author: BISHOP, J.

text:
    CONNECTICUT CARPENTERS BENEFIT FUNDS v. BURKHARD HOTEL PARTNERS II, LLC
    (AC 23891)
    Bishop, West and DiPentima, Js.
    Argued January 20
    officially released June 15, 2004

      Martin A. Gould, with whom was Mark W. Baronas, for the appellant (plaintiff).

      Julie A. Manning, for the appellee (defendant).
   Opinion

BISHOP, J.

The principal issue in this appeal is whether an employee benefits fund has standing to bring an action to foreclose a mechanic’s lien, pursuant to General Statutes § 49-33, on behalf of and for the benefit of the employees who performed the work.

The plaintiff, the Connecticut Carpenters Benefit Funds, appeals from the judgment of the trial court rendered after it granted the motion, filed by the defendant, Burkhard Hotel Partners II, LLC, to strike the revised amended complaint. On appeal, the plaintiff claims that the court improperly concluded that in a mechanic’s lien foreclosure action, the plaintiff is required to allege that the defendant owner (1) knew of the specific agreement providing for compensation services, (2) agreed to make the payments for the subject services or authorized its general contractors to do so and (3) failed to make payments for the work performed on the premises. We agree and, accordingly, reverse the judgment of the trial court.

In its operative complaint, filed February 13, 2002, the plaintiff alleged the following facts, which are relevant to our discussion of the issues on appeal. The plaintiff alleged that the defendant had contracted with Burkhard Construction, an entity related to the defendant property owner, to build a hotel on the defendant’s property. Burkhard Construction then subcontracted with Migi Construction, LLC (Migi), to perform carpentry work on the hotel. Migi subsequently entered into a contract with several carpenters to perform work on the building and agreed to pay them an hourly wage. Included in the wage package were fringe benefits that were to be paid directly to the plaintiff, which accepts and administers those benefits on behalf of the carpenters. Although the carpenters completed the work, Migi did not fulfill its contractual obligation and pay the fringe benefits to the plaintiff on behalf of the carpenters. Thereafter, the plaintiff filed a mechanic’s lien on the defendant’s property and instituted this action to foreclose the lien on behalf of and for the benefit of those carpenters whose fringe benefits were not remitted to the plaintiff.

On April 11, 2002, the defendant filed a motion to strike the complaint, and on October 15, 2002, the court granted the motion, concluding that the plaintiff had failed to allege a cause of action under the mechanic’s lien statute. After oral argument, we ordered the parties to file supplemental briefs to address the question of whether the plaintiff, who did not, itself, directly furnish materials or render services in regard to construction on the subject premises, had standing to file and then seek to foreclose a mechanic’s lien under § 49-33.

I

Prior to discussing the claims framed by the parties on appeal, we address the issue of standing that we have raised sua sponte. Specifically, we address the question of whether this plaintiff, standing in the shoes of those who performed services on the defendant’s land, may avail itself of the protections of § 49-33 even though it has not, itself, performed any services or furnished any materials in regard to construction on the defendant’s land. Although that issue was not raised in the trial court or directly in the defendant’s appellate briefs, we undertake an independent review of the question of standing because it implicates the court’s subject matter jurisdiction. “Appellate courts, as well as trial courts, must examine an issue implicating subject matter jurisdiction. The question of standing may be raised by any of the parties, or by the court, sua sponte, at any time during judicial proceedings.” Grabowski v. Bristol, 64 Conn. App. 448, 450, 780 A.2d 953 (2001).

“In order for a party to have standing to invoke the jurisdiction of the court, that party must be aggrieved. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Standing is established by showing that the party claiming it is authorized by statute to bring suit [in other words, statutorily aggrieved] or is classically aggrieved.” (Internal quotation marks omitted.) Edgewood Village, Inc. v. Housing Authority, 265 Conn. 280, 288, 828 A.2d 52 (2003), cert. denied, 540 U.S. 1180, 124 S. Ct. 1416, 158 L. Ed. 2d 82 (2004).

“In order to determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect. . . . Essentially the standing question in such cases is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiffs position a right to judicial relief. . . . The plaintiff must be within the zone of interests protected by the statute.” (Citations omitted; internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 545-46, 825 A.2d 90 (2003). Thus, resolution of the issue of standing depends primarily on the construction of § 49-33.

In interpreting that statute, we are guided by well settled principles of statutory construction. “Although the mechanic’s hen law creates a statutory hen in derogation of the common law, its remedial purpose to furnish security for a contractor’s labor and materials requires a generous construction. . . . Even bearing in mind the statute’s beneficent purpose, we are, however, constrained by the language of the statute as we find it, and cannot rewrite the statute or adopt the reasoning of precedents in other jurisdictions with different statutes.” (Citations omitted.) Seaman v. Climate Control Corp., 181 Conn. 592, 597, 436 A.2d 271 (1980); see also Public Acts 2003, No. 03-154 (courts should first look to plain meaning of words of statute when interpreting statute’s meaning).

General Statutes § 49-33 (a) provides in relevant part: “If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction ... of any building . . . and the claim is by virtue of an agreement with . . . some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands ... is subject to the payment of the claim.” (Emphasis added.) Thus, the statute provides relief to individuals who provide either services or materials in the construction of a building. See H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981) (“purpose of the mechanic’s lien is to give one who furnishes materials or services ‘the security of the building and land for the payment of his claim by making such claim a lien thereon’ ”).

