Joseph M. Cohen v. Robert M. Myers et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT (NO. 184)

This action arises out of a contract for the construction of a new home in Chester, Connecticut by the corporate defendant Robert M. Myers, Inc. for the plaintiff, Joseph M. Cohen.   The motion before the court is defendants' Motion for Contempt (No. 184).

The defendants filed two motions, namely a Motion to Quash Subpoena dated January 19, 2012 (No. 124) and a Motion for Protective Order also dated January 19, 2012 (No. 125) seeking to limit the requested disclosure of bank records from Citizens Bank. The plaintiff filed one objection to both the Motion to Quash and Protective Order (No. 127).   Thereafter, on February 3, 2012, the defendants filed a Motion for Protective Order (No. 129) seeking limits on the dissemination of information about defendants to the public and to public officials that defendants represented was false and was causing great harm to defendant and requesting that any information obtained by the parties in “any” deposition of Mr. Myers be kept confidential by all parties, as well as other relief.  (Abrams, J.) on February 10, 2012, issued four orders in response to each motion and objection which were identical as follows:

1) Plaintiff will only request copies of cancelled checks from the Robert M. Myers, Inc. corporate account (Citizen's Bank Account xxxx3043);

2) Any further document requests to Citizen's Bank shall only be made with prior approval of the court;

3) No party shall reproduce or otherwise disclose the Citizen's Bank records outside the scope of this litigation;  and

4) No party shall reproduce or otherwise disclose deposition testimony or transcripts outside the scope of this litigation.

The deposition of Mr. Myers occurred on or about January 11, 2013.   His testimony was in his individual capacity, as a representative of the corporate defendant and as an expert witness.   Thereafter, on March 27, 2013, the plaintiff sent a letter to Joseph Cassidy, P.E., acting state building inspector, with a copy to Daniel Tierney, the assistant state building inspector, Judith Brown, the zoning enforcement officer for Chester, Connecticut, Jon Brayshaw, the first selectman of Middlefield, Connecticut, George Jepson, the Connecticut attorney general and Julia Waltersdorff, assistant state's attorney, which letter discusses and discloses deposition testimony given by Mr. Myers in the January 11, 2013 deposition.

The defendants claim that this letter, which is attached as Exhibit A to their Motion for Contempt, violates the court order of February 10, 2012, issued in response to the Motion for Protective Order (129) and therefore the plaintiff should be adjudged in contempt of court.   The plaintiff contends that he should not be held in contempt of the court order for three reasons as follows:  1) the order related primarily to the disclosure of financial documents;  2) it only pertained to the deposition of defendant as a party and not as an expert witness and thus plaintiff was entitled to inquire of third parties as to the basis of Myers' expert opinion;  and 3) no harm occurred as result of the alleged violation of a court order.

A hearing was conducted on May 28, 2013, during which argument was presented, the court heard testimony from the plaintiff and several exhibits were entered into evidence.   An Affidavit of Attorneys Fees and Amended Affidavit was filed by the defendants in support of the request for legal fees made as part of the requested relief and an objection thereto was filed by the plaintiff.

I. STANDARD OF REVIEW

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense.”  (Internal quotation marks omitted.)  Bank of New York v. Bell, 142 Conn.App. 125, 131, 63 A.3d 1026 (2013).  “In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.”  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001).  “To constitute contempt, a party's conduct must be willful ․ Noncompliance alone will not support a judgment of contempt.”   (Internal quotation marks omitted.)  Traystman v. Traystman, 141 Conn.App. 789, 799, 62 A.3d 1149 (2013).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful.”  (Internal quotation marks omitted.)   Hibbard v. Hibbard, 139 Conn.App. 10, 17, 55 A.3d 301 (2012).  “[A] contempt finding is not automatic and depends on the facts and circumstances underlying it ․ 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.)  Id. “It is axiomatic that a person may not pick and choose which court orders he will obey ․ A party's opinion concerning the necessity for a particular order does not excuse his disobedience ․ There is no privilege to disobey a court's order because the alleged contemnor believes that it is invalid ․ [or] should not be obeyed.”  (Internal quotation marks omitted.)  Id., 19.

