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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 theirrequest forinjunctive

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 defendants’ deed that prohibits the construction of any ‘‘permanent 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 intersection of Schoolhouse Road and Winchester Road in Norfolk (‘Harms property’). Adjoining their property to the

south on Winchester Road is property owned by the

plaintiffs, John Avery and Elisabeth Avery (‘Avery property’). 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 project 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-owners 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 Attorney 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 onethird 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 coowners agreed that the forty-seven acres would be conveyed to the Norfolk Land Trust, Inc., subject to a conservation 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 allthe 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 coownership 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. Attorney Sconyers discussed 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 meeting 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 representation 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 approximately 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 considered the pole barn to be a third ‘outbuilding’ in violation of the condition in the defendants’ deed that there

shall be ‘no more than two (2) outbuildings.’ The defendants, 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 driveway. 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 covenantin 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 defendants did not violate the restrictive covenant that prohibits permanent structures from being erected within

100 feet of Winchester Road because the wall was not

permanent. The court declined to award punitive damages 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, considering all its relevant provisions and reading it in the

light of the surrounding circumstances . . . . The primary rule of interpretation of such [restrictive] covenants 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 meaning is doubtful, by considering such surrounding circumstances 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 covenant’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 restrictions: ‘‘The property is conveyed subject to the following 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, subdivided or resubdivided, as those terms are defined in

the Connecticut General Statutes, or in any way diminished 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 westerly 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 ambiguous 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 plaintiffs 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 meaning 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 Dictionary (3d Ed. 1969); and in another as continuing or enduring (as in the same state, status, place) without

fundamental or marked change: not subject to fluctuation 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 Dictionary (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 Johnson 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).’’ (Internal 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 mobility.’’ Zirinsky v. Carnegie Hill Capital Asset Management, 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 constructed 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 structure.’’ 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. Carnegie 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 dominant 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

clearlanguage 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 Commission 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 approximately 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 defendants’ 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 photographic 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,

139Conn. 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 binding 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 whetherthe 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 ofthis 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 outcome 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 thatthe court erred in declining 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 indifference 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 reference 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 misconduct. . . . 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 defendant 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 violations of the rights of the other parties.’’ The plaintiffs

in their brief argue that the court ignored certain evidence 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 support 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 discretion.

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 erection 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 Winchester 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 allocated 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]bviously’’ 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 necessarily 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. ZoningBoard ofAppeals, 257Conn. 456, 466, 778A.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).