2006 Ct. Sup. 8690
No. CV-04-0103906 SConnecticut Superior Court Judicial District of Middlesex at Middletown
May 11, 2006
MEMORANDUM OF DECISION
KEVIN E. BOOTH, JUDGE.
I. BACKGROUND
This action was returnable to court on March 23, 2004. On May 5, 2005, the court (Silbert, J.) entered a judgment resolving the dispute between the parties. The evidence indicates that the judgment was intensely negotiated between the parties with each being represented by counsel. The transcript of the hearing before Judge Silbert on May 4, 2005, further indicates that Judge Silbert thoroughly and carefully canvassed the parties on their understanding of the agreement and their voluntary acceptance of it.
On September 26, 2005, this court found that the defendants were in contempt for failing to comply with Paragraphs 4(b), 4(c), 4(d), 4(e), 4(f) and 4(g) of the prior agreement.
As to those provisions, the court imposed penalties for contempt if compliance was not obtained by October 31, 2005. The court further found contempt for failure to comply with provisions of 4(a), but believing that compliance with this provision would take more time than the others, the court imposed sanctions for non-compliance after December 15, 2005.
DISCUSSION
The only item of the court’s September 26, 2005 order in regards to which contempt does not continue is Paragraph 4(c) which prohibited defendants from entering or remaining on certain prohibited areas. There is no evidence that the defendant has entered or remained on these prohibited areas. The plaintiff is no longer claiming non-compliance with Paragraph 4(c).
The court enters judgment against the defendants in favor of CT Page 8691 the plaintiffs for $3,000.00 for non-compliance with five orders at $100.00 per month for the six-month period from November of 2005 through April of 2006. Further, the court enters judgment of $2,000.00 against the defendants and in favor of the plaintiffs for the violation of Paragraph 4(a) at $500.00 per month for the four-month period of January 2006, February 2006, March 2006 and April 2006.
A total judgment against the defendants in favor of the plaintiffs is entered in the amount of $5,000.00.
Counsel for the defendant has done his best under the circumstances to argue against continuing contempt by presenting a collection of arguments, claiming either impossibility or ambiguity. The court finds none of the defendants’ arguments persuasive. There is no indication that the defendant made any attempt to comply with any of the provisions for which contempt is found. While claiming that certain of the required actions are a violation of local law, the defendants never applied for permits and there was no evidence from any Municipal Officials that any of the actions ordered could not be accomplished. It is true that defendants’ witness, James Luczak, P.E., testified that certain elements of the construction required by the stipulation may require the approval of the local Public Health authority. There is no evidence that the defendants or their agents inquired of the Public Health authority about such approval. The plaintiffs offered the testimony of their engineer, Christopher Bell, P.E., who explained the plans, operation and compliance with the applicable code. More importantly, the plaintiffs offered the testimony of Steven Knauf, P.E., the Chief Sanitarian for the applicable Health District. He testified that the plan complied with the code requirements.
Defendants’ engineer testified to a number of claimed ambiguities in the plan. That testimony did not convince the court that the plan was too vague to be implemented. There was no evidence, nor has there been in the past, that the defendants have made any attempt, despite the judgment entered by Judge Silbert in May of 2005, and the judgment of this court in September of 2005, to comply with the orders set forth in Paragraphs 4(a), 4(b), 4(d), 4(e), 4(f) and 4(g) of the voluntary agreement which the defendants entered into.
The court gave serious consideration to the possibility of the incarceration of the defendants. However, in the last analysis CT Page 8692 the court was reluctant to incarcerate defendants in this type of matter. The court has entered judgment today against the defendants in favor of the plaintiffs in the amount of $5,000.00. The court finds that the defendants appear to believe they can ignore the court’s orders with impunity. This, the court can not allow. Accordingly, effective July 1, 2006, the court will impose sanctions for any non-compliance with Paragraphs 4(b), 4(d), 4(e), 4(f) and 4(g), in the amount of $500.00 per month for each non-compliance, a possible monthly sanction would be in the amount of $2,500.00 per month. Further, also effective July 1, 2006, the court will impose for any continued violation of 4(a), a monthly sanction of $1,000.00 per month, for each month that violation continues.
Unless the defendants make diligent efforts to attempt to comply with the court’s orders, sanctions will continue to increase. Judgments will be entered in favor of the plaintiffs and eventually the defendants’ land or other assets, or both, will be lost to the plaintiffs as a result of the continually accruing sanctions.
While the defendants have hired competent counsel to try to make excuses for their non-compliance, the fact is, that they have not even attempted to comply other than with the posting of the escrow and the entering on prohibited land pursuant to Paragraph 4(c). CT Page 8693