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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).
LuisA. Medina, with whom wasRichardR. Lavieri,for the appellees (defendants).Opinion MULLINS, J. The plaintiffs, John Avery, Elisabeth Avery and Shelley Harms, appeal from thejudgment of thetrialcourtinpartdenyingtheirrequestforinjunctive reliefagainst 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 ofany ‘‘permanent structure’’ within 100 feet of the westerly line ofthe road, (2) made clearly erroneous factualfindings, and (3) improperlydeclinedto awardpunitive damages. Becausewe concludethatthe stonewallis apermanent 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 least2003, owned and residedin ahome atthe intersection ofSchoolhouse Road and Winchester Road in Norfolk (‘Harms property’). Adjoining their property to the south on Winchester Road is property owned by the plaintiffs, JohnAveryand ElisabethAvery (‘Averyproperty’). Sometime in late 2002, the plaintiffs became
aware that a 55.72 acre parcel ofwooded, 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 buythe 55.72 acres butthattheywouldneed another investor to join them. ‘‘In February, 2003

. . . Torrey approached his law partner, LuisMedina, aboutinvestingmoneyintheproject 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 theywouldhave conflictinginterests duringtheproject, 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. ‘‘Thethree couplespurchasedthe 55.72 acres onApril 6, 2003, with each couple receiving an undivided onethird interest. It does not appear that the six parties
wererepresentedbyanyoneinthatpurchase. The sellerwas 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 agreedthatthe 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 threelots: two, fouracrebuildinglotsandforty-seven+/-
acres ofundivided 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 foralltheco-owners.AsaresultofadvicefromAttorney 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 Medinalot ‘will contain deedrestrictionsprovidingthat the lot shall not be further divided, will contain only
one single-family dwelling, andnotmore thantwo 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 ofthese 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 ‘areasonable 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 tookthe opportunity to carefully read the draft deed which would conveytheirlot to them. The result ofthat 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 ofan application to designate it as a scenic road within the town of Norfolk. The application describes thatWinchesterRoad isbordered by stone walls along much of its length. ‘‘Since 2004, the defendants have built a house with attachedgaragewithdimensions ofapproximately86.5’

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 thatheandhiswifeweregoingto constructa‘polebarn’ in an area north ofthe carriage house.

. . . Torrey told [Luis] Medina that this would be a third ‘outbuilding’ and would be in violation of the restrictive covenant inthe 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 consideredthe pole barnto be athird ‘outbuilding’ inviolation ofthe 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 barnandhavebeenissuedacease and desist order by the town of Norfolk, refused to remove it. In this suit, theplaintiffs seek aninjunctionprohibitingfurther 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 ofthe property is
on or within a few feet ofthe border ofthe defendants’ land and about [twenty] feet from the paved portion of Winchester Road. The wall has an average height of [three] feet with tallerpillars on both sides ofthe 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 structureinviolationoftherestrictivecovenantinthedefendants’ 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 andno more thantwo additional outbuildings, and it ordered the defendants to remove it. The court also foundthatthe stone wall constructedbythe 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 ormalicious. This appeal followed.2
On appeal, theplaintiffs claimthatthe court (1) erred in concluding that the stone wall was not a permanent structure, (2)madeclearlyerroneousfindingsregarding whetherthe stonewall contained concrete andwhether Harms draftedthe defendants’ deed, and (3) improperly declined to award punitive damages. We will consider each of these claims in turn. I
Theplaintiffs claimthatthe court erredin concluding that the defendants’ stone wall was not a permanent structure, asthattermisusedintherestrictivecovenant set forth in the defendants’ deed. We agree. ‘‘[T]he determination of the intent behind language in a deed, considered in the light ofall the surrounding circumstances, presents aquestion oflaw onwhich 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 ofthe [restrictive covenant]
are to be determined, not by the actual intent of the parties, butbythe 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 gatherthe intention ofthe parties from their words, by reading, not simply a single clause of the agreementbutthe 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 construedagainst ratherthan in favor ofthe 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.Anypermanentstructure erected on theProperty shall be located at least 100feet distantfrom the westerly line of Winchester Road.’’ (Emphasis added.)
In construing the term ‘‘permanent structure’’ set forth inthe third restrictive covenant inthe defendants’ deed, the court determinedthatthephrase 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 astructure, it is not apermanent 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. SeeHonulikv. Greenwich, [293 Conn. 698, 710, 980A.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(3dEd. 1969); andinanotheras continuingorenduring (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 orenduringinthe same state, status, place,
orthe like, without fundamental ormarked 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).’’ (Internalquotationmarks omitted.)Zirinskyv. CarnegieHill Capital Asset Management, LLC, 139 Conn. App. 706, 719–20, 58A.3d 284 (2012). Giventhe similarityinthese definitions, and guided by Zirinsky, we conclude that the term ‘‘permanent structure’’ is not ambiguous but equates to astructure that is notmeantto 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 ofthe modifying word ‘permanent,’ andthe rules ofconstruction 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 withthe surrounding circumstances, which do not weigh in favor of the interpretation that a stone wall would be out ofplace in front ofaresidence 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 canbe no doubtthat [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 apermanent structure.’’ We agree. In Zirinsky, we were called upon to determine whetheraneasementthat‘‘provide[d] thatthe servitude beneficiary [was] entitled to use the easement area ‘for any lawful purpose’ so long as it [did] not involve the erection ofa 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 inZirinsky ‘‘contain[ed]
astraightforwardproscriptionmandatingthatthedominant estate holder shall not construct ‘any permanent structure

