author: GRUENDEL, J.

text:
    HYDE ROAD DEVELOPMENT, LLC v. PUMPKIN ASSOCIATES, LLC
    (AC 32328)
    DiPentima, C. J., and Graendel and Mihalakos, Js.

      Argued May 16
    officially released July 12, 2011

      Eric H. Rothauser, with whom were Jay B. Weintraub and, on the brief, Louisa S. Lindberg, law clerk, for the appellant (defendant).

      Sheila A. Huddleston, with whom were R. Michael Meo, Jr., and, on the brief, Alison P. Baker, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant, Pumpkin Associates, LLC, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Hyde Road Development, LLC. The dispositive issue in this appeal is whether the grantee of an express easement appurtenant must also be the owner of the dominant estate to which the benefit of the easement purportedly belongs. The court concluded that, pursuant to Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 735 A.2d 798 (1999), the grantee of an express easement appurtenant need not hold title to the dominant estate. We disagree and, accordingly, reverse the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The plaintiff is principally owned by Roger Toffolon. Toffolon is also the principal owner of White Oak Excavators, Inc., and its successor, the White Oak Corporation (White Oak), and the Connecticut Sand and Stone Corporation (Stone). In 1967, Stone owned a parcel of property in Farmington (parcel one) and the Balf Corporation (Balf) owned a parcel of property adjacent to parcel one, also located in Farmington (parcel two). In July, 1967, Balf conveyed a right-of-way by quitclaim deed (1967 deed) to White Oak, granting White Oak, “its successors and assigns forever, a . . . permanent easement to construct, maintain and repair a roadway, fifty . . . feet in width” over parcel two (right-of-way). The 1967 deed specifically identified White Oak as grantee of the right-of-way and included a metes and bounds description of both parcel two and the right-of-way. Toffolon explained that the right-of-way was used by White Oak and Stone to haul raw earth materials from parcel one, although it is undisputed that White Oak never held an ownership interest in parcel one or any other property in the surrounding area.

On February 14, 2001, parcel two was sold to the defendant. On November 21, 2001, Stone sold parcel one to the plaintiff. In 2003, the plaintiff was approached by AT&T, which was interested in acquiring a site for a cell phone tower (tower) on parcel one. Subsequently, the plaintiff and AT&T entered into an agreement, whereby AT&T would lease a portion of parcel one for the purpose of installing and maintaining the tower. Prior to construction of the tower, however, the plaintiff was informed that the right-of-way would need to be developed into a roadway and that utilities would need to be installed under it so that the tower could be serviced adequately. Accordingly, the plaintiff contacted the defendant regarding the modifications to the right-of-way that the plaintiff sought to have installed to consummate the transaction with AT&T. The defendant objected to the plaintiffs proposed modifications, claiming, inter alia, that the right-of-way was invalid and that the plaintiff had no right of access over the right-of-way. On December 2, 2005, White Oak, by way of a quitclaim deed, granted its interest in the right-of-way to the plaintiff.

In 2007, the plaintiff commenced this action, seeking, inter alia, a declaratory judgment “decreeing that as the owner of the [right-of-way] . . . [it] has a clear and unambiguous right to construct, maintain and repair a road over the [right-of-way], including the right to install underground utilities . ...” In response, the defendant filed a counterclaim seeking, inter alia, a declaratory judgment that the “[plaintiffs alleged [right-of-way] is invalid . . . .” The matter was tried to the court on November 18 and 19, 2009, during which the court heard testimony from five witnesses and received numerous exhibits into evidence. Following posttrial briefing, the court, on May 26, 2010, issued a memorandum of decision, ruling in favor of the plaintiff and concluding, inter alia, that the right-of-way “is a valid easement appurtenant containing the right to build a roadway containing utilities . . . .” Specifically, the court determined that, although parcel one was not identified as the dominant estate in the 1967 deed conveying the right-of-way to White Oak, the plaintiff had proven that parcel one was the dominant estate pursuant to our Supreme Court’s decision in Branch v. Occhionero, 239 Conn. 199, 206, 681 A.2d 306 (1996), and, therefore, the benefit of the right-of-way inured to the plaintiff as the owner of parcel one. Additionally, the court reasoned that, given the Supreme Court’s decision in Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 135, the fact that WTiite Oak, as the express beneficiary of the right-of-way in the 1967 deed, did not own parcel one was not dispositive given Connecticut’s abolition of the unity of title doctrine. Id., 143-45. This appeal followed.

