Carriage House I-Enfield Assn., Inc. v. Johnston ( 2015 )

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CARRIAGE HOUSE I-ENFIELD ASSOCIATION, INC. v.
CAROL A. JOHNSTON ET AL.
(AC36997)
Beach, Keller and Mihalakos, Js.
Argued May 18—officially released October 6, 2015
(Appeal from Superior Court, judicial district of
Tolland, Mullins, J.)
J. Christopher Kervick, for the appellants
(defendants).
Ronald J. Barba, for the appellee (plaintiff).
Opinion
KELLER, J. The defendant, Carol A. Johnston,1
appeals from the trial court’s judgment of foreclosure
by sale of her condominium unit in favor of the plaintiff,
Carriage House I-Enfield Association, Inc., as well as
the court’s judgment denying her motion for reargument
and reconsideration. On appeal, the defendant claims
that (1) the court improperly failed to grant her relief
under an impossibility defense, and (2) the court erred
when it concluded that an allegedly illegal and unen-
forceable contract between the plaintiff and the defen-
dant subsequently was rendered legal and enforceable.
We affirm the judgments of the trial court.
The following facts, as found by the court, and proce-
dural history are relevant to the defendant’s appeal. In
2003, the defendant acquired townhouse condominium
unit number 92 (unit 92), together with a garage and
parking space number 92, located at the Carriage House
I-Enfield Condominiums in Enfield. On June 10, 2010,
the plaintiff’s board of directors (board) held a meeting
at which it unanimously passed a motion authorizing
the expansion of the decks attached to all of the units
in the plaintiff’s condominium complex.2 The approved
plan gave permission to unit owners who wanted to
expand their decks to choose one of four possible lay-
outs for their completed expansions. The defendant
ultimately decided to expand unit 92’s deck via one of
those options.
On June 15, 2010, the president of the board submit-
ted an application on behalf of the plaintiff for a special
use permit with the Enfield Planning Department. On
July 8, 2010, the Enfield Planning and Zoning Commis-
sion (commission) approved the plaintiff’s application
for a special use permit. On July 29, 2010, the commis-
sion’s secretary officially granted the special use permit
to the plaintiff and certified the commission’s approval
of the plaintiff’s deck expansion plan.
Upon receiving the special use permit, the plaintiff
and its condominium unit owners, including the defen-
dant, commenced planning the deck expansion proj-
ects. On April 6, 2011, the plaintiff and the defendant
entered into a written contract regarding the expansion
of unit 92’s deck. Most notably, the contract expressly
required the defendant to construct a privacy wall on
the southwest side of unit 92’s expanded deck. Further,
the contract provided, inter alia, that the defendant
would construct stairs leading from the deck to the
common area behind the units, and that the defendant
would reimburse the plaintiff for any losses, costs, fines,
fees, attorney’s fees, and expenses incurred as a result
of the deck expansion.
Pursuant to the contract, the defendant applied for
a building permit with the commission on April 11, 2011,
so that she could carry out unit 92’s deck expansion.
The commission received the defendant’s application,
but informed her that it would not approve a privacy
wall on unit 92’s deck. Accordingly, the defendant
requested that the commission omit the privacy wall
from her application. An Enfield zoning enforcement
officer subsequently sent a notice to the plaintiff in
which she stated that the commission had not approved
the privacy wall as a component of unit 92’s deck expan-
sion in the plaintiff’s July, 2010 special use permit.
Shortly thereafter, the plaintiff sent the zoning enforce-
ment officer a letter in which it asserted that it would
allow the defendant to expand unit 92’s deck only if it
included a privacy wall. In this letter, the plaintiff also
requested that Enfield not issue a building permit to
the defendant until a permit for the construction of a
privacy wall on unit 92’s deck could be issued. In
response to this letter, the director of the commission
sent the plaintiff a reply letter in which he stated that
the plaintiff would have to reapply to obtain a permit
to construct a privacy wall on unit 92’s deck because
the commission had not approved such a wall in the
special use permit that it had granted to the plaintiff
in July, 2010.
The defendant obtained a building permit to expand
unit 92’s deck on May 16, 2011, which did not include
approval of a privacy wall. On the same date, the defen-
dant sent a letter to the plaintiff stating that she had
obtained a building permit and that she would carry
out the expansion of unit 92’s deck without constructing
a privacy wall. Two days later, the plaintiff responded
by a letter in which it asserted that the defendant’s
failure to attach a privacy wall to her deck would consti-
tute a breach of the April 6, 2011 deck expansion con-
tract. In this May 18, 2011 letter, the plaintiff also
indicated that it could impose fines on the defendant
and remove and reconstruct unit 92’s deck at the defen-
dant’s expense if she failed to construct the deck with
the privacy wall. Nevertheless, the defendant expanded
unit 92’s deck without including a privacy wall, complet-
ing it at some point before August 3, 2011. In addition
to not installing the privacy wall, the defendant failed
to comply with several other requirements set forth in
the deck expansion contract. Specifically, the defen-
dant’s deck did not comply with the deck expansion
contract in that the deck railing extended beyond the
contract specifications, the flashing was improperly
installed, and the deck stairs did not meet the con-
tract specifications.
