JOHN AVERY ET AL. v. LUIS MEDINA ET AL.
(AC 38689)
Connecticut Appellate Court
Argued February 14-officially released July 11, 2017
Lavine, Alvord and Beach, Js.
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Syllabus
The plaintiff landowners brought this action seeking, inter alia, a temporary and permanent injunction requiring the defendant landowners, A and L, to cease construction of a pole barn and a stone wall on certain of their real property. The trial court subsequently rendered judgment denying in part the plaintiffs’ request for injunctive relief. The plaintiffs appealed to this court, claiming, in part, that the trial court improperly found that the stone wall was not a prohibited permanent structure pursuant to a restrictive covenant in the defendants’ deed. This court agreed with the plaintiffs and reversed the judgment only as to the trial court‘s finding that the defendants’ construction of the stone wall did not violate the restrictive covenant prohibiting the erection of permanent structures within a 100 foot setback area. Subsequently, the trial court, pursuant to direction from this court, rendered judgment for the plaintiffs on their request for injunctive relief requiring the defendants to remove all portions of the stone wall that were within the 100 foot setback area. In 2014, the plaintiffs filed a motion for contempt, which the trial court granted, finding that the defendants had failed to comply with its prior orders by failing to remove all portions of the stone wall within the setback. Although the defendants did subsequently remove the stone wall, the plaintiffs filed another motion for contempt in 2015, claiming, in part, that the defendants had erected another stone wall in the setback area. The trial court granted in part the plaintiffs’ motion for contempt, finding, in relevant part, that L was in contempt as to the stone wall, and ordering L to remove the stone wall and to pay $1500 in attorney‘s fees to the plaintiffs. On the defendants’ appeal to this court, held:
- The defendants could not prevail on their claim that, in granting the plaintiffs’ 2015 motion for contempt, the trial court impermissibly modified the substantive terms of its judgment by converting a mandatory injunction into a prohibitive injunction that forbade any structure from being constructed in the setback, not just a permanent structure, which is prohibited by the language of the restrictive covenant; the trial court did not impermissibly alter the terms or the nature of the injunction, but merely ordered the defendants to remove stones that they had placed in the setback area after they had removed the stone wall, which the court did to effectuate its original judgment, and although the stones were not permanently affixed to the land and were lower in height than the original stone wall, they nevertheless formed a prohibited permanent structure because they were intended to remain permanently in their present location to keep trespassers out.
- The defendants’ claim to the contrary notwithstanding, this court‘s judgment in the prior appeal and the subsequent order of the trial court requiring the defendants to remove all portions of the stone wall within the 100 foot setback, which was prohibited by the clear language of the restrictive covenant in the deed, were clear and unambiguous, and, thus, sufficient to support the contempt finding, and the stones within the setback constituted a permanent structure that violated the restrictive covenant in the defendants’ deed.
- The defendants’ claim that the trial court‘s contempt finding deprived them of a fundamental property right was unavailing; that court did not deprive the defendants of their entire interest in their real property, as the court did not convey the defendants’ interest in their land, but merely sanctioned the defendants for disobeying the judgment to remove the stone wall in the setback, and the court granted the plaintiffs’ 2015 motion for contempt in order to vindicate its prior judgment ordering the defendants to remove the stone wall within the setback, which was rendered pursuant to the restrictive covenant in the deed that the defendants had voluntarily signed.
The defendants’ claim that the trial court abused its discretion by awarding the plaintiffs $1500 in attorney‘s fees was not reviewable, the defendants having failed to preserve the claim at the contempt hearing by failing to object to the plaintiffs’ request for an additional $1500 in attorney‘s fees, or to seek to have the plaintiffs present evidence in support of their request for attorney‘s fees.
