Opinion
FSTCV125013984S
01-17-2018
Riverside Plaza Residential Association, Inc. v. Robert Russo, Esq., Executor of the Estate of Thomas Thornton et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Mottolese, A. William, J.T.R.
MEMORANDUM OF DECISION
A. WILLIAM MOTTOLESE JUDGE TRIAL REFEREE
Before the court are two motions filed by the plaintiffs: (1) Motion for Order of Contempt, Payment of Penalty Fees, Payment of Engineer’s Fees, Payment of Attorneys Fees and New Trial Date; (2) Supplemental Motion for Sanctions. Both motions seek coercive and punitive relief. The motions are based on the Plaintiff’s allegation that the defendants have failed to comply with paragraph 2 of an amended settlement agreement dated October 16, 2016 which obligated the defendants as follows: " Defendants shall submit all plans for removal of the old windows and replacement of new windows to the Riverside Plaza Residential Association’s engineer or architect for approval, which approval will not be unreasonably withheld, conditioned or delayed. The Defendants agree to assume all reasonable costs associated with the review and approval of the plans, if and by the Plaintiff’s engineer or architect."
The defendants are the corporate lessee of the windowed premises and its deceased president who is represented by Robert Russo, executor of his estate.
The gravamen of the plaintiff’s motions is that the defendants have failed to submit plans for the removal and replacement of windows in their building which have had a history of allowing water infiltration, thereby causing damage to the plaintiff’s property. The defendants defend on the grounds that they have submitted a series of plans to the plaintiff’s engineer for approval over a period of several months, all of which have been rejected by the engineer.
A finding of contempt can only be made where there is proof of two essential elements: (1) that a clear and unambiguous court order existed; and (2) that the alleged contemnor willfully violated the clear, unambiguous court order. Scott v. Scott, 90 Conn.App. 883, 889 (2005). The initial inquiry therefore, is whether paragraph 2 is clear and unambiguous. " [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties ... In contrast, [a] contract is unambiguous when its language is clear and conveys a definite and precise intent ... The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity ... Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that that language is ambiguous." Lewis v. Frazao Building Corp., 115 Conn.App. 324, 333-34 (2009).
The plaintiff contends that paragraph 2 clearly mandates that the defendants submit plans prepared by a licensed professional whereas the defendant argues that there is nothing in paragraph two which requires the defendants to use an engineer or any other licensed professional. The court notes that the words " engineer or architect" is limited to the plaintiff’s engineer-agent and does not apply to the defendants. The obligation imposed on the defendants was simply to submit plans to the plaintiff’s engineer or architect. In addition to case law guidelines which assist in assessing language for its ambiguity, other principles of contract interpretation apply here. Where a technical or special meaning is intended by the language of the contract, that meaning and not the language’s ordinary usage shall be employed. New England Petroleum Corp. v. Groppo, 214 Conn. 444, 450 (1990). This principle focuses on the distinction which the parties employed to delineate their respective obligations. In paragraph two the parties impose the obligation on the plaintiff to utilize a technical person as its plan evaluator, i.e. engineer or architect. In contrast, the obligation imposed on the defendants was to " submit the plans" without specifying any qualifications or credentials for the entity which is charged with preparation of the plans. It is undisputed that the contract and its specific language was negotiated by the plaintiff’s attorney and the defendant executor who is an attorney, both of whom are experienced and have a high level of sophistication in the negotiation of commercial leases and thus a presumption arises that the language used is definite and not ambiguous. United Illuminating Company v. Wisvest -Connecticut, LLC, 259 Conn. 665, 670 (2002). Finally, in construing contractual provisions it is appropriate to consult maxims which are applied in the art of statutory construction. One of the maxims which is particularly apposite here is that the use of different terms within the same sentence of a statute plainly implies that different meanings were intended. Hinchcliffe v. American Motors Corp., 184 Conn. 607, 613 (1981). In the present case the use of the professional titles " engineer or architect" in the same sentence as " submit all plans for removal of the old windows and replacement of new windows" clearly implies that a professional is mandated only for the plaintiff but not for the defendant. The testimony of the plaintiff’s engineer, Eric Cowley, as well as the correspondence which is in evidence makes it clear that the requirement that a licensed professional be used to design the plans was originated not by the terms of the contract but by Mr. Cowley. It was reasonable therefore for the defendants to conclude that a licensed professional was not required to prepare the plans especially when the only place in the agreement where the word " licensed" appears is in connection with the defendant’s obligations is the obligation to engage a licensed contractor (see paragraph 3). The defendants therefore cannot be held to be in noncompliance for failure to submit plans which were not prepared by a licensed professional as required by a plaintiff’s engineer because the text of the agreement unambiguously does not require it.
