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GINA MCCARTHY, COMMISSIONER OF ENVIRONMENTAL PROTECTION v. CUSTOM DESIGN SERVICES, INC., ET AL. (AC 31117)
Harper, Alvord and Hennessy, Js. Argued November 10, 2010--officially released January 25, 2011

(Appeal from Superior Court, judicial district of Hartford, Hon. Robert J. Hale, judge trial referee [stipulated judgment]; Aurigemma, J. [motion for contempt].) Kimberly P. Massicotte, assistant attorney general, with whom were Scott N. Koschwitz, assistant attorney general, and, on the brief, Richard Blumenthal, former attorney general, and Sharon A. Scully, assistant attorney general, for the appellant (plaintiff). Gerald Hecht, for the appellees (defendants).

Opinion

ALVORD, J. The plaintiff, Gina McCarthy, the commissioner of environmental protection, appeals from the judgment of the trial court denying her motion for contempt against the defendants, Custom Design Services, Inc., Sulim Limited Partnership and Robert J. Vetter, for alleged violations of a stipulated judgment. The plaintiff claims that the court improperly found that (1) the civil penalty provision in the stipulated judgment gave the defendants the option to pay a civil penalty in lieu of performing the injunctive relief provisions of the judgment, (2) the defendants were not in contempt because they no longer owned the property and (3) the defendants' failure to perform was not wilful. We affirm the judgment of the trial court. The following facts and procedural history are relevant to our determination of the plaintiff's appeal. On July 17, 2002, the department of environmental protection (department)1 issued two orders requiring that the defendants take a number of actions to bring their property, located at 46 South Street, Danbury, into compliance with our state's water pollution and hazardous waste statutes. On January 13, 2005, the department filed a complaint against the defendants, alleging multiple violations of those administrative orders and seeking temporary and permanent injunctive relief.2 On March 6, 2006, the defendants' environmental engineer, Theodore J. Stevens, submitted a site investigation report, concluding that there was ``little evidence of significant contamination of soil or groundwater at the site'' and suggesting certain remedial actions. The department's compliance engineer, Kevin Clements, responded on July 13, 2006 (Clements letter), stating in part that ``[f]urther investigation and sampling are necessary'' before the department would approve the site investigation report.3 Thereafter, on November 15, 2006, the court granted the parties' joint motion for the entry of a stipulated judgment and rendered judgment thereon. The stipulated judgment included two sections, section A, ``Injunctive Relief,'' and section B, ``Civil Penalty.'' Section A of the judgment specified remedial actions to be taken by the defendants to bring the property into compliance. Section B assessed a civil penalty in the total amount of $150,000 ``payable as follows: (a) The defendants shall pay the amount of $50,000.00 on or before November 30, 2006. (b) In the event the defendants fail to timely comply with any of the injunctive provisions outlined in [s]ection A of this judgment or fail to pay the $50,000.00 as specified in paragraph B (1) (a) above, then the remaining $100,000.00 shall become due and payable within ten days of the defendants' receipt of written notice from the Attorney General's Office . . . .''

The November 15, 2006 stipulated judgment also required, among other things, that the defendants respond to the Clements letter, which highlighted a number of problems with the site investigation report. On November 30, 2006, Stevens replied to each of Clements' comments in a letter (Stevens letter). Two weeks later, the office of the attorney general, on behalf of the department, issued a demand letter for the entirety of the civil penalty in the amount of $150,000, plus interest and costs. No action was taken by either the defendants or the department for two months. On February 13, 2007, the defendants moved to ``reopen and/or vacate'' the judgment on the ground that the department had not responded in a timely fashion to the Stevens letter. The defendants argued that they had complied with the judgment by providing the Stevens letter with the required revisions to the site investigation report and that the department's ``inaction constitutes a breach of the stipulation . . . .'' The court sustained the department's objection, in which the department argued, inter alia, that there was nothing in the judgment that required it to respond by a certain date. Not until March 5, 2007, did the department's engineer, Clements, respond to the Stevens letter by requesting that the defendants provide supplementary testing results before the department would approve the site investigation report. Neither party took any action for one additional year until, on May 16, 2008, the department filed the motion for contempt underlying this appeal. The motion for contempt alleged that the defendants had violated the stipulated judgment in failing to (1) submit a revised site investigation report, (2) perform remedial measures, (3) monitor those remedial measures and (4) pay the civil penalty.4 The defendants argued in their opposition, inter alia, that (1) they could not take remedial measures because they did not own the property and had no access to the property,5 (2) they were unable to adhere to the court order because of the department's inaction and had, in fact, filed a motion to open because of the department's unresponsive behavior and (3) their inability to pay the civil sanctions did not amount to wilful disregard of a court order as required for an order of civil contempt. On August 27, 2008, in an effort to collect the $150,000 judgment, the department, as judgment creditor, served the defendants, as judgment debtors, postjudgment interrogatories. Shortly thereafter, the defendants filed a supplemental opposition to the motion for contempt, arguing that the stipulated judgment, by its terms, entitled the department to elect only one remedy for noncompliance with the injunctive provisions, payment of the $150,000 civil penalty. The defendants claimed that

the ``[p]laintiff chose [her] remedy. [She] chose to pursue collection of a $150,000 `judgment,' and, as such, there can be no contempt of a court order that, by its own terms, contains its own penalty and remedy.'' After hearing testimony on the motion for contempt on September 25, 2008, the court requested that the parties file posttrial briefs. The defendants again argued that (1) the stipulated judgment was self-enforcing because upon demanding that the civil penalty be paid, the department was exercising its available remedy and could not pursue contempt, and (2) the court could not compel the defendants to take remedial actions on property they did not own or to which they lacked access. The department argued that (1) the court had the authority to compel the defendants to seek access to the site, particularly because they did have access to the site until January 23, 2008, and (2) the defendants' failure to comply with the terms of the stipulation subjected them to the power of the court to enforce its orders. On October 8, 2008, the court rendered judgment for the entire $150,000 penalty against the defendants. On March 16, 2009, the court denied the motion for contempt, finding that ``[a]bsent wilful conduct by the defendants and in light of the plausible interpretation of the stipulated judgment as allowing a monetary judgment as an alternative to performance of remedial actions, [it] cannot find that the defendants are in contempt.'' This appeal followed. We first set forth the applicable standard of review. ``Guided by the principles that limit our review, our analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court's determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.'' (Citations omitted.) In re Leah S., 284 Conn. 685, 693

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