Opinion
FSTCV166028856S
02-20-2018
John BORG v. Lynne CLOUTIER
UNPUBLISHED OPINION
OPINION
POVODATOR, J.
This is a lawsuit between neighbors, whose properties are separated by a private right-of-way, approximately 10 feet in width. The parties have sued each other, asserting trespass, private nuisance, and invasion of privacy, with additional claims by the defendant against the named plaintiff based on defamation and invasion of privacy (false light).
On January 24, 2018, the jury returned a verdict for the defendant with respect to all of the claims directed against her by all three plaintiffs, and returned a verdict in her favor with respect to her counterclaims against the two adult plaintiffs.
Generally based on the verdict in her favor, the defendant recently moved for an order, nominally seeking sanctions against the plaintiffs. In the submissions of the parties, reference also was made to an earlier motion filed by the defendant, nominally seeking a non-suit but also invoking the concept of sanctions, in turn based on an earlier order of the court in connection with cross applications for temporary injunctive relief.
To the extent feasible and appropriate, the court generally tries to avoid an overly-technical approach to pleadings, focusing on substance rather than form. Sometimes, however, form is important if not critical, as it may define the process by which a result is reached, and may determine the nature of the actual outcome itself. While it may be possible to recharacterize a pleading in a manner that steers the matter to the proper procedure, the recharacterization must be not infringe on the rights of any party.
In the post-trial motion seeking sanctions (# 271.00), the defendant seeks to obtain an order from the court directing the plaintiff to remove certain lights and other ancillary relief. In support of the motion, the defendant cites cases relating to the ability of the court to impose sanctions. The cases cited by the defendant specifically relate to sanctions in the context of discovery, clearly inapplicable to the situation at hand. The court has more general authority to impose sanctions for other aspects of litigation behavior (litigation abuse); see, Practice Book § 1-25; see also, Fattibene v. Kealey, 18 Conn.App. 344, 558 A.2d 677 (1989) (the sequel to an earlier decision at 12 Conn.App. 212 (1987) ), but that authority does not seem to be properly invoked in this situation, either.
The relief that the defendant seeks is not related to any litigation-process abuses or claimed abuses, but rather concerns the merits of the dispute between the parties. Therefore, the relief that the defendant seeks more properly is characterized as permanent injunctive relief. The defendant previously sought temporary injunctive relief, which presumptively ends with the termination of the litigation, but the claims for relief in her operative counterclaim also sought permanent injunctive relief (" 5. Permanent Injunction" ).
Whether the defendant is seeking permanent injunctive relief (as the court has inferred) or some form of sanctions (as facially claimed), the opposing parties are entitled to an opportunity to be heard, and are entitled to an evidentiary hearing if they choose to contest the application for relief. In the case of sanctions, Practice Book § 1-25 and Fattibene expressly recognize a right to a hearing. With respect to injunctive relief (relief that is equitable rather than legal in nature), Practice Book § 16-13 requires an opportunity to be heard, with additional evidence to be presented as may be necessary. The plaintiffs have filed an objection (# 275.00), which alludes to some of these considerations (if in an abbreviated manner). This latest motion has appeared on a non-arguable calendar, and cannot be decided on the merits, in that fashion (again, especially with an objection having been filed).
In her reply- also mentioned in the plaintiffs’ objection- the defendant alludes to a prior motion, relating to the earlier orders of the court in connection with the cross motions for temporary injunctive relief. Both sides note that the court has not yet ruled on that motion (# 226.00). A somewhat detailed response- and articulated decision- are appropriate.
