11, 2018.
In accordance with the email of June 1, 2018, a new plan was addressed by the plaintiff in which it stated that the defendants’ plan was found "wholly unacceptable because it does not comply with the Court’s judgment." (Plaintiff’s Exh. 4.) On August 10, 2018, a permit was issued which set forth work to be completed by October 31, 2018, within the Permitted Area described as within the Federal Energy Regulatory Commission’s Housatonic River Project (HRP) Number P-2576 Boundary (the Project). (Plaintiff’s Exh. 5.) This permit also contained a section entitled "Site Specific Notes and Conditions," which stated that, "[W]ithin 2 weeks from the Effective date of the Permit, the Permittee(s) shall identify a contractor and submit the contractor’s contact information and the required insurance certificates." Id. On September 21, 2018, the defendants sent a letter expressing for the first time some concerns regarding the Inland Wetlands Commission for work above the 440’ contour. (Plaintiff’s Exh. 8.) Nothing was done and the time to complete the work in accordance with the permit expired. Based upon the testimony, there was no work initiated during the time of this permit to comply with the judgment of the trial court as affirmed by the Supreme Court.
It was noted that no contractor was identified by the defendants for this permit which expired on October 31, 2018. On or about June 13, 2019 First Light identified a contractor for the first time. (Defendants’ Exh. C.)
In November 2018, the defendants determined that there was a need for an Inland Wetlands approval for the work to be completed. The defendants submitted an application in November 2018 and thereafter had two months of continuances at their request before the matter was heard and granted on March 25, 2019. (Plaintiff’s Exh. 14.)
It was not clear that the application to Inland Wetlands involved the Permitted Area, that is the First Light property, or was targeted for the defendants’ property for the new revised plans. The defendants did not submit the Inland Wetland application or plans for the court’s review. The letter to the defendants from First Light’s Land Management Department indicates this application was for "associated work that you are doing that is on your land." (Plaintiff’s Exh. 14.)
The defendants waited until they had this additional approval before obtaining the services of a contractor to perform the work which was ordered by the court. On June 13, 2019, a contractor was identified and the parties entered into a second permit on June 26, 2019. (Plaintiff’s Exh. 14.) The permit sets a completion date of September 30, 2019.
Work began at some time in July in accordance with the Weekly Progress Reports submitted by the plaintiff. (Plaintiff’s Exh. 17.) To date, the work is not complete.
On February 8, 2019, the plaintiff filed a Motion for Contempt because the defendants had failed to comply with the final judgment of the court ordering the defendants to remove immediately certain structures that were constructed on the property of First Light. The parties entered into discussions after the filing of the motion and the court scheduled a hearing on April 15, 2019. The hearing was continued in accordance with the agreement of the parties until September 16, 2019. On September 16, 2019, the parties appeared on the motion. However, prior to this hearing date the plaintiff filed a motion to substitute as plaintiff First Light CT Housatonic, LLC, as a result of a change in ownership of the utility. The defendants objected to the motion to substitute arguing it was a subject matter objection and the court could not continue the hearing until a decision was rendered. Although the defendants objected to the substitution without filing a written objection or any notice to the court, the court permitted a short period of time to provide a memorandum of law in support of their position. On September 30, 2019 the court heard argument and overruled the objection. A hearing was scheduled for October 7, and thereafter continued to a date chosen by the defendants’ counsel to allow the defendants to appear and testify. The defendants did not appear at the re-scheduled hearing.
As is noted in the factual background, the parties entered into a second Permit on June 26, 2019, shortly after the filing of the motion for contempt. This permit set a completion date of September 30, 2019.
The defendants requested time to submit a post-hearing memorandum which the court granted until October 25, 2019.
As part of the post-hearing memorandum submitted by the defendants, counsel represented that the work was in progress and would be substantially completed by January 30, 2020. The plaintiff did not respond.
The defendants assert that they were conscientious in complying with the decision of the Supreme Court and there is no basis for this court to grant the motion for contempt and order monetary sanctions as requested by the plaintiff.
