Opinion
No. CV 05-4015744S
May 30, 2007
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR CONTEMPT
This is a motion for contempt brought by the plaintiff dated February 28, 2007 and filed on March 5, 2007 directed against the defendant for allegedly violating orders of this Court.
Following a hearing before this Court on August 28, 2006, the defendant failing to appear, the Court heard testimony from various unit owners of the condominium complex know as Regency Towers at 30 Woodland Street, Hartford, Connecticut. Regency Towers was originally a substantial apartment building which was subsequently turned into condominium units. The defendant, Gerald F. Scully, Jr. (hereinafter also "Scully") was and is the unit owner of Unit 3H/4H. The unit extends from the third floor to the fourth floor, but is commonly known as Unit 3H. The order issued by this Court on August 28, 2006 contains the following pertinent provisions:
1. Scully is restrained from contacting any owner or tenant of any condominium unit at 30 Woodland Street, Hartford, Connecticut in person, by telephone, in writing, or through a third party; and
2. Is restrained from having construction or repairs done between 6:00 p.m. and 8:00 a.m. at the unit owned by Mr. Scully, 3H/4H.
Following a hearing on January 16, 2007, the Court issued the following additional temporary injunction which reads, in pertinent part, as follows:
"The defendant Scully continues to be prevented from harassing or addressing the other residents of 30 Woodland Street, Hartford, Connecticut in a derogatory manner. Defendant Scully continues to be prevented from repairing or performing construction work on his unit between the hours of 6:00 p.m. and 8:00 a.m."
The Motion for Contempt dated February 28, 2007 claims that the defendant Scully is in violation of the foregoing Orders, and, therefore, should be found to be in contempt.
This Court has given every opportunity to the defendant to defend himself against this Motion for Contempt. Recognizing that he is a pro se defendant, the Court has extended him substantial leeway to defend himself. There were five hearings on the motion for contempt, and the file reflects that this Court authorized twenty-three subpoenas at the request of the defendant.
April 10, 2007, April 18, 2007, April 26, 2007, May 9, 2007 and May 16, 2007.
STANDARD OF REVIEW:
This Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency and inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case. The Court also look to the Exhibits in this case in determining credibility.
"A finding of contempt is a question of fact." Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 831 (2001) "In a civil contempt proceeding, the movant has the burden of establishing by a preponderance of the evidence, the existence of a court order and noncompliance with that order." Id. 832 (Emphasis added).
ISSUES AND FINDINGS:
1. The plaintiff claims, through its witnesses Michael McGarry and Marguerite McGarry who own Unit 31 in the subject building, which unit is adjacent to that of the defendant, that construction work has gone on and does go on through hammering and other noises between 6:00 p.m. and 8:00 a.m. between August 31, 2006 and today in violation of this Court's orders.
2. Plaintiff claims through its witnesses Michael and Marguerite McGarry, that on December 17, 2006, Mr. Scully threatened Mr. and Mrs. McGarry in the elevator of 30 Woodland Street waving a hockey stick and verbally abusing them. His exact words were "I read the testimony and I'm going to get you. I'm going to sue you." See plaintiff's Exhibit 1.
3. Plaintiff claims, through its witness, Sharon Lee Sperling, owner of Unit 11EF of 30 Woodland Street, that Scully was harassing her, in particular on February 13, 2007. She claims that on the morning of February 13, 2007 she was in the lobby posting a notice that one of the unit owners had passed away. She then proceeded to take her dog out for a brief walk. She came back inside to obtain a key to the glass enclosed bulletin board from the security guard so she could place another notice about the death of the other unit owner. She claims that at that point the defendant, Scully, came into the lobby and immediately with his pointing finger made a gesture like he was shooting her dog. Scully then started talking "at" me. He said, "too bad, Sharon, you're not my friend. If you were, we could discuss all the asbestos in this building and what it's going to cost us, going to cost all of you to get rid of it. I have all the papers about the asbestos problems from the past. You could fill me in on the history." Ms. Sperling replied: "I have no idea what you are talking about. Leave me alone. A neighbor died and I am upset, and I told you don't talk to me . . . now or ever." "He did an about face, laughed in my face, and went upstairs." See plaintiff's Exhibit 2.
In addition, Ms. Sperling testified in open Court that Scully would still approach her and say hi, but in a very sarcastic voice.
4. The allegations, if true, constitute harassment on the part of Scully and amounts to violations of the Court Orders not to contact or harass unit owners.
5. The three main questions then are:
1. Did Mr. Scully do or have done construction work between 6:00 p.m. and 8:00 a.m. in his condominium after August 30, 2006?
2. Did Mr. Scully harass Mr. Mrs. McGarry during the incident in the elevator as described above when he was under this Court's order not to contact any unit owners or tenants?
