Philip Quaranta et al. v. William Cooley et al. (2012)

RULING ON PLAINTIFFS' MOTION FOR CONTEMPT (# 148)

I

INTRODUCTION

This matter came before the court on the February 21, 2012 short calendar for a hearing on the plaintiffs' motion for contempt (# 148), a motion that the plaintiffs had filed on November 3, 2011.   The plaintiffs supplemented that motion with a memorandum of law filed on February 6, 2012.   The hearing was continued to, and completed on, March 22, 2012.

As an initial matter, it is necessary to determine exactly what is before this court.   In a motion for contempt dated February 16, 2012 (# 157), the plaintiffs stated that “three motions for contempt” were to be heard by this court on February 21, 2012.   That claim is incorrect.   The only matter claimed to the court for a hearing on February 21, 2012, was a single motion for contempt (# 148) and a motion for order (# 155).¹

On December 3, 2007, the court issued a memorandum of decision relative to a complaint sounding in negligence and intentional infliction of emotional distress.   The plaintiffs had sought punitive damages, attorneys fees, compensatory damages and “other relief as the court deems fair, just and equitable.”   The memorandum of decision included a series of fifteen (15) orders regarding the use of a driveway shared by the plaintiffs and the defendants.   The order applied to “the defendant and her family.”   One of the fifteen orders stated:  “(2) Do not drive your vehicles more than ten miles per hour [“mph”] on the right of way.”   Another order stated:  “(4) Do not make obscene gestures on the right of way”;  and a third mandate was:  “(5) Do not park on the right of way or allow any of your guests to do so.”  Quaranta v. Cooley, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002605 (December 3, 2007, Gill, J.).   No appeal was taken from that decision.

Thereafter, the plaintiffs filed motions for contempt.   On August 6, 2008, the plaintiffs filed a motion for order, seeking the imposition of penalties against the defendant, claiming that she had violated the court-imposed speed limit on seventy-two occasions.  Quaranta v. Cooley, 130 Conn.App. 835, 839, 26 A.3d 643 (2011).   The plaintiffs also sought attorneys fees and other relief.  Id. On July 13, 2009, the court responded to that motion by ordering the defendant to pay a $100 fine for each violation of the court's December 3, 2007 order, for a total of $7,200;  id., 840;  and ordering the defendant pay $17,562.50 for counsel fees incurred by the plaintiffs after February 22, 2008.  Id., 845.

The Appellate Court reversed the foregoing orders because “[t]he July 13, 2009 order imposing $100 penalties on the defendant was neither conditional nor coercive because the penalties were not prospective in nature;  rather, they were imposed for violations of the court's orders that already had occurred.   Moreover, the order did not provide the defendant with a warning that if her contemptuous behavior continued, then she would be subject to penalties.”   (Emphasis in original.)  Quaranta v. Cooley, supra, 130 Conn.App. 843.   The Appellate Court also reversed the July 13, 2009 order that the defendant pay the plaintiffs' attorneys fees and the costs of repairing the driveway pending a hearing on the latter issues.  Id., 847.   The judgment was then reversed and the case remanded for “further proceedings according to law.”  Id.

Turning to the motion before this court, the plaintiffs claimed that they would present evidence on all outstanding motions for contempt, “including the present motion, having been compiled during the time period of May 2008 through October 2011.   Said evidence will show the defendant, members of her family, and the defendant's invitees traveling on the common right of way well in excess of ten miles per hour on numerous occasions, failing to drive on the paved or gravelled portion of the right of way, and parking on said right of way.”   The plaintiffs move this court to find the defendant in contempt of the court's December 3, 2007 and May 7, 2008 orders.   The plaintiffs ask this court to order “a conditional and coercive sanction for the intentional violations of said orders, for those violations proven at the May 7, 2008 hearing as well as those still to be presented to the court, and to order the defendant to pay to the plaintiffs a sum sufficient to reimburse the plaintiffs for counsel fees incurred in the drafting and filing of this motion and for the hearing on this motion.”   Specifically, the plaintiffs request, as a “conditional and coercive sanction,” that the defendant be “sentenced to the custody of the Commissioner of Corrections until further order of the court.”

