Opinion
X07HHDCV9940127738S X07HHDCV014027736S
10-23-2017
James R. McBurney et al. v. Antoinette Verderame et al. James G. McBurney et al. v. Peter Paquin et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE LESLIE CAROTHERS' MOTIONS FOR CONTEMPT AGAINST JAMES AND ERIN McBURNEY
David M. Sheridan, J.
Before the court in these two related cases are identical motions for contempt filed by the intervening defendant Leslie Carothers against the plaintiffs James and Erin McBurney. Ms. Carothers contends that the McBurneys are in contempt of an order of this court by reason of the installation of large boulders across an area over which she has an implied easement to pass and repass. Specifically, Ms. Carothers alleges that in 2012 the McBurneys " intentionally and willfully placed, and continue to maintain, large boulders between the lawn in front of their property and the Sound, which boulders block passage from the lawn to the slope, beach and shoreline." Ms. Carothers seeks a finding that the McBurneys are in contempt of court, an order that they remove the boulders, and an award of reasonable attorneys fees and costs associated with the motions for contempt.
The present motion was filed on February 8, 2017. On May 11, 2017, the court and counsel viewed the area in question. On May 16, 2017, the court held an evidentiary hearing at which both parties presented testimony and documentary evidence. Post-hearing briefs were filed, and the court heard the parties at argument on June 27, 2017.
For the reasons set forth below, the motion to compel is denied. The moving party has not met her burden of showing by clear and convincing evidence that there has been willful disobedience of an order of this court which cannot be excused by a good-faith dispute or misunderstanding.
I. FACTUAL FINDINGS
A trial court presented with a motion for contempt must exercise its discretion, as informed by factual findings. Bunche v. Bunche, 36 Conn.App. 322, 325 650 A.2d 917 (1994). The historical background of this dispute has been detailed in numerous court decisions and is fully set forth again in the parties' memoranda and exhibits. In the interest of expediting a decision, familiarity with that background will be presumed and those facts will not be repeated here.
Having reviewed the documentary exhibits and evaluated the demeanor and credibility of the witnesses, having analyzed and weighed the evidence according to the applicable standards of law, and having considered the parties' arguments and memoranda of law, this court finds the following facts to have been proven by clear and convincing evidence.
The moving party, Leslie Carothers, has been the record owner since 1998 of what was designated as " Lot 14" on the Baker Plan, with an address of 22 Crescent Bluff Avenue. The alleged contemnors, James and Erin McBurney, have been the record owners since 1997 of " Lot 4" on the Baker Plan.
At the time the Baker Plan was filed, at the southernmost edge of the development was a grassy slope or " bank" leading down to a " strip of beach" approximately twenty feet below. Fisk v. Ley, 76 Conn. 295, 56 A. 559 (1903). The Great Hurricane of 1938 all but obliterated that grassy slope. Following that hurricane, the individual who owned Lot #4 rebuilt his frontage with a seawall, a walkway on top of the seawall, and a poured concrete " ramp" where the grassy slope had been.
When the McBurneys purchased their home in 1997, the concrete ramp was nearly sixty years old and was in poor repair. Between 1997 and 2011, the McBurneys and the adjoining shorefront owner, the Lowlichts, made various proposals to reconstruct the seawall with a paved walkway on top and replace the collapsing concrete ramp with stonework to protect the slope. These proposals were submitted to agencies such as the Branford Planning and Zoning Commission and discussed periodically with the interior owners and their legal counsel, but never built.
At various times, the McBurneys also sought permission of this court to modify Judge Shortall's 2008 order and permit the McBurneys to replace the concrete ramp with a new structure built from riprap. In November 2008, Judge Shortall refused to allow the replacement of the ramp, reasoning that, because the proposed design incorporated stone riprap rather than concrete slabs, it would have constituted an obstruction of the implied easement. (See Docket entries #191.00 through #193.00.) In July 2011, a similar motion to replace the concrete slope was filed (see Docket entries #203.00 through #207.00). The motion stressed that the replacement structure would not interfere with the implied easement, because it would consist of large blocks of stone with exposed surfaces that were flat, rather than angular.
That motion was pending before the court when, on August 28, 2011, Hurricane Irene hit the Connecticut shoreline with winds of up to 75 miles per hour and a storm surge as much as 8 feet above high tide. The seawall in front of the McBurney and Lowlicht homes was destroyed. Without the protection of the seawall, the slope and the concrete ramp were completely washed out. A massive hole was left where the concrete ramp had once been, filled with a shattered concrete slab. The McBurney and Lowlicht properties were unprotected and dangerously exposed to the waters of Long Island Sound.
