Seventy-two Cherry Street Associates v. Cherry Street Developers et al. (2010)

MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT # 109, MOTION FOR CONTEMPT # 111, MOTION FOR CONTEMPT # 113, AND MOTION FOR CONTEMPT # 115

FACTS AND PROCEDURAL HISTORY

The plaintiffs, 72 Cherry Street Associates, Label Systems, Inc. and Boiler Building, LLC commenced the present action by filing an application for a temporary injunction and an order to show cause against the defendants, Cherry Street Developers, LLC, Garfield Spencer and Clean Air Consultants, LLC on October 27, 2008.   An order granted on December 8, 2008, substituted as a defendant EnviroGuard, LLC.

The plaintiffs are the owners and tenants of certain real property at seventy two Cherry Street in the city of Bridgeport.   The defendants are a partnership that holds title to certain real property at sixty two Cherry Street, which abuts the plaintiffs' property, its member and an asbestos services partnership.   Antecedent to the present action, the plaintiffs' and defendants' properties comprised a single parcel upon which were located several buildings and structures that served together as a factory complex.   Subsequent to the use of the property as a factory, the real property was subdivided.

The buildings upon the plaintiffs' property are reliant upon certain pipes for the provision of heat and water that either originate on or pass through the defendants' property.   The plaintiffs allege that “Boiler Building, LLC is the title holder to a separate parcel of land ․ [that] contains a boiler which provides heat through a series of easements through buildings owned by the defendant ․ to the buildings owned by 72 Cherry Street Associates.”   The plaintiff further alleges that a water main located on city property is diverted through pipes that provide water to a cistern on the defendants' property and, subsequently, to the plaintiffs' property, where the pipes provide potable water for a fire suppression system.

On February 17, 2009, the parties came before the Superior Court in judicial district of Fairfield.   The parties entered into a written stipulation for temporary and permanent injunction, which the court, Tobin, J., entered as an order.   That order provides, in relevant part:  “9. A temporary injunction enjoining the defendants, Cherry Street Developers, LLC, its agents, servants and employees, from engaging in acts which interfere with the plaintiffs' quiet enjoyment and use of their property;  10.   A permanent injunction enjoining the defendants, Cherry Street Developers, LLC, its agents, servants and employees, from engaging in acts which interfere with the plaintiffs' quiet enjoyment and use of their property.”

Thereafter, on June 15, 2009, the plaintiffs filed the first of their three motions for contempt.   Therein, the plaintiffs allege that:  “Since the entry of the stipulation and court order, the defendants have violated the same in the following ways:  a. By creating, permitting, maintaining and allowing a condition to exist on its premises which has had the effect of causing a flooding condition in the premises of the plaintiffs;  b. By creating, permitting and maintaining a situation on its premises which has resulted in decreased fire protection capacity in the plaintiffs' premises;  c. By creating, permitting and maintaining a flooding and flooded condition in its premises which negatively impacts the plaintiffs' ability to adequately and sufficiently maintain its heat system and boiler so as to provide a sufficient level of heat to its premises;  d. By placing equipment and debris on the plaintiffs' premises and the premises over which the plaintiffs maintain easement rights such that the plaintiffs' ability to access and use its premises is impaired, impeded and interfered with.”

The parties again attempted to settle their dispute by entering into a written stipulation, which the court, Hiller, J., entered as an order on July 9, 2009.¹  Subsequently, on July 24, 2009, the plaintiffs filed their second motion for contempt, which alleged that, pursuant to the stipulated order of July 9, 2009:  “[T]he defendants agreed to repair a certain valve located on its premises no later than [fourteen] days from the date of the agreement ․ Fourteen days have elapsed and no such repairs have been undertaken, nor has any notice been given to the plaintiffs.”

On December 29, 2009, the plaintiffs filed their third motion for contempt.   Therein, the plaintiffs allege that the defendants violated the order of February 17, 2009 in the following ways:  “By deliberately interfering with the plaintiffs' heat system by shutting off steam valves in its premises which control the flow of heat and hot water into the plaintiffs' premises which has the effect of cutting off the plaintiffs' sprinkler and fire suppression system, as well as making premises uninhabitable for persons then and there on the premises ․ By creating, permitting and maintaining a situation on its premises which has resulted in decreased fire protection capacity in the plaintiffs' premises ․ By failing to secure its premises such that outside agents and other persons have access to its premises which creates an unsecure premises for the plaintiff ․ By allowing its agents, servants and employees access to its premises and failing to control their use of its premises.”   This third motion for contempt resulted in a continuance.