DISCUSSION
A. GENERAL STANDARD
"Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 692, 735 A.2d 1021 (2007). "[C]ontempt consists of two levels of inquiry. First, [the court] must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt ... Second, ... (the court] must then determine ... whether the violation was wilful or excused by a good faith dispute or misunderstanding." (Internal quotation marks omitted.) Avery v. Medina, 174 Conn.App. 507, 516, 163 A.3d 1271, cert. denied, 327 Conn. 927, 171 A.3d 61 (2017). In this action, the parties have not argued that the decision of the court is ambiguous. In fact counsel for the parties addressed one correction concerning the lower patio which was clarified in the Supreme Court decision. Therefore, the court is focusing of the second part of the inquiry. "To constitute contempt, a party’s conduct must be willful ... Noncompliance alone will not support a judgment of contempt." (Internal quotation marks omitted.) Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001). "The contempt remedy is particularly harsh ... and may be founded solely upon some clear and express direction of the court ... One cannot be placed in contempt for failure to read the court’s mind ... A good faith dispute or legitimate misunderstanding of the terms of [a court order] may prevent a finding that the [noncompliance] was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of willfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court’s discretion. [Also, it] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order." (Internal quotation marks omitted.) Sablosky v. Sablosky, 72 Conn.App. 408, 423-24, 805 A.2d 745 (2002).
"[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, 38 Conn.App. 263, 275-7, 661 A.2d 621 6 (1995). This case requires a "determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding." In re Leah S., supra, 284 Conn. 694. "[I]n a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party’s failure to comply with the court order." (Emphasis in original; internal quotation marks omitted.) Fuller v. Fuller, 119 Conn.App. 105, 115, 187 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010). Even though a party’s actions may not rise to the level of contempt, a court’s remedial orders are well within the general remedial discretion. Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988).
B. COMPLIANCE
The defendants assert that they were very conscientious in complying with the Supreme Court Decision. The Supreme Court affirmed the decision of the trial court which entered a permanent mandatory injunction requiring the defendant "remove immediately" certain structures that the defendants constructed on the property of the plaintiff. As noted above, the order of the court was quite specific as to what work or structures violated the permits which were granted to the defendants and the use of the property which was a trespass on the property of the plaintiff. There is no doubt from the findings and decision of both the trial court and the Supreme Court what corrective action was mandatory. The decision of the trial court defines the parameters and the time line is immediate removal. Not only is the term "immediate" one that can be defined by common sense but it is defined in Black’s Law Dictionary (4th Ed. 1968), as "present, at once, without delay, not deferred by any interval of time. Action must be taken either-instantly or without considerable loss of time." Thus, the beginning of work over a year beyond the decision on its face is a contradiction of the very order and specific directions of the trial court on March 8, 2016, and thereafter judgment affirming this decision on May 1, 2018.
As an aside, the defendants have never contended that the order was ambiguous or requested a clarification of reconsideration.
This court finds that the satisfaction of the court order was not "immediate" as ordered by the court’s rulings. The court now focuses on the defendants’ arguments along with the testimony and evidence submitted by the defendants to determine if their actions rise to the level of wilful or intentional. The defendants have argued that their actions since the issuance of the Supreme Court decision are not a wilful violation of the court’s orders and that they have acted conscientiously in fulfilling the order. This court does not agree. The defendants’ actions as outlined below have remained a constant source of contempt for the permit application and the defendants’ actions have affected the plaintiff and the integrity of the judicial system. There is absolutely nothing in the actions of the defendants to demonstrate that they, in any way, shape or form, made any real effort to correct their prior violations and that they had any intention to "immediately" remove the vast structures that they built without proper permits. The facts demonstrate the opposite. For instance, although they raised a concern about the submission of an Inland/Wetlands application, after the plaintiff verified that it was not necessary for the plaintiff’s property, it was almost six months before the defendants expressed the concern and need to obtain approval from the Inland Wetlands Commission.