On June 14, 2011, while the defendant was carrying
out the expansion of unit 92’s deck, the board applied
for a special use permit to construct privacy walls for
certain units’ deck expansion projects, including the
project for unit 92. The commission unanimously
approved the plaintiff’s application for a special use
permit to install the privacy walls on July 21, 2011, but
the plaintiff did not record the special use permit until
February 1, 2012. On August 3, 2011, the plaintiff sent
a letter to the defendant informing her that the commis-
sion had granted the plaintiff a special use permit so
that she legally could install a privacy wall on unit 92’s
deck. The plaintiff also stated in this letter that the
defendant would have until August 12, 2011, to choose
one of two options regarding unit 92’s deck: (1) she
could install the privacy wall as agreed; or (2) she could
return the deck to its original state.
The defendant failed to respond to the plaintiff’s let-
ter. On August 19, 2011, the plaintiff sent the defendant
another letter informing her that the board would hold
a meeting on the matter on the evening of August 31,
2011, which the defendant was advised to attend. On
August 30, 2011, the defendant mailed a letter to the
plaintiff in which she stated that she refused to attend
the scheduled meeting and that ‘‘the only resolution of
this matter lies in the courts.’’ The board held the August
31, 2011 meeting and unanimously passed a motion to
begin fining the defendant at a rate of $25 per day for
every day that she did not pursue one of the two options
set forth in the plaintiff’s August 3, 2011 letter.3 The
plaintiff conveyed this decision to the defendant in a
letter dated September 20, 2011. In this letter, the plain-
tiff notified the defendant that she would have until
October 5, 2011, either to install the privacy wall or to
restore unit 92’s deck to its original state before the
plaintiff would begin fining her $25 per day.4 The defen-
dant failed to comply and did not elect either option.
As a result, the plaintiff proceeded to fine her at a
rate of $25 per day beginning on October 6, 2011. The
plaintiff also eventually installed a freestanding privacy
wall in between the decks of unit 92 and unit 93.
In November, 2011, the defendant brought an equita-
ble action against the plaintiff seeking, inter alia, a
declaratory judgment that the deck expansion contract
was unenforceable. At a May 10, 2012 meeting held by
its board, it unanimously passed a resolution to file a
counterclaim against the defendant in her November,
2011 action. On June 1, 2012, the board held another
meeting, which the defendant and her husband, Robert
E. Johnston, attended with counsel. At this meeting,
the board decided to bring a foreclosure action against
the defendant for her failure to pay fines accruing from
her noncompliance with the April 6, 2011 deck expan-
sion contract. The plaintiff subsequently brought this
action against the defendant.
In its operative complaint, the plaintiff claimed in
count one that the defendant’s failure to pay the fines
assessed against her for failure to comply with the deck
expansion contract warranted a judgment of foreclo-
sure on unit 92 pursuant to General Statutes § 47-258.5
In count two of the complaint, the plaintiff claimed
that the defendant was liable for breach of the deck
expansion contract and sought damages due to the fact
that it had to design, plan, and construct a freestanding
privacy wall on its own as a result of the defendant’s
breach.6 In her answer, the defendant raised the follow-
ing two special defenses: (1) the deck expansion con-
tract was illegal because it contained provisions that
were noncompliant with Enfield’s zoning regulations;
and (2) the plaintiff had coerced the defendant to enter
into this allegedly illegal contract. On August 9, 2013,
the plaintiff filed a motion for summary judgment as
to liability. The court, Sferrazza, J., denied this motion
on September 23, 2013.
At a bench trial in February, 2014, the court, Mullins,
J., examined evidence and heard testimony pertaining
to, inter alia, the deck expansion contract, the zoning
issues that arose with the commission, and the plain-
tiff’s efforts to collect fines from the defendant for her
failure to comply with the contract. Neither party
requested a closing argument. On May 30, 2014, the
court issued a memorandum of decision in which it
ruled in favor of the plaintiff, finding that the deck
expansion contract was valid and enforceable. Accord-
ingly, the court rendered judgment of foreclosure by
sale of unit 92.
On June 17, 2014, the defendant filed a motion for
reargument and reconsideration pursuant to Practice
Book § 11-11, in which she argued that performance
under the deck expansion contract was impossible
because she had no legal authority to expand unit 92’s
deck or to install the privacy wall. Specifically, she
argued that she did not have such authority because
the real property upon which the deck and privacy
wall were constructed was a common element of the
condominium conplex, meaning that neither she nor
the plaintiff legally could possess such land exclusively
and make improvements upon it without first obtaining
consent from all unit owners having a possessory inter-
est in it. She also argued that the deck expansion con-
tract was illegal because her performance under the
contract was not within her legal authority.
The court denied the defendant’s motion. It con-
cluded in its order that ‘‘there is no need for reargument
and . . . the claims the defendant raises in her motion
were waived prior to trial.’’ Further, the court stated,
‘‘[i]ndeed, prior to the start of trial, the defendant agreed
that the [plaintiff] had the ability to enter into these
types of contracts regarding the deck expansion.’’ This
appeal followed. Additional facts will be set forth as
necessary.