On February 1, 2010, the court, Arnold, J., granted an order to transfer the present case from the judicial district of Fairfield to the judicial district of Ansonia-Milford.   The plaintiffs filed a fourth motion for contempt on February 11, 2010, in which they allege that:  “Since the entry of the stipulation and court order and despite the plaintiffs' motions for contempt, the defendants have announced their intention to violate the injunctions in the following way:  [O]n January 29, 2010 the plaintiffs received a letter ․ announcing the defendants' intention to unilaterally cut off the water supply to the premises, which will in turn cut off the fire protection to the premises.   This action, as contemplated by the defendants, will violate the existing court orders in this case, as well as interfere with the easements which are reflected in the deeds and the land records running to the plaintiffs' property.   Moreover, the cutting off of the fire protection constitutes imminent harm, putting the plaintiffs' property and the employees of Label Systems, Inc., a manufacturer tenant of the plaintiffs' based at 56 Cherry Street, Bridgeport, Connecticut at risk.” ²

In this fourth motion, the plaintiffs request, inter alia, that the court:  “Find the defendants in contempt of court for their anticipated cut off of the plaintiffs' water supply and fire protection ․ Order the defendants to cease and desist from any actions to cut off or terminate the water supply to the plaintiffs' premises ․ Order the defendants to pay the plaintiffs' their attorneys fees and costs incurred in connection with the instant motion.”

On April 11, 2010, the court held an evidentiary hearing on the plaintiffs' fourth motion for contempt.

DISCUSSION

“Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts.”  (Internal quotation marks omitted.)  In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007).  “[A] finding of contempt depends upon the facts and circumstances surrounding it.”  (Internal quotation marks omitted.)  Campbell v. Campbell, 120 Conn.App. 760, 767, 993 A.2d 984 (2010).   Thus, “[a] finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony.”  (Citation omitted;  internal quotation marks omitted.)  Kelly v. Kelly, 54 Conn.App. 50, 59, 732 A.2d 808 (1999).

“To establish [a] contempt claim, the aggrieved party must prove by a fair preponderance of the evidence both that the alleged contemnor violated the order and that such violation was wilful.”  Campbell v. Campbell, supra, 120 Conn.App. 767.  “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001).  “[T]he 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.”  (Internal quotation marks omitted.)  Kelly v. Kelly, supra, 54 Conn.App. 59.   Nevertheless, “even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988).

In their brief in support of their motion for contempt, the plaintiffs argue that the defendants violated orders nine and ten of the order for temporary and permanent injunction of February 17, 2009.   The plaintiffs maintain that “the defendants' conduct amounts to a private nuisance for which the plaintiff applied for, and by consent received, injunctive relief.”   Thus, according to the plaintiffs “it is clear that the defendant's actions interfered with the plaintiffs' quiet use and enjoyment of their property.”   Moreover, the plaintiffs claim that “[i]t is axiomatic that an essential component of the use and enjoyment of property includes the ability to have heat, water and fire protection service.   To the extent that the defendants either negligently or intentionally interfered with the plaintiffs' property rights, their occupancy interferes with the plaintiffs' use and enjoyment of their property.”

The defendants reply in their memorandum after hearing that the plaintiffs have not met their burden of proof to “show [that] the defendants did not comply with the stipulation.”   Essentially, the defendants' argument boils down to their contention that “[t]he plaintiffs failed to prove what they claim”-that the defendants willfully violated the court ordered injunctions.

The court finds that the plaintiff has shown that the parties are owners of adjoining buildings split out of a former factory complex and that these buildings have interconnecting underground tunnels and water piping systems.   Although evidence was presented as to the relationship of the heating and water and fire suppression systems, the evidence was insufficient for the court to determine who provided what to whom, who was in control, and who, if anyone, had disturbed, at different times, the use of these systems.   Not only did both parties, at different times and in different ways, have contact with them, but public utilities and intruders were also involved.

