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DPF FINANCIAL HOLDINGS, LLC v. AMY LYONS ET AL. (AC 32107)
Harper, Beach and Schaller, Js. Argued February 22--officially released June 14, 2011

(Appeal from Superior Court, judicial district of Windham, A. Santos, J.) Christian A. Sterling, for the appellant (named defendant). Matthew D. Gordon, with whom, on the brief, was Deirdre Dwyer Stokes, for the appellees (plaintiffs).

Opinion

SCHALLER, J. The defendant Amy Lyons1 appeals from the judgment of contempt rendered against her in an action brought by the plaintiff DPF Financial Holdings, LLC, to recover damages for trespass.2 Specifically, the defendant claims that the court abused its discretion by improperly ordering her to pay to the plaintiff (1) $5000 in compensatory damages and (2) attorney's fees in the amount of $1200. We reverse the judgment of the trial court. The court found the following relevant facts. The plaintiff owns two parcels of property in Killingly, lots 1 and 2, which it bought in 2006. The defendant purchased from the same grantor a parcel of property adjacent to the plaintiff's parcels after the plaintiff purchased them. The defendant's parcel consists of lots 3 and 4, which are located behind the plaintiff's property. The defendant's property was being used as a horse farm at the time the plaintiff purchased lots 1 and 2. The defendant holds an ``access easement'' over the plaintiff's lot 2, which provides access to her lots. The common grantor, Valley View Riding Stables, had received subdivision approval with respect to all four lots. The approved subdivision map is on file in the Killingly town clerk's office. After purchasing lots 1 and 2, the plaintiff observed that the fence separating its property from the defendant's appeared to be partially located on the plaintiff's property rather than running along the common boundary. The plaintiff brought the issue to the attention of the common grantor, which informed the plaintiff that it would have to rectify the situation with the defendant. Almost immediately after the defendant purchased her lots, the parties' relationship became contentious. Either the defendant or her agents moved the pins marking the boundary of the plaintiff's lot 2. At the time that the common grantor conveyed the two lots to the plaintiff, the legal description of the lots comported with the size and the boundaries contained on the site plan approved by the town. A portion of the defendant's fence was located on the plaintiff's property thereby constituting a trespass. The court credited the testimony of Robert Hellstrom, who had placed the boundary pins in accordance with the legal description on the deeds and the town approved subdivision map. The defendant, whose farm is located at a higher elevation than the plaintiff's lots, constructed a pig pen from a modified commercial trailer and placed it close to the plaintiff's property without the requisite permits. The pen obstructed the view from the plaintiff's property and housed pigs, chickens and other fowl close to the plaintiff's property line. Although the plaintiff had constructed a berm to prevent erosion, the defendant or her agents removed it, causing erosion of the plaintiff's

property. The defendant also deposited animal remains and bones on the plaintiff's property, as well as discarded construction materials. By placing her animal pen so close to the plaintiff's property, the defendant directed animal fecal matter to flow from the pen onto the plaintiff's property. In addition, the animals continually trespassed on the plaintiff's property. The trespasses have resulted in the physical destruction of certain areas of the plaintiff's property. On December 1, 2008, the court granted the plaintiff's application for a prejudgment temporary injunction, ordering the defendant to ``immediately cease and desist from trespassing upon the plaintiff's land.'' On January 6, 2009, the plaintiff filed a motion for contempt alleging that the defendant continued to violate the court's order by adding livestock, erecting feed storage facilities and continuing to direct debris onto the plaintiff's property. On November 4, 2009, the court held a hearing on the plaintiff's motion for contempt. At that hearing, Fleming testified that when it rained, fecal matter would flow onto the plaintiff's property, the defendant failed to erect a berm along the entire common boundary, chickens roamed and laid eggs on the plaintiff's property and the defendant left rusty construction debris near the property boundary causing rust to wash onto the plaintiff's property. The defendant testified that since the court order, she had not trespassed onto the plaintiff's property and that she had made the necessary improvements to address the court's temporary injunction. According to the defendant, the animals at the farm serve as ``pet therapy'' for children with special needs. She stated that she had some chickens, a few ducks, rabbits and a mini Sicilian donkey, which served as a ``seeing eye donkey'' for some of the children. The parties dispute whether the defendant moved the animals and construction materials a sufficient distance from the plaintiff's property. On March 11, 2010, in its memorandum of decision, the court found that, considering the testimony and evidence before it, the defendant had violated the court's temporary injunction order ``by continuing to allow farm animals and other material to trespass upon the plaintiff's property.'' The court ordered the defendant to ``immediately remove any and all debris, animals, equipment, machinery, structures, trailers, animal waste or by-products (including feces) from the plaintiff's property lines and place [them] a sufficient distance from the plaintiff's property lines to prevent further trespasses . . . .'' The court also ordered the defendant to pay to the plaintiff ``a fine in the amount of $5000 to compensate for the damage to the property resulting from the trespasses, together with attorney's fees of $1200 and the costs associated with having to present this matter to the court.'' This appeal followed.

Additional facts and procedural history will be set forth as necessary. I The defendant first claims that the court abused its discretion by ordering her to pay a $5000 compensatory fine pursuant to the court's finding of contempt. We agree that the court lacked a proper factual foundation to support the damages award. We first set forth the applicable standard of review. A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in finding that the actions or inactions of the defendant were in contempt of its order. See Gina M. G. v. William C., 77 Conn. App. 582, 590, 823 A.2d 1274 (2003). ``Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . Contempts of court may also be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court.'' (Citation omitted; internal quotation marks omitted.) Edmond v. Foisey, 111 Conn. App. 760, 769, 961 A.2d 441 (2008). The plaintiff in this case alleged in its motion for contempt that the defendant failed to comply with the court's order and, thus, because it occurred outside of the court's presence, the contempt is properly classified as indirect contempt. See id. In determining whether the contempt was criminal or civil, we note that ``[c]riminal contempt is conduct directed against the authority and dignity of the court, while civil contempt is conduct directed against the rights of the opposing party. . . . A contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. . . . Sanctions for civil contempt may be either a fine or imprisonment; the fine may be remedial or it may be the means of coercing compliance with the court's order and compensating the complainant for losses sustained.'' (Citation omitted; internal quotation marks omitted.) Id. Because the purpose of the sanctions in the present case was to compensate the plaintiff, we conclude that the contempt in the present case is properly classified as civil, rather than criminal. Id., 669

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