I
The defendant focuses a significant amount of her
appellate brief on the court’s treatment of her claim of
the impossibility of performance of the deck expansion
contract underlying the present foreclosure action. This
claim, which the defendant also interchangeably
describes as one of contract illegality, is based on the
plaintiff’s lack of authority to enter into the deck expan-
sion contract without a vote of the unit owners, as
required by the Carriage House I-Enfield condominium
declaration (declaration). Specifically, the defendant
argues that the court: (1) abused its discretion in deny-
ing her motion for reargument and reconsideration on
her impossibility claim; (2) committed plain error by
concluding that she had waived any impossibility
defense; and (3) improperly failed to consider her
impossibility claim. The plaintiff argues that the defen-
dant failed to raise distinctly an impossibility defense
or this aspect of the contract’s alleged illegality, both
prior to and during trial, and, therefore, the court did
not abuse its discretion in ultimately denying the defen-
dant’s motion for reargument and reconsideration on
these issues. We agree with the plaintiff and address
each of the defendant’s arguments related to her impos-
sibility claim in turn.
A
We first address the defendant’s claim that the court
abused its discretion by denying her motion for reargu-
ment and reconsideration relating to her claim of impos-
sibility. We conclude that the court did not abuse its
discretion by denying her motion.
We begin by setting forth the appropriate standard
of review for this claim. We review a trial court’s deci-
sion to deny a litigant’s motion for reargument and
reconsideration for an abuse of discretion. Gibbs v.
Spinner, 103 Conn. App. 502, 506–507, 930 A.2d 53
(2007); Stein v. Horton, 99 Conn. App. 477, 488, 914
A.2d 606 (2007). ‘‘[A]s with any discretionary action of
the trial court, appellate review requires every reason-
able presumption in favor of the action, and the ultimate
issue for us is whether the trial court could have reason-
ably concluded as it did. . . . In addition, where a
motion is addressed to the discretion of the court, the
burden of proving an abuse of that discretion rests
with the appellant.’’ (Internal quotation marks omitted.)
Durkin Village Plainville, LLC v. Cunningham, 97
Conn. App. 640, 655, 905 A.2d 1256 (2006).
‘‘[R]eargument is proper when intended to demon-
strate to the court that there is some . . . principle of
law which would have a controlling effect, and which
has been overlooked . . . .’’ (Internal quotation marks
omitted.) Stein v. Horton, supra, 99 Conn. App. 488.
Reargument is also meant for situations where ‘‘there
has been a misapprehension of facts.’’ (Internal quota-
tion marks omitted.) Opoku v. Grant, 63 Conn. App.
686, 692, 778 A.2d 981 (2001). Reargument ‘‘may be used
to address alleged inconsistencies in the trial court’s
memorandum of decision as well as claims of law that
the [movant] claimed were not addressed by the court.
. . . [A] motion to reargue [however] is not to be used
as an opportunity to have a second bite of the apple
or to present additional cases or briefs which could have
been presented at the time of the original argument.’’
(Citation omitted; internal quotation marks omitted.)
Id., 692–93.
The defendant has not met her burden of proving
that the court abused its discretion by denying her
motion for reargument and reconsideration. Specifi-
cally, she failed to establish that the court overlooked
a controlling principle of law or that it misapprehended
relevant facts in denying the motion. See Stein v. Hor-
ton, supra, 99 Conn. App. 488; Opoku v. Grant, supra, 63
Conn. App. 692. In her motion, the defendant primarily
argued that reargument was warranted because the evi-
dence in the record, particularly provisions in the decla-
ration, showed that neither she nor the plaintiff had
the legal authority to expand unit 92’s deck onto land
that was a limited common element and in which other
unit owners had possessory interests. Thus, she
asserted, it was impossible for her to perform the expan-
sion of the deck without first obtaining permission from
all of the other unit owners who had possessory inter-
ests in the affected common elements. Further, she
claimed, this impossibility rendered the deck expansion
contract unenforceable and illegal.
Although the contentions in the defendant’s motion
for reargument and reconsideration might raise con-
ceivably valid points, they amount to ‘‘too little, too
late.’’ C. R. Klewin Northeast, LLC v. Bridgeport, 282
Conn. 54, 89, 919 A.2d 1002 (2007). She had ample
opportunity to raise these impossibility and illegality
defenses distinctly in her pleading of two special
defenses in her answer,7 her pretrial memorandum,8 her
objection to the plaintiff’s motion for summary judg-
ment,9 and during the trial.10 With respect to the evi-
dence that the defendant presented at trial, she claims
in her appellate brief that the court operated under a
misunderstanding as to the existence of her claim of
impossibility based on the lack of a vote of all unit
owners on the deck expansions. She alludes to the
following colloquy that took place before the plaintiff’s
first witness took the stand at trial:
‘‘The Court: If I understand you, you don’t want to
have to present evidence on [the plaintiff’s] ability to
enter into these types of contracts.
‘‘[The Plaintiff’s Counsel]: I don’t believe it has to. I
think the stipulation and the exhibits marked are all
now full exhibits.
‘‘The Court: What you see is separate from the
enforceability of this contract.
‘‘[The Plaintiff’s Counsel]: I do.
