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PHILIP QUARANTA ET AL. v. WILLIAM COOLEY ET AL. (AC 31355)
Lavine, Beach and McDonald, Js. Argued April 13--officially released August 30, 2011

(Appeal from Superior Court, judicial district of Litchfield, Gill, J.) Nicholas J. Adamucci, for the appellant (defendant Joanne Cooley). Daniel K. Readyoff, for the appellees (plaintiffs).

Opinion

BEACH, J. The defendant Joanne Cooley1 appeals from an order of the trial court imposing sanctions in favor of the plaintiffs, Philip Quaranta and Arlene Quaranta, after finding the defendant in contempt. On appeal, the defendant claims that the court (1) abused its discretion by imposing punitive sanctions for a civil contempt and (2) violated her right to due process by failing to afford her a hearing prior to imposing certain sanctions.2 We agree with the defendant and, accordingly, reverse the judgment of the trial court. The following facts and procedural history are relevant to our resolution of the defendant's appeal. The parties reside on adjacent parcels of land and share a common driveway. The quarreling between the parties began when the defendant sent a letter to the plaintiffs alleging that there was a possible dispute regarding their property lines. The animosity between the parties increased between 2000 and 2005, when the defendant's son, Sean Cooley, hosted large parties approximately four times per month. At these parties, Sean Cooley's friends frequently parked numerous cars on the shared driveway. The plaintiffs complained that they often were disturbed by the screaming and cursing of Sean Cooley's friends as they left the parties late at night and by the noise from the vehicles as they left the driveway. Alcohol was served at the parties, and the plaintiffs often cleaned up empty alcohol bottles the following mornings. At one party in particular, several of Sean Cooley's friends cursed at Arlene Quaranta after she asked them to quiet down. These unfortunate occurrences were not limited to Sean Cooley's parties. The defendant and her daughter drove at high speeds over the well kept lawn area surrounding the shared driveway and left unsightly tire tracks. The defendant also sped down the driveway while making rude hand gestures and sounding her car horn during the time it took to travel the entire length of the driveway. The defendant often left her trash out all week long even though trash was picked up only on Mondays. Animals thus got into the trash, and the plaintiffs often cleaned up the resulting mess. Multiple verbal confrontations also had occurred between the parties, one in which Sean Cooley said to Philip Quaranta: ``Hit me! I'll wipe the ground up with you.'' On June 14, 2005, the plaintiffs served a complaint sounding in negligent infliction of emotional distress and intentional infliction of emotional distress. In their claims for relief, the plaintiffs sought punitive damages, reasonable attorney's fees, compensatory damages for the cost of maintaining the shared driveway and such ``other relief as the court deems fair, just, and equitable.'' The case was tried before the court. The court issued its memorandum of decision on December 3, 2007. It

credited the testimony of the plaintiffs. The court concluded that the defendant ``directly and indirectly negligently and intentionally caused severe emotional distress upon the plaintiffs . . . .'' The court also concluded that ``the defendant and her family have clearly exceeded the use of the right-of-way . . . .'' As a result, the court imposed the following orders upon the defendant and her family: ``(1) Drive your vehicles only on the paved or graveled portion of the right-of-way. (2) Do not drive your vehicles more than ten miles per hour on the right-of-way. (3) Do not blow your horn on your vehicles or play loud music while on the rightof-way. (4) Do not make obscene gestures on the rightof-way. (5) Do not park on the right-of-way or allow any of your guests to do so. (6) Remove any storage containers from the right-of-way. . . . (8) . . . [R]efuse is to be [put out] only on the day before trash pickup.'' (Emphasis in original.) The plaintiffs filed three separate motions for contempt on February 11, March 10 and April 4, 2008. In these motions, the plaintiffs alleged that the defendant continually had violated the orders of the court set forth in its December 3, 2007 memorandum of decision and, therefore, that she was in contempt of court. The court held an evidentiary hearing on May 7, 2008, to consider all three of the plaintiffs' motions for contempt. At the hearing, the plaintiffs presented evidence showing that the defendant, her daughter and Sean Cooley had violated the court's December 3, 2007 orders on numerous occasions. Specifically, the plaintiffs offered thirteen video recordings3 of the defendant driving on the well kept lawn area surrounding the shared driveway and forty-five video recordings of the defendant, her daughter and Sean Cooley driving in excess of twenty miles per hour on the shared driveway. The plaintiffs also provided photographs that showed that the defendant had left her garbage and recycling bins out in the driveway in violation of the court's orders. Additionally, the defendant herself admitted to driving over the well kept lawn area surrounding the driveway and to traveling over the driveway in excess of ten miles per hour. Following the hearing, the court issued an order on May 7, 2008, which stated in relevant part: ``The court finds that the defendant . . . has committed civil and direct contempt by clear and convincing evidence . . . . [The] [d]efendant is sentenced to the custody of the commissioner of correction. She can purge herself by curing the remaining objections. Execution of sentence is stayed for one month. If during that one month there is a single episode, the stay will be lifted and the [d]efendant shall be incarcerated. If the [c]ourt receives a letter from [the plaintiffs'] [c]ounsel . . . on June 9, 2008, stating that all the objections have been dealt with, the imposition of imprisonment shall be erased. The contempt finding shall remain.''

