Keeney v. Buccino

• Decision Date: 06 December 2005
• Docket Number: No. 25825.,25825.
• Citation: 92 Conn.App. 496,885 A.2d 1239
• Court: Connecticut Court of Appeals
• Parties: Timothy R.E. KEENEY, Commissioner of Environmental Protection v. Thomas D. BUCCINO et al.

885 A.2d 1239

92 Conn.App. 496

Timothy R.E. KEENEY, Commissioner of Environmental Protection v. Thomas D. BUCCINO et al.

No. 25825.

Appellate Court of Connecticut.

Argued September 27, 2005.

Decided December 6, 2005.

Francis A. Miniter, Hartford, for the appellants (defendants).

Krista E. Trousdale, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellee (plaintiff).

DRANGINIS, McLACHLAN and HARPER, Js.

DRANGINIS, J.

The primary issue in this appeal is whether the court properly found the defendants Thomas D. Buccino and Irma L. Buccino to be in indirect civil contempt for their failure and refusal to make all repairs to Hall's Pond Dam (dam) in wilful violation of the stipulated judgment, rendered pursuant to an agreement between the defendants and the plaintiff, the commissioner of environmental protection.¹ We affirm the judgment of the trial court.

I PROCEDURAL HISTORY

The record discloses that this appeal had its genesis more than fifteen years ago, when the commissioner, acting pursuant to General Statutes § 22a-401 et seq., issued order 90-016 (1990 order) requiring the defendants to make certain repairs to their dam. The 1990 order stated that the defendants were the owners of the dam² located on the easterly side of Route 32 in Willington. The commissioner had jurisdiction over the dam because if it were to break away, it would cause damage to the mill complex adjacent to it, the local fire station and a large barn, and possibly could cause loss of life. A department of environmental protection (department) investigation found that the dam was in an unsafe condition requiring remedial work to assure its integrity. An administrative hearing regarding the 1990 order was held before a department hearing officer, who concluded in September, 1992, that the dam was in an unsafe condition and affirmed the 1990 order with certain modifications. The hearing officer also ordered, among other things, that the defendants submit an application to repair or to remove the dam by October 5, 1992, and perform certain maintenance by December 1, 1992. By summons and complaint dated October, 1993, the commissioner sought an injunction against the defendants for their failure to comply with the 1990 order. The parties resolved the matter by entering into a written agreement (agreement). On May 31, 1995, the court, Hon. Robert Satter, judge trial referee, approved the agreement signed by the parties and rendered a stipulated judgment thereon.

At the time of the stipulated judgment, the defendants had pending before the department application 95-007 for a permit to repair the dam. Several days after the judgment was rendered in accordance with the stipulated judgment, the defendants withdrew application 95-007 and filed, in its stead, application 95-009 for a permit to remove the dam by draining Hall's Pond. The commissioner considered application 95-009 to be non-compliant with the stipulated judgment and filed a motion for contempt on October 3, 1995 (first motion for contempt).

The court, Sheldon, J., held a hearing on the first motion for contempt and found that application 95-009 did not comply with the stipulated judgment because it did not seek a permit to repair or to remove the dam. The court did not find the defendants to be in contempt of the stipulated judgment because it was not persuaded that their noncompliance was wilful. At the time, it appeared that the department was still considering application 95-009 on its merits and had not rejected it. The court reasoned that because the stipulated judgment required the commissioner to inform the defendants if application 95-009 was unacceptable, the defendants could not be faulted for waiting for the results of the review. The court, however, established a time line for the commissioner to communicate objections to application 95-009 to the defendants and for the defendants to respond by submitting a suitably modified application to repair or to remove the dam. Neither party appealed from the court's judgment denying the first motion for contempt.³

Subsequently, the department returned application 95-009 to the defendants, and the defendants submitted a new application for a permit to repair the dam, application 95-018. In application 95-018, as they did in application 95-009, the defendants proposed to lower the spillway of the dam by nineteen inches so that all of the water from a 100 year storm could pass safely over the dam, leaving one foot of freeboard on the dam. After reviewing application 95-018, the commissioner issued a notice of tentative determination to grant the application and to published notice thereof.