On August 31, 2011, the Department of Energy and Environmental Protection (" DEEP") issued an emergency authorization allowing waterfront property owners to repair and rebuild seawalls that had existed before the hurricane. The emergency authorization required the installation of riprap on the landward slope behind the McBurney and Lowlicht seawall, where the poured concrete ramp had previously existed. Through correspondence with counsel, the McBurneys informed Carothers and her co-defendants that they intended to replace the concrete ramp with rip rap in accordance with the DEEP emergency authorization.
The McBurneys also sought permission of this court to restrict access to the damaged area during the re-construction. An emergency hearing on that question was held by the court on September 15, 2011. At the hearing, legal counsel for the McBurneys, Attorney Klau, informed the court and the other litigants that because of the scope of the destruction caused by the hurricane, the plans for replacement of the concrete slope that had been presented in 2008 and 2011 had been abandoned. " [I]t would be enormously expensive to build the structure that we had proposed originally. So our intention is simply to put in standard riprap, large boulders that the DEP has authorized, which will shore up the property, prevent it from collapsing, and protect it from future erosion." (See Transcript, September 15, 2011 hearing, p. 24, lines 20 to 26.)
Attorney Klau expressly acknowledged that the area of riprap that was authorized by the DEEP for the repair of the slope " might not be passable." Counsel for Ms. Carothers and the other defendants, Attorney Gallagher, responded that he was learning for the first time at the hearing that riprap would be installed without regard to any rights his clients might have to pass over that area. Nonetheless, he commented: " Now, it may well be that that's a matter that we can sit down and work out, or if the riprap is installed in such a way that we can be heard at a later time as to whether a surface can be made so that we can pass over it, those are other issues." (See Transcript, September 15, 2011 hearing, p. 30, lines 18 to 22.)
The judge at the September 15, 2011 hearing, Judge Bright, picked up on this and commented:
And I think, Attorney Gallagher, you are correct, the best thing for you all to do is sit down and figure out how this gets shored up while preserving everyone's rights in the future to come back and figure out what that means. So if that means putting in riprap and the choice is do you put in the gargantuan boulders that can never be moved to make it impractical to address the issue in the future, I think that's somewhat problematic.
If there's a different type of riprap that can be put in that can be modified should a court order it to be modified, I think that makes sense. Because if the plaintiffs decide that they are going to take an approach which will make it impractical in the future or exceedingly expensive in the future to modify it if a court thinks it should be modified, they do that at their own peril, because I will not be sympathetic to a claim by a plaintiff that says, Look, we put in this riprap and, yeah, we could have done it in a different way, but we put it in a different way, and now it's going to cost a really huge sum of money to put in access. Well, that's a tactical decision they made to try to box in the court, and if they do that, I'm not likely to be sympathetic to it.
So I understand the practical situation that everybody finds themselves in right now, and I understand that it can't be ignored and life can't go on as these defendants would have liked in the past with access, but at the same time there has to be understanding on the other side that the court may want to have--it's going to deal with an issue in the future where you're going to move to terminate the easement, that you should be careful about engaging in a course of conduct now which makes, in your view, your motion a fait accompli, because I am not going to view it that way if there was another alternative that could have been used.(See Transcript, September 15, 2011 hearing, pp. 31-33).
After the September 15, 2011 hearing, the McBurneys' counsel wrote to Carothers' counsel, Attorney Gallagher: " Per the agreement reached in Court last week, I believe you were going to meet with your clients and let us know whether they would take the position that the McBurneys/Lowlichts are required to rebuild the ramp/seawall. Could you let me know what their position is?" Attorney Gallagher replied to the e-mail from Attorney Klau by stating: " [M]y clients will not require the McBurneys or Lowlichts to rebuild the ramp and the seawall."
The McBurneys proceeded with repairing the seawall and slope. They retained professional contractors to build the new seawall/rip rap structure and to ensure that it complied with all DEEP requirements, including height restrictions concerning the seawall. The seawall walkway was not rebuilt. Large, angular boulders were installed to cover the slope and the top of the repaired seawall. To the west of the McBurney property, the Lowlichts rebuilt and restored their property differently, building a walkway on top of the seawall with a protective railing. The boulders/riprap installed by the McBurneys atop the seawall were much higher than the walkway on the adjacent Lowlicht lot, with no railing for the benefit of persons who chose to walk on top of the seawall.