This concern was also not raised until the first permit had expired and the defendants have done nothing except hire a new consultant who was submitting new work but not removal plans for the property.
In arriving at the conclusion that the motion for contempt is proven, this court has taken into account the manipulations of the defendants since the issuance of the May 1, 2018 decision of the Supreme Court but also notes with great concern the prior similar and really identical conduct of the defendants beginning with signing permits and then ignoring the specific work permitted which was identified in the finding of facts set forth in the decision issued by Judge Truglia. The behavior of the defendants throughout every aspect of the long history of their trespass rises to the level of wilful and calculated behavior including the many excuses for delaying what was ordered by two courts.
Additionally, the trial court had an opportunity to observe the demeanor of the parties and examine the actions of the defendants established through their testimony and evidence at the hearing before the trial court. This court notes that in the memorandum of decision issued by the trial court, it outlines the conduct of the defendants which supported the permanent mandatory injunction. The court describes with particularity how the plaintiff was first alerted by neighboring property owners in 2012 or 2013 of the defendants’ illegal work and violations which required permits before commencing the work. Thereafter, the defendants engaged in additional illegal work and trespass which caused the neighboring property owners to again bring it to the attention of the plaintiff. The defendants were involved in performing significant permitted renovations to their property, including construction work along the property line between the plaintiff’s and the defendants’ property without first applying and then ignoring the scope of the permits for work. (Memorandum of Decision p. 5 ¶15.) There were two permits issued by the plaintiff just like the instant facts, and the defendants violated the permits in both situations. (Memorandum of Decision pp. 5-6, ¶¶16, 17, 18).
The defendants never appeared at any of the court dates scheduled for the contempt. In fact, the court continued the matter to a date selected by counsel for the defendants and they did not appear.
The evidence presented in the hearing for contempt included two permits of which neither permit was followed by the defendants. (Plaintiff’s Exhs. 5 and 14.)
In the action before Judge Truglia the evidence demonstrated that the defendants continued to construct additional nonsanctioned improvements after the second permit and as a result the plaintiff filed a complaint for a cease and desist on June 20, 2014. (Memorandum of Decision p. 6, ¶¶19-20.) Even after the cease and desist the defendants continued to construct in violation of the permits. The defendants received multiple warnings and notices to cease the activity but the defendants continued to build without compliance. (Memorandum of Decision p. 6, ¶¶21, 22, 23.) These actions resulted in the original action filed in this court and were the subject of the final orders which were affirmed in the May 1, 2018 Supreme Court decision. The behavior of the defendants noted in the decision by Judge Truglia can only be described as a pattern of feigning agreement and then doing whatever they chose without a good faith effort to comply with regulations, permits and in this case the very orders of the court.
In evaluating the claim of the plaintiff that the defendants’ actions are contemptuous, this court reviews not only the latest behavior and lackadaisical or disinterested response to the court’s orders but considers the following findings by the trial court in the memorandum of decision: "[T]he court rejects any argument by the defendants that they acted in good faith in their dealings with the plaintiff. The evidence supports a contrary conclusion. The defendants moved forward with their renovations and additions knowing that most, if not all, of the improvements were located on the plaintiff’s land. The defendants did not contact the plaintiff to discuss the results of the updated survey after July 2014, as they had promised to do. Stewart testified that he agreed at the July 2014 meeting with Wood to commission an updated survey from Hiro, but that he did not know why Wood asked him to do so. Stewart’s testimony on this point is also not credible. Despite agreeing to forward a copy of the new survey to Wood, Stewart admitted that he did not do so, and also admitted that he never looked at the latest updated survey." (Memorandum of Decision p. 12.)
Although the prior conduct of the defendants cannot be the basis for the findings at this time, the court views this conduct of the defendants and notes the similarity with the behavior since the issuance of the Supreme Court decision, that is, continued conduct of ignoring, delaying or obstruction of satisfying the court order. In the testimony before this court in the present action or inaction by them, there was no physical work to correct the violations by the defendants for over six months, and then the defendants submitted an application for approvals for work on the property outside the impacted property of the plaintiff.