The court previously referred to its willingness to recharacterize a motion, if circumstances warrant such action. On more than one occasion, however, the court had trouble finding the earlier motion, which the court recalled as effectively seeking to have the plaintiffs held in contempt for failing to comply with the temporary injunction- but instead the motion was captioned as a motion for nonsuit. As already noted, the defendant did not appear to be seeking sanctions in anything approaching a normal usage of that term (despite reliance on authorities discussing sanctions). Note that even if a sanctions approach/analysis were appropriate, a nonsuit would almost certainly not have been an appropriate remedy. The defendant has invoked cases discussing sanctions in the discovery context; cases in that context regularly direct trial courts that any sanction imposed must be proportional to the violation at issue; see, e.g., Millbrook Owners Ass’n v. Hamilton Standard, 257 Conn. 1, 18 (2001); see, also, Null v. Jacobs, 165 Conn.App. 339 (2016). Therefore, even if the plaintiffs’ alleged failure to comply with the court’s orders relating to lighting had been found to warrant corrective or punitive action, that would/might warrant sanctions in connection with the defendant’s claim against the plaintiffs, including the possibility of an order of default. However, an order of nonsuit would be directed to the plaintiffs’ claim against the defendant, which is distinct from the defendant’s claim against the plaintiffs, and for many if not most purposes is treated as a separate proceeding. While it might technically be possible and permissible for the court to do so, it is hard to see a basis for proportionality in the premature termination of the plaintiffs’ case based on conduct relating to a wholly independent/separate aspect of the legal proceedings (the defendant’s counterclaim).
Addressing the merits more directly, the court had been hesitant to issue a ruling on the earlier motion, prior to the trial. The court had concluded that the motion would be denied, for the reasons stated below, such that no one likely would be adversely affected by a delayed ruling. The court was concerned that any points identified in its decision denying the application might be used in adjusting trial strategy, insofar as the reasons for the denial might be interpreted as suggesting areas requiring attention. In other words, the court did not want to be in a position of inadvertently influencing the course of trial, in the process of explaining its denial of the motion for nonsuit or other sanctions/remedies resulting from the claimed failure to comply with the terms of the temporary injunctive relief ordered.
As foreshadowed in the previous paragraph, treating # 226.00 as a motion for contempt relating to the temporary injunction related to lighting on the plaintiffs’ property, the court has concluded that the defendant did not sustain her burden of proof.
In Brody v. Brody, 315 Conn. 300, 105 A.3d 887 (2015), the Supreme Court announced that the proper burden of proof in connection with civil contempt outside the presence of the court was clear and convincing evidence. In considering # 226.00, the court also had to take note of the principle that disbelief of the testimony of a witness cannot be used as affirmative proof of the opposite proposition; see, State v. McCarthy, 105 Conn.App. 596, 619; cert. denied, 286 Conn. 913 (2008); Hartford v. McKeever, 314 Conn. 255, 271-73 (2014); Vitale v. Kowal, 101 Conn.App. 691, 700-01; cert. denied, 284 Conn. 904 (2007).
In crafting its order for temporary injunctive relief, the court had tried to formulate verifiable and non-subjective requirements. To the extent that the defendant contended that the lights were directed at her home and windows, and were always (or virtually always) on, the court determined that aiming the lights downward, and mandating that timers be adjusted so that the lights would go off after a modest period of time, were likely to be the most effective measures while also relatively easy to verify, based on the evidence provided at the hearing. (An area not addressed at the temporary injunction hearing or at trial, and only incidentally at the temporary injunction contempt hearing, was the light output of the plaintiffs’ lights; the defendant subjectively characterized them as stadium-type lights, but no attempt was made (as far as the court can recall) to provide a reliable if somewhat technical measure of output such as lumens, or a more common if less precise measure such as incandescent wattage equivalent.)
At the November 2017 hearing relating to sanctions/contempt based on claimed noncompliance with the temporary injunction, the defendant acknowledged that the order issued by the court did not address light intensity. At that same hearing, defendant John Borg estimated the bulbs as around 100 watts.
At the contempt hearing, the defendant acknowledged that she did not know if the angle of the lights had been adjusted to conform to the court’s order; she had made no effort to determine if they had been adjusted. In her opinion, it would not have made any difference. It may not have made any difference from her perspective, but for purposes of compliance with a court order, it was a critical fact issue, and she provided no affirmative evidence that the plaintiffs had not complied.
The court notes that that last referenced comment of the defendant, aside from demonstrating a lack of an evidentiary basis to assert that the plaintiffs had not complied, was consistent with the somewhat more detailed testimony at trial, to the effect that the plaintiffs’ property was sufficiently " uphill" from the defendant that a significant downward angle would not be (would not have been) likely to provide much if any relief. Again, in an effort to provide relief that was readily verifiable, the court had ordered that the lights be angled downward; at that time, there was little if any evidence concerning topography that would have indicated that such an order might be futile.
