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.)
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the
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Ronald J. Barba, for the appellee (plaintiff).
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 unenforceable contract between the plaintiff and the defendant subsequently was rendered legal and enforceable. We affirm the judgments of the trial court.
The following facts, as found by the court, and procedural 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 layouts 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 submitted 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 Commission (commission) approved the plaintiff‘s application for a special use permit. On July 29, 2010, the commission‘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 defendant, commenced planning the deck expansion projects. 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 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 defendant 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 constitute a breach of the April 6, 2011 deck expansion contract. 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 defendant‘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, completing 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 defendant‘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 contract 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
The defendant failed to respond to the plaintiff‘s letter. 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 plaintiff 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 defendant 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 equitable 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 expansion 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 foreclosure on unit 92 pursuant to
In her answer, the defendant raised the following two special defenses: (1) the deck expansion contract 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.7 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 plaintiff‘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. Accordingly, 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
The court denied the defendant‘s motion. It concluded 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
A
We first address the defendant‘s claim that the court abused its discretion by denying her motion for reargument and reconsideration relating to her claim of impossibility. 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 decision 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 reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably 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 demonstrate 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 quotation 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
The defendant has not met her burden of proving that the court abused its discretion by denying her motion for reargument and reconsideration. Specifically, 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. Horton, 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 evidence in the record, particularly provisions in the declaration, 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 expansion of the deck without first obtaining permission from all of the other unit owners who had possessory interests 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 conceivably 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 judgment,9 and during the trial.10 With respect to the evidence 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 reargument 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 deficiencies, 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
“The plain error doctrine, which is codified in
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 omitted.) 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 impossibility defense that had been waived. Both claims, however, 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 challenge—based on the court‘s reasonable determination of what issues properly were before it for its consideration—does not give rise to plain error concerns. Additionally, 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
Although the defendant casts her arguments regarding this claim in terms of her alleged “impossibility” defense, we conclude that this claim pertains to damages 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 memorandum, 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 having 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
II
The defendant also takes issue with the court‘s ruling that the initially illegal deck expansion contract subsequently could be rendered legal and enforceable. The plaintiff argues that the defendant‘s illegality claim lacks merit because, although the deck expansion contract‘s requirement of a privacy wall on unit 92‘s deck was not entirely compliant with Enfield‘s zoning regulations, 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 regulations. 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 decision as to whether a contract is illegal and unenforceable 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 Restaurant 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,
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” making the illegal alien an “employee” under the Workers’ Compensation Act,
Our Supreme Court dealt with the issue of whether a new home construction contract was unenforceable because it was noncompliant with the registration, disclosure, and contract language requirements in the New Home Construction Contractors Act (act),
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 dispute arose from a lease of parking spaces in an underground 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 property, 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 process 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 concluded 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 regulation 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 violations 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 concluded that the possibility that the variance could be obtained at all cured any of the lease agreement‘s alleged zoning defects. Id., 391–92.
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 noncompliance 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 performance 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.