Avery v. Medina ( 2014 )

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JOHN AVERY ET AL. v. LUIS MEDINA ET AL.
(AC 36326)
DiPentima, C. J., and Mullins and Bear, Js.
Argued May 12—officially released July 8, 2014
(Appeal from Superior Court, judicial district of
Litchfield, Pickard, J.)
Shelley E. Harms, for the appellants (plaintiffs).
Luis A. Medina, with whom was Richard R. Lavieri,
for the appellees (defendants).
Opinion
MULLINS, J. The plaintiffs, John Avery, Elisabeth
Avery and Shelley Harms, appeal from the judgment of
the trial court in part denying their request for injunctive
relief against the defendants, Luis Medina and Amanda
Medina.1 On appeal, the plaintiffs claim that the court
(1) erred in concluding that a newly constructed stone
wall did not violate a restrictive covenant in the defen-
dants’ deed that prohibits the construction of any ‘‘per-
manent structure’’ within 100 feet of the westerly line
of the road, (2) made clearly erroneous factual findings,
and (3) improperly declined to award punitive damages.
Because we conclude that the stone wall is a permanent
structure, we reverse in part the judgment of the trial
court.
The trial court found the following relevant facts.
‘‘Harms, and her husband, David Torrey, have, since at
least 2003, owned and resided in a home at the intersec-
tion of Schoolhouse Road and Winchester Road in Nor-
folk (‘Harms property’). Adjoining their property to the
south on Winchester Road is property owned by the
plaintiffs, John Avery and Elisabeth Avery (‘Avery prop-
erty’). Sometime in late 2002, the plaintiffs became
aware that a 55.72 acre parcel of wooded, undeveloped
land adjoining the Avery property was on the market
for sale. The plaintiffs and . . . Torrey decided that
they would like to prevent this property from being
heavily developed and to preserve a significant part of
it as open space. They agreed that they would attempt
to buy the 55.72 acres but that they would need another
investor to join them.
‘‘In February, 2003 . . . Torrey approached his law
partner, Luis Medina, about investing money in the proj-
ect and receiving a building lot in return. After looking
at the property, the defendants . . . agreed to invest
in the project and receive a building lot. Although Ms.
Harms, Mr. Torrey, Ms. Medina and Mr. Medina are all
attorneys, the parties were surprisingly lax about legal
representation for this project. By default, the co-own-
ers left it to . . . Harms to work with the law firm of
Ackerly Brown to represent them in the project. There
was no evidence that the parties contemplated that
they would have conflicting interests during the project,
although this is clear in retrospect.
‘‘A satisfactory purchase price was negotiated for
purchase of the property, but Ackerly Brown already
represented the seller and referred the parties to Attor-
ney William J. Manasse. Attorney Manasse prepared a
co-ownership agreement for the parties, although he
believed that he was only representing . . . Harms.
‘‘The three couples purchased the 55.72 acres on April
6, 2003, with each couple receiving an undivided one-
third interest. It does not appear that the six parties
were represented by anyone in that purchase. The seller
was represented by Ackerly Brown and, for reasons
that are not clear, Attorney Manasse did not represent
the six parties in the purchase. Thereafter, the six co-
owners agreed that the forty-seven acres would be con-
veyed to the Norfolk Land Trust, Inc., subject to a con-
servation easement granted to the Winchester Land
Trust. The three couples signed a co-ownership
agreement on April 11, 2003, in which all parties
expressed their intent to subdivide the 55.72 acres into
three lots: two, four acre building lots and forty-seven+/-
acres of undivided land would be sold or donated with
the three couples sharing equally in the tax benefits
obtained. The parties expressed their intent that John
Avery and Elizabeth Avery would receive the four acre
lot adjoining the Avery property (‘Avery lot’) and that
Luis Medina and Amanda Medina would receive the
other four acre lot (‘Medina lot’).
