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Dunham v. Dunham

Citations: 217 Conn. 24; 584 A.2d 445; 1991 Conn. LEXIS 5Docket: 13997; 14108

Court: Supreme Court of Connecticut; January 1, 1991; Connecticut; State Supreme Court

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Two appeals stem from ongoing litigation between brothers Roger S. Dunham and Carl M. Dunham, Jr. concerning claims to real property inherited from their father. In a prior case, Dunham I, the court determined that Roger had no contractual claim to Candlelight Farms Airport, which had been willed to their mother and subsequently deeded to Carl. Following this decision, the trial court issued a permanent injunction prohibiting Roger from trespassing on the airport property. 

The first appeal (Docket No. 13997) contests the trial court's imposition of sanctions on Roger for contempt of this injunction. Carl filed a contempt motion after Roger allegedly trespassed multiple times, leading to a finding of contempt against Roger, who was ordered to pay Carl $49,500 in fines, along with attorney's fees and costs. Roger argues that the trial court exceeded its authority by imposing the fine without demonstrable damages and by ordering his incarceration and the production of documents. Carl counters that these issues were not raised during the trial.

The second appeal (Docket No. 14108) challenges the trial court’s decision to discharge Roger's notice of lis pendens on the airport property. Both appeals were initially filed in the Appellate Court but were transferred for resolution. The court affirmed the judgment in the first appeal and dismissed the second appeal due to a lack of final judgment.

Carl's assertion is supported by the record, indicating that Roger did not contest the validity of the civil contempt orders when issued and only filed a motion to stay the contempt order pending appeal. He did not challenge the trial court’s rulings through any motions such as those to arrest judgment or set aside the order. As a result, the court reviews Roger's claims only for plain error, as the trial court was not given an opportunity to correct any alleged errors. The scope of this plain error review is limited to jurisdictional issues, specifically whether the court had the authority to impose the punishment and whether the actions constituted contempt. 

The contempt power must be immediate and not subject to the offender's will, but it must also respect the contemnor’s fundamental rights, which allows for eventual error review. Civil contempt can be deemed improper if the underlying injunction is vague, findings are ambiguous, constitutional rights are not protected, penalties are criminal rather than civil, or the contemnor was unable to comply through no fault of their own. Roger's claims regarding the fine do not constitute fundamental rights infringements, as he does not contest the validity of the injunction, his contempt, his ability to comply, or the court's authority to impose a fine. He only disputes the fine's amount, arguing that the court did not consider Carl's damages and lacked evidence to support the fine's amount. The court's findings on Roger's conduct affirm his willful violation of the injunction. Consequently, Roger is sentenced to thirty days in custody.

The Court has postponed the hearing on monetary penalties until December 11, 1989, requiring further documentation from Roger, who is to submit relevant documents to Carl’s counsel by December 6, 1989. The penalties may exceed fifty thousand dollars, calculated at five hundred dollars per day, but the Court cannot finalize this amount due to unclear evidence regarding the frequency of flying lessons Roger provided, which may affect the total. The lessons, given in violation of a prior injunction, could be considered unjust enrichment, contributing to damages owed to Carl.

The Court noted the difficulty in establishing precise damages due to inadequate records from Roger and gaps in his recollection of events. However, the stipulation that Roger violated the injunction on 165 occasions indicates that Carl has proven he suffered damages. The Court finds no plain error in the initial assessment of the fine, as the damages are presumed valid despite potential challenges in quantifying them.

Roger's late claim of constitutional protection against responding to a subpoena is deemed without merit, as the privilege against self-incrimination must be explicitly invoked at the time of evidence collection, rather than post hoc. Relevant case law supports the Court's position on damages and the invocation of constitutional rights in civil contexts.

In appeal Docket No. 13997, Roger did not establish plain error regarding the trial court's sanctions for his willful violations of a permanent injunction against trespassing on airport property. The doctrine of plain error, as specified in Practice Book § 4185, applies only to significant errors that compromise trial fairness or judicial integrity, as outlined in State v. Hull. The sanctions against Roger do not reflect a deprivation of fundamental rights or a fair trial, leading to the affirmation of the judgment.

In Docket No. 14108, the focus is on General Statutes § 52-325, which addresses the timing for a defendant to record a notice of lis pendens. Roger, as the defendant in a supplemental action by Carl for damages and equitable relief related to Candlelight Farms Airport, filed a notice of lis pendens nearly nine months after his answer and counterclaim, which the trial court deemed invalid and discharged. The court found the notice ineffective as it was not filed "at the time the answer is filed," as required by § 52-325 (a). Roger contested this interpretation and sought to appeal the discharge.