The defendant did not file any opposition to either the plaintiffs' motion for contempt or their motion for order.   On March 23, 2012, the defendant did file a post-hearing submission that was neither invited nor authorized by the court.   The post-hearing submission makes a variety of factual assertions to which the plaintiffs cannot fairly respond since the hearing has concluded.   Therefore, the defendant's post-hearing submission will not be considered by the court.  Practice Book § 5–1;  see Thalheim v. Greenwich, 256 Conn. 628, 645, 775 A.2d 947 (2001).

II

DISCUSSIONAJurisdiction Over the Persons Named in the Court's December 3, 2007 Order

On December 3, 2007, the court ordered “the defendant [Joanne Cooley] and her family ” to obey a series of orders relative to the manner in which they used a driveway (“the driveway”) that is shared with the plaintiffs.  (Emphasis added.)   Consequently, this court must address the question of whether it has the authority to find the defendant in contempt of court for behavior carried out by members of her family or, as the plaintiffs would have it, “her invitees.”   There is no claim, nor was there any evidence presented, that any members of the defendant's family were named as defendants in any complaint, or that any process was served on anyone other than William and Joanne Cooley.

“The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it ․ Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter.   One who is not served with process does not have the status of a party to the proceeding ․ A court has no jurisdiction over persons who have not been made parties to the action before it ․ [S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of in personam jurisdiction over that party ․ [N]o principle is more universal than that the judgment of a court without jurisdiction is a nullity ․ Such a judgment, whenever and wherever declared upon as a source of right, may always be challenged ․ If a court has never acquired jurisdiction over a defendant or the subject matter ․ any judgment ultimately entered is void and subject to vacation or collateral attack ․ A challenge to the jurisdiction of the court presents a question of law ․ [T]he Superior Court ․ may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction.”   (Citation omitted;  internal quotation marks omitted.)  Angiolillo v. Buckmiller, 102 Conn.App. 697, 712–13, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).

The principles expressed in Angiolillo, as applied to the facts of the present case, make clear that this court has never had jurisdiction over any persons other than William Cooley and Joanne Cooley.   Further, this court has no jurisdiction over the defendant's “invitees” as described in the plaintiffs' motion for contempt.   The December 3, 2007 order was not applicable to anyone other than the two named defendants.

B

Civil Contempt

“Civil contempt, as opposed to criminal contempt, lies in cases where a party to an action is in willful breach of one or more provisions of a court order without sufficient justification ․ Recent Appellate Court decisions provide a clear roadmap for courts to follow in such cases.   First and foremost, the party must be given fair notice and an opportunity to be heard.   Failure to do so is a denial of due process ․ A finding of contempt is a question of fact ․ To constitute contempt, a party's conduct must be wilful ․ Noncompliance alone will not support a judgment of contempt ․ A finding of contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court.”  (Citations omitted;  internal quotation marks omitted.)   Pritchard v. Pritchard, Superior Court, judicial district of Danbury, Docket No. FA 95 0319316 (August 24, 2004, Shay, J.).

“Sanctions for civil contempt may be either a fine or imprisonment;  the fine may be remedial or it may be the means of coercing compliance with the court's order and compensating the complainant for losses sustained.”  Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977).   “In civil contempt the fine must be conditional and coercive, and may not be absolute.”  Id. “Contempt is civil if the intent of the punishment is coercive and the punishment is avoidable.   If the effect of the punishment is such that a contemnor can avoid or reduce imprisonment, fine or any other punishment imposed, the contempt is civil in nature ․ Civil contempt is designed to compel future compliance.”  (Internal quotation marks omitted.)   Celentano v. Oaks Condominium Assn., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 94 0159297 (April 20, 2007, Sheedy, J.).   The penalties must be “prospective in nature”;  they cannot be imposed for violations of the court's orders that have already occurred.  Quaranta v. Cooley, supra, 130 Conn.App. 843.   The contempt order must “provide the defendant with a warning that if her contemptuous behavior [continues], then she [will] be subject to penalties.”  (Emphasis in original.)  Id.