The requests for the plans of removal were met originally with what the plaintiff defines as a plan similar to a settlement proposal that had been rejected during the litigation. (Plaintiff’s Exh. 4.)
In retrospect, it was obvious from the introduction of Ms. Abigail Adams from A 2 Land Consulting, LLC, that the focus of the defendants was not removal but she stated in her introductory email that she was "retained to prepare a new design that takes into consideration the 440 line and reworks existing patios, walls, etc. " (Emphasis added.) (Defendants’ Exh. A.) The order from the court said nothing about reworking, the order was about removing the structures. It became obvious in November when the defendants determined they needed an Inland/Wetlands approval which was for work on the defendants’ associated property and not the land subject to the court order. Even if they chose to make changes to their property there is no restriction by this plaintiff, but that is aside from satisfying the court order to remove. By submitting a plan (which was never provided as an exhibit) to the Inland/Wetlands Commission, the defendants claimed they could not proceed without the approval. There was no evidence that the work to remove the structures required any approval by the Inland/Wetlands Commission. There was no issuance of a violation or cease and desist from the Inland/Wetlands Commission.
See #12 below which outlines the application and the process.
However, the defendants signed a permit approval on August 10, 2018 to complete the work by October 31, 2018 but did nothing. The permit contained some very basic terms such as "within 2 weeks from the Effective date of the Permit, the Permittee(s) shall identify a contractor and submit the contractor’s contact information and the required insurance certificates." The testimony of Abigail Adams contradicted this agreement in that she indicated they did not have a contractor and in fact waited to send out for a bid until after the March 2019 Inland Wetlands Approval. In other words the defendants had no intention of satisfying the permit when it was signed. The defendants did not raise the need for Inland Wetlands approval until the very end of the time outlined in the permit. (Plaintiff’s Exh. 14; Defendants’ Exh. F. December 18, 2018 meeting.) The defendants used this Inland/Wetlands application to delay the work of removal which they held up to obtain approvals for work on the associated property owned by the defendants for months. The defendants did not pursue the application in an expeditious manner. (Defendants’ Exh. F). The defendants’ representative asked for an extension at the January 15, 2019 hearing and the February 19, 2019 hearing and did not attend. The defendants’ representative finally attended four months after submission to obtain an approval. (Defendants’ Exh. F.) However, once those approvals were given the defendants were not ready to go forward because they had decided not to obtain the services of a contractor for self-motivated reasons and thus another three months went by with nothing done.
The defendants submitted the application for the November 20, 2018 meeting date which was no more than a submission and not a hearing. Thereafter at the December 18, 2018 meeting, the Commission was clear that the plans discussed were all for work above the 440 line and were listed as: "A description of the wall on the northern side of the house-height? Footings?; Drainage of driveway, patio, stone pavers. Where is drainage going?; Wall on southern side (boulder wall) is it structural sound?; Information on pavers for driveway- will they be pervious pavers?; Stock i.e. locations; Extend silt fencing as discussed. Continued."
These delays are contradicted by the defendants’ first permit in August 2018, at which time they were to designate a contractor.
The plaintiff, although filing this motion for contempt, continued in their efforts to work with the defendants. The plaintiff issued a second permit to the defendants dated June 26, 2019. (Plaintiff’s Exh. 14.) This permit again addressed each of the items listed in the judgment for the permanent mandatory injunction and it established a completion date of September 30, 2019. In response to the second permit, the defendants provided some weekly Progress Reports beginning on July 29, 2019 as evidence of their efforts to satisfy the judgment after a year of no progress. The reports do not begin until approximately one month after the second corrective action permit was signed by the parties. The defendants have not disclosed any of the particulars regarding the contractor or the contract entered into by the defendants. The plans for the corrective action are dated April 16, 2019 in accordance with the June 26, 2019 permit. (Plaintiff’s Exh. 14.) The reports submitted by the defendants offer little to inform the court as to the extent of the work and the time frame for completion. The reports are self-serving and do not provide any information for this court to find that the defendants are making a good faith effort to remove the illegal structures. The reports fail to outline the number of hours the work is conducted each day or if the work is ongoing each day. There is no information as to the number of workers or other employees working at the site. There is no plan of action outlining each of the items to be corrected in accordance with the court orders. The progress reports appear to be a "site visit" on a given day with no real description of the work to satisfy the court order. In reviewing the reports it is clear that the progress is slow and at times halted with no descriptive reports. The reports show over four weeks of work to remove the hot tub, many weeks to establish erosion and sedimentation control measures, work stopped in bad weather and in fact a full week of no work because the contractor was closed for vacation. (Plaintiff’s Exh. 17.)
