Opinion
No. CV93-0530766 S
August 31, 2004
MEMORANDUM OF DECISION ON PLAINTIFF'S SECOND MOTION FOR CONTEMPT
On May 1, 2003, the plaintiff Commissioner of Environmental Protection ("Commissioner") moved this Court to find defendants Thomas D. Buccino and Irma L. Buccino in contempt of court for failing and refusing to make certain repairs to the Hall's Pond Dam ("the Dam") in Willington, Connecticut, in alleged violation of the final judgment in this action, which was entered by this Court (Satter, J.) upon approving of the parties' written Stipulation For Judgment on May 31, 1995. The Commissioner claims, in particular, that the defendants violated the stipulated judgment by not making all the repairs specifically authorized by Permit #DS-95-018, which the defendants duly applied for in October of 1995, after an earlier application to "remove" the Dam by opening its gates and draining the pond behind it had been rejected, and the Commissioner finally issued, albeit in modified form, on April 2, 1997, after holding a public hearing. As a remedy for the defendants' alleged contempt, the Commissioner asks this Court to order that, by a date certain, they make all as-yet-unmade repairs to the Dam, as specifically authorized by Permit #DS-95-018, or suffer a coercive, daily fine until such repairs are made.
When this action was first filed, Connecticut's Commissioner of Environmental Protection was the named plaintiff, Timothy R.E. Keeney. By the time the subject Permit was issued, however, Mr. Keeney had been replaced by a new Commissioner, Sidney J. Holbrook. Six years later, when the instant Motion was first brought before this Court, Mr. Holbrook, in turn, had been replaced by another new Commissioner, Arthur J. Rocque, Jr., who remains in office to this day. As a successor to Mr. Keeney, a public officer in whose name this action is pending, Mr. Rocque is empowered under General Statutes § 52-602 to "enter and prosecute this action in his own name in the same manner as his predecessor might have done had he continued in office." As a successor to Mr. Keeney and Mr. Holbrook, moreover, he is empowered under General Statutes § 52-603 to bring any action which "accrue[s] or would have accrued to [either one of them] in his official capacity." Here, then, it is clear that Mr. Roeque is now the proper plaintiff in this action. Even so, because the personal identity of the Commissioner at any particular point in the history of these proceedings is immaterial to the rights and interests of the parties on the instant Motion, the Court will simply refer to each Commissioner as "the Commissioner" instead of particularly identifying him by name.
The defendants objected in writing to this Motion on May 7, 2003. In their Objection, they argued, inter alia, that: (1) under the terms of the stipulated judgment, they could either repair the Dam or remove it; (2) it had long been their plan to "remove" the Dam, as they had originally proposed to do in Application #DS-95-018, by opening its gates and draining off the water from the pond behind it; (3) the projected cost of "removing" the Dam, as they proposed to do it, would be much lower than the projected cost of repairing it, as authorized by Permit #DS-95-018, which in their view was prohibitive; (4) since the date of judgment, the parties have determined that, contrary to their original understanding when they stipulated to judgment, the Dam is so constructed that it is capable of safely passing all the water from a one-hundred-year storm event; and (5) in light of the Dam's ability to pass all the water from a one-hundred-year-storm event, many of the repairs specifically authorized by Permit #DS-95-018, including all as-yet-unfinished repairs, were not in fact necessary to preserve the Dam's integrity and functionality. Defendants' Objection (5/7/03), pp. 1-3. On the basis of these and other arguments, the defendants contended: first, that they should not be held in contempt of court due to change in circumstances and the financial impossibility of performing repairs that are no longer necessary; and second, that the Commissioner should be ordered not to interfere with the defendant's removal of waters from behind the Dam as long as such water removal is conducted in accordance with all applicable laws and regulations. Id., p. 4.
After the Motion was so framed for argument, it was litigated before this Court in two disjoint phases, as follows. In the first phase, where the Commissioner was represented by Assistant Attorney General Krista E. Trousdale and the defendants were represented by their long-time counsel, Attorney Robert B. Cohen, who had protected their interests in connection with the Dam ever since the Commissioner initiated administrative enforcement proceedings against them, the Court initially held an evidentiary hearing on June 24, 2004. Immediately before the hearing, the defendants, trough counsel, agreed on the record that, in defending against the Commissioner's Second Motion For Contempt, they would not make any claim that they were unable to pay for the unmade repairs. In exchange for this agreement, the Commissioner agreed not to seek enforcement of his outstanding subpoena for the defendants' financial records, which would have been needed to contest the previously anticipated claim of inability to pay. Accordingly, the Court ruled that the defendants' motion to quash the Commissioner's subpoena for their financial records was moot.
During the hearing, the Court heard testimony from one witness, Supervising Environmental Analyst Wesley D. Marsh of the State Department of Environmental Protection ("DEP"), and received other documentary and photographic evidence concerning the Dam's condition and the Commissioner's prolonged effort to compel the defendants to repair or remove it since the late 1980s. After the parties rested, the Court ordered post-hearing briefs from the parties in anticipation of hearing oral argument on August 1, 2003.