Procedural History
Action for, inter alia, a temporary and permanent injunction requiring the defendants to cease construction of a stone wall on certain of their real property, and for other relief, brought to the Superior Court in the judicial district of Litchfield and tried to the court, Pickard, J.; judgment denying in part the plaintiffs’ request for injunctive relief; thereafter, the plaintiffs appealed to this court, which reversed in part the judgment of the trial court, and remanded the case with direction to render judgment in part for the plaintiffs; subsequently, the court, Pickard, J., granted the plaintiffs’ motion for contempt; thereafter, the court, Pickard, J., granted in part the plaintiffs’ motion for contempt, and the defendants appealed to this court. Affirmed.
Luis A. Medina, self-represented, with whom was Richard R. Lavieri, for the appellants (defendants).
Shelley E. Harms, with whom was David Torrey, for the appellees (plaintiffs).
Opinion
The relationship among the parties and the underlying history of their ongoing dispute is set forth in detail in Avery I. Id., 435-40. The following facts are relevant to the present appeal. In April, 2003, David Torrey, the defendants, and the plaintiffs, John Avery, Elisabeth Avery, and Shelley Harms (collectively, co-owners), purchased 55.72 acres of land in Norfolk.1 Id., 435-36. The co-owners agreed in writing to subdivide the 55.72 acres into two four acre building lots and one approximately 47 acre lot, which was to be conveyed to the Norfolk Land Trust, Inc. Id., 436-37. John Avery and Elisabeth Avery received one of the four acre lots (Avery lot) and the defendants received the other four acre lot (Medina lot). Id., 437.
Harms, acting on behalf of the co-owners, engaged Michael Sconyers, a lawyer, to draft the deeds to the Avery and Medina lots. Id. Sconyers advised that the language in the deeds should differ in two respects from the language in the co-ownership agreement. “The co-ownership agreement stated that the Avery lot and the Medina lot will contain deed restrictions providing that the lot shall not be further divided, will contain only one single-family dwelling, and not more than two additional outbuildings with a reasonable setback from the road for any structures and will be subject to a right of first refusal for each of the other co-owners . . . . The co-ownership [agreement] was silent as to enforcement of these deed restrictions.” (Internal quotation marks omitted.) Id. Sconyers advised that the “reasonable setback” language “should be made more specific and that there should be persons named to enforce the restrictions.” (Internal quotation marks omitted.) Id.
Pursuant to Sconyers’ advice, the language in the deeds to the Avery and Medina lots states in relevant part that “any permanent structure erected on the property shall be located at least 100 feet distant from the westerly line of Winchester
The plaintiffs and Torrey signed the deeds on August 8, 2004, and the defendants, who also are lawyers, signed them on August 10, 2004. Id., 438. Subsequently, the defendants constructed a house, a carriage house, and a shed on the Medina lot. Id. In November, 2011, Luis Medina informed Torrey that the defendants were going to build a “pole barn” near the carriage house. (Internal quotation marks omitted.) Id., 439. Torrey advised Luis Medina that the pole barn would be a “third outbuilding” on the lot and a violation of the restrictive covenant in the deed. (Internal quotation marks omitted.) Id. The defendants nonetheless began to construct the pole barn.2 Id.
The plaintiffs commenced the underlying action to enforce the restrictive covenant in the Medina deed and sought “an injunction prohibiting further construction of the pole barn and an order that it be removed.” (Internal quotation marks omitted.) Id. While the action was pending, the defendants built a stone wall along the southern and eastern borders of the Medina lot, a portion of which was twenty feet from Winchester Road.3 Id. Consequently, the plaintiffs amended their complaint to allege that the wall was “a new permanent structure in violation of the restrictive covenant in the defendants’ deed [that] prohibits new permanent structures within 100 feet of the road.” (Internal quotation marks omitted.) Id. The plaintiffs sought injunctive relief and requested costs and punitive damages. Id.
The case was tried to the court, which issued its memorandum of decision on November 12, 2013. The court found that the pole barn violated the restrictive covenant that “limits development on [the defendants‘] property to one single-family dwelling and no more than two additional outbuildings . . . .” Id., 440. The court found, however, that the stone wall was not permanent in nature and, therefore, did not violate the restrictive covenant prohibiting permanent structures within 100 feet of Winchester Road. Id. The court ordered the defendants to remove the pole barn in thirty days. Id. The court did not find that the defendants’ conduct was wanton or malicious and did not award the plaintiffs punitive damages. Id. The plaintiffs appealed to this court.
