Town of Newtown v. Ostrosky

191 Conn.App. 450

215 A.3d 1212

TOWN OF NEWTOWN et al.

v.Scott OSTROSKY

AC 40975

Appellate Court of Connecticut.

Argued January 7, 2019

Officially released July 30, 2019

Robert M. Fleischer, for the appellant (defendant).

Barbara M. Schellenberg, Orange, with whom was Jason A. Buchsbaum, Bridgeport, for the appellees (plaintiffs).

DiPentima, C.J., and Bright and Beach, Js.

BEACH, J.

The defendant, Scott Ostrosky, appeals from the judgment of the trial court denying his motion to dismiss the action and to open and vacate the court's prior judgment that had been rendered in favor of the plaintiffs, the town of Newtown and several of its agencies and employees.¹ On appeal, the defendant claims that (1) the court lacked subject matter jurisdiction to adjudicate the plaintiffs' claims, (2) he was deprived of his due process right to notice and the opportunity to be heard on the merits of his case, and (3) the court had continuing jurisdiction to enforce and to modify its injunctive orders even if the motion to open and to vacate judgments was untimely. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. This case arises out of efforts by the plaintiffs to enforce cease and desist orders relating to activity on the defendant's property. The defendant's property comprises 21.9 acres of land, of which 5.5 acres are located in Newtown. The majority of the defendant's property is located in the town of Monroe.² On August 13, 2013, Steve Maguire, the plaintiff land use enforcement officer for the town of Newtown, issued two cease and desist orders, which were served on the defendant on August 21, 2013. One order cited several conditions that allegedly violated zoning regulations, including the presence of unregistered vehicles, commercial vehicles, inoperable vehicles, waste, abandoned material, and junk accumulation. The order required the defendant to take corrective action within thirty days to avoid fines or legal actions. The second order noted violations of inland wetlands regulations, including "clearing, filling, deposition, and removal of material within the regulated wetland area." Failure to "cease and desist all activities" bore potential fines and penalties of up to $1000 per day. (Emphasis omitted.)

In December, 2013, the plaintiffs initiated the underlying action, seeking, inter alia, injunctive relief compelling the defendant to comply with the cease and desist orders and to submit an application to the Inland Wetlands Commission of the Town of Newtown to remediate affected areas. The complaint also sought civil fines, penalties, and attorney's fees. The defendant was served with this summons and complaint on January 13, 2014, by a state marshal.

On February 7, 2014, Attorney Thomas Murtha³ filed an appearance on behalf of the defendant. The plaintiffs moved pursuant to Practice Book § 9-5 to consolidate the action with a similar action brought by the town of Monroe and several of its agencies and employees. See Monroe v. Ostrosky , Superior Court, judicial district of Fairfield, Docket No. CV-14-6041168-S. After the cases were consolidated, Murtha moved to withdraw his appearance on the ground of a conflict of interest with the town of Monroe. A hearing on the motion to withdraw was scheduled for June 23, 2014. An order included in the notice of hearing required that "[p]ursuant to Practice Book § 3-10, notice must be ‘given to attorneys of record’ and your client(s) must be ‘served with the motion.’ " There is no indication in the record that Murtha notified the defendant of his intention to withdraw. At the hearing on the motion to withdraw, Attorney Peter Karayiannis from Murtha's law office appeared on behalf of the defendant. The following colloquy occurred before the court, Bellis , J. :

"The Court: Is [the defendant] present?

"[Attorney] Karayiannis: He's not, Your Honor.

"The Court: And do you have the proof of service?

"[Attorney] Karayiannis: We haven't gotten the green card back, but he's aware of the conflict, and he's been advised to retain new counsel.

"The Court: So—and can you represent that he's received a copy of the motion?

"[Attorney] Karayiannis: I don't know if he's—I haven't spoken to him about that, so I wouldn't want to—

"The Court: Does he know—can you represent that he knows it's down today?

"[Attorney] Karayiannis: I don't know if [Attorney] Murtha spoke to him about that. If you would like, I can try to place a call. I know Attorney Murtha [is] in court too.

"The Court: Right. Do you know if he has an objection to it?

"[Attorney] Karayiannis: I do not—I do not believe he has an objection to it, no, Your Honor.

"The Court: All right.

"[Attorney] Karayiannis: We're kind of stuck with it. I mean, if there's a conflict—

"The Court: No, I understand that. I just—I just want to make sure he is not blindsided, that's all. And since the motion was just—you know, we put it on—

"[Attorney] Karayiannis: Understood.