The primary focus of the defendants' opposition to the Motion, at the evidentiary hearing, in their post-hearing brief and at oral argument, was the alleged non-necessity of performing any of the unmade repairs specifically authorized by Permit #DS-95-0l8 in light of the parties' post-judgment determination that the Dam could safely pass all the water from a one-hundred-year-storm event. Shortly after oral argument, however, following a lunch-hour conference between defense counsel and his clients, defense counsel surprised the Court by announcing that a conflict of interest had arisen between himself and the defendants concerning the latter's original understanding of the stipulated judgment, as Attorney Cohen had allegedly explained it to them before they signed the Stipulation For Judgment on May 31, 1995. In particular, Mr. Buccino claimed that Attorney Cohen had informed him that, upon stipulating to judgment and paying an agreed-upon fine of $10,000 thereunder, he could avoid paying any more money to repair or maintain the Dam simply by applying for and obtaining a permit to remove the Dam by opening its gates and draining off the water from the pond behind it. In light of this claim, which attributed to him an explanation of the defendants' post-judgment rights and responsibilities under the stipulated judgment that was demonstrably at variance with the express terms of the Stipulation For Judgment, Attorney Cohen requested leave of the Court to withdraw from the case so that other counsel could move to open the evidentiary hearing to present further evidence from Mr. Buccino in support of the defendants' belated claim. The Court responded to this surprise request by suspending further all further proceedings on the instant Motion until Attorney Cohen could file his motion to withdraw in writing and argue that motion, based upon sealed submissions, if necessary, before a different judge.
Several weeks thereafter, upon the granting of Attorney Cohen's written motion to withdraw, new counsel, Attorney Francis Miniter, appeared for the defendants and filed, as anticipated, a motion to open the hearing on this Motion so that Mr. Buccino could testify both as to his original understanding of the stipulated judgment, as Attorney Cohen had allegedly explained it to him, and as to his efforts to comply with that judgment as he claims to have understood it. Over the opposition of the Commissioner, this Court granted the motion to open in order to resolve any doubts that might have been raised by the defendants' suggestion, through Attorney Miniter, that Attorney Cohen may not have called Mr. Buccino to testify at the evidentiary hearing on June 24, 2003 in order to avoid exposing the conflict of interest between himself and the Buccinos concerning their claim that he had misinformed them as to their rights and responsibilities under the stipulated judgment. Thus began the second phase in the litigation of the Commissioner's instant Motion.
In the weeks following the granting of the motion to open, it quickly became apparent that reconvening the evidentiary hearing to take testimony from Mr. Buccino would be very difficult in light of Mr. Buccino's persistent health problems. Then residing in Florida, he was reportedly advised by his doctors not to travel. In light of those circumstances, the Court prompted the parties to agree to an alternative procedure for presenting Mr. Buccino's testimony, which was to proceed as follows. First, Mr. Buccino, who had already been deposed on these issues by counsel for the Commissioner, would submit a sworn affidavit describing all the facts and circumstances to which he would testify at a reopened hearing. Second, the Commissioner, if he, desired to, would propound written questions to Mr. Buccino concerning the contents of his affidavit, to which Mr. Buccino would promptly respond in writing. Third and finally, the parties would submit Mr. Buccino's affidavit, the Commissioner's questions, if any, and Mr. Buccino's answers to those questions to the Court, which would rule on this Motion without further oral argument. The parties successfully implemented this procedure, with only minor modifications, by having Mr. Buccino prepare and file a sworn affidavit, as to which the Commissioner had no questions, then submitting the affidavit to the Court along with a copy of Mr. Buccino's deposition transcript and supplemental post-hearing legal memoranda from both counsel.
On the basis of the above-described evidentiary material and legal argumentation, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. At all times relevant to this case, defendants Thomas D. Buccino and Irma L. Buccino, a married couple, have owned the Hall's Pond Dam ("the Dam") in Willington, Connecticut. Apart from the Dam, the defendants do not own any other property adjacent to or underlying the pond behind the Dam, which is known as Hall's Pond. Hall's Pond is regularly used for recreational purposes by members of the Willington Fish Game Club ("WFGC").
2. In October of 1993, the Commissioner brought this action against the defendants to enforce compliance with a Final Decision issued by the Commissioner on September 2, 1992. In that Final Decision, the Commissioner had determined that the Dam was in an unsafe condition and in danger of failing, and thus directed the defendants to apply for a permit to repair or replace it. On May 31, 1995, the Court (Satter, J.) entered judgment in this action pursuant to a Stipulation For Judgment between the Commissioner and the defendants.
3. Under the terms of the Stipulation For Judgment, and thus of this Court's final judgment in this action, the defendants, and each of them, were:
a. Permanently enjoined from violating any of the provisions of Chapter 446j of the General Statutes, concerning dams; Stipulation For Judgment, ¶ 1;
b. Required to retain one or more qualified consultants acceptable to the Commissioner to prepare all documents and implement and oversee all actions required by the judgment, id. ¶ 2(a);
c. Required to submit to the Commissioner, on or before June 21, 1995, a complete and sufficient dam permit application, pursuant to General Statutes § 22a-403, to repair or remove Hall's Pond Dam, as required by the Commissioner's September 2, 1992 Final Decision; Stipulation For Judgment, ¶ 2(b);
d. Required, within one hundred and twenty (120) days of the issuance of the dam permit, to complete all alterations to Hall's Pond Dam, as required by the Final Decision and as authorized by the dam permit, id. ¶ 2(d);
e. Required, upon notification by the Commissioner that any document submitted or action performed by them pursuant to the judgment was deficient, or upon failure by the Commissioner to approve any such document or action with modifications, to correct all deficiencies and resubmit or reperform all disapproved documents or actions within the time specified by the Commissioner, id. ¶ 6;
f. Required, within thirty (30) days of the entry of judgment, to pay a civil penalty of $10,000.00, Id. ¶ 7; and
g. Required to pay a penalty of $500 per day per violation for each and every violation of the injunctive provisions of the judgment, id. ¶ 8.
4. In addition, the Stipulation For Judgment provided that, in the event the defendants, or either of them, became aware that they did not or might not comply on time with any requirement of the judgment, or any document required thereunder, each of them must notify the Commissioner immediately and must take all reasonable steps necessary to ensure that any noncompliance or delay was avoided, or if unavoidable, was minimized to the greatest extent possible. Id., ¶ 5. Furthermore, it provided that, in notifying the Commissioner of any past or anticipated inability to perform on time, the defendants must state in writing the reasons for their non-compliance or delay, must propose for the review and written approval of the Commissioner new dates by which compliance would be achieved, and must thereafter comply with any new dates the Commissioner approved in writing. Id.