On June 9, 2008, the plaintiffs filed another motion for contempt4 alleging that the defendant had committed ``an additional sixty-five separate violations'' of the court's December 3, 2007 orders since the court issued its May 7, 2008 order. On August 6, 2008, the plaintiffs filed a ``motion for order'' seeking, inter alia: ``(1) An order that the defendant . . . pay a monetary penalty for each of the seventy-two violations established at the May 7, 2008 hearing; (2) [a]n order that the defendant pay one-half of the cost to repave and regravel the common driveway [and] . . . (3) [a]n order that the defendant reimburse the plaintiffs for the attorney's fees and costs . . . incurred since . . . February 22, 2008, to enforce the [c]ourt's [December 3, 2007] orders . . . .''5 Without holding a hearing, the court granted the plaintiffs' motion for order on July 13, 2009, and ordered: ``(1) That the defendant . . . pay to the plaintiffs the amount of [$100] for each of the violations of the [c]ourt's orders presented at the May 7, 2008 hearing6 on the plaintiffs' [m]otion for [c]ontempt; (2) [t]hat the defendant . . . pay one-half of the sum of the estimate obtained by the plaintiffs for the repaving and re-graveling of the parties' common driveway, in order to maintain the driveway as it is presently configured; (3) [t]hat the defendant . . . pay all outstanding fees to the plaintiffs as an award of counsel fees and costs incurred by the plaintiffs since February 22, 2008.'' The defendant subsequently filed a motion to reargue, which the court denied. This appeal followed. Additional facts will be set forth as necessary. I The defendant first claims that the court abused its discretion by imposing punitive sanctions. Specifically, the defendant argues that the $100 penalties imposed by the court in its July 13, 2009 order were erroneous ``because the monetary fines . . . were wholly punitive'' in nature. We agree with the defendant that the court abused its discretion by imposing the $100 penalties. We begin by setting forth our standard of review and relevant legal principles. ``A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [alleged contemnor] were in contempt of a court order. . . . To constitute contempt, a party's conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . [T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. . . . We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did.'' (Inter-

nal quotation marks omitted.) O'Connell v. O'Connell, 101 Conn. App. 516, 521, 922 A.2d 293 (2007). ``Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . Contempts of court may also be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court.'' (Citation omitted; internal quotation marks omitted.) Edmond v. Foisey, 111 Conn. App. 760, 769, 961 A.2d 441 (2008). In the present case, the plaintiffs alleged in their motions for contempt that the defendant's contemptuous behavior was her habitual failure to comply with the court's December 3, 2007 orders. Because this occurred outside the presence of the court, it was an indirect contempt, notwithstanding the court's characterization of it as ``direct contempt.'' See LaMacchia v. Chilinsky, 85 Conn. App. 1, 4, 856 A.2d 459, cert. denied, 271 Conn. 942, 861 A.2d 514 (2004). Contempt is either civil or criminal in nature. Johnson v. Johnson, 111 Conn. App. 413, 420, 959 A.2d 637 (2008). ``[C]riminal contempt is conduct that is directed against the dignity and authority of the court. In contrast, civil contempt is conduct directed against the rights of the opposing party. A contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. . . . In distinguishing between the two, much weight has been placed on the character and purpose of the punishment. Sanctions for civil contempt may be either a fine or imprisonment; the fine may be remedial or it may be the means of coercing compliance with the court's order and compensating the complainant for losses sustained. . . . In criminal contempt the sanction is punitive in order to vindicate the authority of the court.'' (Citations omitted.) Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977). In its memorandum of decision, the court determined that the defendant's contempt was civil. All parties agree as to the civil nature of the contempt. The defendant argues that the court abused its discretion by imposing the $100 penalties because they ``were not properly employed . . . [either to] coerce [her] compliance or to compensate the [plaintiffs] for losses sustained;'' rather, they were ``strictly punitive.'' The defendant maintains that because she was found to be in civil contempt, such punitive sanctions are impermissible. See Edmond v. Foisey, supra, 111 Conn. App. 775 (``[p]unitive sanctions are not permissible for civil contempt''). The plaintiffs contend that ``[b]y ordering a relatively small financial penalty of $100 for each violation, the . . . court was encouraging compliance with the order because the order required the defendant to experience a consequence for her misconduct, and it provided a measure for the possible future conse-