‘‘Once the parties had purchased the 55.72 acres and
had signed the [co-ownership] agreement . . . Harms
consulted with Attorney Michael Sconyers of Ackerly
Brown about preparing draft deeds to [the Averys, the
defendants] and the two land trusts. Attorney Sconyers
believed that . . . Harms was acting as a spokesperson
for all the co-owners. As a result of advice from Attorney
Sconyers, the draft deeds to the defendants and the
Averys contained different language in two respects
than is found 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. Attorney Sconyers dis-
cussed with . . . Harms that ‘a reasonable setback’
should be made more specific and that there should be
persons named to enforce the restrictions.
‘‘The deed prepared for the defendants’ lot changed
the language about ‘a reasonable setback from the road
for any structures’ to ‘any permanent structure erected
on the property shall be located at least 100 feet distant
from the westerly line of Winchester Road.’ The deed
to the defendants also provides that the restrictions in
the deed ‘shall be enforceable by Grantors, their heirs
and assigns in perpetuity, as an appurtenance to the
property of the Grantors.’ The Grantors are the five
parties to this case plus . . . Torrey. Neither Attorney
Sconyers nor . . . Harms discussed these changes
with the defendants.
‘‘Although the testimony is conflicting, the credible
evidence is that the three couples met in February,
2004, to review the draft deeds prepared by Attorney
Sconyers. It does not appear that the defendants took
the opportunity to carefully read the draft deed which
would convey their lot to them. The result of that meet-
ing was that all parties approved the draft deeds.
‘‘The deeds were signed by the plaintiffs and . . .
Torrey on August 8, 2004, and by the defendants on
August 10, 2004. The defendants had no legal represen-
tation in the purchase of their lot, although they paid
$70,000 for it. Despite this fact, the defendants, who
are both attorneys, did not read the deeds carefully
prior to signing them and taking delivery of the deed
to their lot. Thus, they did not see that the ‘reasonable
setback’ had been changed to ‘100 feet distant from the
westerly line of Winchester Road’ or that the grantors
were designated for enforcement.
‘‘After the parties purchased their land, Winchester
Road became the subject of an application to designate
it as a scenic road within the town of Norfolk. The
application describes that Winchester Road is bordered
by stone walls along much of its length.
‘‘Since 2004, the defendants have built a house with
attached garage with dimensions of approximately 86.5’
x 28,’ a carriage house with dimensions of approxi-
mately 56’ x 24.5,’ and a shed on a cement pad with
dimensions of approximately 16.3’ x 9.7.’
‘‘In November 2011, [Luis] Medina told . . . Torrey
that he and his wife were going to construct a ‘pole barn’
in an area north of the carriage house. . . . Torrey told
[Luis] Medina that this would be a third ‘outbuilding’
and would be in violation of the restrictive covenant
in the deed. Despite this warning, the defendants began
construction of a wooden pole barn with dimensions
of [twenty-eight feet by twenty-five feet]. . . .
‘‘The plaintiffs notified the defendants that they con-
sidered the pole barn to be a third ‘outbuilding’ in viola-
tion of the condition in the defendants’ deed that there
shall be ‘no more than two (2) outbuildings.’ The defen-
dants, who have not received a building permit for the
pole barn and have been issued a cease and desist order
by the town of Norfolk, refused to remove it. In this
suit, the plaintiffs seek an injunction prohibiting further
construction of the pole barn and an order that it be
removed.
‘‘After this suit was commenced, the defendants . . .
built a new stone wall along portions of the southerly
and easterly borders of their land. The portion of the
wall along the Winchester Road side of the property is
on or within a few feet of the border of the defendants’
land and about [twenty] feet from the paved portion of
Winchester Road. The wall has an average height of
[three] feet with taller pillars on both sides of the drive-
way. The wall is topped by a decorative white fence of
wood or plastic about 1.5 feet in height. . . .
‘‘The plaintiffs have amended their complaint to add
allegations that the wall is a new permanent structure
in violation of the restrictive covenant in the defendants’
deed which prohibits new permanent structures within
100 feet of the road.’’ (Footnote omitted.) In addition
to seeking injunctive relief, the plaintiffs also requested
costs and punitive damages.
