Jeffrey Lillien et al. v. Albert Hancock et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT;  MOTION TO ENFORCE (171.00, 171.01)

In this case, the plaintiffs, Jeffrey and Elizabeth Lillien made numerous claims against Albert and Susan Hancock, the owners of real property at 2 Northside Lane, a private road in Westport, Connecticut, arising out of the Hancocks' construction of a stone wall partly outside the Hancock's property line, and on the unpaved right-of-way for Northside Lane, property which is jointly owned by all residents on the road.

In late June 2011 this court issued a memorandum of decision finding for the Lilliens on one of their claims, a claim for ejectment [52 Conn. L. Rptr. 274].   This court ordered the Hancocks “to remove those portions of the wall originally constructed in 2005 which are located on the right-of-way extending westward from North Avenue ․ no later than November 1, 2011.”   Dkt. Entry 159.00.   No appeal was taken from this court's decisions and order.

The Lilliens have filed an “Amended and Restated Motion for Contempt and Motion to Enforce Judgment.” ¹  A hearing on these motions took place on January 18, 2012.   At the conclusion of the hearing, the court announced that it was denying both motions and would shortly provide a written opinion.

The motions for contempt and to enforce are denied.  Practice Book § 1–21A states a violation of a court order is contemptuous, and where the dispute is between private litigants the contempt is civil, and any sanctions imposed shall be “coercive and non-punitive.”  “Sanctions for civil contempt may be either a fine or imprisonment.”  Connolly v. Connolly, 191 Conn. 468, 482 (1983).   The two elements required for a finding of civil contempt are (1) a valid court order, and (2) failure to comply with that order.  Leslie v. Leslie, 174 Conn. 399, 403 (1978).   Inability to comply is a defense in a contempt proceeding;  id.;   the absence of willfulness is technically not a defense to a civil contempt proceeding.  DeMartino v. Monroe Little League, 192 Conn. 271, 279 (1984).   Nevertheless, where a party evidences a willingness to comply with the order, a citation of contempt may be premature.  Connolly v. Connolly, supra, 191 Conn. 483.

The court determines that its order in this case to remove the wall was valid, clear and unambiguous.   The court also determines, based on the evidence presented at the hearing, that the subject wall was removed in conformance with the order.   The eight- to twelve-foot portion claimed not to have been removed was, and is, not part of the wall erected in 2005.   That wall, including the portions on the right-of-way which have been removed, was between five and eight feet height.   The portion claimed by the Lilliens not to have been removed was not part of the wall, but was a headwall on the north side of Northside Lane protecting a culvert running under Northside Lane containing a stream that runs southeasterly from the Hancocks' property.   According to unrebutted and credible testimony of Albert Hancock, that culvert, built in the 1980s, came into disarray prior to 2005 when two fire trucks slid off the road and down the steep drop-off where the culvert exists winding up in the wetlands on the Hancocks' property.   The damage was repaired by placing stones around, and on top of the culvert to prevent further incidents of that sort, and to control erosion from the roadside into the culvert.   The stones were somewhat rearranged when the wall was built in 2005 to provide a base for the wall in that area, but the number and size of the stones remained substantially unchanged, according to Albert Hancock's testimony.   When the wall was removed in October 2011 the culvert head-wall was left in place.   At present, the head-wall is approximately five feet in height measured from the bottom of the culvert to the road level.   However, the head-wall is only six or seven inches above grade at the level of Northside Lane. Exhibits F, D and C. According to unrebutted and credible testimony from the engineer who supervised the wall removal, Peter Romano, the head-wall provides needed erosion control and some impediment to vehicles in danger of going off the road shoulder into the culvert.   For the reasons set forth above, leaving the head-wall in place is not a violation of this court's order.

The Lilliens claim that the spreading of new soil over and seeding that part of the area on the right-of-way where the 2005 wall was taken down is a violation of the court's order, and transformed that section of the right-of-way into a “private lawn.”   Amended Motion for Contempt, 3. The court disagrees, and finds this claim nearly frivolous.   The evidence appears to the court to justify the soil and seeding reasonably necessary to repair areas where the wall had existed and to control water run-off.   While it is difficult to predict its final appearance because the area was seeded in late October and is largely covered at the moment by hay it seems likely that the appearance will be consistent with a private country road.   The claim that the Hancocks have turned the right-of-way into a “private lawn” is baseless.   Grass is a common and uncontroversial ground cover, and at this stage of the proceedings the parties are well aware of the boundary location between the Hancock property and the jointly owned right-of-way.   The existence of grass in no way impairs the Lilliens' ownership rights in the right-of-way.   Similarly, Mr. Lillien's insinuations through questions asked at the hearing that he was not consulted about, nor did he consent to, the nature of the restoration are misplaced.   The Hancocks had no duty to please the Lilliens;  their duty was to comply with the order.

Finally, the Lilliens claim “stone structures” have been erected on the right-of-way.   This is an overstatement.   The evidence shows eight individual stones on the right-of-way, some of which might qualify as boulders.   Four stones are together, but hardly make or resemble a “stone structure.”   There is no evidence as to how or when the stones got to their location or who, if anyone, was responsible.   Because arguably the stones may impair the use or enjoyment of the right-of-way, the court issues a supplemental order to the Hancocks to remove the stones pictured in Exhibit 7 from the right-of-way by February 28, 2012.   If weather conditions make this order difficult to comply with, the court will look favorably on a request for an extension of time to comply.   The Hancocks are persons being ordered not because the court has any evidence that they were responsible for the stones location, but only because they live closest to the area in question, which is next to their driveway.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Initially, the Lilliens filed three post-judgment motions:  for sanctions, to reopen the judgment, and for contempt.   Dkt. Entries 160.00, 162.00, 164.00.   The sanctions and re-opening motions have been withdrawn..  FN1. Initially, the Lilliens filed three post-judgment motions:  for sanctions, to reopen the judgment, and for contempt.   Dkt. Entries 160.00, 162.00, 164.00.   The sanctions and re-opening motions have been withdrawn.

Adams, Taggart D., J.T.R.