Apparently, the McBurneys' contractor violated the requirements of the August 31, 2011 DEEP Emergency Certification which mandated that any rebuilt seawall be " the same height" as the preexisting seawall. In April 2012, the DEEP notified the McBurneys that the height of the new seawall they had built exceeded permissible limits. The McBurneys' contractor then returned and removed boulders from the top of the seawall to reduce the height and comply with the permit. The result left the top of the seawall " with a narrow and irregular width, uneven footing, an obstructing boulder at the east end next to the concrete stairs, and no handrail or guardrail despite an exposure above the beach of more than eight feet." (See Carothers' June 12, 2017 Post-Hearing Brief [#280] at p. 9.) As a result, the defendants complain, " what exists today is an impassable area of large, jagged boulders where the concrete slope and seawall walkway used to be, and at the top of the seawall, an unsafe, narrow path that is not accessible at its east end." Id.
II. LEGAL STANDARD AND BURDEN OF PROOF
In a civil contempt proceeding, the movant has the initial burden to show that there was a clear and unambiguous order entered by the court and that the alleged contemnor is not in compliance with that order. In re Leah S., supra, 284 Conn. 685, 693-94, 935 A.2d 1021 (2007); Issler v. Issler, 50 Conn.App. 58, 66-69, 716 A.2d 938 (1998), rev'd on other grounds, 250 Conn. 226, 737 A.2d 383 (1999). But, " [n]oncompliance 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). In order to constitute contempt, a party's disobedience must be wilful. Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). " A court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful." Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995).
Therefore, if noncompliance with a sufficiently clear and unambiguous court order is found, the court must then determine whether the defiance of the court order is willful, or whether it may be excused by a good faith dispute or misunderstanding. In re Leah S., supra, 284 Conn. at 694; see also, Eldridge v. Eldridge, supra, 244 Conn. at 526-27. The ultimate conclusion as to whether a good faith dispute or misunderstanding will excuse a finding of contempt is within the discretion of the court. Bank of New York v. Bell, 142 Conn.App. 125, 131, 63 A.3d 1026, cert. denied, 310 Conn. 901, 75 A.3d 31 (2013).
A finding of indirect civil contempt must be based on facts proven by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 318-19, 105 A.3d 887 (2015). Clear and convincing proof " denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." O'Connor v. Larocque, 302 Conn. 562, 576, 31 A.3d 1 (2011).
III. ANALYSIS
A. The Order is Sufficiently Clear and Unambiguous
The court must first determine whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. Civil contempt is committed only upon a showing that a person has violated or disobeyed an order of the court which requires " that person in specific and definite language to do or refrain from doing an act or series of acts." (Emphasis in original; internal quotation marks omitted.) Parisi v. Parisi, 315 Conn. 370, 382, 107 A.3d 920 (2015).
In this case, the order that is the subject of the motion for contempt specifically required that the McBurneys refrain from the act of erecting " any barriers, fences, plantings or other obstructions which prevent the rear lot owners from using or enjoying their easement or in any other way interfere with or impede the rear lot owners in their use of the easement they enjoy over the Lawn."
This court has previously held that Judge Shortall's order is clear and unambiguous. It is an uncomplicated prohibition against " any barriers, fences, plantings or other obstructions" that " prevent . . . or in any other way interfere with or impede" the use of the easement. The interior lot owners may use the easement for passing to and returning from " the shoreline, " which is described as " including the concrete slope, the seawall walkway and the rocks, and whatever beach there may still be adjoining the Sound."
The court finds that the order is sufficiently clear and precise to guide the conduct of the parties and will support a finding of contempt for a willful violation.
B. Noncompliance
Ms. Carothers argues that, in a fashion similar to the fences this court has previously ordered removed, the " jagged boulders" installed by the McBurneys hinder, restrict and make perilous any passage across the area where the concrete ramp and the seawall used to be and therefore are not in compliance with the court's order. Ms. Carothers maintains that the boulders force easement holders trying to walk west to the beach and shoreline to walk on top of and between large, uneven boulders more than eight feet above the beach, with no handrail or other safety provision, at risk to their personal safety.
It cannot be disputed that the riprap that was installed by the McBurneys in 2011 and 2012 to some degree interferes with or impedes a person passing to or returning from the shoreline. That was a reality recognized before the riprap was installed, and discussed at the September 15, 2011 hearing. The court finds that the conditions created by the McBurneys when they repaired the slope and seawall are not in compliance with the order's prohibition of activities that " prevent . . . or in any other way interfere with or impede" the use of the easement.