After a trial to the court, the court found that the
defendants’ construction of the pole barn violated the
restrictive covenant in the defendants’ deed that limits
development on their property to one single-family
dwelling and no more than two additional outbuildings,
and it ordered the defendants to remove it. The court
also found that the stone wall constructed by the defen-
dants did not violate the restrictive covenant that pro-
hibits permanent structures from being erected within
100 feet of Winchester Road because the wall was not
permanent. The court declined to award punitive dam-
ages to the plaintiffs because it concluded that the
defendants’ conduct was not wanton or malicious. This
appeal followed.2
On appeal, the plaintiffs claim that the court (1) erred
in concluding that the stone wall was not a permanent
structure, (2) made clearly erroneous findings regarding
whether the stone wall contained concrete and whether
Harms drafted the defendants’ deed, and (3) improperly
declined to award punitive damages. We will consider
each of these claims in turn.
I
The plaintiffs claim that the court erred in concluding
that the defendants’ stone wall was not a permanent
structure, as that term is used in the restrictive covenant
set forth in the defendants’ deed. We agree.
‘‘[T]he determination of the intent behind language
in a deed, considered in the light of all the surrounding
circumstances, presents a question of law on which our
scope of review is . . . plenary. . . . Thus, when
faced with a question regarding the construction of
language in deeds, the reviewing court does not give
the customary deference to the trial court’s factual
inferences. . . .
‘‘The meaning and effect of the [restrictive covenant]
are to be determined, not by the actual intent of the
parties, but by the intent expressed in the deed, consid-
ering all its relevant provisions and reading it in the
light of the surrounding circumstances . . . . The pri-
mary rule of interpretation of such [restrictive] cove-
nants is to gather the intention of the parties from their
words, by reading, not simply a single clause of the
agreement but the entire context, and, where the mean-
ing is doubtful, by considering such surrounding cir-
cumstances as they are presumed to have considered
when their minds met. . . . A restrictive covenant
must be narrowly construed and ought not to be
extended by implication. . . . Moreover, if the cove-
nant’s language is ambiguous, it should be construed
against rather than in favor of the covenant.’’ (Citations
omitted; internal quotation marks omitted.) Alligood v.
LaSaracina, 122 Conn. App. 479, 482, 999 A.2d 833(2010).
The defendants’ deed contains the following restric-
tions: ‘‘The property is conveyed subject to the follow-
ing restrictions, which restrictions shall be enforceable
by the Grantors, their heirs, successors and assigns
in perpetuity, as an appurtenance to the property of
the Grantors:
‘‘1. The Property shall not be further divided, subdi-
vided or resubdivided, as those terms are defined in
the Connecticut General Statutes, or in any way dimin-
ished in size;
‘‘2. No more than one (1) single family dwelling may
be erected on the Property, with no more than two
(2) outbuildings.
‘‘3. Any permanent structure erected on the Property
shall be located at least 100 feet distant from the west-
erly line of Winchester Road.’’ (Emphasis added.)
In construing the term ‘‘permanent structure’’ set
forth in the third restrictive covenant in the defendants’
deed, the court determined that the phrase was ambigu-
ous and should be construed against the drafter, whom
the court found to have been Harms.3 The court further
concluded that, although the stone wall ‘‘[o]bviously’’
is a structure, it is not a permanent structure. The plain-
tiffs argue that the term ‘‘permanent structure’’ is not
ambiguous and that the court erred in concluding that
the wall was not permanent in nature. We agree.
‘‘[W]hether . . . a term is ambiguous turns on
whether it has varying definitions in common parlance.
See Honulik v. Greenwich, [293 Conn. 698, 710, 980 A.2d
880 (2009)] (contractual language must be interpreted
according to ‘its common, natural, and ordinary mean-
ing and usage’ . . .).’’ Remillard v. Remillard, 297
Conn. 345, 355–56, 999 A.2d 713 (2010). We conclude
that the term ‘‘permanent structure’’ has a common,
natural and ordinary meaning, and that it, therefore, is
not ambiguous.
‘‘To ascertain the commonly approved usage of a
word, we look to the dictionary definition of the term.
. . . Stone-Krete Construction, Inc. v. Eder, 280 Conn.
672, 678, 911 A.2d 300 (2006); see also D’Appollonio v.