After finding the defendant in contempt, the court may continue the hearing to a future date to assess the defendant's compliance or noncompliance, in the interim, with the court's order and to determine whether to impose the penalties set forth in the court's contempt order.   See Berthold v. Berthold, Superior Court, judicial district of Fairfield, Docket No. FA 86 0228833 (March 20, 1992, Driscoll, J.T.R.) (court found husband in contempt for failure to pay child support as ordered and continued the matter to a future date “to determine what the penalty should be after considering his compliance or noncompliance in the interim”).   Alternatively, the court may schedule a status hearing for a future date to determine the defendant's compliance with the court's order and assess penalties.   See Windham v. Arsenault, Superior Court, judicial district of Windham, Docket No. CV 08 4007354 (February 23, 2011, Vacchelli, J.) (court denied motion for contempt but ordered a status hearing for a future date to “reassess the circumstances and make any further orders necessary including contempt orders”);  Lebrun v. Lebrun, Superior Court, judicial district of New Haven, Docket No. FA 94 0366032 (November 7, 2008, Frazzini, J.) (court granted a motion for contempt and scheduled a status conference to review compliance with the court's order).

“The evaluation of civil contempt penalties depends to a great extent on whether the penalties are considered at the time they are first conditionally imposed for the purpose of coercing compliance or are considered after the contempt has been purged and the penalties are finalized.   When the penalties are first imposed, the propriety of the court's exercise of its discretion turns on the reasonableness of the amount of the coercion that the court deems necessary, keeping in mind the court's ultimate power to reduce the penalties once the contempt has been purged.”  Papa v. New Haven Federation of Teachers, 186 Conn. 725, 738, 444 A.2d 196 (1982).

“[J]udicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes:  to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained ․ Where compensation is intended, a fine is imposed, payable to the complainant.   Such fine must of course be based upon evidence of complainant's actual loss ․ But where the purpose is to make the defendant comply, the court's discretion is otherwise exercised.   It must then consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.   It is corollary of the above principles that a court which has returned a conviction for contempt must, in fixing the amount of a fine to be imposed as a punishment or as a means of securing future compliance, consider the amount of defendant's financial resources and the consequent seriousness of the burden to that particular defendant.”  (Internal quotation marks omitted.)   Brickley v. Waste Management of Connecticut, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 92 0060522 (January 6, 1998, Gill, J.).

“The penalty to be imposed rests in the discretion of the court ․ It should be adapted and determined with regard to the circumstances, character, and extent of the violation.”  (Internal quotation marks omitted.)  Id. citing O'Neill v. Carolina Freight Carriers Corp., 27 Conn.Sup. 389, 390, 239 A.2d 693 (1967).

A finding of contempt, when reviewed on appeal, is subject to a two-step inquiry.  “First, [the court] must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt․  Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court's determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.”  (Internal quotation marks omitted.)   Allen v. Allen, 134 Conn.App. 486, 491 (2012).  “To constitute contempt, a party's conduct must be wilful ․ Noncompliance alone will not support a judgment of contempt ․ [T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact ․ [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.”  (Citation omitted;  internal quotation marks omitted.)  Id., 499.

C

The Hearing

The plaintiffs initially proffered that they would present the court with dozens of videotapes showing the defendant violating the court's December 3, 2007 order in the following respects:  traveling “well in excess of ten miles per hour” on the driveway, “failing to drive on the paved or graveled portion of the right of way,” and “parking on said right of way.”   The court directed the plaintiffs to identify the ten most egregious examples of the foregoing alleged conduct, present those examples to the court, and the court would then determine if further examples were warranted.

