160 Conn.App. 226
Conn. App. Ct.2015Background
- Defendant Carol Johnston contracted with the condominium association to expand her townhouse deck in 2011; the written contract required a privacy wall and other specific construction details.
- The town planning commission had approved a 2010 special use permit for deck expansions generally, but the privacy wall for unit 92 was not approved in that permit.
- Defendant obtained a building permit (May 16, 2011) that did not include a privacy wall, built the deck without the wall and deviated from other contract specs.
- The association later sought and obtained a new special use permit authorizing privacy walls (approved July 21, 2011; recorded Feb. 1, 2012), notified defendant to install the wall or restore the deck, fined her $25/day after she refused, and ultimately installed a freestanding wall.
- The association sued to foreclose its statutory lien for unpaid fines; defendant counterclaimed and raised defenses that the deck contract was illegal (zoning noncompliance) and coerced, and later asserted impossibility.
- Trial court found the contract valid and enforceable, granted foreclosure by sale, denied defendant’s motion for reargument; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant waived an impossibility/illegality defense based on lack of unit-owner vote | Association: defendant failed to distinctly raise this defense at pleadings, pretrial, or trial and thus waived it | Johnston: performance was impossible because expansion/privac y wall required vote of other unit owners under the declaration | Court: defense was waived; denial of reargument not an abuse of discretion |
| Whether court committed plain error by treating defense as waived | Association: no plain error—defense was not preserved and issues were confined to zoning noncompliance | Johnston: court only addressed zoning illegality, not lack-of-vote impossibility, so error | Court: plain error not shown; challenge does not warrant extraordinary remedy |
| Whether defendant could dispute damages/timing of fines (recording of permit, changing specs, freestanding wall) | Association: fines and damages proper given notice and defendant’s breach/refusal to comply | Johnston: fines unlawful because permit not recorded until later; specs changed; plaintiff built wall yet continued fines | Court: these contentions were not distinctly raised below as damage defenses; appellate court declines to review them |
| Whether the deck-expansion contract was illegal/unenforceable due to zoning noncompliance | Association: any zoning defect was curable (variance/special permit); plaintiff promptly sought special use permit; contract not contrary to public policy | Johnston: contract illegal ab initio for noncompliance with town zoning and/or condominium rules | Court: contract not void as against public policy; zoning defect was administrative and was remedied—contract enforceable |
Key Cases Cited
- Dowling v. Slotnik, 244 Conn. 781 (Conn. 1998) (courts refuse to assist parties who contributed to illegality; contract enforceability depends on public policy inquiry)
- D'Angelo Dev. & Constr. Co. v. Cordovano, 278 Conn. 237 (Conn. 2006) (contract noncompliance with statutory requirements does not automatically render it unenforceable where purpose is not to violate law and defects are curable)
- Reardon v. Windswept Farm, LLC, 280 Conn. 153 (Conn. 2006) (contracts violating public policy are void; enforceability depends on facts and circumstances)
- Parente v. Pirozzoli, 87 Conn. App. 235 (Conn. App. 2005) (question whether contract is illegal/enforceable is a legal issue reviewed plenarily)
- 12 Havemeyer Place Co., LLC v. Gordon, 76 Conn. App. 377 (Conn. App. 2003) (zoning or site-plan deviations that could have been cured by variance do not necessarily render agreements void as against public policy)