Griffo-Brandao, [138 Conn. App. 304, 324, 53 A.3d 1013(2012)] (dictionary definitions used to interpret terms
of easement). Permanent is defined in one dictionary
as [t]o continue indefinitely; Ballentine’s Law Diction-
ary (3d Ed. 1969); and in another as continuing or endur-
ing (as in the same state, status, place) without
fundamental or marked change: not subject to fluctua-
tion or alteration: fixed or intended to be fixed: lasting,
stable. Webster’s Third New International Dictionary
(2002). Similarly, this court in LePage Homes, Inc. v.
Planning & Zoning Commission, 74 Conn. App. 340,
349, 812 A.2d 156 (2002), relied on Black’s Law Diction-
ary (6th Ed. 1990), for its definition of permanent as
[c]ontinuing or enduring in the same state, status, place,
or the like, without fundamental or marked change, not
subject to fluctuation, or alteration, fixed or intended
to be fixed; lasting; abiding; stable; not temporary or
transient. . . . Generally opposed in law to temporary,
but not always meaning perpetual. . . . See also John-
son v. Charles William Palomba Co., 114 Conn. 108,
114, 157 A. 902 (1932) (permanent structure is one not
. . . apt to change); American Brass Co. v. Serra, [104
Conn. 139, 149, 132 A. 565 (1926)] (fence at issue not
permanent structure because could be removed with
hardly any trouble or expense and is so slight).’’ (Inter-
nal quotation marks omitted.) Zirinsky v. Carnegie Hill
Capital Asset Management, LLC, 139 Conn. App. 706,
719–20, 58 A.3d 284 (2012). Given the similarity in these
definitions, and guided by Zirinsky, we conclude that
the term ‘‘permanent structure’’ is not ambiguous but
equates to a structure that is not meant to be temporary
or transient, but, rather, is meant to be fixed, lasting,
and not readily abated.
We next consider the court’s conclusion that the
stone wall in question was not a permanent structure.4
‘‘[T]he appropriate analytical approach to the question
[of whether a structure is permanent] . . . is a fact
specific one. . . . [A] court, in considering whether a
given structure is permanent in nature, should evaluate
a variety of factors, including—but not limited to—the
structure’s size, weight, durability, stability and mobil-
ity.’’ Zirinsky v. Carnegie Hill Capital Asset Manage-
ment, LLC, supra, 139 Conn. App. 720.
Here, the trial court, considering the factors set forth
in Zirinsky, found that ‘‘[t]he wall is large in size, is
undoubtedly heavy and is immobile. Its stability and
durability are less certain as there was no evidence
submitted. Despite these factors weighing in favor of
the plaintiffs, the surrounding circumstances of the
defendant[s’] deed, the addition of the modifying word
‘permanent,’ and the rules of construction convince the
court that the stone wall should not be considered a
permanent structure as that word is used in the deed.
There is nothing about the surrounding circumstances
which would lead to the conclusion that a stone wall
at or near the boundary line of the property would be
contrary to the intent of the parties.’’
The court also determined: ‘‘Whether the stone wall
constructed by the defendants is permanent depends
in part upon the plaintiffs’ argument that it was con-
structed with a concrete core. A concrete core would
provide an internal permanence and an attachment to
the ground, which one would expect with a permanent
structure. The evidence does not support the claim of
a concrete core.’’ The court concluded: ‘‘Coupled with
the surrounding circumstances, which do not weigh in
favor of the interpretation that a stone wall would be
out of place in front of a residence on Winchester Road
in Norfolk, and applying the rules of construction . . .
the court is unable to conclude that the defendants’
wall is a permanent structure.’’5
The plaintiffs argue that the testimonial and pictorial
evidence demonstrated that the stone wall contained
concrete and that, even if the court did not credit this
uncontested evidence, ‘‘there can be no doubt that [the]
defendants’ stone wall, which the trial court found to
be ‘undoubtedly heavy’ . . . is ‘affixed’ to the land by
gravity.’’ (Citation omitted.) They further argue that
employing the factors set forth in Zirinsky, ‘‘the stone
wall cannot be seen as anything but a permanent struc-
ture.’’ We agree.