The second prong of a civil contempt finding is that the contemnor acted willfully. Noncompliance alone will not support a judgment of contempt. Scott v. Scott, 90 Conn.App. at 883, supra. The inability of a defendant to obey a court order without fault on his part is a good defense to a charge of contempt. Bryant v. Bryant, 228 Conn. 630, 637 (1994). Moreover, any claimed contemptuous conduct must be proved by clear and convincing evidence, Brody v. Brody, 315 Conn. 300, 318-19 (2015), which is totally lacking here.
In the present case the evidence clearly demonstrated that within two weeks of the amended settlement agreement the defendants submitted their first plan to the plaintiff’s engineer who rejected them on November 3, 2016 for six enumerated reasons. Thereafter, the defendants engaged a different person to prepare plans but these too were rejected by the engineer on November 22, 2016 for the same reasons contained in the November 3 rejection. In this rejection the engineer introduced for the first time a requirement that " the submittal will be prepared by a licensed professional experienced with exterior fenestrations and unique conditions at the subject property." The defendants thereafter caused yet another plan to be submitted which on December 18, 2016 was rejected for the same reasons that were enumerated in the November 3, 2016 and November 22, 2016 letters. Thereafter, the defendants caused a further revised plan to be submitted which on January 16, 2017 was rejected for eight enumerated reasons. Thereafter, the defendants submitted a fifth revised plan prepared by a Connecticut licensed architect which on February 2, 2017 was rejected for nine enumerated reasons. On March 15, 2017 the plaintiff filed the first of these two motions. It is well recognized that where a contemnor makes a good faith effort to comply with a court order no contempt should be found. Connolly v. Connolly, 191 Conn. 468, 483 (1983).
The court finds that the procedure which the plaintiff adopted to secure approval of the plans for the window replacement was cumbersome and unworkable. The court learned at the hearing that the plaintiff intentionally adopted this procedure instead of having his engineer prepare design plans and specifications for the defendants to satisfy. It became clear that this was a deliberate choice made so that if over time any water leakage occurred the plaintiff could not be held accountable for supplying faulty plans and specifications. When questioned by the court Mr. Cowley indicated that he did not believe that it was ethically proper for him to prepare the plans and specifications. Such a policy is contrary to the court’s experience where in construction projects the same engineer/architect who prepared the plans and specifications also is engaged by the owner to make certain that they are followed during the course of construction. Therefore, the court concludes that the failure to comply with paragraph 2 of the agreement was caused not by any willful act of the defendants but by the mechanics of the procedure which the plaintiff chose to employ. Indeed, the defendants not only acted promptly after the agreement was executed but persisted diligently and in good faith to have plans approved until the plaintiff filed its motion on March 15, 2017. For the reasons stated above the March 15, 2017 motion is denied.
Plans and specifications are defined as " the outline or drawing representing a building or other structure to be erected, together with the particulars or details of construction." Balentine’s Law Dictionary, 3rd Ed. at 952.
On September 18, 2017 the plaintiff filed its Supplemental Motion for Sanctions in which it requests that the court increase by $100 every seven days the daily fine provided for in paragraph 13 of the agreement. The plaintiff also seeks an award of attorneys fees in connection with that motion. The motion is of course predicated on the defendants’ failure to submit plans for the window replacement which are acceptable to the plaintiff’s engineer. Because the court has concluded that the defendants are not responsible for the delay in approval of the plans there is no basis for consideration of such a sanction pursuant to the court’s contempt power. The court need not reach the issue of whether judicial reformation of the agreement is an available remedy in a contempt proceeding whether or not there is a finding of contempt because the equitable remedy of reformation is only available where the contract was executed as a result of mutual mistake or mistake of one party coupled with actual or constructive fraud or inequitable conduct on the part of the other. Lopinto v. Haines, 185 Conn. 527, 531 (1981). The elements of mistake have neither been alleged nor proved in the present case; therefore there is no factual basis for reformation.
Notwithstanding the above, the failure in implementation of the agreement has gone on too long. Under Avalon Bay Communities, Inc. v. Planning and Zoning Commission, 260 Conn. 232, 241-42 (2002), the court enjoys inherent power to vindicate its judgment of approval of the agreement. Moreover, the court learned at the hearing that perhaps some progress had been made in finding a licensed professional who is willing and able to undertake the task of plans design. The court is hopeful that by this time an acceptable plan has been approved and that construction will commence when weather permits. In the event that plans have not been approved or are not likely to be approved within fifteen days, the defendants are ordered to consult with the American Association of Civil Engineers in order to obtain a qualified local engineer/architect who is willing to design and prepare specifications for the window system. In either event, the defendant shall provide progress reports to the court every two weeks until completion with the firm expectation that each report will reveal meaningful process. Correspondingly, either party should be free to consult the court by appropriate motion with respect to any issue which may be in dispute or which may delay progress, including interpretation of contractual provisions.
SO ORDERED.