Cologne v. Westfarms Associates

Decision Date06 August 1985
Citation197 Conn. 141,496 A.2d 476
CourtConnecticut Supreme Court
PartiesChristine A. COLOGNE et al. v. WESTFARMS ASSOCIATES et al.

Victor J. Dowling, Simsbury, with whom was Victor J. Dowling, Jr., Simsbury, for appellants (defendants).

Martha Stone, Hartford, with whom was Shelley Geballe, Stony Creek, for appellees (plaintiffs).

Before ARTHUR H. HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal involves proceedings subsequent to a March 2, 1983 trial court judgment that enjoined the defendants from prohibiting the plaintiffs access, for certain political purposes, to a privately owned shopping mall. See Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984). The trial court, on April 22, 1983, found the defendants Victor J. Dowling, Richard W. Sheehan, and Joseph P. Vetrano in contempt for refusing to comply with its injunction and imposed a coercive order of compliance subject to certain penalties. The plaintiffs were allowed access to the mall on April 23, 1983. The defendants Dowling and Sheehan have appealed from the judgment of contempt. 1 We find error.

The following pertinent background is supported by the record. On March 2, 1983, the trial court issued its order enjoining the defendants from denying the plaintiffs limited access to the defendants' mall property for the purpose of political canvassing. 2 Id., 52-53, 469 A.2d 1201. Both the plaintiffs and the defendants appealed from that judgment. See id.

On March 22, 1983, the trial court considered the plaintiffs' "motion for contempt and/or motion to vacate stay." Attorney Paul Rufo, who represented the Westfarms Associates partnership and the three partners who resided outside of Connecticut appeared at this session. 3 Rufo argued to the trial court that, under the existing version of Practice Book § 3065, the trial court's order of March 2 was automatically stayed pending the defendants' appeal of that judgment. 4 Counsel for the plaintiffs countered that, in accordance with General Statutes § 52-477, the trial court's injunctive order had not been stayed unless the trial court specifically entered a stay pursuant to an application therefor by the defendants. The trial court granted the plaintiffs' motion to vacate any stay that might have existed under Practice Book § 3065 and further found that the defendants were not entitled to any stay under General Statutes § 52-477. 5 There is no indication in the record whether the defendants Dowling and Sheehan had received notice of the March 22 proceeding.

On March 24, 1983, the plaintiffs secured from the trial court an order to show cause why the defendants should not be found in contempt of court. Because service of this order had "not been effectuated" upon the defendants, the trial court, on March 25, declared the show cause order "a nullity." At the March 25 proceeding, the trial court orally reaffirmed its March 22 order and also cited General Statutes § 52-478 as an additional statutory ground for dissolving any stay of its March 2 judgment that might have otherwise existed. Again, the defendants Dowling and Sheehan were not directly represented at this proceeding, although counsel for the partnership and the out-of-state partners were present in court. The defendants thereafter filed with this court a motion for review of the trial court's orders of March 22 and 25.

While this motion for review was pending, a further proceeding was held by the trial court on April 12, 1983. At this proceeding, the defendant Dowling, who is an attorney, appeared on behalf of himself, Sheehan, and Vetrano; Attorneys Rufo and Robert M. Dombroff appeared on behalf of the out-of-state defendants. Although all counsel present addressed the court, the record reveals that no testimony was given under oath nor was any other evidence presented at the April 12 proceeding. The trial court, however, found that service of process had been properly made upon all the defendants and that the defendants were in contempt for failing to comply with the court's March 2 order. At that time, the trial court imposed conditional fines that would be triggered if the defendants refused to comply with the orders and also assessed legal fees and costs payable to the plaintiffs by the defendants. From this April 12 order, the defendants filed both an appeal and a motion with this court for a stay.