In fact the permit states the date is April 16, 2109 which is obviously a typographical error.
In fact given the little work that was included in each "progress report," the court does not find that there was a concerted effort to remove the structures as ordered by the court in any timely method. Four reports centered on the hot tub removal and one report indicated that for a week nothing was done because of vacation.
The defendants attached two approved plans and drawings with the permit but no explanation of the implementation of the plan.
These reports are totally inadequate and clearly demonstrate the defendants’ lack of diligence and complete disconnect with the importance of abiding by a court decision. The defendants have done what they want, when they want and in whatever time line they want. There is a complete lack of demonstration that they have any interest in protecting the integrity of the judicial process.
The second permit included a completion date of September 30, 2019. At the time of the hearing the defendants were once again beyond the time limits. There was no request for an extension of time and the defendants’ counsel at the hearing did not present such a request. Instead, the defendants in their post-hearing brief provided the new dates they established for their estimate of completion being January 10, 2020. However, even this date is not a final completion of all of the work because the defendants indicate that the plantings cannot be completed in the winter and would be finished by March 30, 2020. Even this date and explanation by the defendants is muddied by their follow up statement that, "the work outlined in the extension request was illustrative rather than exhaustive, and the intent of the request was to convey that the entire project would be completed by March 30, 2020, and substantially completed by January 10, 2020." This statement has no validity because the defendants have entered permit agreements with time limits and thereafter deny the establishment of completion dates, as noted in their argument in the post-hearing brief when they argue that there was no "promise to complete the work within any specific timeframe." In the memorandum in opposition to the motion for contempt the defendants argue that, "it is not reasonable to expect completion in several months as suggested by the plaintiff."
Unfortunately, the credibility of the defendants is questionable after their many acts of violation and the exhibition of their sense of entitlement to do what they want in the time frame they choose. The court finds with clear and convincing evidence that the defendants have intentionally obstructed the immediate removal of the structures by their actions and inaction in failing to proactively pursue the immediate removal. The efforts have been weak and almost non-existent for months where the action was to submit an untimely and delayed application to Inland/Wetlands Commission, to wait to put the work out to bid, to perform minimal tasks once work began and to delay even this process with promises and permit dates that they now admit were never times expected for compliance.
It is no longer the defendants’ choice to take their time to satisfy the court orders. That ship has long sailed and it is clear that they are not credible. The court finds that the defendants are in contempt by clear and convincing evidence and as such the court has no other choice but to determine if penalties in the nature of fines and attorneys fees should be ordered.
While this court recognizes the need to do the work correctly and with the proper approvals and permits, this court cannot accept the multitude of excuses and delays in complying with an order of the trial court entered over four years earlier. The court finds that the defendants’ actions were wilful and that they are in contempt of the court order which was affirmed by the Supreme Court over eighteen months ago on May 1, 2018.
C. Sanctions
The plaintiff has requested that the court impose sanctions including a penalty for each day that the defendants have failed to complete the removal in addition to attorneys fees for the filing of the motion for contempt. The plaintiff requests a penalty of $2,500 per day for each day after November 1, 2018 until the completion of the work. This penalty is severe and requests fees that are well beyond the $1000 penalty per violation set forth in the two permits signed. (Plaintiff’s Exh. 5 ¶8, Plaintiff’s Exh. 14, p. 3, ¶8.)