Our decisional law, however, has not previously addressed the precise issue we confront, i.e., whether a benefit fund acting on behalf of those who have performed services can reasonably be construed as “any person who has a claim,” as that term is used in § 49-33 (a). In the absence of state decisional guidance, we look to the reasoning of other jurisdictions that have confronted analogous circumstances. In that regard, we find instructive the reasoning of the United States Supreme Court in United States v. Carter, 353 U.S. 210, 77 S. Ct. 793, 1 L. Ed. 2d 776 (1957). In Carter, the trustees of a benefits fund sued the surety on a contractor’s payment bond, pursuant to the Miller Act, 40 U.S. C. § 270b, when the contractor failed to make the required payments to the fund. Id., 213. The contractor had entered into a contract with the United States government to construct buildings and employed laborers to meet its goal. Id. Under the master labor agreement between the contractor and the employees union, the contractor had agreed to pay the laborers wages, which included fringe benefits to be paid directly to the trustees, who, in turn, were responsible for the administration of those funds on behalf of the employees. Id., 213-15. Because the contractor paid the wages but not the fringe benefits, the trustees then sued the contractor audits surety under § 2 (b) of the Miller Act,. Id., 215. The United States District Court for the Northern District of California rendered summary judgment in favor of the defendant, finding that the fund trustees lacked standing to bring suit under the Miller Act because they did not perform labor or services in the construction of the building. Id. After the United States Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court, the Supreme Court reversed the judgment of the appeals court. Id., 221.

The defendant in Carter argued, inter alia, that the trustees lacked standing to sue on the bond because they had not furnished labor or materials. In rejecting the defendant’s claim, the Supreme Court stated: “If the assignee of an employee can sue on the bond, the trustees of the employees’ fund should be able to do so. Whether the trustees of the fund are, in a technical sense, assignees of the employees’ rights to the contributions need not be decided. Suffice it to say that the trustees’ relationship to the employees, as established by the master labor agreements and the trust agreement, is closely analogous to that of an assignment. The master labor agreements not only created [the defendant’s] obligation to make the specified contributions, but simultaneously created the right of the trustees to collect those contributions on behalf of the employees. The trust agreement gave the trustees the exclusive right to enforce payment. The trustees stand in the shoes of the employees and are entitled to enforce their rights.” Id., 2I9-20.

The Supreme Court concluded that “[t]he trustees are claiming recovery for the sole benefit of the beneficiaries of the fund, and those beneficiaries are the very ones who have performed the labor. The contributions are the means by which the fund is maintained for the benefit of the employees and of other construction workers. For purposes of the Miller Act, these contributions are in substance as much ‘justly due’ to the employees who have earned them as are the wages payable directly to them in cash.” Id., 220.

Although Carter was decided under the Miller Act and involved a claim under a payment bond, we find its legal and factual underpinnings sufficiently analogous to apply its rationale to our analysis of § 49-33. We note that the language of the Miller Act is substantially similar to the language of our mechanic’s lien statute and that both are to be liberally construed. Additionally, the stated purpose of both the Miller Act and our mechanic’s lien statute is to protect individuals who in good faith provide materials or labor for the construction of buildings. See H & S Torrington Associates v. Lutz Engineering Co., supra, 185 Conn. 553. Finally, the facts as pleaded by the plaintiff are similar to the facts in Carter. In both cases, there was an agreement by the defendant to pay fringe benefits for the employees directly to the plaintiffs, and those benefits were part of the wages that the employees were to receive. In both cases, the plaintiffs administered the funds on behalf of the employees, and it is clear that had the employees in either situation initiated the action themselves they would have had standing to sue. Last, the plaintiffs in both cases sought recovery not for themselves, but for the individuals who performed the labor for the benefit of the defendants. Accordingly, we find that the plaintiff, similarly situated to the trustees in Carter, stands in the carpenters’ shoes and, as such, is entitled to enforce the carpenters’ rights on their behalf. The plaintiff has standing under § 49-33.

Our application of the United States Supreme Court’s reasoning in Carter to our mechanic’s lien statute is consistent with that of the majority of jurisdictions that have addressed the issue at hand when construing their mechanic’s lien statutes. See Divane v. Smith, 332 Ill. App. 3d 548, 557, 774 N.E.2d 361 (concludingt that “[although [Carter] involved a claim under a payment bond, we find it persuasive and its rationale applicable to the [Illinois mechanic’s lien] Act”), leave to appeal denied, 202 Ill. 2d 601, 787 N.E.2d 156 (2002); Performance Funding, LLC v. Arizona Pipe Trade Trust Funds, 203 Ariz. 21, 25, 49 P.3d 293 (2002) (finding that “allowing the trust funds to assert a lien against the owner’s property for the benefit of the laborers would further the purpose of the mechanics’ hen statute”); Hawaii Carpenters’ Trust Funds v. Aloe Development Corp., 63 Haw. 566, 576, 633 P.2d 1106 (1981); National Electrical Industry Fund v. Bethlehem Steel Corp., 296 Md. 541, 552, 463 A.2d 858 (1983).

The mechanic’s hen statutes in those jurisdictions are substantially similar to § 49-33. They provide a hen for persons who provide labor or services; they were enacted to protect laborers. Finally, jurisprudence in those jurisdictions, the decisions of which we find instructive, opines that similar statutes affording hen protections for material and service providers should be liberally construed.

We reach that conclusion mindful that there are jurisdictions that have held that a benefits fund does not have standing to seek to foreclose a mechanic’s hen. We find the decisions of those courts, however, less persuasive because those jurisdictions narrowly construe their mechanic’s hen statutes. See, e.g., Sprinkler Fitters & Apprentices Local Union No. 821, U.A. v. F.I.T.R. Service Corp., 461 So. 2d 144, 146 (Fla. App. 1984); Edwards v. Bethlehem Steel Corp., 517 N.E.2d 430, 432 (Ind. App. 1988).

Having determined that the plaintiff had standing to bring its action, we now turn to the claims raised on appeal.

