Avery v. Medina

 JOHN AVERY ET AL. v. LUIS MEDINA ET AL.
(AC 38689)
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 plain-
tiffs 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 modi-
fied 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 judg-
ment 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.
Argued February 14—officially released July 11, 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 construc-
tion 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 judg-
ment 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 plain-
tiffs’ motion for contempt; thereafter, the court, Pick-
ard, 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
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 defen-
dants, Luis Medina and Amanda Medina. The defen-
dants appeal from the judgment of the trial court finding
Luis Medina in contempt of the judgment rendered pur-
suant 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 judg-
ment by transforming a mandatory injunction into a
prohibitive injunction, (2) exceeded its equitable pow-
ers, (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 underly-
ing 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 approxi-
mately 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 addi-
tional 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 enforce-
ment of these deed restrictions.’’ (Internal quotation
marks omitted.) Id. Sconyers advised that the ‘‘reason-
able 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 prop-
erty 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 enforce-
able by [the] Grantors, their heirs and assigns in perpe-
tuity, 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 struc-
tures 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
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 contin-
ued 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 con-
tempt 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 noncompli-
ance, 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 com-
pletely 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 Novem-
ber 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.’’ 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 con-
stituted a court order that was sufficiently clear and
unambiguous so as to support a judgment of contempt.
. . . This is a legal inquiry subject to de novo review.
. . . Second, if we conclude that the underlying court
order was sufficiently clear and unambiguous, we must
then determine whether the trial court abused its discre-
tion in issuing, or refusing to issue, a judgment of con-
tempt, which includes a review of the trial court’s
determination of whether the violation was wilful or
excused by a good faith dispute or misunderstanding.’’
(Internal quotation marks omitted.) Ciottone v. Ciot-
tone, 154 Conn. App. 780, 788–89, 107 A.3d 1004 (2015).
I
On appeal, the defendants claim that in granting the
plaintiffs’ 2015 motion for contempt, the court imper-
missibly modified the substantive terms of its judgment
by converting a mandatory injunction into a prohibitive
injunction that forbade any structure, not just a perma-
nent 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 unambig-
uous. ‘‘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 deter-
minative 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.) Law-
rence 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 rea-
sonable setback from the road for any permanent struc-
tures. 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 added.) Id. On
remand, the court rendered ‘‘judgment for the plaintiffs
on their request for injunctive relief requiring the defen-
dants to remove all portions of the stone wall that are
within 100 feet of the westerly line of Winchester Road,’’
and ordered the defendants to remove the stone wall,
which they did. Thereafter, they placed stones lower
in height in a similar position within the setback area.
The plaintiffs filed a motion for contempt claiming, in
part, that the defendants reerected a stone wall in the
setback area and therefore failed to comply with the
court’s orders. The defendants objected to the motion
for contempt arguing, in part, that the court did not
prohibit any stones on their property. At the hearing
on the motion for contempt, Luis Medina argued that
there were just loose stones along the southern bound-
ary of the defendants’ property. The court rejected that
representation 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.’’
On appeal, the defendants claim that the court modi-
fied the judgment whereby they were ordered to remove
the stone wall. ‘‘A modification is [a] change; an alter-
ation 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 integ-
rity of its original ruling by ensuring the parties’ timely
compliance therewith.’’ (Internal quotation marks omit-
ted.) 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 rem-
edy 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.’’ (Inter-
nal 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.’’ (Empha-
sis 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 analy-
sis of a judgment of contempt consists of two parts,
the first of which is to determine whether the underlying
order constituted an order that was sufficiently clear
and unambiguous to support the contempt judgment.
See Ciottone v. Ciottone, supra, 154 Conn. App. 788–89.
In Avery I, this court determined that the stone wall
was ‘‘prohibited by the clear language of the restrictive
covenant in the defendants’ deed§ because there was
no doubt that the defendants intended for it to remain
in place where it was erected and not moved on a
seasonal basis. Avery v. Medina, supra, 151 Conn. App.
447. On remand, the trial court ordered the defendants
‘‘to remove all portions of the stone wall that are within
100 feet of the westerly line of Winchester Road.’’
We employ the plenary standard of review when con-
struing 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 examina-
tion of this court’s judgment in Avery I and the subse-
quent 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 defen-
dants’ 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 con-
tempt 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 perma-
nent structure.’’7
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 plain-
tiff. 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 inter-
est 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.
‘‘Courts have in general the power to fashion a rem-
edy 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.’’ (Inter-
nal quotation marks omitted.) Ciottone v. Ciottone,
supra, 154 Conn. App. 794.
The deed to the Medina lot contains a restrictive
covenant that provides in relevant part: ‘‘[a]ny perma-
nent structure erected on the Property shall be located
at least 100 feet distant from the westerly line of Win-
chester 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 plain-
tiffs’ 2015 motion for contempt to vindicate its prior
judgment, which was rendered pursuant to the restric-
tive covenant in the deed to the Medina lot. The defen-
dants 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 General Statutes § 52-
256b.8 The defendants filed an objection to the motion
for contempt but did not object to the plaintiffs’ request
for attorney’s fees. At the contempt hearing, the plain-
tiffs asked for ‘‘attorney’s fees of $1500, the same as
[the trial court] ordered on January 6.’’9 The defendants
did not object or request that the plaintiffs present
evidence in support of their request for attorney’s fees.