On appeal, in Avery I, the plaintiffs claimed, among other things, that the court improperly found that the wall was not a permanent structure pursuant to the Medina deed. Id., 447; and reversed the judgment “only as to the [trial] court‘s finding that the defendants’ construction of the
Pursuant to this court‘s remand order, on August 20, 2014, the trial court rendered judgment for the plaintiffs “on their request for injunctive relief requiring the defendants to remove all portions of the stone wall that are within 100 feet of the westerly line of Winchester Road.”4
On December 3, 2014, the plaintiffs filed a motion for contempt asking the court to find the defendants in contempt for failing to comply with the court‘s orders dated November 20, 2013,5 and August 20, 2014. The plaintiffs stated that although more than thirty days had passed since the court had ordered the defendants to remove the pole barn, the pole barn was still standing on the Medina lot. Moreover, the plaintiffs represented that the defendants failed to remove all portions of the stone wall within the 100 foot setback. The plaintiffs asked the court to find the defendants in contempt for every day they remained in violation of the court‘s order, and for costs and attorney‘s fees pursuant to
On January 6, 2015, the court ruled on the plaintiffs’ motion for contempt, ordering: “The defendants, Luis Medina and Amanda Medina, are found to be in contempt of the orders of the court. The
On July 8, 2015, Harms filed an affidavit of noncompliance, attesting that Luis Medina had not fully complied with the court‘s order because he failed to pay the plaintiffs $100 per day until the stone wall was completely removed. Luis Medina needed six days from, and including, January 5, 2015, to remove the wall, and had paid the plaintiffs only $400, not $600. In addition, Harms attested that Luis Medina had failed to remove the pole barn completely, as one of the pole supports remained standing. Luis Medina filed a counteraffidavit in which he attested that the stone wall was removed within four days of January 5, 2015, and that other stones, not part of the stone wall, were removed two days later. He further attested that he had paid the attorney‘s fees of $1500.
The plaintiffs filed another motion for contempt against the defendants on September 24, 2015. In that motion, the plaintiffs represented that the defendants had failed to fully remove the pole barn, failed to pay the $200 balance of the fine, and have “reerected a stone wall in the exact area where they were ordered to remove it.” The defendants objected, asking the court to deny the plaintiffs’ motion for contempt because they had removed the stone wall that the plaintiffs claimed was a permanent structure. The defendants argued that they had removed the stone wall that the plaintiffs alleged was a permanent structure, and that the court‘s order did not prohibit them from having stones on their property.
The parties appeared for oral argument on the motion for contempt on November 23, 2015. At the hearing, Luis Medina argued that the stone wall to which the plaintiffs were then objecting merely consisted of loose stones along the southern boundary of the defendants’ property. A photograph of what Luis Medina termed “loose stones” was placed into evidence. The court rejected the defendants’ argument, stating: “If that‘s not a stone wall, I don‘t know what it is. . . . There is no question in my mind that the law as laid down by the Appellate Court includes what‘s shown in that picture as a stone wall.”6 The court issued its ruling on November 25, 2015, ordering, “[a]s to previously imposed fines, the court does not make a finding of contempt, but does find that Mr. Medina owes $200 to the plaintiffs, which is ordered to be paid by December 11, 2015. As to the remaining pole from the pole barn, the court finds it to be a negligible item that need not be removed, and the court does not make a finding of contempt. As to the stone wall, the court does make a finding of contempt against Mr. Medina. The stones [shown in the photograph that was placed into evidence] are ordered removed on or before [December 11, 2015]. The court orders Mr. Medina to pay $1500 in attorney‘s fees to the plaintiffs on or before December 11, 2015.”7 The defendants appealed.