"The Court: —for today. I mean, I'm—I don't know that it's going to make much of a difference anyway, but I'll grant it based on the representation that he consents to the motion being granted.... But counsel, since I granted this without [the defendant] here and without knowing for sure that he received a copy of the motion, what I'm going to do is, I'm going to require your office to send correspondence to [the defendant], giving him the new hearing date—

"[Attorney] Karayiannis: Okay.

"The Court: —for both cases, and carbon copy that letter. I mean, it's just going to be one line, the new hearing—you know.

"[Attorney] Karayiannis: Do you want me to send him a copy of the order as well or—today's order or—

"The Court: You probably should—

"[Attorney] Karayiannis: Okay.

"The Court: —tell him that you've withdrawn, here's the new hearing, and then [carbon copy] counsel on it.

"[Attorney] Karayiannis: Okay, Your Honor.

"The Court: I don't want to see a copy. I just want to make sure that we don't pick a hearing date, he doesn't show up and we go forward. This way I'll know that he has [a] hearing—maybe you should ask—get a green card back on it too, just in case.

"[Attorney] Karayiannis: Okay."⁴

On July 23, 2014, the court, Hon. Richard P. Gilardi , judge trial referee, held an evidentiary hearing on the merits of the action. Neither the defendant nor anyone on his behalf appeared at the hearing, which was attended by attorneys for both towns. The plaintiffs' counsel apprised the court that Murtha had withdrawn from the case. The attorney for the town of Monroe informed Judge Gilardi that Judge Bellis had granted the motion to withdraw and had "instructed [Murtha's law office] to send a letter to [the defendant], notifying him of the fact that [it was] no longer in the case on his behalf and giving him the date and time [of the new hearing]." The attorney further explained that "[Murtha's law office] confirmed [that] morning to [him] on the phone ... that [it] did, indeed, send a letter to [the defendant], notifying him of the fact that the matter was going forward and [that Murtha's law office] no longer represented him." The hearing proceeded without the presence of the defendant or an attorney on his behalf.

At the hearing, Maguire testified about the defendant's violations of Newtown's wetlands and zoning regulations.⁵ On August 5, 2014, the court issued a memorandum of decision, finding in favor of the plaintiffs. Relying on the evidence presented by the plaintiffs, the court ordered the defendant to comply with Newtown's inland wetlands and zoning regulations by September 17, 2014, and it required the defendant to allow zoning enforcement officers from the towns of Newtown and Monroe on the property for inspection on that date. Failure to comply would result in a fine of $100 per day until the defendant complied with the court's orders. The defendant was served with notice of the judgment on September 5, 2014, by a state marshal. The defendant did not appeal from the court's August 5, 2014 judgment, nor did he move to open the judgment.⁶

In January, 2015, the plaintiffs filed a "Joint Motion for Contempt," seeking, inter alia, a monetary judgment for the fines resulting from the defendant's failure to comply with the court's order. The motion alleged that the defendant had prevented access to his property for inspection on September 17, 2014. The plaintiffs' counsel certified that a copy of the motion had been mailed to the defendant. On February 15, 2015, the defendant was served by a state marshal with a subpoena to appear at a contempt hearing scheduled for February 25, 2015. The defendant was present at the hearing with an attorney, Richard Grabowski.⁷ Grabowski confirmed that the defendant had received the injunctive orders issued in August, 2014. The plaintiffs maintained that (1) they had not been permitted on the property to inspect it, (2) inspection of the defendant's property from adjacent properties showed that the orders had not been complied with, (3) items ordered to have been removed from the property had not been removed, and (4) the defendant had not filed an application with the wetlands agency. The following colloquy occurred:

"[Attorney] Graboswki: [B]ack in August, [2014], when the hearing took place, when Your Honor found in the plaintiffs' favor, my client was not notified that the hearing was going forward. He has since retained an attorney to place a motion to stay the judgment and to open it and give him a chance to have his day in court, so that he could present evidence as to why he's not out of compliance with the zoning ordinances and that nothing on the property is in violation, and he just hasn't had the opportunity to do that as of yet. And that's what we would be looking for. That's what I'm going to be moving for once I get involved with the case.

"The Court: When was the order entered?

"[The Plaintiffs' Counsel]: Your Honor, the order was entered on August 4, [2014], I believe.... And also, Your Honor,...