Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER 

SUPREME COURT DOCKET NO. 2011-053 

NOVEMBER TERM, 2011 

Town of Windham } APPEALED FROM: 

} 

 v. } Superior Court, Windham Unit, 

} Civil Division 

} 

Sean Reese and Elizabeth Reese } DOCKET NO. 456-10-053 Wmcv 

 

 Trial Judge: John P. Wesley 

 David A. Howard 

In the above-entitled cause, the Clerk will enter: 

Defendants Sean and Elizabeth Reese appeal the superior court’s denial of their requests 

for relief from prior orders finding them in civil contempt and imposing daily fines until they 

addressed the overflow from a pond on their property to a neighboring property and town 

highway. We affirm, except that we reduce the amount of the ultimate fine by $150. 

 In the fall of 2003, the Town of Windham filed suit against defendants to collect 

damages and obtain an injunction to halt an ongoing overflow from defendants’ pond that had 

flooded a town highway. The pond was created by water build-up in a talc mine previously 

operated on defendants’ property. In March 2004, the Byron W. McCandless Trust, which owns 

property downhill from the pond, moved to intervene on the side of the Town. On April 4, 2007, 

following a four-day trial in October 2006, the superior court issued a decision concluding that 

defendants’ failure to control the flow of water from the pond “caused significant present and 

continuing injury to each of the Plaintiffs.” The court denied compensatory damages for lack of 

proof but granted injunctive relief subject to a further evidentiary hearing and supplemental 

findings concerning the appropriate scope of the relief. 

On August 14, 2007, after conclusion of the follow-up hearing during which both sides 

presented the testimony of expert witnesses, the superior court issued a final injunction ordering 

that defendants “shall take immediate steps to lower the surface of the . . . pond by at least fifteen

feet from the elevation at which water commences to spill over the edge, which shall be 

accomplished no later than October 1, 2007 except for good cause shown,” and further “shall 

with all deliberate speed take steps necessary to design, obtain necessary permits and construct a 

permanent regulated outflow system that insures that the level of the water in the pond does not 

rise higher than two feet below the level at which it commences to spill” unless they obtain a 

regulatory permit that approves a higher elevation. With regard to the latter permanent solution, 

the court ordered defendants to furnish the Town and the Trust, no later than December 15, 2007, 

completed engineering and construction plans at least twenty days before submitting an 

application for regulatory approvals. The court expressly recognized that “even assuming all 
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deliberate speed” in implementing a permanent solution to the overflow, the permitting process 

and construction most likely could not be completed before the coming winter. Nevertheless, 

because of its conclusion that the “present unregulated flows” from the pond posed “a significant 

danger” of creating permanent wetlands and erosion on the Trust’s property, as well as winter ice 

sheeting on the town highway, defendants were required “to take such steps as necessary to 

immediately reduce the level of the pond by at least 15 feet.” 

On October 1, 2007, the same day by which defendants had been ordered to complete 

“immediate steps” to abate the pond’s overflow, defendants filed a motion seeking relief from 

the court’s judgment imposing a final injunction. Three days later, the Trust filed a motion to 

hold defendants in civil contempt for failure to take immediate steps to lower the pond’s water 

level, as ordered by the court. The court held a hearing on the two motions on October 29, 2007. 

Defendants did not appear at the hearing or present any evidence, but their attorney made 

statements regarding his attempts to satisfy the court’s injunction. The attorney acknowledged 

that the pond overflow had not been drawn down, but he explained that he had participated in a 

September 17 site visit with an employee of the Agency of Natural Resources (ANR), who 

informed him that there was “no way” defendants would be allowed to pump into the stream by 

the October 1 deadline the amount of water necessary to satisfy the court’s injunction. The 

attorney explained that he never received a written statement from the ANR employee to this 

effect, as promised, and that he was shuffled to three different departments before he was finally 

told that he needed to provide a proposed drawdown rate from a hydrologist, which he had done 

that morning. 