II. DISCUSSION

The court having considered all of the evidence and having assessed the credibility of the witness, finds that the defendants have sustained their burden of proof and have established by a preponderance of the evidence the existence of a court order and non-compliance with that order.   The court also finds based upon all of the evidence as well as the assessment of the credibility of the witness that such non-compliance was willful and thus finds that the plaintiff is in contempt of the court order issued by (Abrams, J.) on February 10, 2012.

The court order stated “No party shall reproduce or otherwise disclose deposition testimony or transcripts outside the scope of this litigation.”   It is undisputed that Mr. Cohen wrote a letter to Joseph V. Cassidy, P.E., acting building inspector, and sent copies of that letter to Daniel Tierney, the assistant state building inspector, Judith Brown, the zoning enforcement officer for Chester, Connecticut, Jon Brayshaw, the first selectman of Middlefield, Connecticut, George Jepson, the Connecticut attorney general and Julia Waltersdorff assistant state's attorney on March 27, 2013, more than one year subsequent to the date of the court order.   It is also undisputed that the letter disclosed parts of Mr. Myers' deposition testimony in that it states in part the following:  “Mr. Myers recently gave testimony in a sworn deposition that—although frankly I found it hard to believe—I felt must be shared with your office for the good of public welfare and safety ․

Mr. Myers testified during a sworn deposition January 24, 2012 that his knowledge of and expertise in interpreting the building code supersedes that of:

1.  Officials in the Town of Chester, Connecticut.

2. Assistant State Building Inspector Daniel Tierney;  and

3.  Philip Hahn, senior staff architect of the International Code Council, Inc.

Plaintiff fully admits that he wrote the letter and also acknowledges that it contains information regarding Mr. Myers' deposition.   He argues, however, that he did not willfully violate the court order and should not be adjudged in contempt for three reasons:  1) three of the four provisions in the order addressed the matter of the Citizen's bank records covering multiple motions and thus it was confusing;  2) the order was drafted prior to the disclosure of Mr. Myers as an expert witness and plaintiff thought he could contact the State Building Official to verify the basis of the expert opinions disclosed at Mr. Myers' deposition;  and 3) no harm occurred as a result of the violation.

The court will address the third argument first.   A finding of contempt does not require a showing of harm.   Rather, it only requires a finding that there is (1) a valid court order and (2) willful noncompliance with said order.   (See Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001);  Traystman v. Traystman, 141 Conn.App. 789, 799, 62 A.3d 1149 (2013).   Therefore, while this argument may have some bearing on the remedy for any contempt, whether defendants can show that they were harmed is not applicable to a finding of contempt.

The plaintiff also claims that the order was unclear because three of its four provisions pertained to bank records.   Although there was no testimony on this subject, plaintiff made this argument in his memorandum and at oral argument.   (Abrams, J.) issued an order in response to each of the motions and objections filed by both parties to this case.   While the contents of each order were identical, a separate and distinct order was issued in response to the Motion for Protective Order (No. 129) which sought confidentiality of deposition testimony as well as other relief.   The same order was issued as to the other motions addressed to the Citizen's Bank records.

The court finds that the language contained in Order No. 129.10 is very clear that no party shall reproduce or otherwise disclose deposition testimony outside the scope of this litigation and that it is also very clear that the order was issued in response to the Motion for Protective Order, No. 129, because separate orders were issued with regard to the motions and objections addressed to the Citizen's Bank records.   Defendants sought specific relief in their Motion for Protective Order based upon their representations to the court that “he (the plaintiff) is seeking to completely annihilate the defendants personally.”   One of the requests for relief was that the plaintiff be prohibited from contacting local municipalities and in particular the Town of Middlefield with regard to this matter.  (See motion no. 129).  (Abrams, J.) issued the above order in response to such request for relief.