On April 30, 1996, members of the Willington Fish and Game Club (club)⁴ filed a petition with the commissioner, requesting a public hearing on application 95-018. At the hearing, the club presented expert testimony concerning a hydrographic and hydrologic analysis of the dam and its environs. The club's analysis tended to establish that there was no need to lower the spillway because the dam was situated and constructed in such a way that water from a 100 year storm could pass safely over the dam without endangering life or property downstream. At the public hearing, the commissioner, the defendants and the club agreed that application 95-018 should be approved, except insofar as it called for a lowering of the spillway. Accordingly, on April 2, 1997, the commissioner issued permit 95-018, expressly authorizing the defendants to make the following repairs to the dam: remove the water wheel from the spillway, remove all trees from the dam's embankment, remove the flashboards and their supports from the spillway, install a gravel filter blanket at the toe of the embankment, grout the voids in the masonry spillway and its channel walls and install wee-pholes in the stone masonry channel walls located in the seventy-five foot area down-stream of the spillway.

Under the terms of permit 95-018, the defendants were required to perform all of the authorized repairs within 120 days. The defendants made some of the repairs, but failed to make others. Specifically, the defendants removed the waterwheel and flashboards from the spillway and cut down many, but not all, trees on the dam's embankment. They did not remove the flashboard supports from the spillway, install a gravel filter blanket at the toe of the embankment, grout voids or install weepholes in the spillway channel downstream. On May 2, 2003, the commissioner filed a second motion for contempt, alleging that the defendants had failed to repair the dam. The defendants filed an objection to the second motion for contempt, asserting five reasons why the motion should be denied.⁵

The second motion for contempt was referred to Judge Sheldon, who tried the matter in two phases. The court held an evidentiary hearing on June 24, 2004, at which the defendants were represented by counsel who had represented them since the commissioner had initiated enforcement proceedings. Just prior to the hearing, the defendants, through counsel, agreed that they would not claim that they were unable to pay for the repairs that they had not undertaken. In exchange, the commissioner agreed not to pursue a subpoena duces tecum for the defendants' financial records.⁶

At the hearing, the court heard testimony only from Wesley D. Marsh, supervising environmental analyst at the department, and received documentary and photographic evidence concerning the dam's condition and the commissioner's efforts to compel the defendants to remove or to repair the dam since the late 1980s. After the parties rested, the court ordered them to submit briefs and to appear for oral argument on August 1, 2003. The focus of the defendants' objection to the second motion for contempt at the evidentiary hearing, in their briefs and at oral argument, was that there was no need to perform the repairs authorized by permit 95-018 that had not been completed because subsequent to the time the stipulated judgment was rendered, the parties determined that water from a 100 year storm could pass safely over the dam.

During the luncheon recess on the day of oral argument, the defendants met with their counsel of long standing. When court reconvened, counsel represented to the court that a conflict of interest had arisen between the defendants and himself concerning the formers' understanding of the agreement as he had explained it to them before they signed it. Thomas Buccino claimed that counsel had informed him that upon stipulating to judgment and paying the agreed on fine, the defendants could avoid paying any more money to repair or to maintain the dam by simply applying for and obtaining a permit to remove the dam by opening its gates and draining water from the pond. In light of Thomas Buccino's claim that counsel's explanation was at variance with the express terms of the agreement, counsel asked to withdraw so that other counsel could enter an appearance on the defendants' behalf. Judge Sheldon suspended further proceedings until counsel's motion for permission to withdraw could be filed in writing and referred to another court.⁷

When new counsel appeared for the defendants, he filed a motion to open the hearing so that Thomas Buccino could testify as to his original understanding of the agreement and his efforts to comply with the terms of the stipulated judgment as he understood them. Judge Sheldon granted the motion to open over the objection of the commissioner in order to resolve any doubt raised by new counsel that original counsel had not called Thomas Buccino to testify during the evidentiary hearing on June 24, 2003, to avoid exposing the conflict of interest between himself and the defendants, i.e., that he had misinformed them as to their rights and responsibilities under the agreement.

Due to Thomas...