‘‘The Court: This particular contract.
‘‘[The Plaintiff’s Counsel]: I do. Whether or not that
contract is void as illegal, certainly that’s an area coun-
sel has a right to explore.
‘‘The Court: Do you have an objection to that?
‘‘[The Defendant’s Counsel]: Yes, Your Honor. I have
no objection as far as the presumption that [the plaintiff]
has the ability to enter into contracts, I would agree
with brother counsel.
‘‘The Court: That makes sense to me.’’
This colloquy, as well as a review of the trial transcript
in its entirety, indicates that the court was justified
in denying the defendant’s motion for reargument and
reconsideration. Contrary to the defendant’s argument,
we are persuaded that the court reasonably could have
concluded that she had waived any impossibility or
illegality defense related to the plaintiff’s ability to enter
into contracts or her ability to expand her deck onto
common or limited common elements without a vote
of the other unit owners. See Durkin Village Plainville,
LLC v. Cunningham, supra, 97 Conn. App. 655. Not
only are we persuaded that the court properly acted
within its discretion in concluding that the defendant
waived that defense, but we also note that she failed
to raise it distinctly to the court at other points in the
proceedings, namely, in her special defenses, pretrial
motions, and trial memoranda.11 Further, we note that
the defendant did not proffer any evidence at trial
regarding what the declaration required with respect
to deck expansion and how the plaintiff may have acted
in derogation of it. The defendant’s motion for reargu-
ment and reconsideration, filed by an attorney other
than the attorney who represented her during the trial,
is a clear example of an attempt to have the proverbial
‘‘second bite of the apple,’’ and we reject it. Accordingly,
we conclude that the court did not abuse its discretion
by denying the defendant’s motion for reargument and
reconsideration.
B
The defendant also argues that the court committed
plain error by concluding that she had waived the
impossibility defense related to the lack of a vote of
all unit owners to expand their decks. Specifically, the
defendant argues that the court committed plain error
by only addressing a single aspect of the defendant’s
illegality defense. The defendant claims that the court
improperly confined its analysis to whether the deck
expansion contract was illegal because of zoning defi-
ciencies, without addressing whether the defendant had
a viable impossibility defense as a result of the lack of
a vote of all condominium unit owners. The plaintiff
argues that there was no plain error because, through
her answer and her objection to the plaintiff’s motion
for summary judgment, the defendant confined the
court’s analysis to her illegality defense as it related
to the contract’s noncompliance with Enfield’s zoning
regulations. We agree with the plaintiff and conclude
that the court did not commit plain error.
‘‘The plain error doctrine, which is codified in Prac-
tice Book § 60-5, is an extraordinary remedy used by
appellate courts to rectify errors committed at trial that,
although unpreserved, are of such monumental propor-
tion that they threaten to erode our system of justice and
work a serious and manifest injustice on the aggrieved
party.’’ (Internal quotation marks omitted.) State v.
Diaz, 302 Conn. 93, 101, 25 A.3d 594 (2011). This doc-
trine is premised on policy concerns, and it is only
available in situations where ‘‘the existence of the error
is so obvious that it affects the fairness and integrity
of and public confidence in the judicial proceedings.’’
(Internal quotation marks omitted.) Id. An appellant
seeking application of plain error doctrine must: (1)
establish that the trial court’s claimed error was so
clear and obvious that the court’s ruling should be
reversed; and (2) show that the ‘‘consequences of the
error are so grievous as to be fundamentally unfair or
manifestly unjust.’’ (Emphasis added; internal quotation
marks omitted.) Crawford v. Commissioner of Correc-
tion, 294 Conn. 165, 205, 982 A.2d 620 (2009); see State
v. Coward, 292 Conn. 296, 306–307, 972 A.2d 691 (2009);
State v. Smith, 275 Conn. 205, 240, 881 A.2d 160 (2005).
The defendant attempts to couch her argument that
the court erred—by finding that she had waived her
impossibility defense at trial—in terms of plain error,
yet her argument does not necessitate the extraordinary
remedy’s application under these circumstances. Plain
error doctrine ‘‘is not . . . a rule of reviewability. It is
a rule of reversibility.’’ (Internal quotation marks omit-
ted.) State v. Diaz, supra, 302 Conn. 101; Crawford v.
Commissioner of Correction, supra, 294 Conn. 204.
Although the defendant, for the first time in her motion
for reargument and reconsideration and again in her
appellate brief, framed the deck expansion contract’s
performance as being part of her illegality defense
because such performance was carried out without first
obtaining other unit owners’ approval, she nonetheless
argues that the court committed plain error insofar as
it determined that these issues were part of an impossi-
bility defense that had been waived. Both claims, how-
ever, are premised on the same lack of approval of the
deck expansions by a vote of all the unit owners in the
condominium complex. We conclude that, under the
circumstances of the present case, the defendant’s chal-
lenge—based on the court’s reasonable determination
of what issues properly were before it for its consider-
ation—does not give rise to plain error concerns. Addi-
tionally, because we have concluded in part I A of this
opinion that the court properly declined to consider a
claim of impossibility that was not properly before it,
we readily reject a claim of plain error related to that
defense.