The defendant now claims that the court improperly determined that the 1967 deed conveying the right-of-way over parcel two to White Oak created a valid easement appurtenant intended to benefit parcel one. In this regard, the defendant does not dispute that the 1967 deed was intended to create an express easement appurtenant in favor of White Oak. Rather, the defendant argues that because White Oak did not own parcel one, or any property in the surrounding area of the right-of-way, no dominant estate could exist to effectuate the express easement appurtenant purportedly created by the 1967 deed. We agree.

Before addressing the merits of the defendant’s claim, we begin by setting forth the legal principles and standard of review governing our analysis. “Easements are classified as either easements appurtenant or easements in gross. . . . Two distinct estates are involved in an easement appurtenant: the dominant to which the easement belongs and the servient upon which the obligation rests. ... An easement appurtenant must be of benefit to the dominant estate but the servient estate need not be adjacent to the dominant estate.” (Internal quotation marks omitted.) Irving v. Firehouse Associates, LLC, 95 Conn. App. 713, 728, 898 A.2d 270, cert. denied, 280 Conn. 903, 907 A.2d 90 (2006). “An easement appurtenant lives with the land. It is a parasite which cannot exist without a particular parcel of realty. An appurtenant easement is incapable of existence separate and apart from the particular land to which it is annexed. . . . [An easement appurtenant] inheres in the land and cannot exist separate from it nor can it be converted into an easement in gross. ... An appurtenant easement cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant. . . . Further, because of the incorporeal nature of an easement appurtenant, its owner cannot be disseized or otherwise ousted of it; he can only be disturbed or obstructed in its enjoyment.” (Citations omitted; internal quotation marks omitted.) Harkins v. Girouard Estates, Inc., 31 Conn. App. 485, 495, 625 A.2d 1388, cert. denied, 227 Conn. 906, 632 A.2d 691 (1993).

“The burden of proof rests upon [the party], who claim[s] the right-of-way ... to show the existence of all facts necessary to prove the right-of-way was created as an appurtenance to [its property].” Branch v. Occhionero, supra, 239 Conn. 205. The court’s findings of fact are subject to the clearly erroneous standard of review. See Castonguay v. Plourde, 46 Conn. App. 251, 261, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006); see also Practice Book § 60-5.

In Branch, the defendants claimed that they had a right-of-way over the plaintiffs’ property on the basis of a deed, dated May 1, 1886, from H. Pascal Beckwith to John Borland (1886 deed). Branch v. Occhionero, supra, 239 Conn. 201. In the 1886 deed, Beckwith conveyed property in Waterford to Borland, subject to a right-of-way over the property in favor of John Gardner and his heirs. Id. At the time that the 1886 deed was executed, Gardener “owned two parcels of land in Waterford.” (Emphasis added.) Id. One property was immediately north and adjacent to the Borland property. Id. The other property was located one quarter of a mile south of the southwest comer of the Borland property. Id. At the time of trial, the plaintiffs had acquired the Borland property and the defendants had acquired the Gardner property that was immediately north of the Borland property. Id. The plaintiffs’ deed to the Borland property contained the reservation that it was subject to the right-of-way; however, none of the deeds in the defendants’ chain of title contained reference to the right-of-way. Id.

The trial court in Branch rejected the defendants’ claim to the right-of-way over the plaintiffs’ property. Id., 202-204. Specifically, the court concluded, inter alia, that there was no evidence that Gardner “used or claimed the right-of-way as an appurtenance to the defendants’ property,” as opposed to the other property owned by Gardner that was located one quarter of a mile south of the southwest comer of, what was by then, the plaintiffs’ property. Id., 204. “In other words, the trial court was unable to identify which property owned by Gardner in 1886 was the dominant estate.” (Emphasis added.) Id. The defendants appealed, and the appeal was transferred to the Supreme Court, which affirmed the judgment of the trial court. Id., 203. On appeal, the Supreme Court explained that, because the “grant to Gardner in the 1886 deed does not identify which of the two parcels owned by Gardner was intended to be the beneficiary of the right-of-way . . . the defendants failed to establish that the right-of-way set forth in the 1886 deed was intended to benefit their property.” (Emphasis added.) Id., 206.