In Zirinsky, we were called upon to determine
whether an easement that ‘‘provide[d] that the servitude
beneficiary [was] entitled to use the easement area ‘for
any lawful purpose’ so long as it [did] not involve the
erection of a permanent structure’’; Zirinsky v. Carne-
gie Hill Capital Asset Management, LLC, supra, 139
Conn. App. 717; prohibited the installation of a play
system. Id., 718. The easement in Zirinsky ‘‘contain[ed]
a straightforward proscription mandating that the domi-
nant estate holder shall not construct ‘any permanent
structure . . . on the [e]asement [p]roperty.’ ’’ Id., 719.
The trial court in Zirinsky had determined that the play
system was a permanent structure, prohibited by the
clear language of the easement. Id., 721. The court noted
that the play system was ‘‘48.5 feet long, 22.5 feet wide
and 14.5 feet high’’; id., 719 n.5; and that the base unit
of the play system weighed approximately one ton. Id.,
721 n.7. It also found that the ‘‘the play system has
remained firmly in the same place where it was erected
and has not been moved or relocated on a seasonal
basis.’’ (Internal quotation marks omitted.) Id., 721. On
the basis of these findings, the court concluded that,
although the play system was not anchored or cemented
to the ground; id., 721 n.7; the play system constituted
a permanent structure. Id., 721; see generally General
Statutes § 7-147a (a) (defining ‘‘structure’’ under that
statute as ‘‘any combination of materials, other than a
building, which is affixed to the land, and shall include
. . . signs, fences and walls’’); Historic District Com-
mission v. Hall, 282 Conn. 672, 683, 681, 923 A.2d 726(2007) (construing in part § 7-147a and concluding that
‘‘objects need not be embedded in the ground to be
deemed physically attached to the land’’ because
‘‘[t]here . . . can be no doubt that gravity may serve
the . . . purpose of ‘affixing’ a very heavy object to
the land’’); Capen v. Peckham, 35 Conn. 88, 94 (1868)
(‘‘fences that are used to separate the lots of farmers
are not let into the ground or [e]mbedded in the earth,
so as to occasion injury to the soil by their removal
. . . [but] no one could doubt that they are fixtures or
appurtenant to the realty’’).
In the present case, the court specifically found that
‘‘[t]he wall is large in size, is undoubtedly heavy and is
immobile [but that] [i]ts stability and durability are less
certain . . . .’’ The court also found that the portion
of stone wall ‘‘along the Winchester Road side of the
property is on or within a few feet of the border of the
defendants’ land and about [twenty] feet from the paved
portion of Winchester Road. The wall has an average
height of [three] feet with taller pillars on both sides
of the driveway. The wall is topped by a decorative
white fence of wood or plastic about 1.5 feet in height.’’
Although not contained within the specific findings of
the trial court, the evidence included photographs of
the defendants’ property also showing a large wooden
gate attached to one of the stone pillars at the entrance
to the driveway, which, when closed, would go across
the driveway to attach to the other pillar. The survey
maps state that the stone pillars are each six feet tall,
and show that the stone wall extends across approxi-
mately two-thirds of the defendants’ 300 feet of road
frontage and also extends well beyond one hundred
feet down the side of the defendants’ property. On the
basis of the court’s findings and the uncontroverted
evidence about the size of the wall, we conclude that
the court erred in finding that the stone wall was not
a permanent structure as that term is used in the defen-
dants’ deed.
The wall is approximately three feet high, with two
large, six feet high stone pillars. There is a large wooden
gate attached to one of the pillars, and a 1.5 foot fence
that is attached to the top of the wall. The court found
that the wall was large, heavy and immobile. The photo-
graphic evidence admitted at trial also shows that many
of the rocks used in constructing this wall are quite
large. Certainly, even if the court did not credit the
evidence, both photographic and testimonial, that the
wall had a concrete core, gravity would affix this wall,
with its pillars and fencing, to the ground. Furthermore,
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.) Zirinsky v.
Carnegie Hill Capital Asset Management, LLC, supra,
139 Conn. App. 721; cf. Okemo Mountain, Inc. v. Ludlow
Zoning Board of Adjustment, 164 Vt. 447, 453, 671 A.2d
1263 (1995) (citing to R. Powell & P. Rohan, 3 Powell
on Real Property [1994] § 34.21, pp. 34-264 and 34-265,
for proposition that stone wall is permanent structure
that could interfere with right of use of easement).
