Opinion
HHDCV166073152S
07-22-2019
TOWN OF EAST HARTFORD v. Joseph W. SCHULTZ
UNPUBLISHED OPINION
OPINION
Sheridan, J.
Before the court is a Motion for Contempt filed by the Town of East Hartford against; the defendant Joseph W. Schultz for willfully refusing to obey an injunction issued on September 5, 2017 ordering him to demolish a building on property located at 247 Main Street, East Hartford, Connecticut, and restore the property to a safe and neat condition before December 5, 2017.
For the reasons set forth below, the motion is granted. The Town has met its 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. 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 (2007); Isler v. Isler, 50 Conn.App. 58, 66-69 (1998), rev’d on other grounds, 250 Conn. 226 (1999). But, "[n]oncompliance alone will not support a judgment of contempt." (Internal quotation marks omitted.) Prial v. Prial, 67 Conn.App. 7, 14 (2001). In order to constitute contempt, a party’s disobedience must be wilful. Eldridge v. Eldridge, 244 Conn. 523, 529 (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, 27576 (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, See 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, cert. denied, 310 Conn. 901.
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 (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 (2011).
II. 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). This court finds the following facts to have been proven by clear and convincing evidence.
The Plaintiff Town of East Hartford commenced this action seeking injunctive relief, damages, and penalties, in December of 2016. A verified, true and attested copy of the original Application, Order to Show Cause, Order of Service, and unsigned Temporary Injunction was served upon the defendant, Joseph W. Schultz.
On January 19, 2017, the Motion for Temporary Injunction was granted. On February 15, 2017, the Court (Robaina, J.) ordered the defendant to demolish and restore the property to a safe and neat condition within three months of the date of the Order. A copy of that Order was served upon the defendant Joseph W. Schultz.
On September 5, 2017, the plaintiff and defendant agreed, on the record in open court, to amend and modify the February 15, 2017 Order to require that the defendant demolish the building and restore the property to a safe and neat condition on or before December 5, 2017.
The defendant has failed or refused to act pursuant to the Amended Temporary Injunction. More specifically, the defendant has failed to demolish the building and restore the subject property to a safe and neat condition by the specified date of December 5, 2017.
III. ANALYSIS
A. The Order is Sufficiently Clear and Unambiguous.
In this case, the order that is the subject of the Motion for Contempt specifically required demolition of the structure by a date certain. There is no reason to believe the order was incomprehensible or unclear. In fact, the defendant appeared in court and acknowledged the effect of the order, agreeing to a modification that he would complete the demolition by December 5, 2017. The court finds that the order is sufficiently clear and precise to guide the conduct of the defendant and will support a finding of contempt for a willful violation.
B. Noncompliance
The failure to demolish the structure prior to December 5, 2017 has been established by clear and convincing evidence. In fact, the structure remains undemolished as of the date of this motion.
C. Willfulness.
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 (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, cert. granted on other grounds, 308 Conn. 916 (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 (1994).
In the present case, the defendant appeared in court on multiple occasions and was fully aware of his need to demolish the structure by a date certain. The defendant never offered any defense that indicated an inability to comply or that would justify or explain his failure to comply. The court finds that the plaintiff has met its burden of proving willful disobedience of a court order under the heightened standard of proof by clear and convincing evidence.
IV. CONCLUSION
For the foregoing reasons the court finds, based on clear and convincing evidence, that the defendant’s conduct in failing to demolish the structure at 247 Main Street, East Hartford, Connecticut, was in willful disobedience of a sufficiently clear and unambiguous court order, and that the disobedience cannot be excused by a good faith dispute or misunderstanding.
The contempt arises from an unsafe condition that originally caused the Town to seek injunctive relief. Since the defendant refuses to demolish the structure the Town, in the interest of public safety, must now do so. The court will exercise its broad authority to fashion equitable relief, see Elm City Cheese Co. v. Federico, 251 Conn. 59, 94 (1999), and will enter orders to effect the demolition and remedy the unsafe condition.
Therefore, the Court orders as follows:
1. The defendant Joseph W. Schultz is found in contempt and is subject to a penalty of $100.00 per day from December 6, 2017 until the date of this decision, for a total of penalty of $59, 400.00.
2. The Town of East Hartford, and each of its officers, servants, agents, and employees, are authorized and empowered to cause all buildings and structures at 247 Main Street in East Hartford to be demolished and removed and further authorized to take all steps necessary to render the property to a safe, dust-free, erosion-free condition, in accordance with all applicable building codes and safety regulations.
3. Pursuant to General Statutes Sec. 49-73b, the Town of East Hartford may file a notice of lien on the property at 247 Main Street equal to the total amount of any costs, expenses or fees it incurs in connection with inspecting or demolishing the structure thereon, or any other activities undertaken to make the property safe.
4. Upon presentation of a statement of costs and attorneys fees, the Town of East Hartford will be awarded a reasonable attorneys fee and the fees of the officer serving the contempt citation, in accordance with General Statutes § 52-256b(a).