5. Mr. Buccino claimed in his post-hearing affidavit that he did not read the Stipulation For Judgment before he signed it in the courthouse on May 31, 1995, as he "is a slow reader" and he was "under a lot of pressure to get things done to avoid a trial." Affidavit of Thomas D. Buccino (2/23/04), ¶ 4. Instead, he averred that he signed that document under the following circumstances:
On May 31, 1995, at the Washington Street Courthouse [in Hartford], Attorney Cohen told me at that time that if I paid a fine of $10,000, I would be able to get a permit to remove the dam. This was very important to me, as I did not have other money to repair the dam, and I wanted to end my responsibility for the dam. Mr. Marsh of the DEP, [Assistant] Attorney [General Krista E.] Trousdale [of the Attorney General's Office] and Attorney Cohen told me to put the notice of permit application in the Hartford Courant, which I did ([Defendant's] Exhbit A), and if no one contested it, we could open the control gates to the 4 foot penstock and the 2 foot by 2 foot spillway culvert and we would not have to repair the dam. On that basis I signed the document.
Affidavit of Thomas D. Buccino (2/23/04), ¶ 3. According to Mr. Buccino, he first read the Stipulation For Judgment "some time later at home." Id., ¶ 4. Even then, however, he claims that he only "focused on the provision allowing removal of the dam, because that is what [he] wanted to do." Id.
6. The Court has no doubt that Mr. Buccino did not carefully read the Stipulation For Judgment before he signed it, in the presence of his counsel, on May 31, 1995. It also has no doubt that his intention, in stipulating to judgment, was to spend as little money as possible to satisfy the Commissioner's longstanding demands. The Court thus finds that when Mr. Buccino signed the Stipulation For Judgment, he did so with the intention of filing an application to "remove" the Hall's Pond Dam by simply opening its gates and draining out the water from Hall's Pond.
7. Even so, the Court does not accept Mr. Buccino's claim that he was assured by Attorney Cohen, Assistant Attorney General Trousdale and Mr. Marsh that if he stipulated to judgment, all he would ever be required to do, in addition to paying a $10,000.00 fine, would be to file a dam permit application to open the Dam's gates and drain the pond behind the Dam, which would definitely be approved if it was unopposed after public notice of it was given. This claim is rejected for three reasons.
a. First, any such assurance would have been completely inconsistent with the carefully drafted terms of the Stipulation For Judgment, with which both counsel were very familiar because they had participated in drafting them. Counsel thus fully understood that under the Stipulation For Judgment, the Commissioner had the power to approve or disapprove of any dam permit application the defendants might submit, with or without modifications, and that the defendants would have no choice but to comply with the terms of any permit the Commissioner ultimately issued in response to such an application. They therefore knew that under the Stipulation For Judgment, the defendants could not be assured that their application to "remove" the Dam by opening its gates and draining the pond behind it would be approved in any form, even if after public notice, it was unopposed by any member of the public. There is simply no credible basis in this record for believing that either counsel, both of whom were thoroughly professional and well prepared throughout this case, mistakenly misinformed the defendants as to what might be required of them if they stipulated to judgment.
b. Second, neither counsel had any interest in purposefully misleading the defendants as to the true nature and substance of their obligations under the Stipulation For Judgment. To the contrary, both counsel had a strong interest in ensuring that the defendants fully understood those obligations, for in light of the defendants' long history of non-compliance with the Commissioner's orders, the Commissioner's counsel had every reason to expect continuing non-compliance by them if the terms of the stipulated judgment were in any way unclear to them, and defense counsel, for the same reason, had every reason to expect that they would incur large fines if their non-compliance continued. There is no credible evidence before this Court that either counsel, both honest, zealous advocates who displayed undivided loyalty to their clients at all times, did anything to undermine their clients' interests in this manner.
c. Third, and most tellingly, Mr. Buccino's deposition testimony, given over two months before he executed his affidavit, undermines his claim that Attorney Cohen misled him as to the contents of the Stipulation For Judgment before he signed it. When asked at his deposition if he had had any pre-signing conversations with Attorney Cohen about the Stipulation For Judgment, the most he would say initially was that such conversations had "probably" occurred, though he could not recall when they had occurred. Deposition of Thomas D. Buccino (12/19/03), pp. 43-44. Thereafter, however, when asked if Attorney Cohen had ever told him in any such conversation exactly what the Stipulation For Judgment required of him and his wife, he backed off his initial suggestion that that had "probably" happened, id., insisting more than once that he could not remember if it ever had. Id., pp. 45, 47. In fact, Mr. Buccino's only claimed memory of any pre-signing conversation with Attorney Cohen concerning the Stipulation For Judgment was of an ambiguous colloquy between them, in which he claimed that he sought and received the latter's verbal assurance that, if he stipulated to judgment, "there would be no surprises." Mr. Buccino claims that he took this assurance to mean that if he signed the Stipulation For Judgment and paid the $10,000.00 fine, he could fully satisfy the judgment by simply obtaining a permit to open the Dam's gates and draining Hall's Pond. Id. p. 44. In light of this self-serving testimony, which the Court finds to be incredible, the Court concludes that there is no credible basis for finding that Attorney Cohen or anyone else misinformed the Buccinos as to the true nature and substance of their obligations under the stipulated judgment.