At the first day of the hearing, on February 21, 2012, the defendant acknowledged that she read the court's December 3, 2007 order and was aware of the ten mph speed limit imposed by the court in that order.   She acknowledged traveling in excess of that speed limit, on occasion, noting that the portion of the driveway on which she travels is some 1300 feet in length.   The defendant also stated that, on one occasion in the last calendar year, she loaned her car to a friend, and that she otherwise made it available to her daughter.   On all other occasions, however, she drives her car.   The defendant denied ever intentionally traveling in excess of the ten mile per hour limit imposed by the order of December 3, 2007.

The plaintiffs introduced a videotape of an automobile purportedly stopping in front of the plaintiffs' house, and the driver then making an obscene gesture in the direction of the plaintiffs' house.   Plaintiffs' Exhibit (“PX”) 3. The plaintiffs introduced nine other videotapes, purportedly showing the defendant's automobile on the same driveway.   PX 4–12.   The plaintiffs also introduced two affidavits showing attorneys fees that they incurred during the period of February 22, 2008, through August 6, 2008, totaling $17,562.50.   PX 1. The plaintiffs introduced additional affidavits, reflecting attorneys fees incurred during the period of August 6, 2008, through February 6, 2012, totaling $18,795.   PX 13.   Thus, the plaintiffs seek a total award of $36,357.50 in attorneys fees.

The plaintiffs acknowledged that they had no information regarding the individual who drove the vehicle depicted in PX 3 and PX 4.² The plaintiffs contend that the vehicle depicted in PX 5–12 is the defendant's vehicle.   At the conclusion of the hearing on February 21, 2012, the court questioned the plaintiffs as to the factual basis for their claim that any or all of the videos showed the defendant's vehicle traveling more than ten mph on the driveway that is at issue.   The plaintiffs requested an opportunity to produce a witness on the latter issue, and the hearing was continued to March 22, 2012.

On March 22, 2012, the plaintiffs introduced testimony by Mr. John Pudlinski, an expert witness in the field of automobile accident reconstruction.   Mr. Pudlinski testified that he examined and analyzed PX 4–12 and reached conclusions as to the speeds of the vehicles depicted on each of those nine exhibits.   Some, but not all, of the foregoing videos were the subject of representations made in the plaintiffs' February 6, 2012 memorandum in support of their motion(s) for contempt.   Pls.' Mem. 5–6.   The following chart reflects the exhibits introduced at the hearing, the date on which each such video was created, the plaintiffs' representations as to the speed of the vehicles depicted in the exhibits as set forth in the plaintiffs' memorandum, and the speed estimates introduced at the hearing through the plaintiffs' expert relative to PX 4–12.

2. Date 3. Plaintiffs' 4. Pudlinski

1. Exhibit No. of Video Memorandum Estimate

PX 4 2/7/12 More than 34 mph 32 mph

PX 5 1/29/12 No representation 18 mph

PX 6 10/21/11 More than 34 mph 18 mph

PX 7 10/14/11 More than 34 mph 20 mph

PX 8 10/2/11 No representation 17 mph

PX 9 10/5/11 25 mph 15 mph

PX 10 9/30/11 More than 34 mph 18 mph

PX 11 9/29/11 25 mph 14 mph

PX 12 9/20/11 25 mph 14 mph

It is of concern to the court that the plaintiffs' representations in their memorandum appear to be exaggerations that were not supported by their own expert.   The plaintiffs have acknowledged that they have no information as to who owned, or operated, the vehicle depicted in PX 4, and so that exhibit will be disregarded by the court.   See note 2, supra.   With regard to the remaining exhibits, PX 5–12, the court concludes that the plaintiffs have sufficiently established that it is the defendant's vehicle shown in those videos.

D

Contempt

The foregoing evidence does not establish that, between September 20, 2011 and the date of the hearing, the defendant intentionally violated the court's December 3, 2007 order.   As was discussed, that order binds only the defendant.   The plaintiffs acknowledge that they do not know who was driving the vehicle depicted in PX 4. They have introduced sufficient evidence to establish that the vehicle depicted in PX 5–12 is the defendant's vehicle, but they have not established that the defendant was driving that vehicle on the dates that the foregoing videos were created.   On the contrary, the defendant introduced unrebutted evidence that, on occasion, the defendant's daughter drives that same vehicle.