II

The plaintiff claims that the court improperly granted the defendant’s motion to strike the complaint. We agree. “The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Johnson v. Mazza, 80 Conn. App. 155, 158, 834 A.2d 725 (2003).

As part of our assessment, we also examine the language of § 49-33 to determine the statutory elements that must be present in order for one to foreclose a mechanic’s lien. In that task, we are guided by our well established principles of statutory construction. Id., 159; see also Seaman v. Climate Control Corp., supra, 181 Conn. 597, for a recitation of the standard of review.

A

The plaintiff first claims that the court improperly concluded that in a mechanic’s hen foreclosure action, the plaintiff is required to allege that the defendant owner knew of the specific agreement providing for compensation services. We agree.

General Statutes § 49-33 establishes a lien in favor of subcontractors “by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected . . . .” See also Seaman v. Climate Control Corp., supra, 181 Conn. 595. It is weh established that “[i]t is not necessary to their hen status that [a subcontractor] have any direct contractual relationship either with the owner or with the general contractor . . . .” Id., 596. All that is necessary is that the defendant consented to have a building erected on its property and that the hen was for materials or services provided in the erection of said building. See J. L. Purcell, Inc. v. Libbey, 111 Conn. 132, 137, 149 A. 225 (1930). We are unable to find any support in the language of the statute or in decisional law construing the statute for the proposition that in order to pursue the foreclosure of a mechanic’s hen, a plaintiff must allege that the property owner was aware of the terms of the agreement between the plaintiff and the entity for which the services or materials were furnished. We conclude, therefore, that the plaintiff was not required to plead that the defendant was aware of the terms of the agreement between the carpenters and Migi. The court was therefore incorrect to strike the complaint on that basis.

B

The plaintiff next claims that the court improperly concluded that in a mechanic’s lien foreclosure action the plaintiff is required to allege that the defendant agreed to make the payments for the subject services or authorized its general contractors to do so. Having already concluded that in a mechanic’s lien foreclosure action, the plaintiff must allege only that the defendant consented to having work done on its premises, we need not separately analyze that claim. In sum, in order to survive a motion to strike the complaint, the plaintiff was not required to allege that the owner had agreed to the terms of the contracts entered into by the general contractor or the subcontractor. Accordingly, it was incorrect for the court to strike the complaint on that ground.

C

Last, the plaintiff claims that the court incorrectly concluded that the plaintiff was required to allege that the defendant had failed to make payments for the work performed. We agree.

Again, we turn to the language of § 49-33 to resolve the plaintiffs claim. On its face, the statute is silent as to whether the plaintiff must specifically plead that the defendant has failed to make the required payments. The only reference in § 49-33 to the monetary amount of a lien is found in subsections (e) and (f) in which it is stated that a lien may not be placed on property for an amount greater than the total contract price. See also D. Caron, Connecticut Foreclosures (3d Ed. 1997) § 13.04, p. 362 (setting forth essential elements for foreclosure of mechanic’s lien, none of which includes allegation of nonpayment on part of owner). Additionally, we note that the model complaint for a mechanic’s hen foreclosure action found in West’s Practice Book Annotated does not contain an affirmative allegation that the defendant has failed to pay the contractor or subcontractor. See J. M. Kaye, W. Effron & J. L. Kaye, 3A Connecticut Practice Series: Practice Book Annotated (3d Ed. 1996) form S-150, pp. 445-46. Although the foregoing indicates that the plaintiff need not allege the owner’s nonpayment in the complaint, the issue of whether good faith payments were, in fact, made to the general contractor can be affirmatively raised by the owner itself in defense of the mechanic’s hen foreclosure action. We conclude that although payment by the owner properly may be asserted as a defense to a mechanic’s hen foreclosure action, the absence of an allegation of nonpayment in a mechanic’s hen foreclosure complaint is not fatal to the vitality of the complaint when confronted by a motion to strike. Accordingly, the court incorrectly struck the complaint for failure to allege that the owner did not pay the contract price.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The Miller Act provides in relevant part: “Every person who has furnished labor or material in the prosecution of the work provided for in such contract . . . and who has not been paid in full therefor . . . shall have the right to sue on such payment bond . . . .” 40 U.S.C. § 270b (a).

       Although the Supreme Court in reaching that conclusion made specific reference to cases decided under the repealed Heard Act, 28 Stat. 278, as amended, 33 Stat. 811, 36 Stat. 1167 (1894), the predecessor of the Miller Act; United States v. Carter, supra, 353 U.S. 216 & n.3; in which lawsuits by assignees of employees were allowed, we find the court’s reasoning applicable to § 49-33 because of its analogous provisions.

       Connecticut has adopted the “little Miller Act,” General Statutes § 49-41 et seq., and our Supreme Court routinely has looked to federal precedents when interpreting the language of § 49-41. See O & G Industries, Inc. v. New Milford, 229 Conn. 303, 309, 640 A.2d 110 (1994).

       The defendant asserts that the plaintiff lacks standing to sue on the basis of our Supreme Court’s holding in Thompson & Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 380, 696 A.2d 326 (1997), in which the court held that an insurance company could not seek to foreclose a mechanic’s lien to recover unpaid insurance premiums. The plaintiff insurance company in Thompson & Peck, Inc., however, was seeking to recover in its individual capacity for its benefit and not on behalf of the individuals who performed the labor and services. Id., 373. Accordingly, the facts of Thompson & Peck, Inc., are inapposite to the present case. We further note that insurance premiums, unrelated to the work performed, are of a different character than fringe benefits that are part of the wages paid for the employees.