In the present case, the 1967 deed conveying the right-of-way to White Oak does not identify parcel one or any parcel of property as the dominant estate to be served by the right-of-way, nor does it identify Stone, as the plaintiffs predecessor in title to parcel one, as a beneficiary of the right-of-way. Nonetheless, the court concluded that, pursuant to Branch, the plaintiff, as the party claiming the right-of-way, could prove and had proven, that on the basis of the factual circumstances surrounding execution of the 1967 deed and use of the right-of-way, parcel one was the dominant estate to be benefited by the right-of-way. See id. The fundamental distinction between Branch and the present case, however, is that the express grantee of the appurtenant easement in Branch—namely, Gardner—was also the owner of both of the dominant estates that could possibly have been intended to be benefited by the right-of-way, including the one that the defendants in Branch owned as Gardner’s successors in title. See id., 201-204; see also Murray v. Schroeder, 59 Conn. App. 747, 752-53, 757 A.2d 1256 (2000) (beneficiary of easement appurtenant as owner of dominant estate identified adequately from circumstances); D’Addario v. Truskoski, 57 Conn. App. 236, 247-48, 749 A.2d 38 (no dispute as to dominant estate where dominant estate and its owner identified in deed), cert. denied, 253 Conn. 918, 755 A.2d 214 (2000). Here, unlike in Branch, the express grantee of the easement appurtenant—namely, White Oak—did not own any property, including parcel one, within the area that the right-of-way could possibly benefit. Thus, even looking to the factual circumstances surrounding the execution of the 1967 deed, there is no dominant estate owned by White Oak as the express grantee of the easement appurtenant that could be benefited by the right-of-way. Accordingly, the court’s reliance on Branch to justify its conclusion that the estate of a third party, owned by one other than the express grantee of an easement appurtenant, can prove it was the intended beneficiary and dominant estate of that easement is misplaced, and the court’s factual findings attendant thereto are clearly erroneous.

Our analysis, however, does not end here. The court’s conclusion that White Oak as the express grantee of the right-of-way need not own parcel one for it to be the dominant estate was also based on its interpretation of Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 144. In Bolan, our Supreme Court abolished the unity of title doctrine adopted originally in Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968). As such, a brief review of Curtin is beneficial to our analysis.

“In Curtin, the plaintiff claimed that she owned a right of way over the defendant’s property. Both parties traced their chains of title to a common grantor. The trial court determined that the grantor had reserved a right of way over the defendant’s property for the benefit of the plaintiffs property, and rendered judgment for the plaintiff. On appeal, [the Supreme Court] noted that, [under the unity of title doctrine] [t]he [right of] way can become legally attached to the dominant estate only if the same person has unity of title to both the [right of] way and the dominant estate. . . . Concluding that the plaintiff had failed to establish that the common grantor had owned her property at the time he had reserved an easement over the defendant’s property, [the Supreme Court] reversed the judgment of the trial court.” (Citation omitted; emphasis added; internal quotation marks omitted.) Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 143-44. Therefore, as articulated originally in Curtin and abolished by Bolán, the unity of title doctrine previously required that “an easement be created by a person who has title to both the easement area and the property to be served by the easement.” (Emphasis added.) Id., 144.

Here, the court reasoned that “because the Supreme Court has abolished the unity of title doctrine, there is no need for [White Oak] to own the dominant estate.” In abolishing the unity of title doctrine, the Supreme Court in Bolán held only that the grantor of an easement need not hold title to both the easement area—namely, the servitude—and the dominant estate for the easement to be validly created. See Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 144. The Supreme Court’s holding in Bolán did not address the issue of whether the grantee of an express easement appurtenant need also be the owner of the dominant estate the easement purportedly benefits. Moreover, we are aware of no case, either in this jurisdiction or any other, that stands for the proposition that the express grantee of an easement appurtenant need not be the owner of the dominant estate the easement is intended to benefit. Nevertheless, we conclude that the principles governing the valid creation and execution of’ an express easement appurtenant mandates that the express grantee of the easement appurtenant must also be the owner of the dominant estate that the easement is intended to benefit. See Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 515, 757 A.2d 1103 (2000) (“[A]s a general rule, an appurtenant benefit may not be severed and transferred separately from all or part of the benefited property. . . . The purpose of this rule mirrors that of the rule against the use of the easement to benefit a nondominant estate. Limiting use of an appurtenant easement or profit to holders of the dominant estate . . . limits the potential burden on the servient estate. . . . Permitting severance and separate transfer of the benefit would generally permit conversion of an appurtenant benefit into a benefit in gross, imposing a greater burden on the property.” [Citation omitted; emphasis added; internal quotation marks omitted.]);1 Restatement (Third), Property, Servitudes § 1.5, comment (a), p. 31 (2000) (“appurtenant means that the benefit can be used only in conjunction with ownership or occupancy of a particular parcel of land” [emphasis added]). In addition, our Supreme Court has noted that “it would be contrary to common sense to disallow, in some cases, the use of the easement for the benefit of a nondominant estate owned by the dominant estate owner, but allow the use of the easement for the benefit of a nondominant estate owned by a nonowner of the dominant estate. Stated another way, it would be incongruous to allow the expansion of the use of an easement, appurtenant to the dominant estate, to benefit a party who does not hold a possessory interest in the dominant estate, but disallow the expansion of the use of the easement to benefit a nondominant estate that subsequently was acquired by the dominant estate owner.” Il Giardino, LLC v. Belle Haven Land Co., supra, 254 Conn. 515.