Accordingly, we conclude that the court erred in
determining that the stone wall was not a permanent
structure that is prohibited by the clear language of the
restrictive covenant contained in the defendants’ deed.
II
The plaintiffs also claim that the court made clearly
erroneous findings and that one of those findings,
namely, that Harms drafted the deed, could have a bind-
ing precedential impact on other litigation in which the
parties are involved. They contend that the court erred
in finding that (1) the evidence did not demonstrate
that the defendants’ stone wall contains concrete and
(2) the evidence demonstrated that Harms was the
drafter of the defendants’ deed without any input from
the defendants. The finding regarding whether the stone
wall contains concrete was discussed sufficiently for
purposes of this appeal in part I of this opinion and
need not be examined further, as it has no bearing on the
outcome of this appeal. See, e.g., Duplissie v. Devino, 96
Conn. App. 673, 680 n.6, 902 A.2d 30 (declining to
address disputed matter that was not necessary to out-
come of appeal), cert. denied, 280 Conn. 916, 908 A.2d
536 (2006); Bay Hill Construction, Inc. v. Waterbury,
75 Conn. App. 832, 839, 818 A.2d 83 (2003) (declining
to address issue not necessary to disposition of appeal).
Additionally, although the plaintiffs challenge the
court’s finding that Harms drafted the deed without
any input from the defendants, the correctness of this
finding also is not relevant to our decision here, and,
therefore, we decline to afford it review.6 See Bay Hill
Construction, Inc. v. Waterbury, supra, 839.
III
The plaintiffs next claim that the court erred in declin-
ing to award punitive damages and costs on the basis
of the defendants’ intentional, wanton and malicious
violations of their rights. They argue that the court’s
finding that the defendants’ conduct was not wanton
and malicious was clearly erroneous, and they request
that we award punitive damages and costs on the basis
of the defendants’ conduct.7 We are not persuaded.
‘‘[T]he trial court has broad discretion in determining
whether [punitive] damages are appropriate. . . . Its
decision will not be disturbed on appeal absent a clear
abuse of discretion. . . . Punitive damages are
awarded when the evidence shows a reckless indiffer-
ence to the rights of others or an intentional and wanton
violation of those rights. . . . Punitive damages . . .
in Connecticut are limited to attorney’s fees less taxable
costs . . . . Such damages, however, are not awarded
as a matter of right, but rather as a matter of discretion,
to be determined by the [court] upon a consideration
of all the evidence . . . .’’ (Citation omitted; internal
quotation marks omitted.) Gleason v. Smolinski, 149
Conn. App. 283, 313, 88 A.3d 589 (2014).
‘‘Recklessness is a state of consciousness with refer-
ence to the consequences of one’s acts. . . . It is more
than negligence, more than gross negligence. . . . The
state of mind amounting to recklessness may be
inferred from conduct. But, in order to infer it, there
must be something more than a failure to exercise a
reasonable degree of watchfulness to avoid danger to
others or to take reasonable precautions to avoid injury
to them. . . . Wanton misconduct is reckless miscon-
duct. . . . It is such conduct as indicates a reckless
disregard of the just rights or safety of others or of the
consequences of the action. . . . Whether the defen-
dant acted recklessly is a question of fact subject to
the clearly erroneous standard of review.’’ (Citation
omitted; internal quotation marks omitted.) Franc v.
Bethel Holding Co., 73 Conn. App. 114, 137–38, 807 A.2d
519, cert. granted on other grounds, 262 Conn. 923, 812
A.2d 864 (2002) (appeal withdrawn October 21, 2003).
In the present case, the court specifically found that
it did not ‘‘consider that the positions taken by the
parties with respect to either the pole barn or the stone
wall constitute intentional, wanton or malicious viola-
tions of the rights of the other parties.’’ The plaintiffs
in their brief argue that the court ignored certain evi-
dence of the defendants’ conduct before and during this
case, and that this led to the court’s alleged erroneous
finding. We are not persuaded.