       The defendant argues that he merely granted permission and did not consent to the agreement with Migi. Accordingly, he argues, this case should be governed by our Supreme Court’s holding in Hall v. Peacock Fixture & Electric Co., 193 Conn. 290, 295, 475 A.2d 1100 (1984) (permission from landlord to tenant to renovate apartment not sufficient to support mechanic’s lien against underlying property). The defendant’s argument is premature because a motion to strike is not the proper vehicle to attack the underlying factual assertions in the complaint. As noted, the plaintiff pleaded that there was consent by the defendant. At that stage in the proceedings, for the purpose of deciding a motion to strike, the court must accept the well pleaded facts as true. See Johnson v. Mazza, supra, 80 Conn. App. 158.

       To the extent that the court concluded that the complaint should have alleged that the defendant failed to make payments to the plaintiff, as opposed to the general contractor, we note that such an allegation is not required in light of the fact that a subcontractor need not have a direct contractual relationship with the owner in order to pursue the foreclosure of a mechanic’s lien. See part n A. In the absence of such a relationship, there would be no contractual obligation on the part of the owner to make any payments directly to a subcontractor. We also note that our Supreme Court has stated that “the determination of whether there remains a lienable fund depends upon the payments made under the contract between the owner and the general contractor . . . .” (Emphasis added.) Seaman v. Climate Control Corp., supra, 181 Conn. 604.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    FRANK DASILVA ET AL. v. RICHARD J. BARONE, JR., ET AL.
    (AC 24379)
    Dranginis, Bishop and Dupont, Js.
    Argued February 13
    officially released June 15, 2004

      Joseph M. Brophy, for the appellants (defendants).

      Robert A. Fuller, with whom was Nancy D. Gallagher, for the appellees (named plaintiff et al.).
   Opinion

DUPONT, J.

The defendants, Richard J. Barone, Jr., and Sharmaine Barone, appeal from the judgment of the trial court granting a permanent injunction to the plaintiffs that enjoined the defendants from keeping horses and from building a structure to house horses on their property in Fairfield. The primary issue in this appeal is the enforceability of restrictive covenants allegedly prohibiting the defendants from such uses.

The plaintiffs and the defendants are the owners of lots as shown on a subdivision map recorded in the Fairfield land records. The plaintiffs filed a two count complaint alleging (1) a violation of a restrictive covenant in the defendants’ deed and (2) the maintenance of a nuisance, and sought to enjoin the defendants from keeping horses and erecting structures to house horses on the defendants’ property. On appeal, the defendants claim that the court improperly ruled (1) that the restrictive covenants contained in the defendants’ deed were enforceable, and (2) that the language of the restrictive covenants prohibited structures suitable to maintain horses and the keeping of horses. We agree with the defendants that the restrictive covenants are not enforceable and reverse the judgment of the trial court.

The following facts are relevant to the defendants’ appeal. The defendants’ lot is shown on a twenty-two lot subdivision map prepared by the Scot-Alan Corporation (Scot-Alan) and approved by the Fairfield planning commission. The map contains no mention of any restrictive covenants, and Scot-Alan did not record any separate agreement or declaration relating to restrictive covenants that would apply to the lots delineated on the map. All of the subsequent conveyances by Scot-Alan were made with reference to that map. Of the twenty-two lots, fifteen were conveyed, by individual deed, at various times, to Treasure Homes, Inc. (Treasure Homes), without any restrictive covenants. Scot-Alan conveyed four lots to the Ingham Hill Corporation, one to the Park Lane Corporation and two in foreclosure actions. Only one deed from Scot-Alan, that to Ingham Hill Corporation transferring four lots, contained a restrictive covenant at all. That deed bars any construction except for a private residence and a garage or other structure incident to a private residence. It does not bar any types of animals from being kept on the property. Thus, no conveyance from Scot-Alan of any lot on its recorded map contained any restrictive covenant prohibiting the keeping of horses.

The fifteen lots owned at various times by Treasure Homes do not all directly abut one another. Treasure Homes never held title to more than four of the fifteen lots at any one time. On at least six separate occasions, individual lots were conveyed by Treasure Homes to different individual owners on the same day as Scot-Alan conveyed the lots to Treasure Homes. The remaining nine lots were owned by Treasure Homes for time periods ranging from eight months to twenty months before they were conveyed to individual residential owners.

Thus, all fifteen lots conveyed by Scot-Alan to Treasure Homes, at varying times, were subsequently conveyed by Treasure Homes to individual residential owners at varying times. Of the fifteen deeds conveyed from Treasure Homes to individual owners, ten contained restrictive covenants prohibiting construction of any structure except for a one-family house and a structure or outbuilding usually incident to a one-family house, and prohibiting ownership and housing of any animals except for “normal domestic pets.” One deed specifically allows horses to be kept on the property. The lot that specifically allows horses is across the street from the defendants’ lot. Two deeds contain restrictions of some kind that are crossed out, and two deeds contain no restrictions of any kind. In summary, four of the fifteen lots previously owned by Treasure Homes do not contain any restrictions in their chain of title, and one of the fifteen specifically allows what ten of the other lots prohibit. The defendants are successors in title to one of the ten lots containing all three restrictions. The defendants’ deed contains a specific reference to the recorded deed of a predecessor in title whose prior deed contains the restrictions and the exception. That exception, as noted by the plaintiffs in their brief, states the intent of the grantor, Treasure Homes, that the restrictions might not be imposed in the future on some of the lots owned by Treasure Homes.

The defendants purchased two horses and kept them on the property prior to the onset of the winter months, and expressed an intent to erect a stable for them. The plaintiffs then filed their complaint, alleging violation of the restrictive covenants. The court concluded that the defendants’ use of the premises constituted a violation of the restrictive covenants and that the plaintiffs could enforce the restrictive covenants because it was “ ‘more likely than not’ ” that there was an intention by the common grantor to establish a uniform plan of development for all of the lots on the Scot-Alan map.