8. When the parties signed and filed their Stipulation For Judgment, the defendants had pending before the DEP an original application for a permit to repair the Dam, captioned Application #DS-95-007. That Application, which was based upon input from the defendants' engineer, Mr. Frank Magnotta of Bascom/Magnotta, Inc., proposed, inter alia, that the Dam's spillway be lowered by nineteen inches to ensure that it could pass all the water from a one-hundred-year-storm event, leaving one foot of freeboard on the Dam. A few days after the entry of judgment, however, the defendants withdrew Application #DS-95-007 and filed, in its stead, a new application, captioned Application #DS-95-009, which proposed to "remove" the Dam by opening its low-level outlet and control gates at the penstock, and thereby draining Hall's Pond.
9. Considering the defendants' new application to be non-compliant with the requirements of the stipulated judgment, the Commissioner filed an initial motion for contempt to enforce the judgment on October 3, 1995. Upon hearing testimony and receiving other evidence on this motion, this Court (Sheldon, J.) found that Application #DS-95-009 did not in fact comply with the requirements of the stipulated judgment, for it did not seek a permit to repair the Dam or remove it. Even so, the Court declined to hold the defendants in contempt of court because it was not persuaded, on the record before it, that their non-compliance had been wilful. On that score, the Court specially noted that the defendants' non-compliance had occurred at a time when the Commissioner, instead of rejecting the Application out of hand, still appeared to be considering it on the merits. The Court thus concluded that, at least in the absence of some clear indication from the Commissioner that the application would be found unacceptable, which the Commissioner was bound to communicate to the defendants under the terms of the Stipulation For Judgment, the defendants could not be faulted for awaiting the outcome of the Commissioner's review before preparing and submitting a new and different application to repair or remove the Dam by other means.
10. At the end of the hearing on the Commissioner's initial motion for contempt, the Court issued orders establishing a time frame for the Commissioner to formally communicate his objections to Application #DS-95-009 to the defendants and for the defendants, in turn, to respond to those objections by preparing and submitting a suitably modified application to repair or remove the Dam, as required by the Stipulation For Judgment. Neither party appealed from any aspect of the Court's ruling on the initial motion for contempt.
11. Following the hearing on the Commissioner's initial motion for contempt, the Commissioner returned Application #DS-95-009 to the defendants and the defendants submitted a new application for a permit to repair the Dam, captioned Application #DS-95-018. The new application was essentially identical to the defendants' original application, Application #DS-95-007, for it too proposed a nineteen-inch lowering of the Dam's spillway so that the Dam could pass safely all the water from a one-hundred-year-storm event, leaving one foot of freeboard on the Dam. Upon reviewing the new application, the Commissioner issued a notice of tentative determination to grant the application, and published notice thereof.
12. Thereafter, on April 30, 1996, thirty members of the Willington Fish Game Club ("WFGC") filed a petition with the Commissioner, under General Statutes § 22a-403a, to request a public hearing on Application #DS-95-018: During the ensuing hearing, the WFGC presented a hydrographic and hydrologic analysis of the Dam and its environs from their own consulting engineer. The consultant's analysis tended to establish that the Dam's existing spillway need not in fact be lowered because the Dam was so situated and constructed that it could safely pass all the water from a one-hundred-year-storm event without endangering the Dam or persons or property below it. The defendants concurred with this analysis, as ultimately did the Commissioner. Thus, all parties who attended the public hearing — the Commissioner, the defendants and the WFGC — agreed that Application #DS-95-018 should be approved except insofar as it called for the lowering of the spillway.
13. Accordingly, on April 2, 1997, the Commissioner issued Permit #DS-95-018, which expressly authorized the defendants to make the following repairs to the Dam:
a. Remove the water wheel from the spillway;
b. Remove all trees from the Dam's embankment;
c. Remove the flashboards and flashboard supports from the spillway;
d. Install a gravel filter blanket at the toe of the embankment;
e. Grout the voids in the masonry spillway and masonry spillway channel walls; and
f. Install weepholes in the stone masonry channel walls located in the 75-foot area downstream of the spillway.
14. Under the terms of the Permit, the defendants were required to perform all repairs therein authorized within 120 days of its issuance. Performance of such repairs could have begun at once, without any delay to obtain a special permit or other approval from the United States Army Corps of Engineers before proceeding with the work, because the Permit, as issued, unlike the defendants' Application for it, did not call for the lowering of the spillway, thus permanently changing the level and volume of Hall's Pond.
By contrast, had Application #DS-95-018 been approved by the Commissioner as originally submitted, the defendants would have been required to obtain a permit from the Army Corps of Engineers before lowering the spillway. That additional requirement would not have made the defendants' state permit illegal, for the final paragraph of the Stipulation For Judgment expressly contemplated that the defendants, when performing work thereunder, might be required to comply with applicable federal, state and local law. Id. ¶ 11 ("Nothing in this Judgment shall relieve the defendants, or either of them, from their obligations under applicable federal, state and local law"). If however, they experienced any unavoidable delay in obtaining a necessary federal permit, that would clearly have given them a valid reason for delaying the start of work under their state permit, at least until the federal permit was obtained.
15. Following the issuance of the Permit, the defendants made some of the repairs required thereunder but failed to make several others. In compliance with the Permit, they removed the waterwheel, removed the flashboards from the spillway, and cut down many trees on the Dam's embankment. In direct violation of the Permit, however, they never cut down the remaining trees on the embankment, removed the flashboard supports from the spillway, installed a gravel filter blanket at the toe of the embankment, or grouted voids or installed weepholes in the spillway channel walls in the 75-foot area downstream of the spillway. These findings as to the degree of the defendants' non-compliance with the requirements of the Permit are based both upon the testimony of Mr. Marsh, who conducted an on-site inspection of the Dam and its environs on June 6, 2003, and upon the admissions of Mr. Buccino in his affidavit and/or deposition testimony.