C
Next, the defendant claims that the court improperly
failed to address several arguments that were integral
to her claim that it was impossible for her to perform
under the dock expansion contract. The defendant
argues, for the first time in her appellate brief that: (1)
the court awarded the plaintiff fines for her nonperform-
ance as of October 6, 2011, despite the fact that the
special use permit allowing the construction of the pri-
vacy wall had not been recorded with the Enfield town
clerk’s office until February 1, 2012;12 (2) the privacy
wall specifications called for by the plaintiff and the
contract were adjusted several times after October 6,
2011, while the defendant was being fined for not build-
ing the wall;13 (3) the plaintiff built a freestanding pri-
vacy wall next to unit 92’s deck on July 31, 2012, but
still continued to fine the defendant after that date;
and (4) neither the defendant nor the plaintiff had an
exclusive ownership interest or right to use the prop-
erty, upon which unit 92’s deck and accompanying pri-
vacy wall were to be constructed, without prior
approval from other unit owners.14
Although the defendant casts her arguments regard-
ing this claim in terms of her alleged ‘‘impossibility’’
defense, we conclude that this claim pertains to dam-
ages and not to contract performance. We interpret the
court’s decision in denying the defendant’s motion for
reargument and reconsideration as being dispositive on
this issue. Although the defendant briefly referred to
the issue of damages in her objection to the plaintiff’s
motion for summary judgment and in her pretrial memo-
randum, she failed to offer sufficient evidence to alert
the court that she was disputing damages stemming
from the deck expansion contract. Aside from exhibits
and her counsel asking several questions during cross-
examination of the plaintiff’s witnesses about the dates
when the plaintiff began fining the defendant and when
the special use permit for the privacy wall was recorded
with the Enfield town clerk, the defendant did not
apprise the court of her specific argument that she was
disputing the plaintiff’s claim for damages.15 Further, in
her motion for reargument and reconsideration, the
defendant only focused her impossibility and illegality
claims on her lack of legal authority to construct a
privacy wall under the contract because of her not hav-
ing prior approval of other unit owners. The defendant
did not raise any arguments about ‘‘impossibility’’ of
her performance due to changing specifications, the
plaintiff’s construction of a freestanding privacy wall,
or the commencement date of the fines. On the basis
of the court’s decision and its denial of the defendant’s
motion for reargument and reconsideration, it is clear
that the court considered the defendant’s defense to be
limited to the legality of the contract in light of the
Enfield zoning regulations.
On the basis of our review of the record, we agree
with court and, accordingly, decline to review the merits
of her claim concerning the proper award of damages
in this case. ‘‘It is well established that an appellate
court is under no obligation to consider a claim that is
not distinctly raised at the trial level . . . . [B]ecause
our review is limited to matters in the record, we [also]
will not address issues not decided by the trial court
. . . . The requirement that [a] claim be raised dis-
tinctly means that it must be so stated as to bring to
the attention of the court the precise matter on which
its decision is being asked . . . . The reason for the
rule is obvious: to permit a party to raise a claim on
appeal that has not been raised at trial—after it is too
late for the trial court . . . to address the claim—
would encourage trial by ambuscade, which is unfair to
both the trial court and the opposing party.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Nelson v. Tradewind Aviation, LLC, 155
Conn. App. 519, 535, 111 A.3d 887, cert. denied, 316
Conn. 918, 113 A.3d 1016 (2015).
II
The defendant also takes issue with the court’s ruling
that the initially illegal deck expansion contract subse-
quently could be rendered legal and enforceable. The
plaintiff argues that the defendant’s illegality claim
lacks merit because, although the deck expansion con-
tract’s requirement of a privacy wall on unit 92’s deck
was not entirely compliant with Enfield’s zoning regula-
tions, the plaintiff could have obtained a variance, and
it eventually did obtain a special use permit from the
commission, both of which cured any alleged illegality
resulting from noncompliance with the zoning regula-
tions. We agree with the plaintiff and conclude that the
court did not err in determining that the deck expansion
contract was legal and enforceable.
We begin by setting forth the appropriate standard
of review for the defendant’s claim. A trial court’s deci-
sion as to whether a contract is illegal and unenforce-
able involves a question of law which entails our
application of plenary review. Parente v. Pirozzoli, 87
Conn. App. 235, 245, 866 A.2d 629 (2005).
Contracts that are illegal may defy public policy, in
which case they are void and unenforceable. Reardon
v. Windswept Farm, LLC, 280 Conn. 153, 154–55, 159,
905 A.2d 1156 (2006); Hanks v. Powder Ridge Restau-
rant Corp., 276 Conn. 314, 326–27, 335–36, 885 A.2d 734
(2005); Konover Development Corp. v. Zeller, 228 Conn.
206, 231, 635 A.2d 798 (1994). The question of ‘‘[w]hether
a contract is enforceable or illegal is a question . . .
to be determined from all the facts and circumstances
of each case. Similarly . . . the question [of] whether
a contract is against public policy is [a] question of law
dependent on the circumstances of the particular case
. . . .’’ (Internal quotation marks omitted.) Parente v.
