Alan Anderson et al. v. Jason Enters et al. (2012)

MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION FOR CONTEMPT AND FOR FURTHER ORDERS

This case arises out of the dispute between adjoining property owners relating to the extent of an easement, the rights and obligations of the property owners concerning the easement and claims by the plaintiff relating to prescriptive easement rights.   On the eve of trial the parties settled their case by entering into “Term Sheet–Settlement Agreement” dated October 31, 2011 (the Agreement).   All parties to the case and their respective counsels executed the Agreement on November 1, 2011, the day scheduled for trial.   The Agreement was filed with the court.   The Agreement contained the following express language “while the parties agree and acknowledge that it is intended that this Term Sheet, setting forth the terms of the Settlement Agreement shall be a definitive agreement, summarily enforceable by the court, nonetheless in order to properly memorialize and finalize the settlement agreement, the parties need additional time to draft more formal written documents ․” (Emphasis added.)

The Agreement also contained the following language which is at issue in the Motion for Contempt.

2. Driveway surface.   The defendants, at their expense, shall professionally repair the existing driveway surface (including the driveway surface on the plaintiffs' property and the driveway surface in the easement area (as defined under the superceding agreement)), in the following areas:  (i) from the northerly side of the easement to the existing driveway such that there will be a continuous surface, (ii) where the bollard post and rebar is located at the top of the driveway and due to be removed (See ¶ 4);  and (iii) where all pins and stakes were otherwise placed on the driveway service.   As part of their repair work the defendants shall extend the driveway surface to the northerly boundary of the easement, including a curve of no greater than 3 inches high and 3 inches wide, which curb should be located on, and run along, the easement boundary line.   The repair work shall substantially return the driveway to the condition that existed, before the Defendants, in August 2009, installed the post, rebar and fence at the rear of the plaintiff's driveway, including where relevant, the stamp pattern and color of the surface.  (Emphasis added.)

The defendants did a portion of the work in November 2011, specifically installing the pavement and the curbing.   The second phase of the work could not be completed in November because the second phase required the weather to be at approximately 50 degrees for a series of days.

The parties returned to court on January 25, 2012.   This return to court was occasioned by disagreements in the appropriate language to be included in the “superceding agreement” which was contemplated at the time of the original agreement.   Notably during the January 25th proceedings there were no complaints by the plaintiffs concerning the first phase of the work done by the defendants.   During the January 25th proceeding the plaintiffs' requested and the court ordered (D'Andrea, J.) that the defendants inform the plaintiff's as to what contractor was doing the second phase and that the defendants inform the plaintiffs as to when the work was to be done so that the second phase of the work could be observed by either the plaintiffs or plaintiffs' counsel if the plaintiffs were unavailable.   The second phase of the work to be completed in the spring of 2012 included the installation of an “oil and stone surface” over the asphalt installed in November and in the upper portion of the driveway the second phase was to include a stamping pattern as well as an epoxy paint so that the repaired portion of the driveway would be consistent with the pattern of the existing upper section of the driveway.   The overall effect of the stamping and epoxy paint was to make the upper portion of the driveway look like brick payers have been installed.   After significant colloquy by counsel the court ordered defendants to complete the oil and stone surface and the stamping and the painting by April 1, 2012.   The court further ordered as follows:

The Court:  Well, I am going to direct that you give the names to counsel.   It has to do not so much with who owns the property but the quality of the work will certainly affect the plaintiff in his attempt to sell the property.   At this point I think it is a rather harmless thing to do.

Mr. Hill:  Understood, your honor.

Mr. O'Rourke:  May we also get notice, reasonable advanced notice of when the work is going to be done, Your Honor?

Mr. Hill:  We would agree with that.

The Court:  Alright.   That is ordered.

Contrary to this specific order the defendants never informed the plaintiffs as to what contractor was going to do the work or when the work was to be done.   On March 21, 2012, plaintiffs' counsel sent an e-mail to defendants' counsel inquiring as to who was going to do the work and when it would be done.   Defendants' counsel after inquiring of the defendants informed the plaintiff that the work had already been done.

The plaintiffs also contend that the defendant is in contempt of the court order because the agreement requires the defendant to “professionally repair the existing driveway surface” and further that “the repair work shall substantially return the driveway to the condition that existed before ․ August 2009.”

The plaintiffs move for contempt because they claim the defendant willfully violated the court order to notify the plaintiffs of the contractor who was going to do the second phase of the work and of the date when the work was to be performed.   Plaintiffs, further argued that the defendants willfully failed to perform the work in accordance with the standards required in the agreement in that the work was neither professionally done nor did it return the driveway to a condition that was “substantially” as it existed before August 2009.

