This action was originally filed in 2015 seeking a permanent injunction in relation to the trespass and overburdening of easement rights upon the property of the plaintiff by the defendants who are abutting property owners at 24 Sunset Drive in Fairfield, Connecticut. The plaintiff filed an order for a hearing on the Order to Show Cause on April 6, 2015. Thereafter, the parties engaged in extensive discovery and motion practice and the matter was heard by the Honorable Anthony Truglia on January 12, 13, and 14, 2016. The parties at the hearing were FirstLight Hydro Generating Company as plaintiff and Allan Stewart and Donatella Arpaia as defendants. The court filed a Memorandum of Decision dated March 8, 2016 which granted a permanent injunction in favor of the plaintiff. The ruling of the court outlined seven areas that were included within the injunctive relief. The defendants filed an appeal on March 24, 2016. The decision of the trial court was affirmed by the Supreme Court on May 1, 2018.
The court will not repeat the lengthy factual background of this action but refers to the Memorandum of Decision which sets forth the background and the basis for granting the permanent injunction.
The plaintiff filed an application for an Order to Show Cause and Contempt on February 16, 2019. The court scheduled the hearing for March 18, 2019. The motion stated that the defendant has failed to remove the portions of a number of structures that are on the property owned by FirstLight Hydro Generating Company which were ordered by the court after a hearing on March 3, 2016 and affirmed by the Supreme Court on May 1, 2018. Prior to the hearing of the motion for an order to show cause and civil contempt, the plaintiff filed a motion to substitute FirstLight Housatonic CT, LLC ("Housatonic") as the plaintiff because FirstLight Hydro Generating Company conveyed its interest in the land that is the subject of the Final Judgment together with its interest in the Final Judgment to the property to Housatonic. The order to show cause hearing was continued at the request of the parties. The application and motion for civil contempt were scheduled again for a hearing on September 16, 2019. On the date of the hearing, the defendants appeared through counsel, and orally objected to the substitution of Housatonic as a plaintiff. The defendants argued that the court does not have jurisdiction and thus that it was improper for the court to go forward on the motion for civil contempt. The court continued the hearing and allowed the defendants to submit memorandum in support of their position. The defendants filed a memorandum dated September 18, 2019. The plaintiff filed a reply dated September 20, 2019. Counsel appeared and argued on September 30, 2019.
The defendants did not file a memorandum or notice to the court as to their position that the substitution was improper and the matter could not go forward. The first notice of this position was when the matter was called for argument on September 9, 2019.
"[O]ur rules of practice permit the substitution of parties as the interests of justice require ..." (Internal quotation marks omitted.) Dime Savings Bank of Wallingford v. Arpaia, 55 Conn.App. 180, 184 n.2, 738 A.2d 715 (1999). "The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court." Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980).
The plaintiff represents that the requested substitution is necessary because the property which is the subject of the original complaint and the orders of the court granting a permanent injunction, which require very specific work to be performed by the defendants on the property, now impacts the substituted party, FirstLight Housatonic CT, LLC. The defendants do not claim nor does the court find that a substitution will prejudice the defendants.
The defendants make two bold claims without any legal support. They claim the court does not have jurisdiction to hear the motion for civil contempt with a substituted party. The defendants argue that in order to allow the substitution, the plaintiff is obligated to first reopen the judgment and then add or substitute FirstLight Housatonic CT, LLC. However, the defendants also claimed at the September 16, 2019 Order to Show Cause hearing and in their memorandum filed on September 18, 2019 that the General Statutes § 52-212a does not permit a party to open a judgment outside of the 4-month period after judgment is entered. Therefore, if the defendants’ arguments are accepted this court could never allow a substitution by the plaintiff in this action because judgment was affirmed by the appellate court on May 1, 2018 and thus given the continuance to permit the parties to discuss and follow the order, there could not be a hearing for civil contempt. This result would be an assault on the court’s orders and only lead to outrageous results whenever there was ongoing compliance required by the courts’ orders. The defendants do not provide any supporting case law for their position that the court does not have jurisdiction of the matter for purposes of a contempt hearing regarding the permanent injunction that was entered by the court. The plaintiff has argued that there is no need to file a motion to reopen the judgment because the plaintiff is not requesting that the court modify or clarify the judgment entered by the court and affirmed by the appellate court. The plaintiff refers to the decision in Lime Rock Park, LLC v. Planning and Zoning of Salisbury, 2018 WL, 3711275 (Conn.Super.Ct. July 17, 2018). The decision in Lime Rock Park does not address the issue now being raised by the defendants in response to the motion for contempt, however, the decision provides the court with a factual scenario that can apply to the questions now being raised in this objection. In Lime Rock, the issues concerning the racing park spanned over a number of years beginning in 1959 and going well into a period some 30 years later with ongoing changes in ownership. A reading of the Lime Rock decision, clearly demonstrates that a decision granting a permanent injunction impacts new parties or owners and can be adjusted based upon a change in the laws or other advances over time. There appears to be an ebb and flow by the court in Lime Rock Park to address new changes in the law and new changes in the operation of the facility that was the subject of the injunction which over time created new or different issues of concern for the parties. The Lime Rock decision did not address an injunction which provided very specific orders to prevent infringement upon the property of another but certainly shows the need to incorporate and consider injunctive relief even with growth or changes in a property.