16. In sum and in substance, Mr. Buccino's only stated reason for not making all the repairs specifically authorized by the Permit was that, in his judgment, many such repairs were simply unnecessary. At different times, however, when he thought it suited his interests to do so, he has offered quite different, if not completely contradictory, explanations as to why he had not made all such repairs. Thus, in his sworn affidavit which was drafted with the aid of his new counsel to establish a basis for claiming that his failure to make all authorized repairs was not a wilful violation of the stipulated judgment, he offered several inventive, superficially plausible reasons why some of those repairs might not be necessary. He claimed, for example, that he had not installed a gravel blanket at the toe of the embankment because, with the removal of several trees, the sun sufficed to keep the area dry. Affidavit of Thomas D. Buccino (2/23/04), ¶ 6(d). He further claimed that he had not grouted or installed weepholes in the walls of the spillway channel because, to his knowledge, the walls were completely stable drywalls, built with heavy granite slabs and no grouting, through which water weeped safely and naturally, without the need for weepholes, precisely because they had no grouting. Grouting the walls, he suggested, might have the undesirable effect of preventing natural weeping, thus causing undue pressure to build up behind the walls, and possibly threatening their integrity. Id., ¶ 6(e)-(f). Finally, he claimed that he had not removed the flashboard supports from the spillway because he had never seen them obstruct the flow of water Id. ¶ 6(g).
17. Earlier, however, when he testified at his deposition, Mr. Buccino tellingly failed to mention any of the foregoing reasons when he was asked to explain why he had not made all the repairs specifically authorized by Permit #DS-95-018. There, instead, he flatly stated that the only reason he had decided not to make the repairs in question was that none of them would be necessary if, as he still intended, the Dam were "removed" by opening its gates at the penstock and draining the pond. By his logic, no further repairs would be necessary if the Dam were removed because the only purpose for requiring them in the first place was to preserve its integrity and functionality as a working dam in the event of a one-hundred-year storm. This explanation clearly demonstrates that, although Mr. Buccino always understood what was required of him by the stipulated judgment, he simply never intended, for reasons of his own, to comply with the terms of that judgment.
On this subject, Mr. Buccino testified as follows:
BY MS. TROUSDALE:
Q. Mr. Buccino, have you done some of the repairs authorized by the April 2, 1997 permit?
A. Yes.
Q. What have you done?
A. Removed the trees, removed the water wheel.
Q. Yes.
A. I removed the pen stock gates at the top of the dam.
Q. Anything else?
A. I think that's enough.
Q. And why did you do those things and not the other things?
A. Because I know the trees would hurt the dam in case there was a hundred-year storm.
Q. Why did you remove the water wheel?
A. Because I was told by the DEP to remove it.
Q. Why did you remove the pen stock gates?
A. Because they told me to do it.
Q. Okay. Well, the DEP has also told you to install a gravel filter blanket; correct?
A. That's correct.
Q. And why haven't you done that?
A. Because I want to remove the dam and it wouldn't make any difference with the blanket because I'll cover it.
Q. Is that the only reason you haven't installed the filter blanket?
A. That's correct.
Q. And the DEP has told you to remove the flashboard supports from the spillway, correct?
A. Yes.
Q. Why haven't you done that?
A. It shouldn't make any difference if I remove the dam.
Q. Is that the only reason you haven't removed the flashboard supports? CT Page 12971
A. That's right.
Q. And the DEP has also asked you to grout voids in the walls of the spillway and downstream of the spillway, have you done that?
A. No.
Q. Why not?
A. Because if I was going to remove the dam, that was a big cost that wasn't necessary.
Q. Is that the only reason that you haven't done the grouting?
A. That's right.
Q. Are you quite sure that that is the only reason that you have not done the remaining things that the DEP has asked you to do?
A. That's the reason why I didn't do it because in the order it says repair or remove, so I figure if I remove the dam that work isn't necessary.
Deposition of Thomas D. Buccino (12/19/03), pp. 28-31.
18. In fact, as explained in the testimony of Mr. Marsh, each authorized repair which the defendants have not yet made is necessary to preserve the integrity and functionality of the Dam. More specifically:
a. The flashboard supports on top of the spillway — several three-foot-high metal beams rising vertically, at regular intervals, across the crest of the spillway — must be removed because they are capable of trapping debris, and thus of impeding the flow of water over the spillway in a large storm event. If the spillway were blocked in that fashion by accumulating debris, such as logs or branches, rising waters in the pond might overtop the Dam and cascade downhill outside of established streambeds, thereby threatening the Dam's integrity and potentially causing property damage and personal injury below the Dam. In addition, with the supports still in place, someone might later reinstall the flashboards themselves, thereby blocking the spillway and increasing the impoundment behind the Dam.
b. Removal of all remaining trees from the Dam's embankment is also necessary because their root systems threaten the integrity of the embankment itself, and thus of the spillway channel walls it encases and supports. Even Mr. Buccino admitted that the cutting of trees on the embankment was necessary to preserve the Dam's integrity.
c. The gravel filter blanket is necessary to control ongoing seepage at the toe of the embankment and to prevent such seepage from causing the internal erosion of the embankment fill. Contrary to the claim of Mr. Buccino that the cutting of several trees from the embankment had dried out the area by exposing it to direct sunlight, Mr. Marsh reportedly found that the earth at the toe of the embankment was still soggy.
d. Grouting the voids in the spillway channel walls is necessary to maintain the integrity of the walls themselves, which can be weakened by internal erosion of the embankment and by deterioration of the masonry in the walls if water is permitted to channel outward to and through the masonry walls in uncontrolled fashion. Weepholes at the end of CV pipes installed in the walls would provide established paths through which water building above and behind the walls could be channeled safely outward without causing unnecessary internal erosion, deterioration of the masonry, and possible collapse of the wall.