Before the Court enters a finding of civil contempt there must be fair notice and an opportunity to be heard on the record.  Stein v. Horton, 99 Conn.App. 477, 489 (2007);  Kelly v. Kelly, 54 Conn.App. 59.   It is fundamental to the law of civil contempt that the parties seeking the order of contempt must establish the existence of a court order and noncompliance with that order.   Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832 (2001).   However, noncompliance alone will not support the finding of contempt.   The court also must find that the noncompliance is willful.  Prial v. Prial, 67 Conn.App. 714 (2001).   See also Tobey v. Tobey, 165 Conn. 742, 746 (1974).   Finally, the court order must be clear and unambiguous.  Eldridge v. Eldridge, 244 Conn. 523, 529 (1998).   See also Dowd v. Dowd, 96 Conn.App. 75, 78–80 (2006).

The court conducted an evidentiary hearing during which the plaintiff Karen Anderson testified and the defendant Jason Enters testified.   Both parties introduced Exhibits including pictures of the subject area.   It may be indicative of the long-term conflict between the parties that their respective pictures of the same location showed significantly different conditions.   Accordingly, the court informed the parties that the court would view the premises personally.   The hearing was conducted on May 7, 2012 and the court viewed the premises on May 8, 2012.

The court makes the following findings.   On January 25th the court (D'Andrea, J.) entered a clear and unambiguous court order that the defendant notify the plaintiff of the contractor who was going to complete the second phase of the work and the date upon which the work was to be done.   The defendant did not comply with either part of this order.   The defendants failure to comply with this order was willful.

In this regard the court notes that the defendant argues that the contractor informed the defendant last minute that he was going to the premises and that there was no time to notify the plaintiffs.

The court does not find the defendants' position credible for two reasons.   First, the defendant never notified the plaintiff of what contractor it had hired to do the second phase of the work and even if the defendant was notified by the contractor last minute all the defendant would have had to do was pick up a phone and notify his own attorney who in turn would have notified plaintiffs' counsel.   The defendant chose not to do this.   In fact the defendant chose not to notify the plaintiff that the work was done until such time as the plaintiffs' counsel made inquiry as to the status of the work.

The plaintiff testified in effect that she expected the driveway to look like it looked prior to 2009.

If the plaintiff expected a repair that was seamless this expectation was unrealistic and not consistent with the language in the term settlement agreement.   If the plaintiff believed that in order to get a repair the entire driveway would have to be replaced and redone that expectation is also not consistent with the agreement.   Moreover, the pictures introduced by the plaintiff and her testimony that those pictures fairly demonstrate the conditions on the site were misleading.   The defendants' pictures more accurately reflect the conditions on the site as determined by the courts own observations.   However, notwithstanding the plaintiffs' unrealistic expectations and the plaintiffs' misleading testimony, the defendant was still subject to a court order that did require the work to be done in accordance with a standard set forth in that agreement.   Having observed the site the court finds that the work done by the defendant did not substantially return the driveway to the condition that existed before August 2009.   While it is reasonable to expect some differentiation given the wear and tear on the existing driveway, the repair work simply does not meet the requirements of the order.   There does not appear to be any attempt whatsoever to blend the repair work with the existing driveway.   While the defendant may or may not have intended the result when he contracted for the work to be done, it is apparent upon observation that the work does not comply with the standard that is set forth in the agreement.   And the defendants failure to take further steps to bring the work into compliance with that standard is willful.   Accordingly, the court finds the defendant in contempt for failing to notify the plaintiffs of the contractor and the date the work was being performed in accordance with the court order of January 25th and for failure to perform the work in a manner that substantially returns the driveway to the condition that existed in 2009.

The Court further finds that the parties cannot work together effectively to accomplish the goals entered in the agreement.   The interest of justice require the court to order a contempt remedy that will not inevitably lead to further disputes, conflict and litigation.   Accordingly, the court orders the defendants to pay the plaintiffs $2,500.00 as a result of this contempt.   Upon payment of the $2,500.00 the defendant will be deemed to have satisfied those portions of the agreement which require the defendant to repair the driveway.

Based upon the various bills and estimates that have been introduced by both parties the Court finds the $2,500.00 will reasonably compensate the plaintiffs for the variance between the work that was done and the work as it should have been done.

The parties will each be responsible for their own attorneys fees in this matter.

BY THE COURT

GENUARIO, J.

Genuario, Robert L., J.