Nonetheless, the defendant admitted in open court that she was familiar with the court's order and that she had, on occasion, “found herself” driving as much as fifteen mph while driving on the 1300–foot driveway.   Further, in her responses to the plaintiffs' requests for admission, the defendant admitted that she violated the court-imposed speed limit on rare occasions.   She consistently claimed, however, that she never willfully violated the court's order.   She claims that when she exceeded the court-ordered speed limit, “[i]t was simply human error, preoccupied thoughts of movements [sic], in other words, life.”

The court does not find that the defendant's behavior between September 20, 2011, and the date of the hearing reflects willful violations of the court's December 3, 2007 order.   The plaintiffs were directed to produce the most egregious examples of the defendant's violations of the court's December 3, 2007 order.   Even if the defendant traveled down the driveway and back twice per day from September 20, 2011, to the date of the hearing, March 1, 2012, she would have driven in and out of the 1300–foot driveway 228 times.   The “most egregious” violations shown by the plaintiffs, if indeed the occasions shown do depict the defendant and not her daughter, are generally limited to the defendant exceeding the court's speed limit by four or five miles per hour.   On only a single occasion did the vehicle travel as much as twenty miles per hour.   It is more than possible that, on the handful of occasions in which the defendant's vehicle traveled slightly above the court's speed limit, the driver's behavior might have been the result of being distracted or inattentive rather than willful.   The plaintiffs have not established that the defendant's conduct, between September 20, 2011, and the date of the hearing, constitutes contempt of court.

The foregoing finding, however, does not end the inquiry.   The defendant was previously found in contempt on May 7, 2008.  Quaranta v. Cooley, supra, 130 Conn.App. 839.   The latter finding that the defendant was in contempt was not disturbed on appeal.   The question left for this court is whether those violations warrant conditional and coercive sanctions to compel future compliance with the court's orders of December 3, 2007.  Id., 842–43.

The question thus presented is a difficult one.   The dramatically childish and discourteous behavior described in the court's December 3, 2007 opinion is behavior that, according to that opinion, was at its worst between 2001 and 2005.   Much has transpired in the decade that has passed since these issues first arose.   Both parties have experienced, within their families, personal tragedies and serious health issues.   Little of the behavior described in the December 3, 2007 opinion appears to be ongoing.   Indeed, despite the claims in the plaintiffs' motion that is presently before this court, the plaintiffs did not introduce any convincing evidence that the defendant—the only person subject to the court's orders—failed to drive on the paved or gravelled portion of the right of way or that she parked on the right of way.   On the other hand, the court has the clear impression that the defendant lacks introspection and is of the unyielding view that she is without fault.   Although the behavior that gave rise to this action has significantly diminished, the court is convinced that, absent a significant change in attitude, that the defendant's improper behavior has the potential to recur in the future.

E

Conditional and Coercive Sanctions

For the foregoing reasons, the court finds it appropriate to issue the following conditional and coercive sanctions relative to the defendant's vehicular travel on the driveway:

1) The defendant will not travel on the paved or unpaved portion of the driveway in excess of ten (10) mph.   If she does, this court will entertain a motion for contempt and will consider imposing additional sanctions beyond those set forth in this ruling;

2) If the defendant travels on the paved or unpaved portion of the driveway at a rate between fifteen (15) mph and twenty (20) mph, she shall be fined $25 for each such violation of the court's orders;

3) If the defendant travels on the paved or unpaved portion of the driveway at a rate in excess of twenty (20) mph, she shall be fined $75 for each such violation.

If the defendant violates the foregoing orders, or any of the other orders set forth in the court's December 3, 2007 ruling, the court will entertain a motion for contempt and will consider imposing additional sanctions beyond those set forth in this ruling.   The court will also entertain appropriate sanctions relative to attorneys fees and costs associated with motions for contempt that may be filed relative to any future violations of the court's orders.