The plaintiffs assert for the first time in their post-argument brief that the defendants are bound by obligations pursuant to an implied easement.   No easements, for fire protection or otherwise, were introduced into evidence.   The contempt motions presently before the court were based on violations of prior court orders and not of the theory of implied easements.   Furthermore, the plaintiffs have failed to prove that such an easement arose by way of the intention of the adjoining owners and that it was reasonably necessary for the use and quiet enjoyment of the dominant estate.

The plaintiffs contend that “the defendants' actions interfered with the plaintiffs' quiet use and enjoyment of their property” by reference to landlord tenant law, under which “[a] tenant may argue that its covenant of quiet enjoyment and use has been impaired such that the premises have been rendered uninhabitable” by the withholding of “heat, water and fire protective service.”   The plaintiffs have provided no applicable authority for this proposition, but rather rely on this analogy.   Although there may be such requirements for residential property leases, the court is unaware of any such obligation with regard to commercial properties absent a lease or agreement to do so.   The plaintiffs have not provided any such agreements.   The plaintiffs have neither shown by a preponderance of evidence that the defendants wilfully interfered with the plaintiffs' access to water or fire protection in violation of the court order or that any action of the defendants made it impossible or even difficult to obtain these services.

For the foregoing reasons, the plaintiffs' requests for findings of contempt and related relief are denied.

The Court

By Hiller, J.

FOOTNOTES

FN1. The order of July 9, 2009 states, in relevant part:  “The parties hereby stipulate and agree that the [plaintiffs'] motion for contempt dated June 11, 2009 shall be marked off.   The defendant, Cherry Street Developers, LLC agrees to repair the subject leaking valve located on its premises within [fourteen] days, i.e., July 23, 2009.   The defendant will give the plaintiff 24 hours notice before undertaking said repairs.   The entry of this stipulation is without prejudice to either parties' rights.”.  FN1. The order of July 9, 2009 states, in relevant part:  “The parties hereby stipulate and agree that the [plaintiffs'] motion for contempt dated June 11, 2009 shall be marked off.   The defendant, Cherry Street Developers, LLC agrees to repair the subject leaking valve located on its premises within [fourteen] days, i.e., July 23, 2009.   The defendant will give the plaintiff 24 hours notice before undertaking said repairs.   The entry of this stipulation is without prejudice to either parties' rights.”

FN2. The plaintiffs included as an exhibit to their motion for contempt of February 11, 2010 a copy of a letter sent by Aurora Leigh, of the defendant Cherry Street Developers, LLC to Kenneth P. Fells, of the plaintiff Boiler Building, LLC. The letter states, in relevant part:  “This is to inform you that we had a break in the main sprinkler line today.   Currently, we do not have any sprinkler lines on and the line is kept on only for your needs and it has been the case for a few years now.   We are fixing it today.   However, we are tired of being blamed and held responsible for maintaining and repairing something that serves only your use.   In addition, you have not contributed a penny towards the bill that we have been paying since ownership.   I will be calculating your portion of it and sending it to you shortly.   This is to serve as a 30 day notice that we intend to disconnect all existing sprinkler lines coming into to our property at the street level.   They are too old and deteriorated to be fixed long term.   We will be installing a brand new line for our future needs.   Please take the necessary action to provide your property with an independent sprinkler service.”.  FN2. The plaintiffs included as an exhibit to their motion for contempt of February 11, 2010 a copy of a letter sent by Aurora Leigh, of the defendant Cherry Street Developers, LLC to Kenneth P. Fells, of the plaintiff Boiler Building, LLC. The letter states, in relevant part:  “This is to inform you that we had a break in the main sprinkler line today.   Currently, we do not have any sprinkler lines on and the line is kept on only for your needs and it has been the case for a few years now.   We are fixing it today.   However, we are tired of being blamed and held responsible for maintaining and repairing something that serves only your use.   In addition, you have not contributed a penny towards the bill that we have been paying since ownership.   I will be calculating your portion of it and sending it to you shortly.   This is to serve as a 30 day notice that we intend to disconnect all existing sprinkler lines coming into to our property at the street level.   They are too old and deteriorated to be fixed long term.   We will be installing a brand new line for our future needs.   Please take the necessary action to provide your property with an independent sprinkler service.”

Hiller, Arthur A., J.