The final trial court proceeding pertinent to this appeal was held on April 22, 1983. Although counsel for the defendant partnership and the out-of-state defendants was present, the individual defendants Dowling, Sheehan and Vetrano were neither present nor directly represented at this proceeding. No testimony was given under oath at this proceeding. The trial court heard representations by the plaintiffs' counsel that, subsequent to the April 12 proceeding, Dowling would not permit the plaintiffs access to the mall as required by the court's orders. 6 The court next inquired of Lynn Taborsak, then the president of the state chapter of the National Organization for Women, who was present in the courtroom but had not been administered the witness' oath or affirmation, as to the accuracy of the representations of the plaintiffs' counsel; Taborsak responded in the affirmative. No other "evidence" was presented. The counsel for the out-of-state partners then stated that his clients were amendable to complying with the trial court's orders. On that basis the trial court purged the contempt orders against those defendants. The trial court then found that service had been sufficiently made upon the other defendants, Dowling, Sheehan and Vetrano, and that they were in violation of the court's April 12 order. Dowling, Sheehan, and Vetrano were adjudged in civil contempt, and the trial court levied penalties against them, including a sixty day prison sentence, a $10,000 fine payable to the plaintiffs, and an assessment of other fees and costs. 7

The plaintiffs were granted access to the mall the next day, April 23, 1983. Cologne v. Westfarms Associates, supra, 192 Conn. at 54, 469 A.2d 1201. On April 27, 1983, we denied the defendants' motions for stays of execution of the contempt judgments, and we also granted the defendants' motion for review of the trial court's oral order of March 25, which had amended the March 22 order, but denied the relief sought in that motion. Thereafter, in Cologne v. Westfarms Associates, supra, this court held that the trial court erred in directing "that the rights of free speech and petition in our state constitution may be exercised upon private property consisting of a large regional shopping center, contrary to the wishes of its owners." Id., 50, 469 A.2d 1201. Thus, the defendants prevailed on the merits in their appeal from the March 2 judgment ordering an injunction against them.

On appeal from the judgments of contempt, the defendants Dowling and Sheehan claim essentially that the trial court erred (1) in that the acts for which these defendants were held in civil contempt did not and could not constitute a contempt; (2) in finding them in civil contempt without notice and without the presentation of any evidence under oath; and (3) in that it, for various reasons, lacked jurisdiction to consider the plaintiffs' motions for contempt. 8

We address first the defendants' claim that the acts for which they were held in civil contempt "did not and could not constitute a contempt." Specifically, they contend that, because the injunction upon which their contempt was based was held in Cologne v. Westfarms Associates, Inc., supra, to have been erroneously issued, the court could not hold them in contempt for failing to obey its injunctive order. We do not agree.

"The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril." United States v. United Mine Workers, 330 U.S. 258, 303, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947). "[A]n order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings." Id., 293, 67 S.Ct. at 696; see also W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766-67, 103 S.Ct. 2177, 2183-84, 76 L.Ed.2d 298 (1983); DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 276-77, 471 A.2d 638 (1984). The duty to obey the injunction exists "however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming but void law going to the merits of the case." United States v. United Mine Workers, supra, 330 U.S. at 293-94, 67 S.Ct. at 696, quoting Howat v. Kansas, 258 U.S. 181, 189-90, 42 S.Ct. 277, 280-81, 66 L.Ed. 550 (1922); see also Maness v. Meyers, 419 U.S. 449, 458-59, 95 S.Ct. 584, 590-91, 42 L.Ed.2d 574 (1975); Cox, "The Void Order and the Duty to Obey," 16 U.Chi.L.Rev. 86 (1948); 17 Am.Jur.2d, Contempt §§ 43, 47. Most certainly, "this is not a case where the injunction was transparently invalid or had only a frivolous pretense to validity." Walker v. Birmingham, 388 U.S. 307, 315, 87 S.Ct. 1824, 1829, 18 L.Ed.2d 1210, reh. denied, 389 U.S. 894, 88 S.Ct. 12, 19 L.Ed.2d 202 (1967). We agree that "[i]t would be a disservice to the law if we were to depart from the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. The procedure to enforce a court's order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience." Maggio v. Zeitz, 333 U.S. 56, 69, 68 S.Ct. 401, 408, 92 L.Ed. 476 (1948); see generally note, "Developments in the Law:...

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