This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-203

 

In the Matter of Trust B under the Last Will and Testament

of Earl L. Larsen, Deceased, Lydia Larsen, et al., Trustees,

Respondents,

 

vs.

 

Earl Dean Larsen,

Appellant.

 

Filed January 13, 2004

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge

 

Martin County District Court

File No. C0-02-99

 

 

 

Charles K. Frundt, Frundt & Johnson, Ltd., 117 West Fifth Street, P.O. Box 95, Blue Earth, MN 56013 (for respondents)

 

T. Oliver Skillings, Skillings & Associates, 100 Voyager Bank Building, 107 North Second Street, Mankato, MN 56001 (for appellant)

 

 

Considered and decided by Randall, Presiding Judge; Schumacher, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D†† O P I N I O N
 

 

GORDON W. SHUMAKER, Judge

 

The district court found appellant in civil contempt of court for failing to vacate certain farmland and failing to remove his personal property from the land, and awarded damages and attorney fees resulting from appellantís contempt.† On appeal, appellant challenges the finding of contempt for failure to remove personal property and the awards of damages and attorney fees.† Because no order specified the removal of personal property, there could be no contempt for failure to remove such property and there could be no damages awarded as a result of that failure.† However, appellantís failure to vacate the premises was contempt and attorney fees relating to that contempt were proper.† We affirm in part, reverse in part, and remand.

FACTS

††††††††††† The will of Earl L. Larsen, deceased, provided that a one-half interest in his farm was to be held in trust, called Trust B, and that the farming of the property was to be shared equally by his sons, appellant Earl Dean Larsen and David G. Larsen, who were named co-trustees of Trust B.†

Each son was able to farm one-half of the property, but disputes arose as to the use of the homestead building that was situated in the middle of the land.† In 1995, the district court issued an order respecting the use of the homestead building:

The building site shall be used alternately by co-trustees, Earl Dean Larsen and David G. Larsen.† Earl Dean Larsen shall be permitted to use the building site for a period of five (5) years.† After which David G. Larsen shall be permitted to use the building site for the next five (5) years.† This alternation shall continue throughout the life of the trust or until further Court Order.

 

At some point, Earl Dean Larsen also leased 160 acres of the farm from Trust B.† By November 1, 2001, Larsenís five-year rotational use of the homestead had expired and the lease was terminated because Larsen had not made all rent payments.† Larsen remained on the leased property and in the homestead, nevertheless.

Various notices and court orders requiring Larsen to vacate the property and the homestead followed.† He did not leave and, by October 2002, he still had on the premises 37 head of cattle and approximately 2,000 bushels of grain.† Representatives of Trust B claim that Larsen also had on the property a 60-foot auger, an old John Deere digger, a John Deere chisel plow, an old elevator, an old tractor, two old wagons, two 500-gallon fuel barrels, and 25 round corn stalk bales.

After a hearing, the district court found Larsen in contempt of court for failing to obey eviction orders, ordered his conditional confinement, and awarded damages and attorney fees.† Larsen appealed.

D E C I S I O N

††††††††††† Larsen admits that he was in contempt of court by failing to vacate the premises after the court ordered him to do so.† But he contends that the eviction order did not specify what personal property he was to remove and that it was error for the district court to (l) find him in contempt for failure to remove unspecified personal property, and (2) award damages and attorney fees relating to such unspecified personal property.

1.†††††††† Contempt

The district court has broad discretion to issue contempt orders.† Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986).† This court reviews such orders for an abuse of discretion.† Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996).†

One of the requirements of a civil contempt order is that the order giving rise to the contempt order provide ďa clear definition of the acts to be performed.Ē† Id. at 223.† The district court ordered the restitution of the premises to Trust B and ordered Larsenís immediate removal from the property.† Neither order delineated personal property that Larsen was to remove from the land.† Without an order showing with particularity the acts required of Larsen, there can be no contempt for Larsenís failure to perform unspecified acts.† See Hopp v. Hopp, 279 Minn. 170, 174, 156 N.W.2d 212, 216 (1968) (stating that a court order must specifically define the duty to be performed to avoid civil contempt).† Thus, as Larsen concedes, the contempt order was proper respecting his removal from the premises, but it was improper respecting his failure to remove personal property from the premises.† In finding Larsen in contempt for failing to remove personal property, the district court abused its discretion.

2.†††††††† Damages and Attorney Fees

If an actual loss or injury is caused by a contempt, the court ďmay order the person guilty of the contempt to pay the party aggrieved a sum of money sufficient to indemnify the party and satisfy the partyís costs and expenses, including a reasonable attorneyís fee incurred in the prosecution of such contempt.Ē† Minn. Stat. ß 588.11 (2002).† Any award of damages resulting from a contempt must be based on proof that such damages were actually sustained.† Campbell v. Motion Picture Mach. Operators, 151 Minn. 238, 242, 186 N.W. 787, 789 (1922).

The district court found that Trust B incurred actual damages of $12,934.64 as a result of Larsenís failure to vacate the premises and to remove his personal property.† Some damages related to damage to a barn, as to which Larsen claims Trust B received insurance proceeds; other damages pertain to the allegedly wrongful removal of cattle waterers; and still other damages are connected with the alleged loss of rent for a grain storage facility and for the cost of cleaning the property.† It cannot be determined from the record which damages, if any, were caused by Larsenís failure to leave the premises and which, if any, related to the personal property that Larsen allegedly left on the property.† Further, it appears that the alleged damage to the barn and the alleged removal of the cattle waterers might not fall within the scope of the two alleged acts of contempt, namely, Larsenís failure to leave and his failure to take his personal property with him.† Thus, the award of damages cannot stand; but, because the district court has the authority to award damages related to Larsenís failure to vacate the premises, we remand for a determination of what damages, if any, were the direct result of that failure.

In a contempt proceeding, the district court may award attorney fees that are based on proof of actual damages, that the fees were incurred, and that they do not penalize the contemnor.† Hanson v. Thom, 636 N.W.2d 591, 593 (Minn. App. 2001).† Trust B incurred attorney fees in its efforts to evict Larsen and in its pursuit of the contempt action when Larsen admittedly refused to vacate the premises.† The award of fees was within the district courtís discretion and was appropriate.

The determination that Larsen was in contempt of court for failing to vacate the premises and the award of attorney fees incurred by Trust B in removing Larsen from the premises are affirmed.† The award of damages is reversed and that issue is remanded for further proceedings in the district court.

Affirmed in part, reversed in part, and remanded.