Eugene Fratalli et al. v. David C. Fulton et al. (2013)

MEMORANDUM OF DECISION

On February 1, 2013, the plaintiffs, Eugene Fratalli and Leonard Salvas, filed a motion for contempt.   The basis for the contempt is the alleged failure of the defendants, David C. Fulton and Theresa Fulton to comply with certain provisions of a judgment of the court.

On September 25, 2013 the plaintiffs and the defendants entered into a stipulation that was accepted by the court and entered as a judgment.   The plaintiffs now assert that the defendants are in violation of those orders and they seek a judgment of contempt and further orders of the court that the defendants be directed to clean up the right of way and to remove the remainder of the fence as stipulated in the court order.   Finally, the plaintiffs request payment of a reasonable sum of attorneys fees and costs in connection with this motion.

The court took testimony in this case on March 18, 2013.

In relevant part the judgment in this quiet title action reads as follows:

1.  The defendants, David C. Fulton and Theresa Fulton, and their heirs, successors and assigns shall have absolute fee simple title to the so-called paper streets (hereinafter “Right of Way or ROW”), in the City of Groton known as North Street, South Street and Meridian Street, (more particularly described in Exhibit A attached hereto) free of any claims of the plaintiffs other than those expressly stated herein.

2. The plaintiffs, Eugene Fratalli and Leonard Salvas, and their heirs, successors and assigns shall have easement rights over said ROW to access their appurtenant properties, known as two lots of Fratalli both known as 0 Poquonnock Road, Groton account numbers 168807676735 (Vol.260, pg.314) and 16880767685013 (Vol.274, pg.651);  and Salvas known as 0 West Street, Groton, account number 168807686582 (Vol.703, pg.440).   Legal descriptions attached.

3. Eugene Fratalli and Leonard Salvas, their heirs, successors and assigns, including their tenants, are permanently enjoined from the erection of any barriers, fixtures, structures and any kind, or any item whatsoever, manmade or natural, including mail receptacles, placement or parking of motor vehicles or equipment or the accumulation of debris or the like in any portion of the ROW. The defendants, their heirs, successors and assigns, shall not interfere with the reasonable access of the plaintiffs over said ROW to access their respective parcels.

5. The defendants, David C. Fulton and Theresa Fulton, may continue to maintain an existing chain link fence or similar structure along the southerly border of the right of way of the property along North Street from West Street a distance of eight lengths of fence approximately 66 feet.   The remainder of the fence shall be removed by 5 p.m. on October 31, 2012.   All the debris on the ROW, including but not limited to the wood pile, steel, plastic pipes, a sink, a red bed of a truck, a vacuum cleaner, rims of a car, lawn chairs and brush shall be removed by the defendants by 5 p.m. on October 31, 2012.   L.R.S. 9/7/12;  E.L.F. 9/7/12.

6. In any action seeking enforcement of the orders by contempt, injunction, or other action the prevailing party shall be entitled to reasonable attorneys fees and costs.

The testimony provided to the court establishes that the defendants cleaned up the debris on the right way prior to October 31, 2012 and thereafter placed wood and debris such as pipes and old appliances back within the bounds of the right of way.   As of March 11, 2013 there is photographic evidence establishing these conditions that are at variance with the requirements of the judgment.   Further the evidence demonstrates that although the fencing has been substantially removed in compliance with the court orders that the concrete footings that held the fence up have not been removed.

The defendants argue that they are only required to allow the plaintiffs “reasonable access” on the right of ways and that they have done so.   They argue that there is room within the right of way for the plaintiffs to access their respective properties.   They further argue that it was never their intent to give rights to the plaintiffs to the forty-foot paper street but rather they only were agreeing to recognize a right of reasonable access to the plaintiffs by allowing a twelve- to fifteen-foot area for ingress and egress.

The language of the stipulation that was accepted and ordered by the court undercuts these arguments.   In the first paragraph of the stipulation the “paper streets” that were the subject of the underlying quiet title, nuisance, trespass and unjust enrichment dispute would thereafter referred to as “right of way or ROW.” In that paragraph the defendants were recognized to have an absolute fee simple title to the paper streets subject only to the rights recognized in the plaintiffs in subsequent paragraphs of the Stipulation.   The Stipulation uses the abbreviation “ROW” in the second paragraph two which grants certain express easement rights to the plaintiffs.   Paragraph 5 of the stipulation describes the obligations of the defendants with regard to their usage of the right of way.  “All debris on the ROW, including but not limited to the wood pile, steel, plastic pipes, a sink, a red bed of a truck, a vacuum cleaner, rims of a car, lawn chairs and brush shall be removed by the defendants by 5 p.m. on October 31, 2012.   In each of these references to the paper streets in the stipulation there is no indication that the width of the streets is any more or less that that indicated on Exhibit A of the agreement.   The defendants would have the term “ROW” to be read expansively with regard to their claim of fee title but much more narrowly when the plaintiffs were granted rights or obligations were imposed on the defendants.

The defendants rely upon language in paragraph 3 of the stipulation to support their contention that they were only recognizing rights of the plaintiffs to use only a small portion of the ROW for “reasonable access of the Plaintiff's (sic) over said ROW to access their respective parcels.”   This language however is consistent with the grant of an broader access and utility easement in paragraph two of the stipulation and does not give notice of an limitation on the area of the easement granted.   The parties took care to define the parameters of the property that was in dispute when they identified in Exhibit A and thereafter used the same terms to describe the fee ownership interest of the defendants and the easement rights of the plaintiffs.

With regard to the footings for the fence, they are an integral part of the fencing system.   The manner in which the tops of the fence have been removed have left dangerous conditions.

Accordingly, the court finds that the stipulation which was the basis of the court's order was clear and that the defendants have knowingly and willingly violated that order in two ways:

First, the defendants have violated the order by placing wood and debris within the ROW, as it is defined, after October 31, 2012;  and

Second they have failed to remove the entirety of the sections of the fencing described in paragraph 5.

The court orders that the defendants remove the debris and wood from the ROW within 15 days;  that the defendants present the court with a plan to remove the footings within 15 days;  the plaintiff is ordered to submit its claim for attorneys fees with regard to this motion within 15 days.

The matter is set down for further hearing on August 19, 2013 at 2:00 pm.

Cosgrove, J.

Cosgrove, Emmet L., J.