19. On March 25, 1999, almost two years after the issuance of Permit #DS-95-018, and thus almost twenty (20) months after the expiration of the 120-day post-issuance period for completing all repairs specifically authorized thereunder, the defendants filed a motion to set aside and/or open the judgment in this action. The basic thrust of that motion, like that of the defendants' response to the instant Motion, is that the stipulated judgment was based upon a mutual mistake of fact, to wit: that the Dam could not safely pass all the water from a one-hundred-year-storm event. Now that the contrary has been established, claim the defendants, it is clear that none of the repairs contemplated by the stipulated judgment are truly necessary, and thus that they should not be required to pay for such repairs. In addition, the motion claims that the original stipulated judgment was unenforceable to the extent that it required lowering the spillway by nineteen (19) inches, for such a repair could not lawfully be made without obtaining a special permit from the Army Corps of Engineers. Although this motion had been pending for over four years by the time the Commissioner filed the instant Motion, the defendants have never claimed it for argument or other adjudication by the Court.
CONCLUSIONS OF LAW ANALYSIS I. Standards For Deciding Claims Of Indirect Civil Contempt
Civil contempt is conduct involving the wilful violation of an applicable court order; Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985); which is directed against the rights of another party. Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 551, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988). A claim of civil contempt must therefore be initiated by the party against whose rights the alleged violation was directed. Id. To establish his contempt claim, the aggrieved party must prove by a fair preponderance of the evidence both that the alleged contemnor actually violated an applicable court order; Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001); and that his violation of that order was wilful. Richards v. Richards, 78 Conn.App. 734, 741-42, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003) ("To constitute contempt, a party's conduct must be wilful . . . Noncompliance alone will not support a judgment of contempt").
Civil contempt is of two types, direct and indirect. Direct civil contempt is the wilful violation of an applicable court order that occurs in the presence of the court. The court can adjudicate such a claim, when asked to do so by an aggrieved party, based upon facts within its own knowledge, including observations of the proceedings before it. Indirect civil contempt, by contrast, involves the wilful violation of an applicable court order occurring outside the presence of the court. Such a claim, as in this case, must be established by competent evidence, including testimony under oath, at a trial-like evidentiary hearing. Cologne v. Westfarms Associates, 197 Conn. 141, 151-52, 496 A.2d 476 (1985); Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988) (holding that a trial-like evidentiary hearing should be held when issues of fact are disputed).
To establish that another party's conduct actually violated an applicable court order, the aggrieved party must first show that the order in question was in force and effect against the other party at the time of the challenged conduct. If it was, then he must further prove that the conduct in question did not comply with the clear requirements of that order. Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982) ("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" (Citations omitted; internal quotation marks omitted)). See also Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001) (whether ambiguity in order will preclude finding of contempt is within discretion of trial court); Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998) (contempt "may be founded solely upon some clear and express direction of the court").
To establish that the violation of an applicable court order was wilful, the claimant must prove that the violation was committed intentionally, with actual or constructive knowledge of the order and its contents. It thus has been observed that a genuine, good-faith dispute about the true meaning of a court order may sometimes defeat a claim of wilfulness, at least where it misleads the alleged contemnor to honestly believe that his challenged conduct is in fact compliant with that order. Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).
Even, however, if a claimant duly proves the essential elements of his contempt claim, the Court has discretion not to hold the alleged contemnor in contempt if the latter can prove that his conduct was excusable. Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985) ("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"). Traditionally, this defense to contempt is based upon the claim that the alleged contemnor, through no fault of his own, was unable to comply with the court order he is claimed to have violated. Id. ("The inability of a party to obey an order of the court, without fault on his part, is a good defense to a charge of contempt . . . The contemnor must establish that he cannot comply, or was unable to do so"). Inability to obey a court order must be based upon the existence of some insuperable obstacle to compliance, not of the actor's own making, which prevents him from complying with the order in a way that he cannot remedy. Examples include inability to pay not caused by the voluntary depletion of alleged contemnor's own assets and impossibility of performance resulting from changes in circumstances beyond his control.
By contrast, non-compliance cannot be excused on the ground that the order was unfounded, unwise, or even unlawful, for honoring such excuses would undermine the effectiveness of court orders, encouraging non-compliance with them as a means of testing their validity. Eldridge v. Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998). Instead, the rule is well established that unless and until a court order is modified or successfully challenged by proper procedure, it is presumed to be valid and must be obeyed. Bunche v. Bunche, 36 Conn.App. 322, 326, 650 A.2d 917 (1994).
II. Wilful Violation of an Applicable Court Order
In this case, there is no question that the defendants wilfully violated the final judgment of this Court by failing and refusing to make all repairs to Hall's Pond Dam, as authorized by Permit # DS-95-018, within 120 days of the issuance of the Permit. To begin with, the final judgment is an order of the Court that applies directly to them. Not only are the Buccinos the only defendants in this action, but it was upon their signed Stipulation For Judgment that the Court entered final judgment herein. Furthermore, the terms of the final judgment, as set forth in the Stipulation For Judgment, clearly required the defendants not only to "submit to the Commissioner a complete and sufficient dam permit application pursuant to Conn. Gen. Stat. § 22a-403 to repair or remove Halls Pond Dam[;]" Stipulation For Judgment, ¶ 2(b); but "[w]ithin one hundred and twenty (120) days of the issuance of the dam permit . . . [to] complete the alterations to Halls Pond Dam as . . . authorized by the dam permit." Id., ¶ 2(d).
The parties do not dispute that Permit #DS-95-018 was issued to the defendants by the Commissioner under General Statutes § 22a-403, or that the repairs specifically authorized by the Permit include each the following, which the defendants have admittedly never made: (1) remove all trees from the Dam's embankment; (2) remove the flashboard supports from the spillway; (3) install a gravel filter blanket at the toe of the embankment; (4) grout the voids in the masonry spillway and masonry spillway channel walls; and (5) install weepholes in the stone masonry channel walls located in the 75-foot area downstream of the spillway. The defendants' failure and refusal to make all of these repairs within 120 days of the issuance of the Permit directly violated the clear terms of the Stipulation For Judgment, and thus of this Court's final judgment in this action.