quence of violating the order.'' As a result, the plaintiffs argue that the $100 penalties were proper because they tended to coerce the defendant's compliance with the court's December 3, 2007 orders. We agree with the defendant. It is well established that ``[c]ivil contempt is designed to compel future compliance''; Monsam v. Dearington, 82 Conn. App. 451, 456, 844 A.2d 927 (2004); or to compensate a party for losses or damages caused by a violation of the court's orders. Gina M. G. v. William C., 77 Conn. App. 582, 594, 823 A.2d 1274 (2003). Thus, in the compliance category of civil contempt, it follows that ``the punishment must be conditional and coercive, and may not be absolute.'' (Emphasis added.) Mays v. Mays, 193 Conn. 261, 266, 476 A.2d 562 (1984). The court's July 13, 2009 order imposing $100 penalties on the defendant was neither conditional nor coercive because the penalties were not prospective in nature; rather, they were imposed for violations of the court's orders that already had occurred.7 Moreover, the order did not provide the defendant with a warning that if her contemptuous behavior continued, then she would be subject to penalties. In fact, the first time the defendant had become aware of the fact that her contemptuous behavior could result in the imposition of monetary penalties was after the penalties already had been imposed upon her by the court. As such, the court's order failed to provide the defendant with an opportunity to purge herself. As our Supreme Court previously has stated: ``[I]n civil contempt proceedings, the contemnor must be in a position to purge himself. . . . Otherwise the sanction imposed would cease to be remedial and coercive but would become wholly punitive in actual operation.'' (Citations omitted; internal quotation marks omitted.) Mays v. Mays, supra, 266. Therefore, because the monetary penalties were not conditional or coercive,8 they were not proper sanctions to impose upon the defendant for civil contempt. Accordingly, we conclude that the court abused its discretion by imposing the $100 penalties.9 II The defendant also claims that the court violated her right to due process by failing to afford her a hearing to determine the amount of attorney's fees and the cost of driveway repairs imposed upon her. Specifically, the defendant contends that ``[i]n accordance with her due process rights, [she] was entitled to a . . . hearing in order to cross-examine and [to] produce evidence refuting [the] plaintiffs' alleged actual losses and the amount of the [court's July 13, 2009] financial orders.'' We agree. The following additional facts are relevant to our review of the defendant's claim. As stated previously, in their ``motion for order,'' the plaintiffs sought both an order requiring the defendant to pay half of the cost of repaving and regraveling the shared driveway and

attorney's fees incurred since February 22, 2008. The plaintiffs attached to their motion for order two exhibits: (1) two sworn affidavits in which their attorneys stated that the fees incurred on the plaintiffs' behalf since February 22, 2008, totaled $17,562.50 and (2) an estimate of the cost of repaving and regraveling the shared driveway attributable to the defendant. The defendant filed an objection to the plaintiffs' motion for order. In her objection, the defendant requested that she be afforded, pursuant to her due process rights, ``a hearing to dispute the allegations contained in the [p]laintiffs' motion for order.'' The court, without holding a hearing, granted the plaintiffs' motion for order and ordered the defendant to pay attorney's fees incurred by the plaintiffs since February 22, 2008, and to pay half of the cost of repaving and regraveling the shared driveway in accordance with the two exhibits submitted by the plaintiffs. We first set forth our relevant standard of review and legal principles that guide our analysis of the defendant's claim. ``[T]here are constitutional safeguards that must be satisfied in indirect contempt cases. It is beyond question that due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. . . . Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity. . . . Whether the defendant was deprived of his due process rights is a question of law, to which we grant plenary review.'' (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 489, 499

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