The defendants claim that the court incorrectly determined that the restrictive covenants in their deed were enforceable. The validity of that assertion rests on the intent of the common grantor of the lots, as expressed in the language of the relevant deeds, considered in light of the surrounding circumstances. The plaintiffs and the defendants state that our standard of review of that determination of intent is the clearly erroneous standard because the intent of the common grantor is a question of fact. Our case law, however, establishes that intent in this case is a question of law.

“Although in most contexts the issue of intent is a factual question on which our scope of review is limited . . . the determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . . Thus, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court’s factual inferences.” (Citations omitted; internal quotation marks omitted.) Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989). Intent is determined by the language of the particular conveyance in light of all the circumstances and is a question of law. Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); DeMorais v. Wisniowski, 81 Conn. App. 595, 608-609, 841 A.2d 226, cert. denied, 268 Conn. 923, 848 A.2d 472 (2004).

Here, we must conduct a plenary review to determine intent by measuring the effect of the language contained in the relevant deeds, considered in light of the surrounding circumstances. A subsidiary question to be resolved first is whether it is Scot-Alan’s intent or the intent of Treasure Homes, as a common grantor, that is relevant.

To state the question on the basis of the facts of this case is to answer it. The common grantor is that owner of property who has divided it into building lots that are subject to a general development scheme as simultaneously expressed on the land records of the location of the property. See Armstrong v. Leverone, 105 Conn. 464, 470-71, 136 A. 71 (1927). Scot-Alan did not establish in any deed, by way of restrictive language, that it had a plan of general development for its property, nor did it establish the intent to make the lots on the map recorded by it subject to any restrictive covenants, nor did it record a declaration of restrictive covenants. Not having expressed any intent at all in connection with the fifteen lots it conveyed to Treasure Homes, Scot-Alan cannot be a common grantor with a general development scheme.

Treasure Homes is the grantor that is common to the successors in title who presently own the fifteen lots, and it is the intent of Treasure Homes, as evidenced in its conveyances of these lots at varying dates, to which we must look to determine if an enforceable plan for development existed. Treasure Homes did not subdivide the lots, did not record a declaration of restrictive covenants and never owned all of the lots at once. The question is whether other circumstances show a general development scheme of a common grantor.

Restrictive covenants generally fall into one of three categories: “(1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee ‘presumptively or actually for the benefit and protection of his adjoining land which he retains.’ ” Grady v. Schmitz, 16 Conn. App. 292, 296, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988). This case allegedly falls into the second category of restrictive covenants, and we must determine whether Treasure Homes, as evidenced by the language contained in its conveyances, and all of the surrounding circumstances, intended to provide a uniform plan for the development of its fifteen lots.

Restrictive covenants should be enforced when they are reflective of a common plan of development. See Marion Road Assn. v. Harlow, 1 Conn. App. 329, 333, 472 A.2d 785 (1984). The factors that help to establish the existence of an intent by a grantor to develop a common plan are: (1) a common grantor sells or expresses an intent to put an entire tract on the market subject to the plan; (2) a map of the entire tract exists at the time of the sale of one of the parcels; (3) actual development according to the plan has occurred; and (4) substantial uniformity exists in the restrictions imposed in the deeds executed by the grantor. Contegni v. Payne, supra, 18 Conn. App. 53; 9 R. Powell, Real Property (1999) § 60.03 [6], p. 60-29.

The factors that help to negate the presence of a development scheme are: (1) the grantor retains unrestricted adjoining land; (2) there is no plot of the entire tract with notice on it of the restrictions; and (3) the common grantor did not impose similar restrictions on other lots. 9 R. Powell, supra, § 60.03 [7], p. 60-31.

Early Connecticut case law acknowledges the power of property holders with substantially uniform restrictive covenants obtained by deeds in a chain of title from a common grantor to enforce the restrictions against other owners with similar restrictive covenants. “When, under a general development scheme, the owner of property divides it into building lots to be sold by deeds containing substantially uniform restrictions, any grantee may enforce the restrictions against any other grantee.” Hooker v. Alexander, 129 Conn. 433, 436, 29 A.2d 308 (1942); see also Whitton v. Clark, 112 Conn. 28, 36, 151 A. 305 (1930); Stamford v. Vuono, 108 Conn. 359, 364, 143 A. 245 (1928).

When making a finding as a matter of law that a common development scheme exists, courts look to four factors: (1) the common grantor’s intent to sell all of the subdivided plots; (2) the existence of a map of the subdivision; (3) actual development of the subdivision in accordance with the general scheme; and (4) substantially uniform restrictions contained in the deeds of the subdivided plots. Contegni v. Payne, supra, 18 Conn. App. 53.

In discussing those factors, we observe that Treasure Homes did not possess title to all of the lots at any one time and possessed title to fifteen of the lots, as depicted on Scot-Alan’s map, at varying times. We cannot know, therefore, if Treasure Homes had an intent to sell all of the subdivided plots it eventually owned. It did not own them all when it made its first conveyance subject to a restriction, nor had any document yet been recorded to indicate such an intent. Thus, the first factor is not present. Although there was a map that included fifteen lots eventually owned by Treasure Homes, the map contained no indication that the lots were or would be subject to any restrictions, and the map was filed by another entity, Scot-Alan.

A number of facts are relevant to determine whether the subdivision actually was developed in accordance with a general scheme and whether substantially uniform restrictions were contained in the deeds of the fifteen lots conveyed by Treasure Homes.

The restrictions were placed on ten properties not adjacent to one another and were placed on those properties at different times. Treasure Homes obtained title to each lot individually and sold ten of those lots subject to restrictions in the deeds. Treasure Homes owned no more than four lots at any one time and owned only one lot at the time it conveyed that lot to the defendants’ predecessors in title. Treasure Homes never owned all of the lots at one time, a fact that negates an intent to create a common plan for development.