Furthermore, the defendants' failure and refusal to complete all repairs authorized by Permit #DS-95-018 within 120 days of its issuance was wilful, as is most clearly demonstrated by the deposition testimony of Mr. Buccino. In that testimony, to reiterate, Mr. Buccino unabashedly explained that the "only reason" why all such repairs had not been made was his personal belief that they were not necessary, in light of his ultimate plan to remove the Dam. That simple, straightforward explanation suggests no misunderstanding by the defendants as to the requirements of the final judgment, nor any dispute between themselves and the Commissioner, genuine or otherwise, as to the true meaning of its terms. Instead, it shows a stubborn refusal by them to comply with a judgment whose essential requirements they have always completely understood.
This conclusion would not change, moreover, even if the Court were to ignore Mr. Buccino's deposition testimony and rely instead on the more studied, superficially more reasonable, explanations for his non-compliance which were offered in his sworn affidavit of February 23, 2004. Whether the Buccinos ever believed that the repairs in question were unnecessary for the reasons stated in Mr. Buccino's affidavit, or whether such beliefs, if indeed they had them, were well founded, is of no moment whatsoever, for any decision to act on one's personal beliefs instead of complying with a clear court order is a textbook example of wilful conduct. Proof that a person who failed or refused to comply with a court order believed that the terms of that order were unwise, unjust or unfounded establishes a clear motive for his non-compliance, and thus supports a finding that he acted intentionally, or wilfully, when he violated those terms.
For all of the foregoing reasons, the plaintiff has met his burden of proving by a fair preponderance of the evidence that both defendants, who always spoke and acted through Mr. Buccino, wilfully violated a clear court order that applied directly to them, to wit: the final judgment in this action. On the basis of that wilful violation, which was plainly directed against the interests of the Commissioner in ensuring the safety of the Dam, the defendants may properly be held in civil contempt unless they have a good defense to that claim.
III. Defenses to This Claim
The defendants have no valid defense to the Commissioner's claim against them because the only explanations or excuses they have offered for their challenged conduct are either legally untenable or factually unsupported on the record before the Court. Their principal claim in this regard, to reiterate, is that none of the repairs they failed or refused to make to Hall's Pond Dam, though specifically authorized by their Permit and thus required by the final judgment in this action, were truly necessary for the purpose of this action, which was to preserve the integrity and functionality of the Dam as a working dam. However, just as such a claim does not tend to show that a resulting failure to comply with the judgment was not wilful, it also fails to prove that the defendants' non-compliance somehow resulted from an inability to comply with the judgment. Making the required repairs was not made impossible by the defendants' claimed belief that they were unnecessary. Instead, at most, it was rendered undesirable from their perspective because it would require them to pay more money. The defendants' resulting choice not to comply with the judgment was therefore a free choice, not one forced upon them.
Wilful violation of an applicable court order, to reiterate, cannot be excused on the ground that the alleged contemnor does not agree with the order. In the event of such disagreement, he must seek to vacate or modify the order by proper legal process. Bunche v. Bunche, supra, 36 Conn.App. at 325. Unless and until that happens, however, he must fully comply with the order, in strict accordance with its terms. Eldridge v. Eldridge, 244 Conn. at 530.
On this score, the defendants duly note that they did move to open the final judgment in March of 1999, but that their motion has never been heard or decided. That effort, however, affords them no defense to the Commissioner's contempt claim for two simple reasons. First, they did not file their motion to open until nearly twenty (20) months after the 120-day period for completing the repairs here at issue had expired. For at least those twenty months, the defendants were content to challenge an order they disagreed with by the simple expedient of not complying with it. Such intentional non-compliance cannot be excused on the ground of impossibility, because compliance was in fact possible for them at that time.
Second, in the five-plus years since the motion to open was filed and first appeared on the short calendar, the defendants have never reclaimed it for argument or otherwise requested that it be adjudicated. Such inaction strongly suggests that the only purpose for filing the motion in the first place was to further delay making the required repairs. In conclusion, the motion to open was not filed at such a time and has not been prosecuted in such a manner as to excuse the defendants' prior and continuing non-compliance with the terms of their final judgment.
Two other excuses claimed or hinted at by the defendants are suggestive of inability to comply with the final judgment, and thus are at least theoretically available to the defendants as good defenses to contempt. Those claims are: first, that the Court's order was unenforceable because a special permit to proceed with the repair project was first needed, but had not yet been obtained, from the United States Army Corps of Engineers; and second, that the defendants, through no fault of their own, had insufficient financial resources to pay for the repairs in question. For the following reasons, however, both of those claims must be rejected because they are factually unfounded on the record before the Court.
As for the defendants' claim that no work could be performed under Permit #DS-95-018 until the Army Corps of Engineers had approved the work plan and issued a special permit allowing it to go forward, the Court credits the testimony of Mr. Marsh, who explained that no such approval or permit was required once the defendants' proposed work plan no longer involved the permanent lowering of the spillway, as had originally been proposed. Thus, though Mr. Marsh acknowledged that the Army Corps of Engineers had communicated with Mr. Buccino in March of 1996 that such a special permit would be required to proceed under the original work plan proposed by his engineer, he testified a later written communication from the Army Corps of Engineers established that no such permit would be needed to perform the work ultimately authorized under the Permit, as issued.
