Zbigniew S. Rozbicki v. Eugene M. Gisselbrecht et al. (2013)

RULING RE DEFENDANT'S MOTION FOR CONTEMPT

On March 8, 2013, the defendant, Eugene Gisselbrecht, filed a motion for contempt against the plaintiff, Zbigniew Rozbicki.¹  The plaintiff submitted a written objection on May 28, 2013.   This matter came before the court at the short calendar on May 28, 2013.   The motion for contempt is granted.

I

PROCEDURAL AND FACTUAL HISTORY

The motion for contempt now before the court must be considered in the context of an issue that came before the court on August 10, 2011, when the defendant sought a protective order, asking the court to prevent the deposition of the defendant from continuing because the plaintiff had been unprofessional and abusive in the deposition that began on July 19, 2011.   The defendant's motion came before the court and was decided on September 6, 2011.   The court did not grant the relief requested, but rather permitted the deposition to continue.   However, the court also invited the defendant to videotape the deposition at his own expense and permitted the defendant to seek additional assistance from the court, including recovery of the cost of the videotaping or another appropriate remedy, if the conduct at issue was apparent in the videotape.

The deposition resumed on October 18, 2011, and was videotaped at the defendant's expense.   On October 28, 2011, the plaintiff filed a motion for compliance, claiming that the defendant did not provide the documents requested in the notice of deposition and seeking a third deposition session.   The defendant objected and the court heard oral argument on November 21, 2011.   At oral argument, the parties requested that the court watch the entire three-hour videotaped deposition before rendering its decision.   The court did so and filed a decision on December 5, 2011, finding that the plaintiff carried out the deposition in a manner “that served unreasonably to annoy, embarrass, and oppress the defendant.”   The court denied the plaintiff's motion for compliance and ordered that the deposition not be continued.

On December 15, 2011, the defendant filed a motion for order, seeking reimbursement from the plaintiff for the cost of videotaping the deposition ($675.32) and for attorneys fees and costs associated with the motion for order and other motions associated with the defendant's deposition ($1,500).   On January 3, 2012, the court, Danaher, J., granted the defendant's motion for order to the extent that the plaintiff was required to pay, within thirty days, the cost of videotaping the defendant's deposition in the amount of $675.32.   The plaintiff did not comply with the court's order.   On January 23, 2012, the plaintiff moved to vacate the court's order that he make the $675.32 payment.   The court denied that motion on February 6, 2012.

On February 15, 2012, the plaintiff filed an appeal of a ruling that had granted summary judgment against him.   He included the January 3, 2012 order of payment as an issue in that appeal.   The appeal was dismissed on April 24, 2012.   The plaintiff's subsequent petition for certification to our Supreme Court was also denied.

On January 16, 2013, the defendant filed a proposed judgment file.   On February 6, 2013, the court, Trombley, J., determined that a judgment file was not necessary because “a valid and biding order of the court (Danaher, J.) was issued and remains in effect ordering the plaintiff ․ to pay the defendant the sum of $675.32.”   The plaintiff objected to Judge Trombley's order on February 27, 2013, arguing that the order was extrajudicial, was entered when the court's jurisdiction had long expired, and was void as a matter of law.   The latter objection was overruled by the court, Trombley, J., on March 11, 2013.

On March 8, 2013, the defendant filed a motion for contempt, asking the court to find the plaintiff in contempt of the January 3, 2012 order.   The defendant requested that the plaintiff be sanctioned for refusing to pay the $675.32 in compliance with the order and be ordered to pay $2,500.00 in attorneys fees.   The defendant also requested that the court consider other, more severe sanctions for the plaintiff's “utter and willful non-compliance” with a court order.   The plaintiff moved to dismiss the motion for contempt on March 21, 2013.   The court denied that motion on May 9, 2013.

