Potter v. Board of Selectmen of Town of New Milford

• Decision Date: 24 January 1978
• Citation: 384 A.2d 369,174 Conn. 195
• Court: Connecticut Supreme Court
• Parties: Jackson S. POTTER v. BOARD OF SELECTMEN OF the TOWN OF NEW MILFORD.

Page 369

384 A.2d 369

174 Conn. 195

Jackson S. POTTER v. BOARD OF SELECTMEN OF the TOWN OF NEW MILFORD.

Supreme Court of Connecticut.

Submitted Nov. 8, 1977.

Decided Jan. 24, 1978.

Bruce L. Lev, Ridgefield, and Walter Marcus, Hartford, on brief, for appellant (plaintiff).

Thomas P. Byrne, Farmington, and Joseph F. Keefe, Hartford, on brief, for appellee (defendant).

Before HOUSE, C. J., and COTTER, LOISELLE, BOGDANSKI and LONGO, JJ.

COTTER, Associate Justice.

The plaintiff has appealed from an order of the Court of Common Pleas denying his motion to "find the defendant and/or its agents in contempt," to enjoin them "from further interference with the construction and completion of the development of" a mobile home park and to direct them "to issue the building and health permits sought by the plaintiff."

In an earlier case in connection with this same dispute, on an appeal from the Court of Common Pleas, we found error, set aside the judgment dismissing the appeal and remanded the case for the rendition of a judgment returning it to the defendant board with direction to grant the plaintiff's application for a license to maintain and operate a mobile home park. Potter v. Board of Selectmen, 166 Conn. 376, 380, 349 A.2d 844. The plaintiff, in pursuing the present motion, alleges that his subsequent requests for building and health permits necessary for the project were refused by officials of the town of New Milford.

It is within the powers of this court, in a case of civil contempt which involves conduct directed against some right of the opposing party, to review the claim that the lower court erred in refusing to find a party in contempt. Tobey v. Tobey, 165 Conn. 742, 745, 345 A.2d 21; Baldwin v. Miles, 58 Conn. 496, 497, 20 A. 618; annot., 24 A.L.R.3d 650, 663 § 6(a). Since the conduct of the defendant in the present case which allegedly constituted contempt is claimed to have violated some civil right of the plaintiff which he seeks to have protected by the imposition of punishment that is remedial or coercive rather than purely punitive in nature, the contempt sought is classified as civil and is subject to our review. Tobey v. Tobey,supra; Stoner v. Stoner, 163 Conn. 345, 359, 307 A.2d 146; McTigue v. New London Education Assn., 164 Conn. 348, 352-54, 321 A.2d 462. "Contempts which do not occur in the presence of the court, as in this case, are not punishable by statute, but rather, 'are defined and punished by the common law.' Welch v. Barber, 52 Conn. 147, 156. 'An adjudication of contempt is final and may be reviewed only on questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.' State v. Jackson . . . (147 Conn. 167, 170, 158 A.2d 166); Goodhart v. State, 84 Conn. 60, 63, 78 A. 853." Stoner v. Stoner, 163 Conn. 345, 359, 307 A.2d 146, 154; Tobey v. Tobey, supra.

Where the alleged contempt does not occur in the presence of the court and is thus defined and punishable under the common law, "process is required to bring the party into court, and the acts or omissions constituting the offense are to be proved as in ordinary cases." Huntington v. McMahon,48 Conn. 174, 196. Under the circumstances alleged in the present case, the court could not on its own motion, upon facts within its own knowledge, render judgment against the defendant; the evidence necessary to constitute the alleged contempt must have been established by sufficient proof in the trial court. Baldwin v. Miles, 58 Conn. 496, 498, 20 A. 618; Welch v. Barber,supra.

In his amended motion for contempt, the plaintiff claims that his requests for building and health permits were refused by the New Milford building inspector and health director, respectively. On the basis of this refusal, the plaintiff contends that the defendant board of selectmen "and/or its agents" should be adjudged in contempt of the orders of this court and the Court of Common Pleas directing the board to issue the license sought by the plaintiff to construct and complete the development of a mobile home park. The plaintiff did not allege that the defendant board refused to issue the license nor was any such evidence offered, although the complaint does allege that the building inspector and health director were agents of the board and that they refused the plaintiff's request to issue the permits. No evidence was presented to the court to prove the allegation that the permits were in fact denied, or that the building inspector and health director are actually agents of the defendant board; no finding was made and the assignment of error was taken on the stated ground of "error apparent on the face of the record." As the trial court's memorandum of decision and the briefs of the parties indicate, a zoning regulation prohibiting mobile home parks was enacted during the pendency of the first appellate process and the plaintiff directs his argument primarily...