Further, the sentence in most of the deeds of the ten lots with restrictions states in relevant part that the restrictions applied only to the lot being conveyed, “and it is not the Grantor’s intent that they shall bind any other property of the Grantor . . . unless specifically referred to in future deeds of conveyances of said property . . . .” The plaintiffs in their brief state that this language means that the “grantor only intended to impose the restrictions on the lots where the restrictions were expressly stated in subsequent deeds of lots in the subdivision.” The words in the deed, therefore, do not indicate an intent to impose uniform restrictions on all of the lots presently or in the future owned by Treasure Homes and negate an intent to create a general plan. See 20 Am. Jur. 2d, Covenants § 162 (1995). In addition, Treasure Homes conveyed two lots without any restrictions whatsoever; the deeds to two lots contain cross-outs of any restrictions. The lot directly across the street from the defendants has a provision in its chain of title that specifically allows horses to be housed there. This court cannot discern from the language of the deeds executed by Treasure Homes and the surrounding circumstances an intent to establish a common development scheme.

We are aware that “[t]he doctrine of the enforceability of uniform restrictive covenants is of equitable origin. The equity springs from the presumption that each purchaser has paid a premium for the property in reliance upon the uniform development plan being carried out. While that purchaser is bound by and observes the covenant, it would be inequitable to allow any other landowner, who is also subject to the same restriction, to violate it.” Contegni v. Payne, supra, 18 Conn. App. 52; see also Whitton v. Clark, supra, 112 Conn. 35. The difficulty here, however, is that there is no uniform plan on which other purchasers could rely.

Although there is an origin in equity as to the rule allowing owners of land from a common grantor to enforce restrictions against other landowners that are substantially uniform in each owners’ deeds, the Supreme Court has noted that the ultimate determination as to enforcement must rest on the determination of a question of law, namely, the intent of the grantor. Whitton v. Clark, supra, 112 Conn. 36. The earliest purchasers in a subdivision do not have other deeds on which to rely; they have only the intent of the grantor to impose those restrictions in other deeds in the future, as expressed in a subdivision map or in a recorded plan of development detailing the restrictive covenants to which the lots in a subdivision must comply. Id. Here, the first purchasers of lots from Treasure Homes only had a tenuous reliance on the intent of the grantor to impose future restrictions on lots to which the grantor did not yet possess title.

Hooker and other cases contemplate an owner of real property who subdivides that property for subsequent sale in accordance with a general development scheme. That is not what happened here. One owner subdivided its land without any indication of common restrictions as to its use. Another owner acquired some of the lots and failed to establish a common plan for development.

Here, the deeded restriction applies to two thirds of the lots involved, but not to the other third, and falls short of evidencing a common plan. See id., 37 (twenty of fifty-four lots with restrictions does not show common plan). Enforceable restrictive covenants usually involve the presence of the same or similar restrictions in all or substantially all of the deeds conveyed by the common grantor. See Hooker v. Alexander, supra, 129 Conn. 436; Armstrong v. Leverone, supra, 105 Conn. 471. After balancing the factors involved in determining the presence or absence of the intent to create a common plan of development, we conclude that there was no intent to create such a common plan by Treasure Homes. “Restrictive covenants, being in derogation of the common-law right to use land for all lawful purposes which go with title and possession, are not to be extended by implication.” Pulver v. Mascolo, 155 Conn. 644, 649, 237 A.2d 97 (1967); Hooker v. Alexander, supra, 436.

We conclude, as a matter of law, that the restrictions prohibiting the defendants from keeping horses and building a structure to house them are unenforceable.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendants.

In this opinion the other judges concurred.

       The plaintiffs in this action originally included Frank DaSilva, Percy Russell, Diane Ames, David Barber, Joyce Barber, Everett Cooper, Karen Cooper, Judith Kimbell, James McMahon, Joan McMahon, Christel I. Kehoe and Robert Kehoe. The common grantor in their chain of title is Treasure Homes, Inc. Other plaintiffs were Albert Devejian, Martha Devejian, Fred Tarter and Lois Tarter. The predecessors in title to the Devejians include Scot-Alan Corporation and Ingham Hill Corporation, but not Treasure Homes, Inc. The Tarters own a tract of land abutting the defendants’ land, but that tract was not part of the original subdivision at issue in this case. Russell and Ames later withdrew as parties and therefore are not parties to this appeal.

       The court denied injunctive relief as to the nuisance count, and no argument is made on appeal by the plaintiffs as to that denial.

       Because our decision on the defendants’ first claim is dispositive, we need not address their second claim as to the particular language used in the restrictive covenants.

       George Bossert, the president of both Scot-Alan and Treasure Homes, the predecessors in title to certain of the plaintiffs; see footnote 1; signed all of the conveyances for both corporations. There are no other facts to indicate that the two corporations should be treated as one entity.

       The restrictive covenants in the ten deeds are substantially uniform. They state: “1. Said premises shall be used solely for private residential purposes and no building or structure may be constructed, maintained or permitted to exist on said premises other than a private residential structure designed for and to be occupied by one family, and out-buildings or structures usually incident to private residences. 2. No animals or pets may be kept on said premises except normal domestic pets such as cats or dogs, and no animal may be kept for breeding purposes. 3. No poles, clotheslines or other devices or contrivances for the hanging or drying of laundry shall be placed, erected or maintained on or about said premises except a rotary clothes dryer contrivance which shall be enclosed by hedges, fences, or other materials at least six feet high. This restriction shall not relate or be deemed to relate to the interior of the buildings erected on said premises.”
      The deeds also state: “The restrictions as recited above are intended to cover the lot herein beirig conveyed and it is not the Grantor’s intent that they shall bind any other property of the Grantor forming a part of the map described [in this deed] unless specifically referred to in future deeds of conveyance of said property by the Grantor.”

