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Avery v. Medina

Court of Appeals of Connecticut

July 11, 2017

JOHN AVERY ET AL.
v.
LUIS MEDINA ET AL.

          Argued February 14, 2017

         Appeal from Superior Court, judicial district of Litchfield, Pickard, J.

         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).

          Lavine, Alvord and Beach, Js.

         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:

         1. 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.

         2. 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.

         3. 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.

          OPINION

          LAVINE, J.

          This dispute between the parties, which returns to this court for the third time, concerns the enforcement of a restrictive covenant in the deed to real property in Norfolk that is owned by the defendants, Luis Medina and Amanda Medina. The defendants appeal from the judgment of the trial court finding Luis Medina in contempt of the judgment rendered pursuant to Avery v. Medina, 151 Conn.App. 433, 94 A.3d 1241 (2014) (Avery I). On appeal, the defendants claim that the court improperly (1) modified the Avery I judgment by transforming a mandatory injunction into a prohibitive injunction, (2) exceeded its equitable powers, (3) denied them a fundamental right, and (4) awarded the plaintiffs attorney's fees for which there was no evidence. We affirm the judgment of the trial court.

         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 Road.'' (Internal quotation marks omitted.) Id. The deed for the Medina lot also states that the restrictions in the deed ‘‘shall be enforceable by [the] Grantors, their heirs and assigns in perpetuity, as an appurtenance to the property of the Grantors.'' (Emphasis added; internal quotation marks omitted.) Id., 437-38. The grantors are the co-owners.

         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. This court agreed; id., 447; 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 100 feet of the westerly line of Winchester Road . . . .'' Id., 451. This court remanded the case to the trial court ‘‘with direction to render 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.'' Id.

         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 ...


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