Borg v. Cloutier
| Decision Date | 12 March 2019 |
| Docket Number | FSTCV166028856S |
| Parties | John BORG v. Lynne CLOUTIER |
| Court | Connecticut Superior Court |
UNPUBLISHED OPINION
This is the latest chapter in the ongoing neighborhood dispute between the adult plaintiffs and the defendant. The plaintiffs initially sued the defendant asserting claims including invasion of privacy, in turn primarily based on security cameras installed by the defendant in or near her backyard. The defendant, in turn, filed counterclaims asserting claims including invasion of privacy and defamation. There were two primary areas of claimed invasion of the defendant’s rights— the defendant claimed that the plaintiffs had excessively bright lights shining on her property all night, and also claimed that Mr. Borg was responsible for posting an allegedly-defamatory website. After a jury trial, the jury found for the defendant on all of the claims asserted by the plaintiffs (including a claim asserted by the plaintiffs on behalf of their daughter) and found in favor of the defendant on all of her counterclaims awarding substantial damages.
Subsequent to the jury verdict, the court heard evidence in support of the defendant’s claim for injunctive relief, seeking to have the plaintiffs stop shining bright lights onto the defendant’s property (and into her house) and seeking to compel Mr. Borg to take down the website that the jury had determined to be defamatory (as well as a violation of the defendant’s right to privacy— false light). The court entered orders relating to both aspects of injunctive relief sought by the defendant in a memorandum of decision dated August 23, 2018, effective 21 days thereafter.
Shortly after the injunctive order went into effect, the defendant moved to have the plaintiffs held in contempt. The court scheduled hearings on the application for contempt, and there was an initial hearing at which evidence was taken concerning lighting. On a subsequent date, the court heard evidence relating to the website.
In order to find a party in contempt, there must be a clear order, free from any material ambiguity, that has been willfully violated by the party claimed to be in contempt. The burden of proof on the moving party is the enhanced standard of clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 105 A.3d 887 (2015). The court will address the issues of lighting and website separately.
In order to assess the quality of the plaintiffs’ conduct, the court must start with some comments made at the outset of the hearing relating to whether the court should enter an injunction relating to lighting. During the course of the jury trial, the evidence had been limited to evidence/testimony relating to two floodlights installed in the back of the plaintiffs’ property, pointed at the rear of the defendant’s property. The parties live in an area of Westport where the homes are on relatively small lots, and the homes of the plaintiffs and defendant are back-to-back, separated by a right-of-way approximately 10 feet wide. There was testimony during the jury phase of the trial that the floodlights had a light output rating of 10, 000 lumens. As a frame of reference, a typical 100-Watt incandescent lightbulb has a light output of approximately 1600 lumens. See, footnote 1 of August 23, 2018 decision.
At the outset of the hearing on granting injunctive relief, the plaintiffs took the position that no injunctive relief was needed. Although a third light had been installed within the week prior to the hearing, that new light was not operational. In addition, one of the previously-existing lights had been moved and also was claimed to be not operational. On that basis, the plaintiffs argued that there was no need for any injunctive relief. The court rejected that argument.
Fast-forwarding into the September-October timeframe, in the few weeks between the effective date of the injunction and the eventual departure of the plaintiffs from the premises, there were repeated installations of additional lighting, increasing the number of lights shining on/at the defendant’s home to more than a dozen. Most of them were illumination-type lights, but one or two were laser-type displays with flashing colors and highly focused beams (lasers). The defendant testified as to the steady increase in the lights shining on her property, and provided the court with visual documentation including time-lapse overnight images as well as shorter periods of real-time video. Some of the visual evidence showed Mr. Borg installing the additional lighting at various locations on the rear of the Borg home, facing the defendant’s home (notwithstanding the testimony of Mrs. Borg that she did not know who installed the lights). The court observed that the lights shining on the back of the defendant’s house were bright enough that some of the video taken from a room in the back of the defendant’s house seemed to show reflections of the light on the inside of her windows, presumably from reflections off of interior walls in the room. In other words, the lights were bright enough to go through a window, reflect off walls on the inside of the room, and cast enough light back to the inside of the windows to show reflections of interior areas.
Mrs. Borg testified on behalf of the plaintiffs. With respect to the laser lights, her testimony was that they were for their daughter, intended as a Halloween light display (more than a month before the holiday). With respect to the other lights, she testified that in connection with a search warrant executed by the police (also arising from the ongoing dispute with the defendant), the police had seized certain electronic controllers that previously had controlled the duration of lights and that since that controller had been removed, the lights remained on (or seem to remain on) due to their hard-wired connection to the power in the house. To put it another way, she testified that they could not turn the lights off without turning off the power to other areas of the home. She also pointed out that one of the pictures of a fixture facing the defendant’s home showed that there had been some tape placed over a portion of the lens at the front of the light, purportedly to reduce the amount of light being emitted, with an attempt having been made to proportionally cover the lens so as to bring the light down to the 1600 lumen limit set forth in the court’s order.
Generally speaking, the court did not find Mrs. Borg to have been credible. Her explanation of the attempt to cover up the lens of the floodlights so as to reduce output was at least facially plausible— there is photographic evidence that tape had been placed on the lens— but little else of her testimony could be believed/accepted. There was no explanation as to why, roughly coincident with the onset of criminal issues with the police executing a search warrant, there was a sudden but steady increase in the number of fixtures deemed necessary for security purposes. Her sudden but conveniently-limited familiarity with some of the technical issues relating to the lights was not credible. Her explanation of the relationship between the police seizure of a control-type device, and the lack of any apparent functioning of timers, was wholly unbelievable, and ignored the obligation of the plaintiffs to have functioning timers, per the court order.
To elaborate upon that last point: there was no explanation, and the assertion made no sense whatsoever, as to how or why the removal of a control device would suddenly result in hardwiring of the security lights into the electrical system of the house. For a controller to work, it must somehow be in the circuit, such that if the controller were removed, steps would need to be taken in order to connect or reconnect the lights to the power supply provided by the electrical system. Either the lighting device would have to be plugged into something connected to the electrical system (an outlet, an extension cord, or some plug-in sensor or timing device), or hardwired as a "corrective" measure for the removal of the controller that had been seized. Simply removing the controller would not logically lead to a situation where, without any action, the light suddenly was hardwired into the electrical system and uncontrolled/uncontrollable. However, either scenario would be in clear violation of the court order, requiring every fixture to be connected to a timer. Even if the court is wrong and the removal of the controller left a situation in which the floodlights were directly wired into the electrical system, while the plaintiffs in that situation would not have been responsible for affirmatively creating a condition violative of the court order, they nonetheless would have been maintaining a system that clearly violated the court order. They were under an affirmative obligation to ensure that all lights (above 60-Watt incandescent equivalent) were on a sensor and timer.
As if demonstration of further levels of implausibility— fabrication of excuses— were needed, the fact that Mr. Borg was able to add lights to the system, repeatedly, after the controller had been removed by the police, demonstrates the fact that it was not unfeasible to disconnect fixtures— simply undo whatever had been done (or for new fixtures, don’t install them in the first place). This is in addition to the fact that the two lights non-operational on the day of the injunctive hearing were, according to the credible testimony of the defendant, made operational that night. Adding new lights and turning them on seemingly was not a major operation, and disconnecting or turning them off would require simply reversing the connection process.
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