       The subdivision is located in an area of Fairfield where zoning restrictions do not prohibit the keeping of horses or the erection of structures to house the animals.

       There is a nature preserve near the subdivision with trails used for horseback riding on a daily basis.

       The exception language is in the last sentence quoted in footnote 5.

       Although the defendants removed the horses when the weather was cold, the appeal is not moot because the defendants intend to bring them back and to build a stable, if allowed.

       The court did not mention the exact identity of the common grantor. It can be inferred, however, that the common grantor referred to by the court was Scot-Alan, as the court mentioned foreclosed lots in its analysis. Treasure Homes did not lose any lots to foreclosure, making Scot-Alan the probable common grantor mentioned in the court’s analysis.

       We are not bound by the parties’ agreement. See State v. Harris, 60 Conn. App. 436, 443, 759 A.2d 1040, cert. denied, 255 Conn. 907, 762 A.2d 911 (2000).

       The plaintiffs seem to argue that Scot-Alan and Treasure Homes should be treated as one entity to equal one common grantor: one part of the entity owning all of the land simultaneously and dividing it into lots (Scot-Alan), and another part of the entity subjecting the lots to a general development scheme (Treasure Homes).

       For example, at the time the predecessors in title to the defendants took title from Treasure Homes, Treasure Homes did not own any other lot in the tract as shown on the map recorded by Scot-Alan. At the time that the predecessor in title to the plaintiffs Frank DaSilva and Rosalie M. DaSilva took title to lot thirty, Treasure Homes owned only one other lot in the tract.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. ROBERT WARD
    (AC 23159)
    Schaller, Flynn and McLachlan, Js.

      Argued March 23
    officially released June 15, 2004

      G. Douglas Nash, former public defender, and Christopher Neary, special deputy assistant public defender, with whom, on the brief, was Jeremy Walker, certified legal intern, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with- whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Margaret E. Kelley, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Robert Ward, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a-217, carrying a pistol without a permit in violation of General Statutes § 29-35, criminal trespass in the third degree in violation of General Statutes § 53a-109 and criminal mischief in the third degree in violation of General Statutes § 53a-117. The defendant also appeals from the judgment of conviction resulting from being found guilty of being a persistent serious felony offender by the trial court pursuant to General Statutes § 53a-40 (2) (c).

On appeal, the defendant claims that (1) the court improperly denied his motion to suppress evidence obtained as a result of an illegal Terry stop, (2) the court improperly precluded the defendant from testifying about statements the police made during the stop, (3) his fifth amendment right to be free from double jeopardy was violated when he was convicted of both carrying a pistol without a permit and criminal possession of a firearm and (4) the evidence was insufficient to sustain his conviction of criminal trespass in the third degree. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The owner of an apartment building gave the Bridgeport police keys to the premises so that, as a part of their regular neighborhood police duties, they could patrol the hallways because of a number of break-ins, narcotics sales and rampant prostitution on the premises. After a walk-through of the building on December 26, 2000, Officer Adam Roscoe and Officer Martin Heaneu stationed themselves inside of the Washington Avenue entrance to the building. The Washington Avenue entrance had a “No Trespassing” sign posted outside it. The door to that entrance had been broken repeatedly by persons who did not possess keys to the building, although there was a main entrance to the building on Sanford Place with an intercom and buzzer system for tenants and visitors. The officers heard the door being forcibly yanked multiple times, and, finally, after the defendant forced it open, they watched him walk into the building. The officers stopped the defendant and asked him if he was a tenant. He responded in the negative. They then asked him what his business was in the building. He stated that he was there to visit “his boy,” but would not divulge the person’s real name.

A third officer, Jesse Pizarro, arrived as backup, enabling Heaneu to go upstairs to knock on the door of the apartment the defendant named as the one he was visiting. No one answered the door when Heaneu knocked. While Heaneu was upstairs, Roscoe obtained identification from the defendant and checked to see if he had any outstanding warrants. During this time, the defendant put his hands in his pockets. Roscoe, apparently for his own safety, asked him to keep his hands in sight, and when the defendant complied by removing his hands, a straw became visible, sticking out of his pocket. When asked what the straw was for, the defendant stated that he used it to snort heroin. When he was asked if he had any drugs on him, the defendant disobeyed the officer’s orders to keep his hands in sight, reached into his pocket and made a motion toward Roscoe’s head. The two officers attempted to grab the defendant, but he managed to slip out of his jacket and flee the scene. The officers gave chase, and the defendant was subsequently seized and put into a police car, which he proceeded to damage by kicking the interior.

In the meantime, Heaneu returned downstairs to find that Roscoe, Pizarro and the defendant were gone, but that the defendant’s jacket had been left on the floor. Roscoe returned to the building and met Heaneu in the hallway. They brought the jacket outside and set it on the ground. On impact with the ground, a loaded gun hidden in the lining of the defendant’s jacket discharged and shot off a part of Heaneu’s finger. The defendant now appeals after being tried, convicted and sentenced. Further facts will be provided where pertinent.

I

The defendant first claims that the court improperly denied his motion to suppress because the police illegally detained him in an alleged investigative or Terry stop, and therefore, all evidence obtained as a result of that stop should have been suppressed. We disagree.

Our review standard for allegedly unlawful Terry stops is settled. “When considering the validity of a Terry stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred. . . .

“We must first determine, therefore, at what point, if at all, a seizure occurred. [Our Supreme Court has] . . . defined a person as seized under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained. ... In determining the threshold question of whether there has been a seizure, we examine the effect of the police conduct at the time of the alleged seizure, applying an objective standard. Under our state constitution, a person is seized only if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. . . . Therefore, [w]hether there has been a seizure in an individual case is a question of fact.” (Citations omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 503-504, 838 A.2d 981 (2004).