“[O]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently
I
On appeal, the defendants claim that in granting the plaintiffs’ 2015 motion for contempt, the court impermissibly modified the substantive terms of its judgment by converting a mandatory injunction into a prohibitive injunction that forbade any structure, not just a permanent structure, from being constructed in the setback. We disagree.
The defendants’ claim requires us to examine the judgment rendered pursuant to this court‘s decision in Avery I to determine whether it was clear and unambiguous. “In order to determine the practical effect of the court‘s order on the original judgment, we must examine the terms of the original judgment as well as the subsequent order. [T]he construction of [an order or] judgment is a question of law for the court . . . [and] our review . . . is plenary. As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . . . The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The [order or] judgment should admit of a consistent construction as whole.” (Internal quotation marks omitted.) Lawrence v. Cords, 165 Conn. App. 473, 484-85, 139 A.3d 778, cert. denied, 322 Conn. 907, 140 A.3d 221 (2016).
On the basis of our review of the injunction judgment and the underlying circumstances, we conclude that the court did not impermissibly alter the terms or the nature of the injunction. The facts found at trial reveal that the co-owners purchased the 55.72 acres of land to prevent it from becoming heavily developed and made the majority of the land available to the Norfolk Land Trust. The co-ownership agreement, which the defendants signed, provided that there was to be a reasonable setback from the road for any permanent structures. The deed to the Medina lot provided that “any permanent structure erected on the property shall be located at least 100 feet distant from the westerly line of Winchester Road.” The defendants signed the deeds on August 10, 2004.
In Avery I, this court determined that the wall in question was a permanent structure. After reviewing the trial court‘s factual findings regarding the size, struc- ture, height, and appearance of the stone wall, and examining the photographic evidence in the record, this court found that “there can be no doubt that the defendants intend for the wall to remain firmly in the same place where it was erected and [not be] moved or relocated on a seasonal basis.” (Internal quotation marks omitted.) Avery v. Medina, supra, 151 Conn. App. 447. For that reason, this court concluded that the wall was a “permanent structure that is prohibited by the clear language of the restrictive covenant contained in the defendants’ deed.” (Emphasis
On appeal, the defendants claim that the court modified the judgment whereby they were ordered to remove the stone wall. “A modification is [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. . . . In contrast, an order effectuating an existing judgment allows the court to protect the integrity of its original ruling by ensuring the parties’ timely compliance therewith.” (Internal quotation marks omitted.) Lawrence v. Cords, supra, 165 Conn. App. 484.
The substance of the defendants’ claim is that the stone wall that replaced the wall they were ordered to remove is not permanently affixed to the land. This is a distinction without a difference. At oral argument before us, the defendants stated that the stones were necessary to denote the boundary of their land to keep hikers and other trespassers out. Regardless of the height of the stones now in place within the setback, given their purpose to keep trespassers out, they are intended to remain permanently in their present location.
“Courts have in general the power to fashion a remedy appropriate to the vindication of a prior . . . judg- ment. . . . Having found noncompliance, the court, in the exercise of its equitable powers, necessarily ha[s] the authority to fashion whatever orders [are] required to protect the integrity of [its original] judgment.” (Internal quotation marks omitted.) Gong v. Huang, 129 Conn. App. 141, 154, 21 A.3d 474, cert. denied, 302 Conn. 907, 23 A.3d 1247 (2011). “This is so because [i]n a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party‘s failure to comply with the court order.” (Emphasis omitted; internal quotation marks omitted.) Fuller v. Fuller, 119 Conn. App. 105, 115, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010). For the foregoing reasons, we conclude that the court did not modify the injunction judgment, but merely ordered the defendants to remove the stones in the setback to effectuate its original judgment.
II
The defendants claim that the injunction ordered on remand from Avery I was vague and precluded a finding of contempt. We do not agree.