The trial court is in a far better position than are we
to evaluate and weigh the evidence presented and to
assess the credibility of the witnesses. There certainly
is evidence in the record to support the court’s finding
that the defendants’ actions were not reckless, and,
although the plaintiffs point to other evidence in sup-
port of their position, we will not usurp the function
of the trial court in weighing the evidence in order to
make factual findings or in properly exercising its dis-
cretion.
The judgment is reversed only as to the court’s finding
that the defendants’ construction of the stone wall did
not violate the restrictive covenant prohibiting the erec-
tion of permanent structures within 100 feet of the
westerly line of Winchester Road and the case is
remanded 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 Winches-
ter Road. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Harms, an attorney, who also is a plaintiff in this case, filed an appellate
appearance on behalf of herself and the other plaintiffs in this appeal. Luis
Medina, a defendant in this case who also is an attorney, filed an appearance
on behalf of himself and his wife, Amanda Medina. No issue regarding this
dual representation has been raised by any party.
2
The defendants also filed a late cross appeal from the portion of the
court’s judgment concerning the pole barn, which we dismissed as untimely.
3
We further discuss this finding in part II of this opinion.
4
We note that Michael Halloran, the Norfolk zoning enforcement officer,
testified that a stone wall is not considered a structure under the Norfolk
zoning regulations unless it is over six feet in height. Whether the wall
would be considered a structure under the zoning regulations, however, has
no bearing on whether the wall is a structure for purposes of the defendants’
deed. ‘‘The responsibility of enforcing restrictive covenants in deeds is allo-
cated to neighboring landowners, not to a municipal commission.’’ Moscow-
itz v. Planning & Zoning Commission, 16 Conn. App. 303, 312 n.8, 547
A.2d 569 (1988). Here, the trial court specifically found that the wall ‘‘[o]bvi-
ously’’ was a structure under the language of the deed. That finding is not
contested on appeal.
5
We note that whether the stone wall would be in harmony with the area
is not a relevant factor in evaluating whether it is a permanent structure.
See Zirinsky v. Carnegie Hill Capital Asset Management, LLC, supra, 139
Conn. App. 720 (when evaluating whether structure is permanent, court
should evaluate such factors as size, weight, durability, stability and mobility
of structure).
6
We also note that ‘‘[t]he fundamental principles underlying the doctrine
[of collateral estoppel] are well established. Collateral estoppel, or issue
preclusion, is that aspect of res judicata which prohibits the relitigation of
an issue when that issue was actually litigated and necessarily determined
in a prior action between the same parties upon a different claim. . . . For
an issue to be subject to collateral estoppel, it must have been fully and
fairly litigated in the first action. It also must have been actually decided
and the decision must have been necessary to the judgment. . . . An issue
is actually litigated if it is properly raised in the pleadings or otherwise,
submitted for determination, and in fact determined. . . . An issue is neces-
sarily determined if, in the absence of a determination of the issue, the
judgment could not have been validly rendered. . . . If an issue has been
determined, but the judgment is not dependent upon the determination of the
issue, the parties may relitigate the issue in a subsequent action.’’ (Citations
omitted; emphasis omitted; internal quotation marks omitted.) R & R Pool &
Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001).
7
‘‘In Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., [193
Conn. 208, 236, 477 A.2d 988 (1984)], we declined [an] invitation to stray
from our well settled rule regarding the measurement of punitive damages.
We affirmed the continuing viability of a long line of cases holding that
common law punitive damages serve primarily to compensate the plaintiff
for his injuries and, thus, are properly limited to the plaintiff’s litigation
expenses less taxable costs. . . . We recognized, moreover, that our rule,
when viewed in the light of the increasing costs of litigation, also serves to
punish and deter wrongful conduct. . . . In recent years, we have continued
to adhere to the view that our traditional rule remains viable. . . . We
remain convinced that a rule limiting punitive damages awards to the
expenses of litigation less taxable costs fulfills the salutary purpose of fully
compensating a victim for the harm inflicted on him while avoiding the
potential for injustice which may result from the exercise of unfettered
discretion by a jury.’’ (Citations omitted; internal quotation marks omitted.)
Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992).