The other aspect of the order in question was the persistence of the lights staying on, almost continuously (according to the defendant, virtually on a 24/7 basis). The defendant again professed a lack of knowledge as to the existence of timers controlling the lights on the plaintiffs’ property, and therefore could not address compliance in a mechanical sense- whether adjustments were possible and if so, whether they had been made.
The court does not recall any detailed evidence on this issue at trial, and especially no testimony from either side’s expert as to timing and adjustable settings for timing.
Plaintiff John Borg did address the issues of sensors for the lights, and testified in vague and not always consistent terms. He testified as to the wide range of types of sensors that controlled the lights, that they could be on for less than 10 minutes, but he claimed that he was not familiar with the specific parameters used. At one point he suggested that it was typical for the lights to be on for no more than 5 minutes when triggered. At another time, he stated that the timer for motion detection had a maximum of 10 minutes, and that the lights go off when motion ceases. (He did not testify at the November contempt hearing or at trial, as he and/or his wife had at the time of the initial temporary injunction hearing, that they believed that there were infrared emanations from the defendant’s cameras which triggered, potentially continuously, the infrared sensors on the plaintiffs’ security light system.) He submitted a photograph showing the adjustment of the angle of the lights, within one week of the court’s order. (And relating to intensity, as noted earlier, he did state that there had been no change in the brightness of the bulbs which he estimated to be 100 watt bulbs.)
At trial, he testified that he had provided to the person installing the equipment the parameters used in setting up the sensors.
Much of the testimony of plaintiff John Borg relating to his claimed lack of familiarity with the details of sensor parameters (and other technical issues) could not be credited by the court (and especially something presumptively as straightforward as timer settings) given his technical background- but even so, as noted above, the court cannot convert doubts about the candor of his testimony into affirmative proof that the plaintiffs did not adjust timing sensors as had been required (or as a threshold matter, that they needed adjustment). Again, just as the court noted in an earlier decision that the field of view of the defendant’s cameras could easily have been verified by a request for inspection, the same is true of the angle of the plaintiffs’ lights and, although perhaps needing assistance of an expert, the timer-type settings actually in place. There was no evidence at the November 2017 hearing indicating that to the extent that some or all sensors had adjustable settings for time, they had not been adjusted to conform to the court’s order. The defendant had the burden of establishing non-compliance (to a clear and convincing evidence standard); the plaintiffs did not have the affirmative obligation to prove compliance.
With a benchmark of clear and convincing evidence, the defendant failed to establish at the hearing in November 2017 that the plaintiffs had failed to comply with the temporary injunctive relief that the court had ordered a few months earlier. Therefore, the application for an order finding the plaintiffs in contempt, captioned as a motion for nonsuit, had to be, and is, denied.
Conclusion
Treating the recently filed motion for order as an application for permanent injunctive relief, the court cannot grant such relief on a non-arguable basis, particularly given the existence of an objection filed by the plaintiffs. If the defendant wishes to pursue this relief, she must make arrangements for a hearing, directed towards her claim for permanent injunctive relief. If the hearing is anticipated to be relatively brief, the court can schedule it as a short calendar matter; if it is going to be more time-consuming, then a hearing on a non-short-calendar basis will need to be scheduled. Counsel for the defendant is directed to discuss scheduling with opposing counsel, so that an appropriate estimate of time can be determined, and appropriate measures taken to schedule a hearing as dictated by that discussion.
Accordingly, the court can and does issue no definitive ruling as to the current motion for order (# 271.00). To the extent that it is a motion for contempt based on the earlier temporary injunctive relief ordered, the deficiency in proof identified above, relating to the temporary relief ordered, is applicable to any such claim. To the extent that it is a motion for contempt based on the results of the trial, there is no current order for permanent injunctive relief in existence such that there cannot be contempt on that basis (and the jury verdict did not address the detailed order of the court relating to temporary injunctive relief). To the extent that the defendant seeks permanent injunctive relief, an appropriate hearing needs to be scheduled, as discussed above. Finally, with respect to the outstanding decision on # 226.00, that earlier motion for nonsuit (contempt) is denied for the reasons stated above.