The most significant concern that requires the court to strongly consider the imposition of sanctions in this case where the court has found the defendants in contempt is the protection of the integrity of the court and the ability to enforce its judgments. In O’Brien v. O’Brien, 326 Conn. 81, 101, 161 A.3d 1236 (2017), the court found that even without a wilful violation, the court should hold the defendant responsible for the consequences of the violation because, "[T]o hold otherwise would shift the cost of the violation to the innocent." In this action, the plaintiff has been attempting to obtain compliance from the defendants for eighteen months. Given, the failure to immediately remove the structures or expediting the corrective action, the plaintiff was required to file this motion to seek further court orders.
Because of this, the court supports a finding of contempt and the issuance of penalties including daily fines for non-compliance and attorneys fees that were necessary to satisfy the court orders. In establishing the penalty to be entered, this court considered the very conduct of the defendants and the law that guides this court to enter sanctions. The defendants argue that the court cannot award a penalty for past conduct because it is not intended to compel future compliance and thus it is to punish rather than to be coercive. In Quaranta v. Cooley, 130 Conn.App. 835, 26 A.3d 643 (2011), the court found that the award of a penalty addressed to the past conduct of the defendant was improper. The court noted that the penalties "were neither conditional nor coercive because the penalties were not prospective in nature ..." Id., 843. Additionally, the court was concerned with the lack of warning to the defendant that her behavior could subject her to penalties. In this action, the defendants have been on notice since the filing of this motion on February 8, 2019, that they could be subject to penalties. After this motion was filed, the defendants entered into a second permit dated June 26, 2019, to complete the work. This permit set a completion date of September 30, 2019. That deadline has not been met. However, the court takes note of the defendants’ evidence that at least some efforts were being made versus the total absence of corrective work being completed on the plaintiff’s premises prior to the July 2019 reports. Although the court has noted that the current pace of the work is questionable, given the lack of any substantive reports outlining the workers or the specific time line plan to complete the work, the court is without a basis at this time to order penalties based upon the present state of work. The court does accept the new dates for completion outlined by the defendants which would set a completion of all corrective work on or before January 30, 2020. (Emphasis added.) In accepting these dates the court does not interpret the date for any of the work ordered by the court to be completed beyond January 30, 2020, with the exception of the plantings which will be completed by March 30, 2020. In addition, based upon the defendants’ submission of the dates, it is their responsibility to hire sufficient workers and to work sufficient hours each day even if it is seven days per week to complete the removal. There is absolutely no basis for failure to complete except the defendants’ own acts.
Given this time line and no further objection by the plaintiff the court orders that a penalty of $100 per day will be assessed for non-completion of all of the corrective work in accordance with the decision of the Supreme Court, except the plantings, not completed by January 30, 2020. Thus beginning January 31, 2020, $100 per day penalties will be assessed each day that the corrective work, except for plantings, is not completed. The court also orders that as to the plantings a penalty of $100 per day will be assessed beginning March 31, 2020 and until the plantings are complete.
In addition to the penalties, the plaintiff has requested attorneys fees for filing the motion and the necessary legal expenses to pursue the motion. The court finds that the defendants’ actions as noted above required the plaintiff to file this motion for contempt and to appear on a number of occasions in their attempt to have the defendants comply with the trial court order as affirmed by the Supreme Court. Thus, the defendants are ordered to pay all attorneys fees for the filing of the motion for contempt and the appearances thereafter for the violations that cost the innocent plaintiff to obtain the result which was ordered by the court. The plaintiff shall submit the attorneys fees claimed with the appropriate affidavit and documentation in support of their motion on or before December 16, 2019, and the defendants may submit a response on or before December 23, 2019.
CONCLUSION
For the foregoing reasons, the court finds by clear and convincing evidence that the motion for contempt is granted and penalties and fees are to be awarded as set forth above.