In sum, we conclude that the 1967 deed expressly granting White Oak the right-of-way over parcel two sought to establish an easement appurtenant in favor of White Oak. White Oak, however, did not own a parcel of property that could be identified as the dominant estate to which the benefit of the right-of-way was intended to run. Because the express grantee of an easement appurtenant must be the owner of the dominant estate that the easement benefits, the court incorrectly concluded that parcel one, a parcel not owned by White Oak, was the dominant estate. Indeed, because Wdiite Oak did not own any parcel in relation to the right-of-way that could possibly be deemed the dominant estate, the 1967 deed intending to create the easement appurtenant in favor of WTiite Oak itself was invalid. Accordingly, we conclude that the court improperly determined that the 1967 deed established a valid easement appurtenant in favor of the plaintiff.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment vacating the 1967 deed.

In this opinion the other judges concurred.

       The defendant is owned by Joseph Gilberti. Gilberti testified that he was aware of the existence of the right-of-way at the time that parcel two was purchased by the defendant. Additionally, we note that the right-of-way was identified both on an appraisal report prepared in anticipation of the sale of parcel two to the defendant, as well as a title insurance policy covering the sale of parcel two to the defendant. In fact, the right-of-way was listed as an encumbrance on the warranty deed of parcel two to the defendant.

       The warranty deed from Stone to the plaintiff included language that referenced Stone’s right to utilize the right-of-way, notwithstanding the fact that Stone was not identified as a beneficiary of the right-of-way in the 1967 deed.

       Given the defendant’s objection to the proposed modifications, the plaintiffs agreement with AT&T has been terminated.

       We note that the court’s memorandum of decision explicitly concludes that the 1967 deed created an easement appurtenant, a finding that the defendant does not contest on appeal. Although a portion of the plaintiffs appellate brief argues in the alternative that the 1967 deed created an easement in gross, the majority of the plaintiffs appellate brief and argument in this appeal is devoted to analyzing the 1967 deed as creating an easement appurtenant. Moreover, our own review of the 1967 deed, as well as the factual circumstances surrounding its creation as found by the court, confirms that the 1967 deed sought to establish an easement appurtenant. Accordingly, we limit our analysis to a consideration of the 1967 deed’s validity as establishing an express easement appurtenant with parcel one as the alleged dominant estate.

       The fact that the warranty deed from Stone to the plaintiff referenced the right-of-way does not alter our analysis, as Stone had no interest in the right-of-way and, a fortiori, no right to convey it to the plaintiff. See Powers v. Olson, 252 Conn. 98, 109 n.6, 742 A.2d 799 (2000) (“one cannot convey greater title than that which one possesses”).

       It is telling that the 1967 deed granting the right-of-way to White Oak expressly authorized White Oak to transfer its interest in the right-of-way that purportedly benefited parcel one as the dominant estate. It is undisputed, however, that White Oak held no ownership interest in parcel one. Thus, pursuant to the 1967 deed, it would be possible for White Oak to transfer the right-of-way, but impossible for White Oak to transfer parcel one as the dominant estate the right-of-way was allegedly intended to serve. Such a result is contrary to the principles underlying the validity of an easement appurtenant. See Harkins v. Girouard Estates, Inc., supra, 31 Conn. App. 495 (“[a]n appurtenant easement cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant”); 2 Restatement (Third), Property, Servitudes § 5.6, comment (a), p. 47 (2000) (“appurtenant benefits may not be severed and transferred separately from all or part of the benefited property”).
      Additionally, we are mindful of the policy concerns raised by the defendant with respect to servient estate owners seeking to ascertain the identity of the party holding title to a right-of-way where that party is, in fact, different than the express beneficiary of the right-of-way in an operative deed. If the court’s decision were allowed to stand in the present case, future owners of servient estates in similar circumstances would be left to a veritable search for a “needle in a haystack’ ” in determining the true ownership of a servitude and the dominant estate to which its benefit runs. See 1 Restatement (Third), Property, Servitudes § 4.5, comment (d), p. 542 (2000) (“[t]he holders of appurtenant benefits can be located through land . . . records, which facilitates the process of negotiating modification and termination of servitudes”).


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    METROPOLITAN DISTRICT COMMISSION v. CONNECTICUT RESOURCES RECOVERY AUTHORITY
    (AC 32418)
    Robinson, Bear and Borden, Js.

      Argued April 25
    officially released July 12, 2011

      William H. Champlin III, with whom were Miguel A. Escalera, Jr., and, on the brief, Diana Garfield, for the appellant (defendant).