3. Did Mr. Scully contact and/or harass Sharon Lee Sperling in violation of both Court orders?The main issue, therefore, becomes the credibility of Mr. and Mrs. McGarry, Sharon Lee Sperling and Gerald F. Scully, Jr.
a. As for the credibility of MICHAEL MCGARRY, this Court found him to be a credible witness. He was angry at times on the witness stand, he obviously dislikes the defendant for the harassment that was committed by the defendant and is unhappy that he is being forced to leave the condominium to go elsewhere in order to get away from the defendant. However, this Court finds that in all of his appearances on the witness stand, Mr. McGarry was consistent in his testimony, he remembered important events and he was candid and forthright. Despite a major effort by Mr. Scully to impeach Mr. McGarry's credibility, he was not able to do so. Of all the witnesses he subpoenaed, not one testified that Mr. McGarry was untruthful or had a reputation for untruthfulness. Mr. Scully brought in witnesses who were former members of the Hartford City Council on which Mr. McGarry served, people who were other unit owners, a priest who was a former owner of several units who left to purchase units across the street and sell his units at the subject property in order to get away from Mr. Scully. Mr. Scully admitted that he had made a mistake in listening to people who recommended these witnesses to him when in fact, they testified contrary to what he thought he had been told. In any event, there is nothing in the record of any kind that impeaches the credibility of Mr. McGarry.
b. As for MRS. MCGARRY, her testimony was also consistent and candid. She answered the questions correctly from the knowledge she had although she stated that the financial arrangements that she and her husband had were being handled by her husband because of her illness. They both testified as to the hammering and banging that was going on between 6:00 p.m. and 8:00 a.m., in Mr. Scully's condominium and she was consistent regarding her testimony as to the incident in the elevator and what Mr. Scully had said to her and her husband.
c. As for whether or not construction was done in Mr. Scully's unit in violation of this Court's Orders, the Court believes Mr. McGarry who testified on January 16, 2007 that a month earlier construction had been done between 6:00 p.m. and 8:00 am. Mrs. McGarry testified that construction was done a month previously which would be approximately December 16, 2006 which is following the injunction issued on August 28, 2006 prohibiting such construction. She further testified that due to her illness she becomes tired and cannot sleep at night because of the construction in Mr. Scully's unit.
Mr. Scully did present Murray Brenner as a witness. Mr. Brenner is the man who inspected the unit of Mr. Scully at the request of the receiver of rents. Mr. Scully paid him to come in to testify on his behalf to the effect that from the time he originally inspected Mr. Scully's condominium on January 13, 2007, he did not see subsequent construction. However, assuming Mr. Brenner is telling the truth, the testimony of Mr. and Mrs. McGarry is that the construction occurred sometime in December 2006 and in the preceding months about which Mr. Brenner could not have known because he was never on the scene prior to his being hired by the receiver of rents to inspect the defendant's unit on January 13, 2007.
d. As for SHARON LEE SPERLING, the Court finds her to have been a credible witness. She testified that Mr. Scully harassed her by pantomining his shooting of her dog and trying to engage her in conversation regarding asbestos problems which he claimed were there, all of which was in violation of the Court Orders. When she was subpoenaed, she testified that Mr. Scully told her "you better be there or I'll have you arrested." His harassment got worse, she claimed, starting in February 2007. He was always asking her questions about asbestos even though she had requested that he not talk to her. She claims that he kept asking her questions although she had asked him to stop.
e. Robert Colletti, a unit owner and member of the Board of Directors since 1985 and presently Vice President thereof, testified that Mr. Scully called him at all hours accusing Mr. Colletti of being involved in asbestos removal, made false statements about him and harassed him in a sarcastic way. The Court finds that Mr. Colletti was a credible witness.
The Court is not going through all of the testimony of all of the witnesses. Suffice it to say that the Court finds Michael and Marguerite McGarry, Sharon Lee Sperling and Robert Colletti credible witnesses and believes their testimony. Despite efforts by Mr. Scully to diminish the character of Mr. and Mrs. McGarry claiming he was an alcoholic and was untruthful, none of his allegations were proven. None of the witnesses confirmed his claims. As a matter of fact, some of the witnesses, a bartender that he had subpoenaed, two former Council members that he had subpoenaed and an individual that works at the management company asked this Court to issue a protective order restraining Mr. Scully from contacting them in any way. The Court granted these requests. They all claimed to have been harassed by him, and although this was not specific evidence of his harassment of unit owners, it shows a pattern of harassing people on the part of Mr. Scully. The Court notes as to Sharon Lee Sperling that it made in its trial notes that she was honest and that the defendant did not shake her on cross examination.
One of the witnesses subpoenaed by Mr. Scully was the Reverend Peter J. Mitchell who testified that he had never had a confrontation nor a heated conversation with Mr. McGarry. He found Mr. Scully to be borish, a bully and a harasser. He also found him to be untruthful. Mr. Scully had signed a contract with Father Mitchell to pay $3,600.00 and he reneged on the contract. He found Mr. Scully to be untruthful, unreliable, harassing and he, Reverend Mitchell, sold his condominium units and moved out because of Mr. Scully.
5. As for the credibility of Mr. Scully, the Court finds him lacking in credibility for the following reasons:
1. His testimony differs with that of Mr. and Mrs. McGarry and Sharon Lee Sperling, and the Court has found them to be credible. In fact, in the transcript of the trial, Mr. Scully admits that he made the statements attributed to him in the elevator but did not believe that it was harassment.
