TOWN OF NEWTOWN ET AL.
January 7, 2019
in the first case, for, inter alia, a temporary and permanent
injunction requiring the defendant to comply with certain
cease and desist orders, and for other relief, brought to the
Superior Court in the judicial district of Danbury and
transferred to the judicial district of Fairfield, and
action, in the second case, for, inter alia, a temporary and
permanent injunction requiring the defendant to comply with
certain cease and desist orders, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield, where the cases were consolidated and tried to the
court, Hon. Richard P. Gilardi, judge trial referee;
judgment for the plaintiffs in the first case; thereafter,
the court granted the motion for contempt filed by the
plaintiffs in both cases and awarded damages to the
plaintiffs in the first case; subsequently, the court awarded
damages, attorney's fees and costs to the plaintiffs in
the first case; thereafter, the court, Radcliffe,
J., denied the motion to open and vacate the
judgment and to dismiss filed by the defendant in the first
case, and the defendant in the first case appealed to this
M. Fleischer, for the appellant (defendant in the first
Barbara M. Schellenberg, with whom was Jason A. Buchsbaum,
for the appellees (plaintiffs in the first case).
DiPentima, C. J., and Bright and Beach, Js.
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. 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.
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. 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.
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
February 7, 2014, Attorney Thomas Murtha 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,
‘‘The Court: Is [the defendant] present?
‘‘[Attorney] Karayiannis: He's not, Your
‘‘The Court: And do you have the proof of
‘‘[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
‘‘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
‘‘[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.
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.
hearing, Maguire testified about the defendant's
violations of Newtown's wetlands and zoning
regulations. 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 ...