Pirozzoli, supra, 87 Conn. App. 245. ‘‘As a general rule,
a court will [not] lend its assistance in any way toward
carrying out the terms of a contract, the inherent pur-
pose of which is to violate the law . . . .’’ (Emphasis
in original; internal quotation marks omitted.) Dowling
v. Slotnik, 244 Conn. 781, 807, 712 A.2d 396, cert. denied
sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S.
Ct. 542, 142 L. Ed. 2d 451 (1998).
In Dowling, our Supreme Court examined the
enforceability of an employment contract between an
illegal alien and her employer and specifically whether
the agreement constituted a ‘‘contract of service’’ mak-
ing the illegal alien an ‘‘employee’’ under the Workers’
Compensation Act, General Statutes § 31-275 et seq.
Dowling v. Slotnik, supra, 244 Conn. 806–13. Although
much of the court’s opinion dealt with jurisdiction and
statutory interpretation issues, the court devoted signif-
icant discussion to the employer’s claim that the
employment contract was illegal and unenforceable
because it had been tainted by the plaintiff’s illegal alien
status. Id. Most notably for our purposes, the court
opined in dicta that ‘‘it is in order to effectuate an
underlying public policy, rather than to sanction a party
seeking to enforce an ‘illegal’ contract, that courts
refuse to lend assistance to those who have contributed
to the illegality that taints the contract.’’ Id., 808. In
concluding that the employment agreement between
the plaintiff and her employer was not illegal as a matter
of law merely because of the plaintiff’s status as an
illegal alien, the court weighed broader public policy
purposes heavily in its analysis. Id., 790–96.16
Our Supreme Court dealt with the issue of whether
a new home construction contract was unenforceable
because it was noncompliant with the registration, dis-
closure, and contract language requirements in the New
Home Construction Contractors Act (act), General Stat-
utes § 20-417a et seq. D’Angelo Development & Con-
struction Co. v. Cordovano, 278 Conn. 237, 897 A.2d
81 (2006). In holding that the subject contract was
enforceable and not rendered unenforceable merely by
virtue of the contractor’s failure to abide by several of
the act’s statutory requirements, the court noted that
the underlying purpose of the construction contract at
issue was not to violate the law. Id., 242. Rather, the
court reasoned, the construction contract was meant
to effectuate an ‘‘otherwise legal contract.’’ Id. In similar
fashion to the plaintiff in the present appeal, the party
seeking enforcement of the contract in D’Angelo Devel-
opment & Construction Co., the contractor, caused a
statutory violation in forming the construction contract
because it did not know of the act’s registration require-
ment. Id. Upon becoming aware of the registration
requirement, the contractor immediately sought such
registration in order to comply with the law. Id., 240
n.2, 242. In the present case, the record shows that the
plaintiff did not know that the privacy wall had not
been approved by the commission at the time that it
contracted with the defendant. Once the plaintiff
learned of the discrepancy, it promptly sought a special
use permit from the commission to allow it to construct
the privacy wall. Thus, we conclude that the purpose
undergirding the deck expansion contract and the plain-
tiff’s actions was not to violate Enfield’s zoning regula-
tions, but rather to carry out deck expansion projects
in the most efficient manner possible.
In a case heavily relied upon by the plaintiff and the
defendant, 12 Havemeyer Place Co., LLC v. Gordon,
76 Conn. App. 377, 820 A.2d 299, cert. denied, 264 Conn.
919, 828 A.2d 618 (2003), this court addressed the issue
of whether a lease agreement was illegal ab initio and,
therefore, unenforceable due to its noncompliance with
a site plan’s designated requirements. Id., 383. The dis-
pute arose from a lease of parking spaces in an under-
ground parking garage, which was located between two
neighboring retail office properties, 60 Arch Street and
71 Arch Street, in Greenwich. Id., 380–81. The original
1980 site plan for the garage designated specific
amounts of the garage’s parking spaces for each prop-
erty, but a purchaser that bought both properties in
1988 eventually sold 60 Arch Street to another party
and leased a different amount of parking spaces to the
property than was designated in the site plan. Following
a subsequent lease of the parking spaces between two
successors, the plaintiff lessor brought a summary pro-
cess action against the defendant lessee and argued
that the lease was invalid because of the deviation from
the original site plan. Id., 381–82.17 The trial court con-
cluded that the lease was enforceable.
Following an appeal, this court held that the lease
was enforceable and did not undercut public policy
considerations merely because it did not comply with
the original site plan. Id., 392. We noted that the relevant
inquiry with respect to the lease’s claimed illegality
not only concerned the lease’s purpose, but also the
violated regulation’s dimensions. Id., 389. Thus, in the
context of the case, we framed this aspect of the inquiry
as being ‘‘whether the site plan . . . is a zoning regula-
tion involving the common good or a regulation that
has as its overriding purpose a private goal that does not
contravene the common good.’’ Id. Given that backdrop,
we then considered the nature of zoning laws and viola-
tions of them, keeping in mind the issue of whether
such violations contravened the common good. Id., 389–
91. We stated that ‘‘[p]arties may bind themselves to a
contract that calls on its face for a use of property that
violates the zoning laws because, due to the possibility
of obtaining a variance, such a bargain is not against
public policy or public morals.’’ (Internal quotation
marks omitted.) Id., 390–91. Even though the zoning
board of appeals denied the plaintiff’s variance, we con-
cluded that the possibility that the variance could be
obtained at all cured any of the lease agreement’s
alleged zoning defects. Id., 391–92.