The court ordered ‘‘another $1500 of attorney’s fees.’’
‘‘It is fundamental that claims of error must be dis-
tinctly 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 must state question directly to judicial
authority); Practice Book § 60-5 (court not bound to
consider claim unless distinctly raised at trial or arose
subsequent to trial).
‘‘Although the proponent bears the burden of furnish-
ing evidence of attorney’s fees at the appropriate time,
once the plaintiffs . . . make such a request, the defen-
dants 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 plain-
tiffs’ 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.
1
The co-owners are three married couples. Torrey is married to Harms,
but he is not a plaintiff in this action. When the co-owners purchased the
55.72 acres, each couple received a one-third undivided interest in it. Avery
v. Medina, supra, 151 Conn. App. 436.
2
The defendants failed to secure a building permit for the pole barn, and
the town of Norfolk issued them a cease and desist order. Avery v. Medina,
supra, 151 Conn. App. 439.
3
‘‘The wall [was] approximately three feet high, with two large, six feet
high stone pillars. There [was] a large wooden gate attached to one of the
pillars, and a 1.5 foot fence that . . . attached to the top of the wall. The
[trial] court found that the wall was large, heavy and immobile.’’ Avery v.
Medina, supra, 151 Conn. App. 447.
4
During the course of the plaintiffs’ appeal, the conflict between the
parties continued. On December 11, 2013, the defendants filed a motion to
open the judgment and modify its order to state, ‘‘[w]ithin the next [thirty]
days the defendant shall remove from their property one of the outbuildings
identified in the [court’s] memorandum, leaving two outbuildings on [the
defendants’] land.’’ The defendants wished to remove the utility shed, which
would cost them significantly less than it would cost to remove the pole
barn. The plaintiffs objected, arguing in part that the pole barn was an illegal
structure in that it was constructed without a building permit, and that the
defendants had the opportunity to present evidence as to the cost of remov-
ing structures on the Medina lot at trial, but failed to do so.
On February 26, 2014, the court denied the defendants’ motion to open,
stating, ‘‘[t]he evidence in this case concerned the pole barn, not a shed.
The defendant had the option of removing the shed before the pole barn
was constructed so as to avoid this problem. It would not be proper for the
court to permit the defendant to change the facts under which the case was
tried.’’ The defendants filed a motion asking the court to reconsider its order
denying their motion to open and modify the corrected memorandum of
decision on or about March 18, 2014, and the plaintiffs filed an objection
to it. On May 19, 2014, the court sustained the plaintiffs’ objection to the
motion to open and modify. The defendants appealed from the judgment
denying their motion to open. This court affirmed the judgment of the trial
court in a memorandum decision. See Avery v. Medina, 153 Conn. App.
909, 100 A.3d 476 (2014) (Avery II).
5
Subsequent to issuing its November 12, 2013 memorandum of decision,
the trial court issued a corrected memorandum of decision on November
20, 2013.
6
We have reviewed the photograph in the record and conclude that the
court’s finding is not clearly erroneous. During oral argument before this
court, Luis Medina argued that the wall is necessary to keep trespassers
and hikers on the land conservancy’s property from walking on the defen-
dants’ land.
7
The following colloquy also transpired between the court and Luis
Medina during the hearing on the plaintiffs’ motion for contempt.
‘‘Luis Medina: [Y]ou’ve made your ruling. I need to clarify it for the record
because I have to be able to discern what it is that I’m not able to do on
my property.
‘‘The Court: You can’t have a permanent structure within 100 feet of the
road, you know that.
‘‘Luis Medina: That I understand.
‘‘The Court: The Appellate Court [has] determined that a stone wall is a
permanent structure. What you just had your contractor construct in Plain-
tiffs’ Exhibit 2 is in my finding a stone wall.
‘‘Luis Medina: Right.
‘‘The Court: Remove it.
***
‘‘The Court: I’m not asking you to do anything other than [not to] violate the
restriction in your deed.’’
8
General Statutes § 52-256b (a) provides in relevant part: ‘‘When any
person is found in contempt of any order or judgment of the Superior Court,
the court may award to the petitioner a reasonable attorney’s fee . . . such
sums to be paid by the person found in contempt.’’
9
A hearing on the plaintiffs’ December 2014 motion for contempt was
held on January 6, 2015. The record reflects the following colloquy.
‘‘Torrey: And, Your Honor, lastly, our motion to request reasonable legal
fees for: the appearances, both preparing the motion, appearing the first
time, appearing yesterday and appearing today. Right. I spent an hour and
a half preparing the motion. I spent two hours on the first hearing. I spent
two hours yesterday and whatever time we’re spending today. So that’s a
total of five and a half hours, plus whatever it is today, which is now going
on at least an hour and a half. So that’s seven hours’ worth of legal time.
My normal hourly rate is $300 an hour, but . . . I would have no objection
to you finding a reasonable hourly rate for that.
‘‘The Court: Anything further?
‘‘Luis Medina: I leave it to the court’s decision. I . . . said what I had
to say. There was no wilful desire on my part not to comply with the
court’s order.’’