On November 1, 2007, the court granted the Trust’s motion for contempt based on 

defendants’ failure to do any actual construction or work “to attempt even minimal temporary 

alleviation of the overflow problem.” The court accepted the attorney’s statements regarding his 

belated attempts to determine whether defendants would need regulatory approval to pipe water 

across the Trust property into a nearby stream, but concluded that there was “no reliable 

evidence that the [settling] ponds on defendants’ property could not have been used to give some 

temporary relief with or without a permit of any sort or at least investigated as a possible 

temporary solution.” The court found that defendants’ lack of effort was willful and that they 

had failed to demonstrate that they could not have complied with the court’s injunction and 

alleviated the overflow situation, noting that its previous order had not limited defendants’ 

options to pumping water over the Trust property and into the nearby stream but rather had “left 

open that there could be other solutions.” Based on these findings and conclusions, the court 

ordered defendants to pay $50 per day beginning October 31, 2007 “until such time as the level 

of the water is drawn down at least two feet below the level at which water commences to spill 

over the edge or by plaintiff and intervenor stipulation as to a higher level or until further relief is 

granted by the court for good cause,” and then $20 per day “until the level is drawn down to the 

fifteen foot level of the court’s order or by plaintiff and intervenor stipulation as to a higher level 

or until further relief is granted by the court for good cause.” 

Over the ensuing months, defendants filed several motions seeking relief from the court’s 

order that they pay daily fines for any continuing noncompliance with its final injunction. In 

December 2008, the parties entered into a stipulation that resolved some of the compliance 

issues. They agreed that the level of the water reached two feet below the spill elevation by 

March 1, 2008. They also agreed that maintaining the water three feet, rather than fifteen feet, 
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below the spillage level would satisfy the court’s injunction, thereby effectively ending the daily 

fines as of October 15, 2008, when the water was reduced to that level. In a November 2010 

order, the superior court rejected defendants’ arguments in support of their motion for relief from 

paying the daily fines it had incurred under the court’s previous order, concluding that 

defendants had been “dilatory in getting regulators involved, an aspect of compliance that was 

entirely foreseeable.” Nevertheless, the court gave the parties time to submit further memoranda 

concerning any further stipulation they might have and the Trust’s request that the fines be paid 

directly to it rather than the state’s general fund. In a January 2011 order, the court denied 

defendants’ motion for relief from paying the fines, which the court calculated at $10,610. The 

court also denied the Trust’s motions for attorney’s fees and for allocation of payment of the 

fines directly to it. 

 Defendants appeal, arguing that the superior court erred in denying their motions for 

relief from the court’s final injunction and its order granting the Town’s motion for contempt and 

requiring the payment of daily fines. According to defendants, the court erred by not granting 

them relief from its final injunction and by finding them in contempt because they showed good 

cause for not having obeyed the court’s injunction and there was no evidence that they willfully 

disobeyed an order with which they were able to comply. Along the same lines, defendants 

contend that the court erred by denying their motion for relief from paying the fines because the 

evidence demonstrated that they did not have the ability to purge themselves of civil contempt 

and thus avoid the fines imposed for the contempt. For the most part, we find these arguments 

unavailing. 

 We will not disturb the trial court’s decision on a motion for relief from judgment 

“[a]bsent a clear and affirmative abuse of discretion.” Sandgate Sch. Dist. v. Cate, 2005 VT 88, 

¶ 6, 178 Vt. 625 (mem.). “The moving party carries the burden of proving such an abuse 

occurred.” Id. Regarding the court’s contempt order, the moving party has the “burden to prove 

the elements of civil contempt by clear and convincing evidence.” Vt. Women’s Health Ctr. v. 

Operation Rescue, 159 Vt. 141, 146 (1992). Nevertheless, “[o]nce the trial court has made its 

findings of fact, and in its discretion entered a judgment of contempt, we will not disturb the 

judgment unless the court’s discretion was entirely withheld or was exercised on grounds clearly 

untenable.” Id. at 146-47 (quotation omitted). Moreover, “[e]ven where the standard of proof is 

clear and convincing evidence, we will uphold trial court findings as long as there is substantial 

evidence to support them although they are contradicted by credible evidence.” Id. at 147. 

Given this standard of review and examining the record before us, we find no basis to disturb the 

superior court’s orders in this case—with one minor exception. 

 Defendants insist that they did not violate the final injunction because, despite their good 

faith attempts to satisfy it, they were unable to do so. We disagree. The court’s final injunction, 

issued on August 14, 2007, ordered defendants to take “immediate steps” to reduce the overflow 

of their pond to prevent significant potential harm to a neighboring property and a town highway. 