In light of judicial precedent and the facts in the
record, we conclude that the deck expansion contract
in the present case was not illegal such that it was void
as against public policy. In a similar way to the lease
agreement at issue in 12 Havemeyer Place Co., LLC, the
deck expansion contract’s purpose was not to violate
Enfield’s zoning regulations, and it certainly was not
to contravene the common good. Rather, the evidence
shows that the contract’s zoning deviations arose from
a mere administrative oversight committed by the plain-
tiff. Further, the evidence shows that the plaintiff reme-
died the deck expansion contract’s zoning
noncompliance upon becoming aware of it. We also are
persuaded that the severity of the zoning discrepancy
at issue here is not of sufficient magnitude to render
the contract void on public policy grounds. See id., 392
(‘‘[o]n the particular facts of this case, the plaintiff is
not entitled to possession because we hold that the
violation of the zoning laws with regard to the parking
required by the site plan was not sufficient to render
the [contract] illegal as against public policy’’ [emphasis
added]); cf. Foley v. Huntington Co., 42 Conn. App.
712, 723, 682 A.2d 1026 (‘‘restrictions imposed by gov-
ernmental authority, such as zoning regulations, are not
a defect affecting marketable title to property’’), cert.
denied, 239 Conn. 931, 683 A.2d 397 (1996); Voorhees-
ville Rod & Gun Club v. E.W. Tompkins Co., 82 N.Y.2d
564, 572, 626 N.E.2d 917, 606 N.Y.S.2d 132 (1993) (real
property vendor’s failure to seek subdivision approval
before conveying land did not render title to land unmar-
ketable under municipal regulations).
We are mindful of the defendant’s reiteration of her
argument in the context of this claim, that the court also
erred by not addressing whether the deck expansion
contract was illegal for reasons other than it’s noncom-
pliance with the zoning regulations. As we concluded
in part I of this opinion, the court did not err by failing
to address other claims regarding the illegality of the
deck expansion contract or the impossibility of its per-
formance in its memorandum of decision because the
defendant did not distinctly raise those other claims
or furnish the court with sufficient evidence of them.
Accordingly, we conclude that the court did not err by
concluding that the deck expansion contract was legal
and enforceable.
The judgments are affirmed.
In this opinion the other judges concurred.
1
Robert E. Johnston is also named as a defendant in the present case.
He is a nonunit owner occupant of the condominium that is the subject of
this dispute, to which Carol A. Johnston holds title. Mortgage Electronic
Registration Systems, Inc., as nominee for USAA Federal Savings Bank, is
also named as a defendant, but it is not a party to this appeal. Accordingly,
for purposes of this opinion, we refer to Carol A. Johnston as the defendant.
2
The plaintiff is a common interest community unit owners’ association
whose common interest community is located in Enfield.
3
Specifically, at this August 31, 2011 meeting, the board unanimously
passed a motion ‘‘to begin a fine of $25 per day until the accumulated total
is equal to 3 months of common fees and if unpaid, turn to collection and
pursue getting a court order . . . for the homeowner to adhere to the
original agreement and specifications.’’
4
The plaintiff also indicated in the September 20, 2011 letter that it could
bring a legal action against the defendant to foreclose its statutory lien
securing any of her unpaid fines if she decided not to comply with the
plaintiff’s demands.
5
General Statutes § 47-258 provides in relevant part: ‘‘(a) The association
has a statutory lien on a unit for any assessment attributable to that unit
or fines imposed against its unit owner. Unless the declaration otherwise
provides, reasonable attorneys’ fees and costs, other fees, charges, late
charges, fines and interest charged pursuant to subdivisions (10), (11) and
(12) of subsection (a) of section 47-244 and any other sums due to the
association under the declaration, this chapter, or as a result of an administra-
tive, arbitration, mediation or judicial decision, are enforceable in the same
manner as unpaid assessments under this section. . . . (g) A judgment or
decree in any action brought under this section shall include costs and
reasonable attorney’s fees for the prevailing party. . . . (j) The association’s
lien may be foreclosed in like manner as a mortgage on real property.’’
6
The plaintiff eventually withdrew the second count from its complaint.
7
In her answer, the defendant pleaded only two special defenses, illegality
due to the contract’s violating Enfield zoning laws, and coercion. The defen-
dant did not make any mention of her impossibility claim.
8
In her pretrial memorandum, the defendant stated that there were three
issues in the matter: (1) whether the deck expansion contract was valid;
(2) whether the defendant violated the contract; and (3) whether the Enfield
zoning regulations supersede the plaintiff’s bylaws and the declaration. Fur-
ther, the defendant made the following claims of law: ‘‘The Defendant
believes that the contract is illegal based upon the unequal bargaining posi-
tions of the parties. The Plaintiff had no authority to impose terms and
conditions on the Defendant inconsistent with the approved plans of the
Condominium Association by the Town of Enfield. The Plaintiff cannot
unilaterally change the terms and conditions approved by the Town of
Enfield. The Plaintiff committed a fraud upon the Defendant by the misrepre-
sentations of the requirements of the deck replacement or expansion.’’