II

DISCUSSION

“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.).  “[T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact.”  (Internal quotation marks omitted.)  Szynkowicz v. Szynkowicz, 140 Conn.App. 525, 541, 59 A.3d 1194 (2013).  “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, 58 A.3d 327, cert. granted on other grounds, 308 Conn. 916 (2013).   The preponderance of the evidence standard must be met before the court can find that a party has established an indirect civil contempt.  Brody v. Brody, 136 Conn.App. 773, 801, 51 A.3d 1121, cert. denied, 307 Conn. 910, 53 A.3d 998 (2012).

“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, 130 Conn.App. 835, 843, 26 A.3d 643 (2011).   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 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.), aff'd, 140 Conn.App. 903, 58 A.3d 980 (2013) (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).

“[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).

In the present case, the court issued a clear, unambiguous order that the plaintiff compensate the defendant for the cost of a videotaped deposition.   The amount to be paid, i.e., $675.32, was well known to the plaintiff, having been stated in the court's order and repeated in multiple pleadings filed thereafter.   Likewise, the order that the payment be made within thirty days of January 3, 2012, was clear and unambiguous.   The plaintiff exhausted all appropriate challenges to the January 3, 2012 order, including an appeal to the Appellate Court.   The plaintiff has been on notice that the defendant is seeking to have him held in contempt by virtue of the fact that the contempt motion was filed on March 8, 2013.   Despite the foregoing, the plaintiff has failed to make the court-ordered payment, a payment that should have been effected some fifteen months ago.

The plaintiff was given an opportunity to respond to the motion in open court on May 28, 2013.²  Citing to Practice Book § 13–14, the plaintiff argued that a finding of contempt is not allowed as a discovery sanction.   The plaintiff misunderstands the current state of this matter.

The order to pay $675.32 was a discovery sanction, authorized by Practice Book § 13–14.   The court is now presented with a situation in which a party refuses to comply with a court-ordered sanction.   In short, this is no longer a discovery issue.

The plaintiff failed to present any argument or evidence that would permit the court to conclude that his failure to comply with the court's order is not wilful.   The defendant reported, at short calendar on May 28, 2013, that the plaintiff had not, as of that date, made the court-ordered payment, and the plaintiff agreed, on that date, that he had not done so.³

This court finds that its order was clear and unambiguous;  that the plaintiff has not complied with the court's order;  and that the plaintiff's failure to comply with the order is wilful.   The plaintiff, therefore, is found to be in contempt of a court order.   The plaintiff will be given an additional two weeks from the May 28, 2013, to carry out the court's order and make payment to the defendant's counsel in the amount of $675.32.   The plaintiff will file a report with the court, on or before June 11, 2013, indicating that he has made the court-ordered payment.   The defendant's counsel will file a report with the court, no later than June 12, 2013, advising the court as to whether the payment was made to her in a timely manner.   If the plaintiff fails to comply with this order, the court will refer his conduct to the Statewide Grievance Committee for a determination of the question of whether the plaintiff's conduct constitutes a violation of, inter alia, rules 3.4(3) ⁴ and 8.4(4) 5 of the Rules of Professional Conduct.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. The plaintiff moved to dismiss the motion for contempt on March 21, 2013.   That motion was heard on April 15, 2013, and denied in a memorandum of decision filed on May 9, 2013..  FN1. The plaintiff moved to dismiss the motion for contempt on March 21, 2013.   That motion was heard on April 15, 2013, and denied in a memorandum of decision filed on May 9, 2013.