      William H. Clendenen, Jr., with whom were R. Bartley Halloran and, on the brief, Kevin C. Shea and Maura A. Mastrony, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

In this action to compel arbitration, the defendant, the Connecticut Resources Recovery Authority, appeals from the judgment of the trial court rendered in favor of the plaintiff, the Metropolitan District Commission. On appeal, the defendant claims that the court (1) improperly interpreted the parties’ contract and (2) abused its discretion by failing to conduct an evidentiary hearing. We affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the present appeal. In 1984, the plaintiff and the defendant entered into a contract for the construction and operation of a waste-to-energy facility in Hartford. Article VII concerns dispute resolutions and provides that all disputes arising between the parties shall be adjudicated by arbitration before a tripartite arbitration panel. Pursuant to article VII, “either party may initiate arbitration [proceedings] by appointing a person to serve as one of the arbitrators and so advising the other party in writing.” The other party then shall appoint “a second person as an arbitrator and the two . . . [party] appointed [arbitrators] shall select a third arbitrator . . . .” If the two party-appointed arbitrators are unable to select a third arbitrator, then the parties shall make the selection; however, if the parties are unable to agree on a third arbitrator, “then any one of the parties . . . may request such appointment from and pursuant to the rules of the American Arbitration Association [(association)].”

On September 21,2009, the plaintiff served the defendant with a notice of dispute. After the parties were unable to resolve the dispute, the plaintiff served the defendant with a formal demand for arbitration on October 7, 2009. In the demand, the plaintiff appointed John F. Droney, an attorney who previously had represented the plaintiff, to serve as an arbitrator. On October 16, 2009, the defendant appointed a second arbitrator, attorney Richard W. Bowerman. Droney and Bowerman were unable to agree on a third arbitrator, so the parties agreed to appoint the Honorable Alan H. Nevas, a former United States District Court judge for the District of Connecticut, to serve as the third arbitrator on October 26, 2009. Once all three arbitrators had been appointed, the defendant objected to Droney serving as an arbitrator.

By complaint filed December 4, 2009, the plaintiff brought this action against the defendant to compel arbitration of the dispute. The plaintiff claimed that the contract permitted each party to appoint a non-neutral arbitrator, and it requested that the court compel arbitration in compliance with this reading of the contract. The defendant responded by filing a special defense, in which it disagreed with the plaintiffs interpretation of the contract. According to the defendant, the contract provided that the rules of the association would apply to the selection of the party-appointed arbitrators. Under these rules, party-appointed arbitrators “must be impartial and independent unless otherwise agreed [to] in writing by the parties.” The defendant argued that the parties did not agree in writing to alter this requirement and, therefore, the plaintiffs request to compel arbitration with non-neutral arbitrators conflicted with the contractual requirements.

The defendant also filed a two count counterclaim. In the first count, the defendant again took the position that the rules of the association applied to the selection of the party-appointed arbitrators. In addition to requiring the appointment of a neutral arbitrator, the defendant alleged that these rules “vestfed] the decision making authority on issues relating to the continued service of [a party-appointed] arbitratorio the [association].” In its prayer for relief, the defendant requested that the court issue an order compelling arbitration with “neutral, impartial and independent arbitrators” and an order directing the parties to submit the issue of Droney’s disqualification to the association.

In the second count, the defendant claimed that Droney’s appointment and service as an arbitrator would deprive the defendant of a fair and just arbitration proceeding. In support of this allegation, the defendant alleged that: (1) Droney had “acted regularly as counsel in concert and coordination with the [plaintiff] including on matters specifically relating to [the] arbitration”; (2) the plaintiff and Droney had “consulted on many occasions as client and attorney regarding issues likely to be involved in this arbitration”; (3) the plaintiff and Droney had an attorney-client relationship “in connection with issues regarding the rules for [the] arbitration . . . and consulted on issues relating to [the defendant] directly for at least [eight] months prior to [the date of Droney’s appointment]”; and (4) Droney provided legal services to the plaintiff on matters directly relevant to the arbitration until August 20, 2009. In its prayer for relief, the defendant requested, inter alia, an order compelling arbitration with arbitrators “who are impartial and independent” and “[s]uch other equitable relief as the [c]ourt deems reasonable and necessary.”

The parties submitted memoranda of law in support of their claims, and the trial court heard oral arguments and received exhibits. During oral arguments, the defendant’s argument focused on its special defense and the first count of its counterclaim, namely, its contention that the contract should be interpreted to require each party to adhere to the rules of the association when appointing an arbitrator. The defendant sought to reserve the issues in the second count of its counterclaim for presentation of evidence and oral arguments if the court determined that the rules of the association did not apply. Specifically, the defendant argued that it had a right to an evidentiary hearing on its claim that “Droney’s involvement with [the plaintiff was] so substantial as to render him not someone who can, legally, under Connecticut law, serve as an arbitrator in this [arbitration].”