As we set forth previously, an appellate court‘s analysis of a judgment of contempt consists of two parts, the first of which is
We employ the plenary standard of review when construing a judgment or order of the court. Lawrence v. Cords, supra, 165 Conn. App. 484. “The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment.” (Internal quotation marks omitted.) Id., 485. On the basis of our examination of this court‘s judgment in Avery I and the subsequent order of the trial court, we conclude that the judgment and order to remove the stone wall were clear and unambiguous. The stones within the setback constitute a permanent structure that violates the restrictive covenant in the Medina deed. The defendants’ claim therefore fails.
III
The defendants claim that the court‘s contempt find-ing stripped them of a fundamental property right. We disagree.
On appeal, the defendants argue that the court‘s contempt finding deprives them of the use of 25 percent of their property because it exceeds the “permanent structure” restriction in the deed to the Medina lot by prohibiting stones within the setback area. At the hearing on the plaintiff‘s motion for contempt, Luis Medina made the same argument to which the court responded: “No, no, no. I‘m saying that you cannot put permanent structures within 100 feet of the road. And we went through this one time and it‘s been found by the Appellate Court that a stone wall, regardless of whether it‘s cemented or not cemented, is a permanent structure.”
The defendants rely on Edmond v. Foisey, 111 Conn. App. 760, 961 A.2d 441 (2008), to support their claim. Edmond, however, is not on point with the facts of the present case. In Edmond, the trial court conveyed the defendant‘s entire interest in real property to the plaintiff. Id., 766-67. This court reversed the judgment of contempt, concluding that the trial court abused its discretion by depriving the defendant of her entire interest in her real property. Id., 775-76. In the present case, the court sanctioned the defendants for disobeying the judgment rendered in Avery I to remove the stone wall in the setback. It did not convey the defendants’ interest in their land.
The deed to the Medina lot contains a restrictive covenant that provides in relevant part: “[a]ny permanent structure erected on the Property shall be located at least 100 feet distant from the westerly line of Winchester Road.” In Avery I, this court concluded that a stone wall within the 100 foot setback constituted a violation of the restrictive covenant. Avery v. Medina, supra, 151 Conn. App. 447. The court granted the plaintiffs’ 2015 motion for contempt to vindicate its prior judgment, which was rendered pursuant to the restrictive covenant in the deed to the Medina lot. The defendants voluntarily signed the deed and, therefore, they cannot prevail on a claim that they were deprived of a fundamental right when the court vindicated its prior judgment by finding Luis Medina in contempt.
IV
The defendants also claim that the court abused its discretion by awarding the plaintiffs $1500 in attorney‘s fees because there was no evidence to support the award. The defendants failed to preserve this claim at the hearing on the motion for contempt, and we, therefore, decline to review it.
On September 24, 2015, the plaintiffs filed a motion for contempt in which they alleged that the defendants failed to completely remove the pole barn, failed to pay the remaining $200 fine owed to them, and placed a line of stones in the exact place where they were ordered to remove the stone wall. The plaintiffs argued that the defendants had flouted the court‘s orders and had twice been found in contempt. The plaintiffs asked that the defendants again be found in contempt, and ordered to comply with the court‘s judgment and to pay costs and attorney‘s fees pursuant to
“It is fundamental that claims of error must be distinctly raised and decided in the trial court.” State v. Faison, 112 Conn. App. 373, 379, 962 A.2d 860, cert. denied, 291 Conn. 903, 967 A.2d 507 (2009). See Practice Book § 5-2 (party intending to raise question of law subject to appeal
“Although the proponent bears the burden of furnishing evidence of attorney‘s fees at the appropriate time, once the plaintiffs . . . make such a request, the defendants should [object] or at least [respond] to that request.” Smith v. Snyder, 267 Conn. 456, 480-81, 839 A.2d 589 (2004). An appellate court will not reverse an award of attorney‘s fees if the defendants fail to object to a bare request for attorney‘s fees. Id., 481. “In other words, the defendants, in failing to object to the plaintiffs’ request for attorney‘s fees, effectively acquiesced in that request, and, consequently, they now will not be heard to complain about that request.” Id.
The judgment is affirmed.
In this opinion the other judges concurred.