. . . on the [e]asement [p]roperty.’ ’’ Id., 719. The trial courtinZirinskyhad determinedthattheplay system was a permanent structure, prohibited by the clearlanguageofthe easement. Id., 721. Thecourtnoted 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 ofthe play system weighed approximately one ton. Id., 721 n.7. It also found that the ‘‘the play system has remained firmly inthe 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, althoughtheplaysystemwasnotanchoredorcemented 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 orappurtenant 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 ofthe border ofthe defendants’ landandabout [twenty] feetfromthepaved 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 ofwood orplastic 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 ofthe 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 ofthe 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
apermanent structure as that term is used inthe defendants’ deed.
The wall is approximately three feet high, with two large, sixfeethighstonepillars. Thereis alargewooden gate attached to one ofthe pillars, and a 1.5 foot fence that is attached to the top ofthe wall. The court found thatthe wallwas large, heavyandimmobile. Thephotographic evidence admitted attrial also showsthatmany 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, withitspillars andfencing, to the ground. Furthermore, there can be no doubt that the defendants intend for thewalltoremain‘‘firmlyinthesameplacewhereitwas erected and [not be] moved or relocated on a seasonal basis.’’ (Internal quotation marks omitted.) Zirinsky v. Carnegie Hill CapitalAssetManagement, LLC, supra, 139Conn.App. 721; cf. OkemoMountain, Inc

.v.Ludlow ZoningBoard ofAdjustment, 164Vt. 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 ofthe restrictive covenant contained in the defendants’ deed.
IIThe plaintiffs also claim that the court made clearly
erroneous findings and that one of those findings, namely, thatHarms draftedthe deed, couldhave abinding 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 ofthe defendants’ deed without any input from the defendants. Thefindingregardingwhetherthestone wall contains concrete was discussed sufficiently for purposes of this appeal in part I of this opinion and neednotbeexaminedfurther, asithasnobearingonthe outcomeofthisappeal. See, e.g.,Duplissiev.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 issuenotnecessaryto dispositionofappeal). 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
Theplaintiffsnextclaimthatthecourterredindeclining 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 courthas 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 indifferencetotherights ofothers oranintentionalandwanton violation of those rights.

. . . Punitive damages

. . . in Connecticutarelimitedto attorney’sfeeslesstaxable costs

. . . . Such damages, however, are not awarded
as amatter ofright, but rather as amatter ofdiscretion, 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, theremust be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others orto take reasonableprecautions to avoid injury to them.

. . . Wanton misconduct is reckless misconduct.

. . . It is such conduct as indicates a reckless disregard ofthejust rights or safety of others or ofthe 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. BethelHolding Co., 73 Conn. App. 114, 137–38, 807A.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 eitherthe pole barn orthe 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 ofthe defendants’ conductbefore and duringthis 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.
Thejudgmentisreversedonlyastothecourt’sfinding that the defendants’ construction of the stone wall did notviolatethe restrictive covenantprohibitingthe 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 reliefrequiring the defendants to remove all portions ofthe stone wall that are within 100 feet ofthe westerly line ofWinchesterRoad. Thejudgmentis affirmedin all otherrespects. In this opinion the other judges concurred.

1 Harms, an attorney, who also is a plaintiffin this case, filed an appellate appearance on behalf of herself and the other plaintiffs in this appeal. Luis Medina, a defendantinthis 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’sjudgment concerning thepole barn, whichwe 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 underthe zoning regulations, however, has

no bearing onwhetherthe wall is astructure forpurposes ofthe defendants’ deed. ‘‘The responsibility ofenforcing 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 CapitalAsset Management, LLC, supra, 139 Conn. App. 720 (when evaluating whether structure is permanent, court should evaluate suchfactors as size, weight, durability, stabilityandmobility 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, butthejudgmentisnotdependentuponthe determinationofthe issue, the parties may relitigate the issue in a subsequent action.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.)R &RPool & Patio, Inc

.v.ZoningBoardof Appeals, 257Conn. 456, 466, 778A.2d61 (2001).

7 ‘‘In WaterburyPetroleum 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 ofpunitive 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 ofthe 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 oflitigation less taxable costs fulfills the salutary purpose offully 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 ajury.’’ (Citations omitted; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992).