Thereafter, the court issued its memorandum of decision. As a threshold matter, the court determined that the language of the contract was clear and unambiguous, and, therefore, that the issue of what the parties intended by their contractual commitment was a question of law. After reviewing the contract, the court concluded that it permitted each party to appoint a non-neutral arbitrator. In reaching this conclusion, the court determined that the parties did not intend for the rules of the association to be applicable “to the parties’ individual selection of an arbitrator” and, accordingly, rejected the defendant’s interpretation of the contract. On the basis of its conclusion that the parties could each appoint a non-neutral arbitrator, the court further concluded that it was unnecessary to consider the defendant’s claim for equitable relief set forth in the second count of the counterclaim. Thereafter, the court rendered judgment in favor of the plaintiff on its complaint and on both counts of the defendant’s counterclaim.

The defendant thereafter filed a motion to reargue, claiming, inter alia, that it had reserved the right to argue and present evidence on the second count of its counterclaim, and that the court, therefore, should have conducted an evidentiary hearing on this claim before rendering judgment. The defendant requested a reargument in order “to present evidence and argument regarding the close and direct personal involvement between [Droney] and the [plaintiff] . . . .”

The court denied the motion “[f]or the reason that both counts of the counterclaim ask for the same relief, that is, an order compelling the [plaintiff] to appoint a neutral arbitrator.” The court determined that “[i]n light of [its] interpretation of the parties’ agreement such relief [was] unavailable to the defendant.” This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly interpreted the parties’ contract. Specifically, the defendant argues that article VII of the contract should be interpreted to require each party to appoint its arbitrator in accordance with the rules of the association, which the defendant contends require the appointment of neutral arbitrators unless otherwise agreed to in writing. We disagree.

We begin by setting forth the applicable standard of review and guiding legal principles. In the present case, both parties agree that interpretation of the contract presents a question of law over which we exercise plenary review. “When the trial court relies solely on the written agreement in ascertaining the intent of the parties and the language of the agreement is clear and unambiguous, the court’s determination of what the parties intended by their contractual commitments is a question of law over which our review is plenary.” Fusco v. Fusco, 266 Conn. 649, 655-56, 835 A.2d 6 (2003).

“The intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 183, 2 A.3d 873 (2010).

The relevant contractual language provides as follows: “[E]ither party may initiate arbitration [proceedings] by appointing a person to serve as one of the arbitrators .... [T]he other party shall . . . appoint a second person as an arbitrator and the two . . . [party] appointed [arbitrators] shall select a third arbitrator . . . provided, however, if the two arbitrators appointed by the parties [are] unable to agree upon the appointment of the third arbitrator . . . both shall give written notice of such failure to agree to the parties, and, if the parties fail to agree upon the selection of [the] third arbitrator . . . then any one of the parties upon written notice to the other party may request such appointment from and pursuant to the rules of the [association].” (Emphasis added.)

After reviewing the relevant contractual language, we agree with the trial court that the language does not demonstrate that the parties intended for the rules of the association to apply to the selection of party-appointed arbitrators. The language of the contract provides that each party may appoint a “person” to serve as an arbitrator. In so providing, the language does not limit the appointment to a neutral person. Furthermore, the language does not require the parties to abide by the rules of the association when selecting a party-appointed arbitrator or otherwise indicate that a party’s appointment power is restricted by these rules. The only indication that the rules of the association may apply to the appointment of an arbitrator occurs in the situation when the parties are unable to agree upon a third arbitrator. Therefore, according the contractual language its common, natural and ordinary meaning; see Assn. Resources, Inc. v. Wall, supra, 298 Conn. 183; we conclude that the parties were not required to abide by the rules of the association when selecting a party-appointed arbitrator and, furthermore, were free to appoint a neutral or non-neutral person.

In support of its claim that the rules of the association applied to the selection of party-appointed arbitrators, the defendant relies on the following additional language from article VII: “Except as modified herein, such arbitration shall be held in accordance with the prevailing rules of the [association].” The defendant argues that this language evidences the parties’ intent that the rules shall apply to all facets of the arbitration, including the appointment of each party’s arbitrator. We are not persuaded.

The sentence relied on by the defendant does not appear in the paragraph discussing the appointment of arbitrators. Instead, it appears at the end of a different paragraph, which sets forth the procedures that are to be used by the arbitrators during the arbitration process. When the sentence is considered in the context in which it appears in article VII, it more appropriately expresses the parties’ intent that the rules of the association shall serve as the default procedural rules for the arbitration process when the contract fails to provide a specific procedural rule. Therefore, the defendant’s reliance on this contractual language to support its claim is misplaced.