9
In her objection to the plaintiff’s motion for summary judgment, although
the defendant again had a chance to argue that there were material issues
of fact as to whether it was impossible for her to perform under the deck
expansion contract, she failed to do so distinctly.
10
During trial, the defendant’s counsel put on only one witness, Robert
E. Johnston, who only testified, more or less, about when the defendant
entered into the deck expansion contract with the plaintiff, what the dimen-
sions of unit 92’s deck were before and after the expansion, and who carried
out the construction of the deck. As for the plaintiff’s witnesses, who were
the property manager and the secretary of the board, the defendant’s counsel
could have asked questions about the need for all unit owners to vote on
and to approve expansion of unit 92’s deck onto common elements, yet he
failed to do so. Instead, the defendant’s counsel focused his cross-examina-
tion questions on the zoning issues that arose with the deck expansion
contract and the requirements of the contract itself.
11
We further note that the defendant did not set forth this claim as a
special defense. ‘‘In an action by a corporation, foreign or domestic, founded
upon any contract, express or implied, the defendant shall not, under a
general denial, be permitted to dispute, but shall be deemed to admit, the
capacity of the plaintiff to make such contract.’’ Practice Book § 10-49.
12
The defendant notes that the special use permit was not legally effective
until a certified copy of it was recorded in the Enfield land records pursuant
to General Statutes § 8-3d. Thus, the defendant asserts that the plaintiff’s
fines against her were unlawful because they were based on the defendant’s
failure to construct a privacy wall that was not able to be built legally until
several months after the fines began to accrue.
13
The defendant also notes that the civil action that she filed seeking a
declaratory judgment regarding the deck expansion contract’s enforceabil-
ity; see Johnston v. Carriage House I-Enfield Assn., Inc., Superior Court,
judicial district of Hartford, Docket No. CV-11-6026612-S; was still pending
during the time that she was being fined for not abiding by the contract’s
requirements, which, according to her, further justified her argument that
it was impossible for her to build a privacy wall pursuant to the contract.
14
We reject the fourth component of this claim because of our conclusion
in part I A of this opinion.
15
Moreover, even if we were to consider the claim on its merits, evidence
in the record readily demonstrates that the defendant’s claim lacks merit.
Specifically, the evidence shows that despite the fact that the defendant
learned that the commission had not approved a privacy wall for unit 92’s
deck, she chose to breach the contract by obtaining a building permit without
a privacy wall and commencing in building the deck without waiting for
the plaintiff to obtain a permit allowing the wall. Further, the evidence
shows that before the plaintiff began fining the defendant on October 6,
2011, the plaintiff gave the defendant the option of either returning unit 92’s
deck to its original state or constructing the privacy wall. The defendant
chose to do neither and now claims that she should not have been fined
until the permit allowing the privacy wall was recorded with the Enfield
town clerk’s office. We disagree.
16
Specifically, the court not only examined the policy rationale behind
the Workers’ Compensation Act; Dowling v. Slotnik, supra, 244 Conn. 799–
801, but it also discussed the rationale behind the Immigration Reform and
Control Act of 1986, 8 U.S.C. § 1101 et seq. (2012), which also pertained to
the parties’ case. Id., 795–97. The court primarily focused its analysis with
respect to the latter statutory scheme on 8 U.S.C. § 1324a (a), which makes
it unlawful knowingly to employ illegal aliens. After acknowledging that
the Immigration Reform and Control Act’s primary purpose is to punish
employers that knowingly hire illegal immigrants, the court ultimately con-
cluded that deeming the disputed employment contract enforceable would
further the act’s purpose because it would punish the employer who hired
the illegal alien by requiring it to pay into the workers’ compensation fund.
Id., 810–13.
17
Specifically, the defendant filed a separate action from the one on appeal,
in which he sought injunctive relief, damages, and a declaratory judgment
that the lease was valid and enforceable. 12 Havemeyer Place Co., LLC v.
Gordon, supra, 76 Conn. App. 382. The plaintiff filed a counterclaim pleading
that the defendant was liable for tortious interference with its leases with
its own tenants in the 60 Arch Street building. Id. The defendant subsequently
withdrew his application for a temporary restraining order against the plain-
tiff in exchange for its agreement to seek a variance with the town of
Greenwich. Id. The plaintiff did seek a variance, but the Greenwich Zoning
Board of Appeals denied it, concluding that the plaintiff had not demon-
strated the requisite hardship. Id. A Greenwich zoning enforcement officer
then cited the plaintiff for a violation of a municipal zoning ordinance
because of its reduction of on-site parking spaces for 60 Arch Street from
forty-eight spaces to forty-two spaces, and he ordered it to restore the six
parking spots as being for use by 60 Arch Street. Id. At this point, the plaintiff
served the defendant with a notice to quit and brought a summary process
action against him for immediate possession of the sixteen parking spaces
that had been subject to the 1988 lease. Id., 382–83. This summary process
action became the subject of the appeal.