Finally, the plaintiff states that his violation of the court order was not willful because the court order was issued before Mr. Myers' disclosure as an expert witness and plaintiff believed that he was entitled to contact the state building officials to verify the basis of Mr. Myers' expert opinions expressed at his deposition.   Mr. Cohen testified at the hearing on this motion that the letter was only written to reach out to building officials with regard to opinions and statements testified to by Mr. Myers as an expert and in particular with regards to Mr. Myers' disagreement with a formal building code interpretation (Plaintiff's Exhibit 2) and he had no intent to violate the court order.   Further he argues in his memorandum that “Plaintiff was under the impression that he could convey the subject of those statements to the State Building Officials who were identified during the expert deposition in order to verify the accuracy of those statements and prepare for trial.”  (Plaintiff's Objection to Motion for Contempt at page 5.)

The Court finds that Mr. Cohen was not a credible witness with regards to his stated intent and that this argument is mere pretext.   If in fact Mr. Cohen was attempting to verify the accuracy of any statements made by Mr. Myers in his expert capacity in order to adequately prepare for trial, then the letter of March 27, 2013 would have requested some sort of verification and response.   However, the letter does not seek any information or verification;  it states that “I offer this information ․ to make certain that the people of the Connecticut, and especially of Middlefield, are protected by qualified building officials.”   It also states that “I would suggest that if you would like more information related to this matter about interpretation of the building code and educational qualification, you contact Mr. Myers directly, and ask that he provide documents and other information he intends to use at trial.”   No questions were being posed in this letter of the state building officials to which response was to be made to Mr. Cohen.   The plaintiff is suggesting that the officials contact Mr. Myers directly rather than respond to some sort of inquiry from the plaintiff and the plaintiff clearly states that his purpose in writing the letter is to protect public health and safety, not to verify an expert opinion.

Further, defendants introduced Exhibit A, a letter written to Ms. Angie Martinez of the Connecticut Department of Consumer Protection dated April 10, 2013 in which plaintiff again makes reference to Mr. Myers' deposition testimony.   While this letter is a legitimate response to a request for information in connection with a complaint to the department, Mr. Cohen not only forwarded the requested documents but provided narrative as follows regarding the deposition testimony of the defendant:  “Myers has testified under oath that in at least one instance his judgment and interpretation of the state building code, which is based on the international building code, supersedes the judgment, expertise and interpretation of both the Connecticut assistant state building inspector, Daniel Tierney, and a representative of the international code office.”   The continued disclosure of deposition testimony in violation of the court order is further evidence of the plaintiff's intent and supports the court's finding that the violation of the court order was willful.

Finally, the letter is copied to the first selectman of Middlefield, the attorney general of the State of Connecticut and the assistant state's attorney.   The first selectman, state attorney general and assistant state's attorney cannot possibly have any information that would verify the accuracy of statements made by an expert witness regarding the building code so as to aid in trial preparation.   Further, defendants had specifically requested in his Motion for Protective Order that the plaintiff refrain from contacting officials in the Town of Middlefield and that relief be granted as to “any” deposition of the defendants.   The order was issued in response to that request.   Thus, plaintiff's testimony and arguments are inconsistent with the written documents and evidence.

III. CONCLUSION AND ORDER

For all of the foregoing reasons, the court finds that the movant has sustained his burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.  (See Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001).   The court further finds, taking into account all of the circumstances surrounding the violation of the court order, that such violation was willful.   The plaintiff is therefore adjudged in contempt of court and defendants' motion is granted.

The defendants did not introduce any evidence that they were harmed or injured as a result of plaintiff's contempt.   However, defendants did incur legal fees in connection with the prosecution of this motion.   The Court finds that the sum of $750 constitutes a reasonable fee and orders the plaintiff to pay to the defendants legal fees in the amount of $750.

Marcus, J.

Marcus, Shelley A., J.