Accordingly, we conclude that the trial court properly concluded that the parties did not intend for the rules of the association to apply to the selection of the party-appointed arbitrators.

II

The defendant next claims that the court abused its discretion by failing to conduct an evidentiary hearing. Specifically, the defendant argues that the court should have conducted an evidentiary hearing to ascertain whether it should provide the defendant with equitable relief due to Droney’s prior involvement with matters related to the arbitration proceeding. We agree.

We review the trial court’s denial of an evidentiary hearing under the abuse of discretion standard. See, e.g., State v. Nguyen, 253 Conn. 639, 653, 756 A.2d 833 (2000) (“[w]e consistently have held that, unless otherwise required by statute, a rule of practice or a rule of evidence, whether to conduct an evidentiary hearing generally is a matter that rests within the sound discretion of the trial court”). Under this standard of review, “ [w] e must make every reasonable presumption in favor of the trial court’s action.” (Internal quotation marks omitted.) State v. Erickson, 297 Conn. 164, 176, 997 A.2d 480 (2010). “Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Kendall, 123 Conn. App. 625, 651, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010); see Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 253, 828 A.2d 64 (2003). “The trial court’s exercise of its discretion will be reversed only where the abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Erickson, supra, 176.

As discussed earlier, in its memorandum of decision, the trial court determined that the contract permitted each party to appoint a non-neutral arbitrator. On the basis of this determination, the court concluded that it was unnecessary to consider the defendant’s claim for equitable relief. Although we agree that the contract permitted each party to appoint a non-neutral arbitrator; see part I of this opinion; we disagree with the court’s conclusion that this determination made it unnecessary to consider the defendant’s claim for equitable relief.

As a threshold matter, we recognize that the arbitration statutes contain no provision allowing for the summary removal of an arbitrator prior to or during the arbitration proceedings. See General Statutes § 52-408 et seq.; Gaer Bros., Inc. v. Mott, 144 Conn. 303, 309, 130 A.2d 804 (1957); Dewart v. Northeastern Gas Transmission Co., 140 Conn. 446, 450, 101 A.2d 299 (1953). Although the statutes do not allow for such action, our Supreme Court has recognized that under certain circumstances, the trial court, pursuant to its equitable powers, may intervene in an arbitration proceeding and issue an equitable decree to prevent an arbitrator from participating in the arbitration. See Gaer Bros., Inc. v. Mott, supra, 309; see also McCloskey & Co. v. American Arbitration Assn., 175 Conn. 475, 476-77, 400 A.2d 274 (1978) (recognizing that court may intervene in arbitration proceeding by invoking equitable powers); In the Matter of Astoria Medical Group, 11 N.Y.2d 128, 132, 182 N.E.2d 85, 227 N.Y.S.2d 401 (1962) (“in an appropriate case, the courts have inherent power to disqualify an arbitrator before an award has been rendered”). As we will discuss more fully, we believe that the present case presents a situation in which the trial court may have to intervene in the arbitration proceeding pursuant to its equitable powers.

When parties agree to arbitration before a tripartite arbitration panel, it is commonly understood that the party-appointed arbitrators “are not and cannot be [neutral] at least in the sense that the third arbitrator or a judge is.” (Internal quotation marks omitted.) Metropolitan Property & Casualty Ins. Co. v. J.C. Penney Casualty Ins. Co., 780 F. Sup. 885, 891 (D. Conn. 1991). This means that when the parties appoint their individual arbitrators, “each party’s arbitrator is not individually expected to be neutral.” (Internal quotation marks omitted.) Id., 892. Although party-appointed arbitrators may not be expected to be neutral, this “does not mean that such arbitrators are excused from their ethical duties and the obligation to participate in the arbitration process in a fair, honest and good-faith manner.” Id.; General Statutes § 52-414 (d). Indeed, each party-appointed arbitrator “has a responsibility not only to the parties but also to the process itself, and must observe high standards of conduct so that the integrity and fairness of the process will be preserved.” (Internal quotation marks omitted.) Metropolitan Property & Casualty Ins. Co. v. J.G. Penney Casualty Ins. Co., supra, 893.