C. Willfulness
The court must next determine whether the non-compliance is the result of willful disobedience, or whether it may be excused by a good faith dispute or misunderstanding. As this court has previously observed, although the cases employ the word " willful" regularly, there is scant case law illuminating what exactly does--or does not--constitute " willful" disobedience of a court order. It has been described as " a word of many meanings whose construction is often dependent on the context in which it appears." (Internal quotation marks omitted.) Bryan v. United States, 524 U.S. 184, 191, 118 S.Ct. 1939, 1944-45, 141 L.Ed.2d 197 (1998). Certainly, wilful conduct must be voluntary and intentional, planned and deliberate. Beyond that, much depends upon the context of the conduct and the state of mind of the alleged contemnor.
Before finding a person in contempt for the willful violation of a court order, the court must consider the circumstances and facts surrounding the violation. Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995). " 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.) Parisi v. Parisi, 140 Conn.App. 81, 85-86, 58 A.3d 327, cert. granted on other grounds, 308 Conn. 916, 64 A.3d 329 (2013). " Because 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 [party has] the right to demonstrate that his failure to comply with the order of the trial court was excusable." (Citations omitted; internal quotation marks omitted.) Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994).
In the present case, the installation of the seawall and riprap was the culmination of a process requiring a great deal of planning and decisionmaking, rather than any form of spontaneous reaction or negligent blunder. It was done in response to exigent circumstances which none of the parties appear to have reasonably anticipated, and which they could have done little to prevent. There is some evidence to suggest that the damage caused by Hurricane Irene was so severe that to repair the seawall and concrete ramp in a fashion that would maintain the same degree of access for the defendants would have been cost-prohibitive. Under those circumstances, for the McBurneys to rebuild the slope and shore up their property as quickly and inexpensively as possible--even if there was a detrimental effect on access--does not constitute reckless or malicious conduct.
Moreover, it is not entirely clear that the McBurneys should have been aware that they were acting in violation of a known legal duty. The history of this area makes it abundantly clear that forces of nature are continually eroding and altering the topography in the vicinity of the shoreline that was the subject of the easement. When nature drastically alters the shoreline, what are the legal obligations of the shorefront owners with respect to maintaining the interior lot owners' ability to pass to and from the shoreline? There is no direction or guidance in the implied easement recognized by the Supreme Court's decision in Fisk v. Ley, 76 Conn. 295, 300, 56 A. 559 (1903)--or in Judge Shortall's decision defining the scope of that easement--as to obligations to repair and maintain the easement area. The McBurneys maintain that they have no legal obligation; the interior lot owners challenge that assertion. The comments of Judge Bright at the September 15, 2011 hearing demonstrate that the question was far from settled at that time--and it has not been settled since. The court finds that there was a good faith dispute between the parties as to their respective rights and obligations with regard to the implied easement in the aftermath of a natural phenomenon such as Hurricane Irene.
The McBurneys were confronted with a gaping hole perilously close to their shorefront home. They filled the hole and repaired the slope, shoring up the property and strengthening it against future storm events. They did so under the supervision of the DEEP. They informed the court and the defendants of their plans and received from the defendants the imprecise assurance that they would not be required " to rebuild the ramp and the seawall." Under those circumstances, and in the absence of any express directives of the court regarding repair or maintenance of the order, the court cannot find by clear and convincing evidence that there has been willful disobedience of Judge Shortall's 2008 order. The McBurneys acted with full knowledge that the installation of the riprap might make access to the shoreline difficult. But they also acted at the direction and with the permission of the DEEP, and they also had some reason to believe that the defendants were not objecting to that course of action.
Ms. Carothers attempts at several junctures to equate the intentional installation of " jagged boulders" by the McBurneys with the fences installed by Beachcroft that were the subject of this court's prior ruling on a motion for contempt. In the view of the court, the circumstances attendant to the construction and maintenance of those fences are quite different from those present here. At the outset, those fences were not installed to repair or replace any existing improvements that had historically been in place for decades. Second, those fences were not reasonably necessary to any function other than blocking or controlling the passage of persons across the Lawn. Third, those fences were unilaterally installed without any oversight of the court or regulatory agencies, and without any prior notice to or communication with interior lot owners.
" [A] civil contempt finding should not attach to an individual just because it is more likely than not that an injunction was disobeyed beyond the eyes of a court." Brody v. Brody, 315 Conn. 300, 319, 105 A.3d 887 (2015). The court finds that the defendant has failed to meet her burden of proving willful disobedience of a court order under the heightened standard of proof by clear and convincing evidence.
IV. CONCLUSION
The motion for contempt is denied. Each party shall bear its own costs.