FN2. The plaintiff provided the court with a written objection to the motion for contempt at the short calendar hearing.   That objection was not filed prior to the hearing.   However, the court reviewed the plaintiff's written objection.   In addition, the plaintiff provided the court with a motion for disqualification of judicial authority, accompanied by an affidavit.   That motion was defective in that it was not properly filed prior to the hearing;  the plaintiff was not entitled to argument on that motion pursuant to Practice Book § 11–18;  and the motion was substantially the same as other motions that have been filed by the plaintiff in this case.   Indeed, in a motion to transfer filed on May 10, 2013, the plaintiff claimed that all judges presently sitting in Litchfield cannot consider this case because, he claimed, all such judges cannot “fairly and objectively” adjudicate this case.   The motion to transfer and all prior motions to disqualify judicial authority were denied.   When the plaintiff appealed the judgment against him in this case, he included, in his preliminary statement of issues and in his preliminary designation of pleadings, court orders denying motions for disqualification of judicial authority.   The appeal was dismissed on April 24, 2012.   Thus, the plaintiff's motion for disqualification was defective not only because of the foregoing shortcomings, but also because of the motion's lack of substantive merit and the doctrine of the law of the case.  Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999).   Notwithstanding all of the foregoing defects, the plaintiff was allowed to argue his motion for disqualification at the short calendar hearing.   The court denied that motion..  FN2. The plaintiff provided the court with a written objection to the motion for contempt at the short calendar hearing.   That objection was not filed prior to the hearing.   However, the court reviewed the plaintiff's written objection.   In addition, the plaintiff provided the court with a motion for disqualification of judicial authority, accompanied by an affidavit.   That motion was defective in that it was not properly filed prior to the hearing;  the plaintiff was not entitled to argument on that motion pursuant to Practice Book § 11–18;  and the motion was substantially the same as other motions that have been filed by the plaintiff in this case.   Indeed, in a motion to transfer filed on May 10, 2013, the plaintiff claimed that all judges presently sitting in Litchfield cannot consider this case because, he claimed, all such judges cannot “fairly and objectively” adjudicate this case.   The motion to transfer and all prior motions to disqualify judicial authority were denied.   When the plaintiff appealed the judgment against him in this case, he included, in his preliminary statement of issues and in his preliminary designation of pleadings, court orders denying motions for disqualification of judicial authority.   The appeal was dismissed on April 24, 2012.   Thus, the plaintiff's motion for disqualification was defective not only because of the foregoing shortcomings, but also because of the motion's lack of substantive merit and the doctrine of the law of the case.  Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999).   Notwithstanding all of the foregoing defects, the plaintiff was allowed to argue his motion for disqualification at the short calendar hearing.   The court denied that motion.

FN3. “A judgment of contempt ․ must be supported by evidence produced in court at a proper proceeding ․ 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;  emphasis omitted;  internal quotation marks omitted.)  Lynn v. Lynn, 130 Conn.App. 319, 329, 23 A.3d 771 (2011).  “Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings ․ They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them ․ To the extent that they dispense with evidence, they are similar to facts judicially noticed.”  (Internal quotation marks omitted.)  Southington v. Commercial Union Ins. Co., 71 Conn.App. 715, 742, 805 A.2d 76 (2002).   The plaintiff's statement to the court that he had not paid the $675.32 constitutes a judicial admission..  FN3. “A judgment of contempt ․ must be supported by evidence produced in court at a proper proceeding ․ 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;  emphasis omitted;  internal quotation marks omitted.)  Lynn v. Lynn, 130 Conn.App. 319, 329, 23 A.3d 771 (2011).  “Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings ․ They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them ․ To the extent that they dispense with evidence, they are similar to facts judicially noticed.”  (Internal quotation marks omitted.)  Southington v. Commercial Union Ins. Co., 71 Conn.App. 715, 742, 805 A.2d 76 (2002).   The plaintiff's statement to the court that he had not paid the $675.32 constitutes a judicial admission.

FN4. “A lawyer shall not ․ [k]nowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”.  FN4. “A lawyer shall not ․ [k]nowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”

FN5. “It is professional misconduct for a lawyer to ․ [e]ngage in conduct that is prejudicial to the administration of justice.”.  FN5. “It is professional misconduct for a lawyer to ․ [e]ngage in conduct that is prejudicial to the administration of justice.”

Danaher, John A., J.