This aspect of the court’s order—for immediate action on defendants’ part—was in addition to 

and independent from the permanent steps also ordered by the court. Notwithstanding the order 

for immediate action, it is undisputed that defendants did not engage in any construction or work 

before the October 1 deadline date to reduce the flow of the pond. Rather, on the deadline date, 

defendants asked for relief from the final injunction. They did not appear at the hearing on their 

motion or present evidence; instead, their attorney noted a September 17 site visit he and an 
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ANR employee had attended and some subsequent telephone calls regarding what needed to be 

done, if anything, to obtain regulatory approval to pipe pond overflow into a nearby stream. 

According to the attorney, he learned that he would need to submit a proposed drawdown from a 

hydrologist, which he had done that very morning. 

The statements of defendants’ attorney regarding his attempts at seeking regulatory 

approval for one method of drawing down the pond overflow do not compel us to overturn the 

superior court’s determinations that defendants had acted in a dilatory manner and thus could not 

show that they were unable to comply with the injunction. See Socony Mobil Oil Co. v. 

Northern Oil Co., 126 Vt. 160, 164 (1966) (“The inability, without fault, to render obedience to 

an order or decree of a court is a good defense to a charge of contempt, but such a defense is 

effective only where, after using due diligence, the person is still not able to comply with the 

order.”). If anything, the attorney’s remarks confirmed that defendants had done little to satisfy 

the court’s order to take immediate action to reduce the pond’s overflow. 

Defendants argued below, and renew the contention here, that, in issuing the final 

injunction, the court anticipated that the only method for reducing the pond overflow would be to 

pipe water over the Trust’s property into the nearby stream. The court issuing the contempt 

order explicitly rejected that argument, and we agree with that assessment. The final injunction 

plainly did not limit the methods for defendants to satisfy the requirement that they take 

immediate steps to reduce the pond’s overflow. Rather, the court ordered defendants “to take 

such steps as necessary to immediately reduce” the pond overflow. At the contempt hearing, the 

Trust’s expert testified about other ways to direct the overflow, including pumping the water into 

settling ponds on defendants’ property, as had been done before when the mine was in operation, 

and or into the ditch along the town highway. Defendants made no attempt to show that they had 

done anything other than make inquiries in mid-September about whether state approval would 

be needed to pipe enough water in the stream to meet the full drawdown required by the court’s 

injunction. As the court found, there was no evidence that plaintiff attempted to alleviate the 

situation by making some drawdown or by looking into alternative methods for a drawdown. In 

short, there was ample evidence for the court to find a lack of due diligence on defendants’ part, 

thereby foreclosing defendants’ attempt to claim an inability to satisfy the court’s injunction. 

Accordingly, we find no basis to relieve defendants of the contempt order. 

For similar reasons, we reject, for the most part, defendants’ argument that the superior 

court’s imposition of daily fines cannot stand because the order did not permit them to purge 

themselves of the contempt by satisfying the order and thus avoiding the fines. See Sheehan v. 

Ryea, 171 Vt. 511, 512 (2000) (mem.) (stating that coercive sanctions for civil contempt must be 

purgeable). As noted, the record demonstrates that defendants did not engage in due diligence in 

seeking to comply with the immediate temporary drawdown aspect of the court’s injunction; 

therefore, they cannot avail themselves of the defense that they were unable to comply with the 

injunction. As for the court’s contempt order, it imposed fines of $50 per day until defendants 

drew down the water two feet below the spill level and $20 per day until they drew down the 

water to the fifteen-foot level—or until the parties stipulated otherwise or the court granted 

different relief for good cause shown. Nothing in the record demonstrates that defendants acted 

with due diligence but were unable to comply with the order so as to avoid the fines. Nor, for the 

most part, does the record suggest what would have been possible if defendants had acted with 

due diligence. Thus, we decline to grant defendants relief from the court’s contempt order—with 
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one minor exception. The court’s November 1, 2007 order imposed fines beginning on October 

31, 2007, two days following the hearing on the motion, but one day prior to the order itself. 

Obviously, defendants could not purge themselves of the contempt before the contempt was 

imposed. Accordingly, we will amend the court’s order to impose the sanctions beginning two 

days after the November 1 contempt order rather than two days after the contempt hearing, 

thereby reducing the total fine by $150. 

The superior court’s judgment is affirmed in all respects, except that its January 12, 2011 

order is amended to change the amount of the total fine from $10,610 to $10,460. 

BY THE COURT: 

_______________________________________ 

Paul L. Reiber, Chief Justice 

_______________________________________ 

John A. Dooley, Associate Justice 

_______________________________________ 

Brian L. Burgess, Associate Justice