After careful consideration, we conclude that, although an arbitrator in a tripartite arbitration proceeding may be non-neutral, a trial court may intervene in an arbitration proceeding pursuant to its equitable powers and disqualify an arbitrator when the arbitrator cannot observe his or her ethical duties or cannot participate in the arbitration proceeding in a fair, honest and good faith manner. By allowing court intervention in these circumstances, we seek to protect the integrity of the arbitration process itself, which our courts have recognized as a central concern when reviewing the validity of arbitration awards. See, e.g., Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 306-307, 961 A.2d 373 (2006); Garrity v. McCaskey, 223 Conn. 1, 10, 612 A.2d 742 (1992); Marulli v. Wood Frame Construction Co., LLC, 124 Conn. App. 505, 511, 5 A.3d 957 (2010), cert. denied, 300 Conn. 912, 13 A.3d 1102 (2011). To conclude that an arbitrator, who cannot observe his or her ethical duties or who cannot participate in a fair, honest and good faith manner, may nevertheless serve as an arbitrator would “undermine society’s confidence in the legitimacy of the arbitration process.” Garrity v. McCaskey, supra, 10.

In the present case, the allegations set forth in the second count of the defendant’s counterclaim alleged that Droney, prior to his appointment as an arbitrator, had more than a nominal relationship with the plaintiff and more than a nominal involvement in matters related to the arbitration proceeding. According to the allegations, Droney not only served as counsel for the plaintiff, but he also consulted with the plaintiff on matters specifically related to the arbitration proceeding, engaged in ex parte communications with the plaintiff on matters related to the arbitration proceeding and provided legal services to the plaintiff on matters directly relevant to the arbitration. If proven true, these allegations could call into question Droney’s ability to carry out his ethical duties and to participate in the arbitration process in a fair, honest and good faith manner.

In light of these allegations, we conclude that the trial court, in response to the defendant’s request for equitable relief, should have conducted an evidentiary hearing to consider the truth of these allegations and whether, in the exercise of its equitable powers, it should issue a decree disqualifying Droney. The trial court’s failure to conduct a hearing, therefore, constituted an abuse of discretion.

The plaintiff argues that the trial court’s decision is supported by our Supreme Court’s decision in Hottle v. BDO Seidman, LLP, 268 Conn. 694, 846 A.2d 862 (2004). As the plaintiff correctly notes, the court in Hottle stated: “[W]e have made clear that [t]he spirit of the arbitration law being the fuller effectuation of contractual rights, the method for selecting arbitrators and the composition of the arbitral tribunal have been left to the contract of the parties. ... In the Matter of Siegel, 40 N.Y.2d 687, 689, 358 N.E.2d 484, 389 N.Y.S.2d 800 (1976). Therefore, strange as it may seem to those steeped in the proscriptions of legal and judicial ethics, a fully known relationship between an arbitrator and a party, including one as close as employer and employee ... or attorney and client . . . will not in and of itself disqualify the designee. . . . Id., 690, citing In the Matter of Astoria Medical Group, supra, 11 N.Y.2d 136, and In the Matter of Karpinecz, 14 App. Div. 2d 569, 218 N.Y.S.2d 88 (1961).” (Emphasis added; internal quotation marks omitted.) Hottle v. BDO Seidman, LLP, supra, 708.

First, as the plaintiff concedes, in Hottle the court was reviewing and interpreting principles of New York law, not Connecticut law. Id., 706. Second, even if we were to assume that the same principles were applicable under Connecticut law, the defendant in the present case has alleged more than an attorney-client relationship between the plaintiff and Droney. As we mentioned previously, in addition to an attorney-client relationship, the defendant has also alleged that Droney provided legal services to the plaintiff on matters directly relevant to the arbitration and consulted with the plaintiff on matters likely to be involved in the arbitration. Therefore, this is not a case in which the defendant is relying on the existence of an attorney-client relationship in and of itself to disqualify Droney.

The judgment is reversed only as to the denial of the defendant’s request for an evidentiary hearing to consider the equitable relief it sought in the second count of its counterclaim, and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The record does not disclose the subject matter of the dispute.

       Specifically, file contract provides: “The parties shall have days to perform discovery and present evidence and argument to the arbitrators. During that period the arbitrators shall be available to receive and consider all such evidence and, within reasonable limits due to the restricted time period, to hear as much of such argument as possible, giving a fair allocation of time to each party to the arbitration. The arbitrators shall use all reasonable means to expedite discovery and to sanction noncompliance with reasonable discovery requests or any discovery order. The arbitrators shall not consider any evidence or argument not presented during such period and shall not extend such period except by the written consent of both parties. At the conclusion of such period the arbitrators shall have days to reach a determination. Except as modified herein, such arbitration shall be held in accordance with the prevailing rules of the [association].”

       General Statutes § 52-414 (d) provides in relevant part: “Before hearing any testimony or examining other evidence in the matter, the arbitrators . . . shall be sworn to hear and examine the matter in controversy faithfully and fairly and to make a just award according to the best of their understanding, unless the oath is waived in writing by the parties to the arbitration agreement.”