Before addressing the merits, it must be determined if the discharge constitutes a final judgment eligible for appeal. The right to appeal is statutory, governed by General Statutes § 52-263, which allows an appeal from a final judgment in Superior Court. The validity of a lis pendens hinges on statutory definitions, with the statutes allowing challenges based on either a lack of probable cause or procedural noncompliance.

A property owner can challenge a lis pendens claim's probable cause through an application for discharge, governed by General Statutes §§ 52-325a, 52-325b, and 52-325c. Section 52-325a outlines the application content for asserting a lack of probable cause, while § 52-325b mandates a hearing if probable cause is contested, placing the burden of proof on the lis pendens claimant. The trial court may either deny the discharge or order the lis pendens to be discharged after resolving the probable cause issue. Section 52-325c states that any order under § 52-325b is a final judgment for appeal purposes, with specific time limits for appeals and provisions for stay hearings.

Conversely, if a property owner argues that a lis pendens notice is invalid, the resolution falls entirely under § 52-325d. This section allows for discharge if the notice does not pertain to real property, lacks required information, was improperly served, or is otherwise ineffective. A court can declare a notice invalid and issue a discharge order, which can be recorded. Unlike §§ 52-325a, 52-325b, and 52-325c, § 52-325d does not permit immediate appeals, implying that orders under § 52-325d are not final judgments. The current case involves Roger's notice of lis pendens, which was discharged under § 52-325d based on its alleged ineffectiveness. The trial court did not address probable cause, leading to the conclusion that Roger's appeal must be dismissed as the discharge order is interlocutory and not a final judgment. This distinction aligns with legislative intent and prior case law regarding statutory prejudgment remedies.

The appeal in Docket No. 14108 has been dismissed, with Justices Callahan and Borden concurring. Carl filed a motion for a permanent injunction and a contempt motion against Roger for violating a temporary injunction by using the airport, but the contempt motion was continued due to a lack of evidentiary support, and Carl did not pursue it further. Following the filing of a notice of appeal regarding the trial court’s contempt orders, Roger filed a motion for the court to articulate its factual findings and legal conclusions related to a $49,500 fine imposed on Carl. The court denied this articulation request, and Roger did not seek further review of the denial. The contempt orders issued were classified as civil contempt, aimed at protecting Carl's private rights rather than the court's authority. Civil contempt sanctions can include fines or imprisonment, and fines can be remedial or coercive, with the possibility of compensating the complainant. The trial court had granted Roger's motion for reconsideration, leading to a reduction of his sentence from thirty days to twenty days after he acknowledged his violation of the injunction. Additionally, General Statutes Sec. 52-325a outlines the process for property owners to request a hearing to discharge a lis pendens notice recorded against their property.

The court is required to provide reasonable notice for an application regarding the discharge of a notice of lis pendens to the plaintiff, including setting a hearing date. If the plaintiff is not a resident of the state, notice must be delivered via personal service, registered or certified mail, publication, or other methods as directed by the court, with a minimum of seven days' notice before the hearing. The application must include specific information about the property, the notice of lis pendens, and the claim's validity. An order for a hearing will be issued, detailing the notice requirements to affected parties. The court clerk will schedule the hearing upon receiving properly formatted documents and will ensure copies are served to the appropriate parties. 

During the hearing, the plaintiff must prove the validity of their claim. If they establish probable cause, the application or motion can be denied; if not, the court may discharge the notice of lis pendens. Property owners entitled to notice may also participate in the hearing.

An order issued under General Statutes Sec. 52-325b is considered a final judgment for appeal purposes. An appeal must be filed within seven days, during which the order's effect is automatically stayed. If an appeal is initiated, the appealing party can request a stay of the order's effect by filing an application with the court clerk, which must include reasons for the request and a copy sent to the opposing party. The order remains stayed until a decision on the application is made, which will be heard promptly. The court can set a bond amount to indemnify the adverse party for damages during the stay. An order of discharge or stay becomes effective upon recording a certified copy in the town clerk's office. The court clerk cannot release certified copies until the appeal period has lapsed or a stay decision is made. When a certified copy of a discharge order is recorded, it does not provide constructive notice to third parties for claims related to the property.

Additionally, under Sec. 52-325d, any party may file a motion to discharge a recorded notice of lis pendens if it is ineffective or improperly recorded, or if statutory service requirements were not met. If the court determines the notice is invalid, it will issue an order discharging it, which can be recorded in local land records, confirming that it does not constitute constructive notice.