Avery v. Medina

174 Conn.App. 507

163 A.3d 1271

John AVERY et al.

v.Luis MEDINA et al.

AC 38689

Appellate Court of Connecticut.

Argued February 14, 2017

Officially released July 11, 2017

Luis A. Medina, self-represented, with whom was Richard R. Lavieri, Winsted, for the appellants (defendants).

Shelley E. Harms, with whom was David Torrey, for the appellees (plaintiffs).

Lavine, Alvord and Beach, Js.

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., at 435–40, 94 A.3d 1241. 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., at 435–36, 94 A.3d 1241. 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., at 436–37, 94 A.3d 1241. 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., at 437, 94 A.3d 1241.

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., at 437–38, 94 A.3d 1241. 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., at 438, 94 A.3d 1241. 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., at 439, 94 A.3d 1241. 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., at 440, 94 A.3d 1241. 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., at 447, 94 A.3d 1241 ; 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., at 451, 94 A.3d 1241. 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 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 General Statutes § 52–256b. The defendants objected to the motion for contempt, arguing that they were not in wilful noncompliance with the judgment and that they did not have the financial wherewithal to remove the pole barn. On December 19, 2014, the court found Luis Medina to be in contempt of its orders. The court continued the matter to January 5, 2015, "during which period of time the defendant is ordered to fully comply with the court's orders. If the contempt has not been full[y] remedied a fine will be imposed for every day there is noncompliance."

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 defendants are ordered to remove all the stones from the wall on or before February 1, 2015. Commencing [January 5, 2015], the defendants shall pay the plaintiffs the sum of $100 per day until the stones are removed. The plaintiffs are awarded attorney's fees in the amount of $1,500."

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 counter affidavit 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...