F

Attorneys Fees

Turning to the question of attorneys fees relative to “the drafting and filing of this motion [# 148] and for the hearing on this motion,” as requested by the plaintiffs, the latter issue is governed by General Statutes § 52–256b(a), which permits the court to award to the petitioner “a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”  “Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion ․” (Internal quotation marks omitted.)  Quaranta v. Cooley, supra, 130 Conn.App. 846.

Since the defendant has not been found in contempt for the conduct described in the motion before the court, § 52–256b(a) is inapplicable.   Even if the defendant had been found in contempt pursuant to the motion before the court, it would be inappropriate to award attorneys fees in this case.   The issues presented were simple and straightforward.   There was no justification for two counsel to participate in the hearing relative to this motion.   The plaintiffs' memorandum should not have made claims against the defendant that were greatly undercut by the plaintiffs' own expert, and counsel should have acquired accurate facts before writing the memorandum.   There was no need for plaintiffs' counsel to review, as they claimed, 478 videotapes, all showing the defendant's vehicle traveling on the driveway.   If the plaintiffs wish to continue to make such videotapes on a regular basis, and submit them all to their counsel for review, that is their right.   It is not a course of conduct, however, for which the defendant should be expected to pay, particularly when the alleged violations depicted on the videotapes were so limited and sporadic.   For all of the foregoing reasons, the court declines to award attorneys fees.

So ordered.

John A. Danaher III

FOOTNOTES

FN1. The motion for order involved the defendant Joanne Cooley's failure to respond to the plaintiffs' requests for admission.   William Cooley is deceased, and thus, all references to “the defendant” are references to Joanne Cooley, only.   At the February 21, 2012 hearing, the court allowed the defendant, a self-represented party, additional time to respond to the request for admission.   The defendant thereafter submitted responses.   Two of her responses were unclear, but she clarified those responses on March 22, 2012.   No further action is required with regard to the plaintiff's requests for admission and/or the motion for order (# 155).   It is true that the plaintiffs' November 3, 2011 motion for contempt states that the plaintiffs will provide evidence “on all outstanding motions for contempt,” but there is no authority for the proposition that, by including such a reference in a single motion, a party can avoid the procedural requirement that a motion must be claimed to the short calendar in order for it to be heard.  Practice Book § 11–13(a) (“[n]o motions will be heard which are not on said list and ought to have been placed thereon, ․”).  In the present case, the only motion for contempt claimed to the short calendar is the November 3, 2011 motion (# 148), and, therefore, that is the only motion for contempt that the court will consider..  FN1. The motion for order involved the defendant Joanne Cooley's failure to respond to the plaintiffs' requests for admission.   William Cooley is deceased, and thus, all references to “the defendant” are references to Joanne Cooley, only.   At the February 21, 2012 hearing, the court allowed the defendant, a self-represented party, additional time to respond to the request for admission.   The defendant thereafter submitted responses.   Two of her responses were unclear, but she clarified those responses on March 22, 2012.   No further action is required with regard to the plaintiff's requests for admission and/or the motion for order (# 155).   It is true that the plaintiffs' November 3, 2011 motion for contempt states that the plaintiffs will provide evidence “on all outstanding motions for contempt,” but there is no authority for the proposition that, by including such a reference in a single motion, a party can avoid the procedural requirement that a motion must be claimed to the short calendar in order for it to be heard.  Practice Book § 11–13(a) (“[n]o motions will be heard which are not on said list and ought to have been placed thereon, ․”).  In the present case, the only motion for contempt claimed to the short calendar is the November 3, 2011 motion (# 148), and, therefore, that is the only motion for contempt that the court will consider.

FN2. There was no evidence that the defendant incited or encouraged anyone to violate any of the court's orders..  FN2. There was no evidence that the defendant incited or encouraged anyone to violate any of the court's orders.

Danaher, John A., J.