General Statute § 52-212a provides in relevant part: "[U]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment, or decree rendered in the Superior Court may not be opened or set aside unless, a motion to open or set aside is filed within four months following the date on which it was rendered or passed ..."
The facts in this matter are of greater concern because the order which was entered by the court, Truglia, J., required that the defendants remove or curtail what the plaintiff alleged was a wrongful trespass or overburdening easement rights on their property. The order of Judge Truglia stated:
1. The defendants are ordered to remove immediately those portions of the following structures that are located partially or entirely on the plaintiff’s land shown as being outside the property boundary defined in bold as the "440 Contour Line Per T.C. Map No. 1903" and "Property Line Per T.C. Map No. 2580" line depicted on Plaintiff’s Ex.7:
a. the upper patio;
b. the masonry fireplace and hearth;
c. the masonry retaining wall abutting the upper patio area on the Candlewood Lake side of the patio;
d. the large boulder wall to the southwest of the upper patio and fireplace labeled as "wall" on Plaintiff’s Ex. 7;
e. the masonry steps to the upper patio area and the masonry steps abutting the retaining wall and upper patio area;
f. the lower patio;
g. the masonry retaining wall abutting the lower patio area;
h. all conduit, utility lines, electric fixtures and lines, high and low voltage lighting, drains and irrigation equipment;
i. the block wall to the west-northwest of the house; and
j. the hot tub.
2. The defendants shall immediately restore the upper patio area to the topography grades shown on Defendants’ Ex. A.
3. The defendants shall immediately reduce the masonry retaining wall abutting the lower patio area to 30′ length.
4. The defendants shall not take water from or drain water on the plaintiff’s land.
5. The defendants shall not use the planter adjacent to the stone steps and wood deck as a fountain.
6. The defendants shall not construct any structures on the plaintiff’s property as shown on Plaintiff’s Ex.7, the property boundary being defined in bold as the ‘440 Contour Line Per T.C. Map No. 1903’ and ‘Property Line Per T.C. Map No. 2580’ line depicted on Plaintiff’s Ex. 7, except for those allowed by permit from the plaintiff.
The order of the court was very specific and addressed not individuals but impact and structures on the land owned by the plaintiff which remains impacted no matter who owns or has an interest in the property. The defendants’ argument that the only way to allow the substitution and thereafter a hearing including the new owner or successor in interest is to first open the judgment, is not consistent with General Statute 52-212a. Because of the continuing oversight of the court to enforce this order as a part of the permanent injunction the statute cannot be interpreted to require the plaintiff under these circumstances to reopen the action before Housatonic can be substituted. There is no modification or clarification being requested by the plaintiff for the orders entered by Judge Truglia and there are no changes other than the defendants have not satisfied the orders of this court after a full opportunity to present the testimony and evidence to the court and to obtain full appellate review of the findings. The defendant has not requested any change or clarification. The defendants have filed no response to the order to show cause. The defendants’ argument implies that in some manner the plaintiff’s legal status changes the decision. Absolutely not. If the court agrees with the defendants it would open the door to prejudicial impacts to the substituted plaintiff that is merely asking for enforcement of a court order. A finding that such an order falls short because of a technical or procedural bump that is not clearly required under the statutory or case law will have an enormous impact on many cases which over the course of time may require a substitution because of a change in the party without a change in the legal issues.
In fact the plaintiff’s motion has nothing to do with a change in the decision. The plaintiff is correct in that the motion of order to show cause are an independent proceeding which will provide an opportunity to the defendants to present testimony and evidence to the court as a new proceeding.
In the instant action, there is no question that the substituted party, FirstLight Housatonic CT, LLC, is the successor in interest to FirstLight Hydro Generating Company. This type of substitution is not unusual especially in an action such as this with a protracted legal process. To sustain the objection of the defendants would be highly prejudicial to the plaintiff and to the legal process because it ignores attempts by the parties and the courts to comply with the court orders. In Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969), the court recognized the continuing jurisdiction with respect to an injunction because, "Courts have inherent power to change or modify their own injunctions where circumstances of pertinent law have so changed as to make it equitable to do so." The facts of this action, with the multiple delays as well as the affirmation of the Supreme Court overwhelming support the decision granting the injunction which a denial of the substitution would allow this court to ignore enforcing its orders. The substitution has no impact on the order to show cause.
The parties are to have all exhibits pre-marked and exchange with each other as well as a copy for the court.