2. A hearing was scheduled in December 2006. Mr. Scully claimed that he had another matter across the street in G.A. 14 that morning. He was told that when he was finished with that matter to contact the Court because the Court had scheduled the hearing for 2:00 p.m. According to the testimony of Lori Lawlor, the caseflow coordinator, who took the witness stand in the absence of Mr. Scully, Mr. Scully was informed that the Court was going to proceed at 2:00 p.m. when Mr. Scully called late that morning to say that he had finished in G.A. 14. Despite his being informed of the 2:00 p.m. hearing, he then did not appear.
3. Based upon his general demeanor on the witness stand and mis-statements made by him the Court finds that he was not a credible witness.
4. There is a police report admitted into evidence as plaintiff's Exhibit 3 of an incident that took place on July 30, 2006. The police report indicates that Mr. Scully was making a complaint. The police officer, patrolman Figueroa, stated in the report that Mr. Scully told him that he was sixty miles away and could not meet with him at 30 Woodland Street. Then Mr. Scully stated that he was in New Haven. The police officer told Mr. Scully that New Haven was not sixty miles from Hartford. Mr. Scully stated "okay, I'm not in New Haven, what's the point!" This is obviously an example of untruthfulness.
5. Mr. Scully is aggressive. See plaintiff's Exhibit 11 in which he stated "these low life mother fuckers want to play with me. You probably figured out I don't play nice or play well with others." Mr. Scully said in plaintiff Exhibit 12, in pertinent part, "everyone who has tangled with me has not liked the results and especially didn't like how I got the results, I play to win and make no secret of it, the smart ones have all stepped aside. It is not worth rolling in the mud with me. Condo association is going to take everyone down. Don't make the mistake of underestimating me." In plaintiff's Exhibit 13, he states "food for thought. You probably figured out I am aggressive and relentless, every low life and I mean every single one of them that thought they were tough guys are financially less off after fucking with me and clearly probably wished they didn't play with me." The Court found Mr. Scully to be very aggressive and very unhappy when he did not get his way.
In his closing remarks, Mr. Scully stated that he is not an idiot, and he doesn't believe that the Court believes he is an idiot and only an idiot would knowingly violate a Court Order.
This may be true, but it is this Court's conclusion that Mr. Scully's aggressiveness and combativeness get in the way of his ability to be reasonable and truthful. He is usually spoiling for a fight and enjoys being confrontational. The evidence is clear as stated above that he has deliberately harassed Mr. and Mrs. McGarry and spoken to them in a derogatory manner despite the orders of the Court not to do so. The same is true as to Sharon Lee Sperling. Further, he has, in direct violation of this Court's Orders, in both December 2006 and January 2007 implemented construction, hammering, etc. in his condominium unit between the hours of 6:00 p.m. and 8:00 a.m. the next morning, all in direct and willful violation of the Court's Orders.
CONCLUSION
For the reasons stated above, this Court finds that the defendant, Gerald F. Scully, Jr., has willfully and deliberately violated this Court's Orders not to contact, harass or speak derogatorily to Mr. and Mrs. McGarry and Sharon Lee Sperling, as well as Mr. Robert Colletti. There are other incidents as covered in the incident reports, but suffice it to say that his harassment as specified above and his construction work between 6:00 p.m. and 8:00 a.m. constitutes willful violations of this Court's Orders.
The condominium is guarded by Murphy Security Service LLC. In its incident report of January 29, 2007, plaintiff's Exhibit 3, the security officer stated: " . . . He (Scully) turned to Claude and Tony and started harassing them with questions, Tony and Claude are two of our RMS (retarded) tenants." This incident was in direct violation of this Court's Order not to contact or harass any of the tenants. In another incident report dated February 13, 2007, plaintiff's Exhibit 6, Scully confronted Lenworth Williams an RMS worker and Scully told Lenworth they could "go behind the building and talk." . . . "Lenworth then told me that Scully threatened him by telling him "to go out behind the building with him." This is evidence of Scully's confrontational attitude.
Therefore, this Court finds the defendant, Gerald F. Scully, Jr., has willfully and blatantly violated the aforementioned Court Orders and the Court's judgment is that he is found in contempt of this Court.
In DeMartino v. Monroe Little League, Inc. 192 Conn. 271, 278 (1984), the Connecticut Supreme Court stated as follows: "Judicial sanctions and civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the Court's Order, and to compensate the complainant for losses sustained . . . where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant's actual loss." (Emphasis added).
Further, Conn. Gen. Stat. § 52-256b provides as follows: Award of attorney's and officer's fees in contempt action. (a) when any person is found in contempt of any order or judgment of the Superior Court, the Court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt." On that basis, this Court will hold a hearing on the amount of the plaintiff's losses/attorneys fees on June 8, 2007 at 10:00 a.m. The plaintiff is to send a copy of his claim for attorneys fees as itemized to the defendant forthwith so he will have time to review same before the June 8, 2007 hearing.
The referenced Court orders (injunctions) remains in full force and effect.