New Fairfield Zoning Enforcement Officer Thomas Gormley v. Bruce Kramer (2013)

MEMORANDUM OF DECISION

The plaintiff herein, New Fairfield Zoning Enforcement Officer Thomas Gormley (Officer Gormley), commenced this action to enforce a December 18, 2006 temporary injunction order against the defendant, Bruce Kramer (Kramer).   That order had been entered in a prior lawsuit, CV–06–4006390–S Maria Hausherr–Hughes, Zoning Enforcement Officer of the Town of New Fairfield v. Bettina Rosser and Bruce Kramer (the “2006 Action”).

In the verified complaint in the instant action, the plaintiff, Gormley, alleges that the defendant, Kramer, has knowingly and willfully violated the December 18, 2006 order, and he further alleges that unless immediate temporary and permanent equitable relief is granted, the plaintiff will suffer irreparable injury and harm.

The defendant, Kramer, has filed a motion to dismiss the instant action for lack of subject matter jurisdiction because the 2006 Action was withdrawn on April 16, 2010 without the temporary injunction ever having been made permanent and without returning the 2006 case to the docket.

The electronic court record (Edison) of the 2006 case was made available to the court by the Chief Clerk of the Danbury Superior Court, Louis A. Pace, Jr. That is the only remaining record of pleadings filed in the 2006 Action, the file having been destroyed pursuant to Practice Book Rules on a date following the withdrawal of the action on April 16, 2010.   The court hereby takes judicial notice of that record.

That record confirms that an order granting a temporary injunction was granted by this court (Mintz, J.) on December 18, 2006.   Thereafter, a number of pleadings were filed including discovery motions, subpoenas, motions to quash, and an answer by the defendant to the application for injunctive relief.

The plaintiff argues that notwithstanding the more than seven-year hiatus between the withdrawal of the 2006 Action by his predecessor, the December 18, 2006 order of Judge Mintz was expressly stated to remain in effect “until further order of the Court.”

This court finds that implicit in that order was the expectation that the 2006 Action was to continue until the granting or denial of a permanent order of injunctive relief in that case.   As noted, adversarial pleadings were filed in that case but there was never an evidentiary hearing, no order for a permanent injunction, no judgment of the court and no judgment file.

The case was withdrawn by the plaintiff apparently unconditionally and without reservation of any rights on the part of the plaintiff.

“Withdrawals are analogous to final judgments ․ Under the law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.”  Sicaras v. Hartford, 44 Conn.App. 771, 775–76 (1997).

The plaintiff has never moved the court to restore the 2006 Action to the docket.   Rather, he commenced the instant action seven years later in an effort to enforce the provisions of an interlocutory order in the 2006 Action which was never made a judgment of the court.

Having considered the facts before it, the court hereby grants the defendant's motion to dismiss this case.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.