Furthermore, Mr. Marsh rejected defense counsel's suggestion on cross-examination that Army Corps approval would still be needed to effect a release of water and a temporary lowering of the pond should that prove to be necessary to cut and remove the upright flashboard supports along the spillway with an oxyacetylene torch. On that score, he testified both that such a lowering of the water level would not in fact be necessary to remove the supports, for the supports could be exposed to the cutting tool by coffering the area around them, and that even if it were, it would involve no permanent lowering of the spillway, which was the Army Corps' only concern.
A second reason for rejecting this unfounded claim of impossibility is simply that both the Stipulation For Judgment and the Permit expressly contemplated that, in carrying out the work required of them thereunder, the defendants would be bound to comply with all applicable provisions of federal, state and local law. Thus, to the extent that federal law required them to obtain a special permit before making the repairs in question — which, to reiterate, it did not — they would have been expected, indeed required, by the final judgment to obtain that special permit. Though such a requirement might well have delayed the start of work under the Permit, it would not have made performance of the work impossible unless, in the circumstances presented, obtaining the special permit would have been impossible. Absent any such evidence in this case, the defense of impossibility is clearly not supported on the record before this Court.
The defendants' second suggested basis for finding that they were unable to comply with the terms of the final judgment is that they lacked sufficient funds to make all the repairs specifically authorized by Permit #DS-95-018. This claim, however, is unavailable to the defendants because they expressly waived it at the start of the June 24, 2003 evidentiary hearing in exchange for the Commissioner's agreement not to seek enforcement of his outstanding subpoena for their financial records. Hence, though suggestions that the defendants had inadequate resources to perform the work were made both by Mr. Buccino, in his deposition testimony, and by his new counsel, Attorney Miniter, in his supplemental brief the Court must in equity, treat any thirteenth-hour claim of inability to perform based upon inability to pay as abandoned.
IV. Ruling And Remedy
Having concluded, as aforesaid, that these defendants wilfully violated a clear court order by failing and refusing to make all repairs specifically authorized by Permit #DS-95-018, and thus required by the final judgment herein, and further concluded that that wilful violation was not excused for any reason, including impossibility of performance or inability to perform, the Court hereby finds, in the exercise of its discretion, that the defendants are in indirect civil contempt of court. The final question thus presented is what sanction to impose upon them as a remedy for their contumacious conduct.
As the party against whom the defendants' contumacious conduct has long been directed, the Commissioner has asked the Court to issue an order requiring the defendants to make all repairs to the Dam originally authorized by Permit #DS-95-018 by a date certain or pay a coercive fine of $500 per day per violation until all such repairs are satisfactorily completed. The defendants have objected to the entry of such an order, insisting, as they have from the outset, that the final judgment gives them the choice either to repair the Dam or remove it and that if they choose to remove it, as they have long intended, none of the required repairs will be necessary for any purpose.
With due respect to the defendants, it is high time that they make a serious, diligent effort to comply with the terms of the final judgment in this case. It is true that initially, when the final judgment was first entered upon the Court's approval of the parties' Stipulation For Judgment, the defendants were given a choice either to repair the Dam or to remove it. The final judgment specified, however, that they were to undertake this work in the following sequence: first, by submitting to the Commissioner, on or before June 21, 1995, a complete and sufficient dam permit application, pursuant to General Statutes § 22a-403, to repair or remove Hall's Pond Dam; and second, within one hundred and twenty (120) days of the issuance of the dam permit, to complete all alterations to Halls Pond Dam, as required by the Final Decision and as authorized by the permit. Although, by this language, the Stipulation For Judgment clearly provided that until a valid permit issued, the defendants could pursue either repair or removal of the Dam to comply with the terms of the judgment, it just as clearly provided that once a valid permit issued, the defendants would have no choice but to comply fully with its terms. Here, upon this Court's denial of the Commissioner's first contempt motion and the contemporaneous rejection of the defendants' original dam permit application as neither an application to repair the Dam nor an application to remove it, the defendants were directed to submit a new dam permit application forthwith. Then, as at the outset, the defendants were expressly advised and informed that they could submit either an application for a permit to repair the Dam or an application for a permit to remove it. They ultimately chose to submit an application for a permit to repair the Dam, which the Commissioner approved.
Having made that election, the defendants' options became more limited. Once the Commissioner approved their application and issued their Permit, they were simply required, "within one hundred and twenty (120) days of the issuance of the dam permit, to complete all alterations to Halls Pond Dam, as required by the Final Decision and as authorized by the dam permit."
At this time, over nine (9) years after the entry of final judgment in this case, and over seven (7) years after the date by which all alterations to Hall's Pond Dam authorized by the defendants' Permit were to have been completed, the Court agrees with the Commissioner that the defendants must be ordered to complete all the work they committed themselves to completing when they first applied for a permit to repair the Dam, to wit: all of the repairs authorized by that Permit, and thus required by the final judgment herein. The defendants are presumptively capable of performing such repairs, as they have adduced no credible evidence to the contrary; Bunche v. Bunche, supra, 36 Conn.App, at 326 ("The lack of any basis or explanation [for the wilful violation of an applicable court order] . . . should reasonably allow the conclusion that the contemnor has the ability to comply with the order of the court"); and they have no further right to insist upon removing the Dam instead of repairing it, having surrendered that right when they submitted and the Commissioner approved their application for a permit to repair the Dam.
Accordingly, the Court hereby finds the defendants in civil contempt of court, and rules that they must finish making all previously ordered repairs to Hall's Pond Dam, as originally authorized by Permit #DS-95-018; not later than one hundred and forty (140) days from the date of this ruling. The Court further rules that if the defendants fail to comply fully with this Order, they shall pay a coercive fine to the Commissioner, for which they shall be jointly and severally liable, in the amount of $500 per day per violation, until all such repairs are completed.
IT IS SO ORDERED.
Michael R. Sheldon, J.