If a seizure has occurred, we then turn to an analysis of “whether the trial court properly concluded that the seizure was based on a reasonable and articulable suspicion of criminal activity. The determination of whether a reasonable and articulable suspicion exists rests on a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” (Internal quotation marks omitted.) Id., 504-505.

“Under the fourth amendment to the United States constitution and article first, [§ 7] ... of our state constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest.” (Internal quotation marks omitted.) State v. Gaston, 82 Conn. App. 161, 165, 842 A.2d 1171 (2004); see also Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

“[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. . . . Terry v. Ohio, supra, 392 U.S. 21 .... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Citations omitted; internal quotation marks omitted.) State v. Santos, supra, 267 Conn. 505; see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).

In denying the defendant’s motion to suppress, the court made the following statements and noted the following facts, only some of which are challenged by the defendant. We analyze the findings made and the defendant’s claims as they arise.

The court stated: “The landlord testified that the apartment house that was his was a place where there’s a tremendous amount of drug activity going on.” The defendant does not claim this was an erroneous finding, but argues that “the assertion of generalized drug activity in the area was of no moment.” We disagree. The defendant is correct that his mere presence in a building in a high crime neighborhood, in itself, would be insufficient to uphold a reasonable and articulable suspicion and would be considered “profiling”; see State v. Donahue, 251 Conn. 636, 648, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000); State v. Oquendo, 223 Conn. 635, 655, 613 A.2d 1300 (1992); see also Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979); however, the fact that it was probable that drug dealers and others were using this particular entrance to trespass on the property was just one factor that the officers took into consideration when analyzing the defendant’s purpose on the property. Although presence in a high crime area alone cannot constitute a reasonable suspicion, an officer is not required to ignore the circumstances and area around the observed suspect. See United States v. Moore, 235 F.3d 700, 704 (1st Cir. 2000); see also Illinois v. Wardlow, supra, 528 U.S. 124 (“officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation”). The defendant’s mode of entrance into the premises could lead an ordinary person to believe that the defendant was not a tenant and probably not a visitor. We conclude that the character of the neighborhood was not irrelevant. We further conclude that neighborhood character was not the primary basis for the Terry stop.

The court also noted that the landlord “testified further that he had contacted the police hundreds of times, as often as . . . multiple times per day. The problem he indicated was so bad that he gave the police keys to get them in and ... by the officers’ testimony, they would be there often, almost daily, and they had made numerous arrests. One of the officers testified that there was drug consumption on all of the floors. All the tenants had the key they could use on any of the doors. The same key worked on any of the four doors.” The defendant does not challenge these findings, or the court’s findings that “[t]he defendant came in the side door on Washington Avenue by banging it several times trying to enter . . . which he eventually opened. A tenant would not need to do that. He or she would have a key. There were signs. Testimony indicat[ed] that there were signs indicating there was no trespassing, no loitering and so on.”

We next review the defendant’s claim that the court’s finding as to the mode of entry for visitors was clearly erroneous. The court found that “[a]ll visitors got buzzed in through the intercom at the main entrance at 25 Sanford [Place].” The defendant argues that “[t]o the exdent this meant that anyone not entering through the Sanford Place door was not a visitor, it is erroneous.” We are not persuaded. The court was free to believe the landlord’s testimony that visitors only may enter the building through an intercom buzzer system at the Sanford Place entrance. Additionally, from the landlord’s testimony that all doors were locked and all tenants had keys to all doors, the court was free to infer that a key was needed to open the locked Washington Avenue door without force. We therefore conclude that these findings were not clearly erroneous.

“[W]here [a defendant] trespasses in a building or on premises manifestly meant to exclude outsiders, the owner’s interest in the privacy of his own property justifies criminal penalties.” Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-109 (West 2001), commission comment, p. 212. The rationale underlying the crime of criminal trespass is “to protect one’s property from unwanted intruders.” Id., § 53a-110, commission comment. Although the defendant is correct that the posting of “No Trespassing” signs outside the Washington Avenue entrance did not specifically deny entrance to visitors or other legitimate licensees, the facts that a key was needed to open the door without force and that the door did not contain a buzzer entry system did deny visitor’s entrance. Additionally, tenants had keys to all four of the building doors. The defendant forcibly entered a building in which many drug arrests had been made, and which is located in a neighborhood known for its drug activity. The landlord had identified the building as having a high number of trespassers entering through this specific entrance. It was a reasonable inference that the defendant did not have a key and probably was not a visitor or a resident because he had to yank on the door multiple times to open it.

The defendant next challenges the court’s finding “based on the evidence and the reasonable inferences that can be drawn from that evidence, that the police stopped the defendant on a reasonable and articulable suspicion of criminal trespass in the third degree. This investigatory stop was then fortified by the defendant saying he was not a tenant . . . and when asked to identify the person he was visiting [he] did not give a name but only identified that person as ‘boy.’ ” The defendant claims that he was seized a few moments after he entered the building, before questioning began, and that the police lacked a reasonable and articulable suspicion to stop him. We disagree.

The Terry stop did not occur immediately after the defendant entered the hallway. “Courts have made clear that police officers do not bring about a ‘seizure’ merely by asking questions of a citizen, even when the officer identifies himself as a police officer.” (Internal quotation marks omitted.) State v. Kidd, 59 Conn. App. 598, 602, 757 A.2d 1168 (2000), cert. denied, 255 Conn. 932, 767 A.2d 106 (2001). The officers merely questioned the defendant when he first opened the door. At that point, a seizure had not occurred. Our Supreme Court has determined that a seizure occurs when a reasonable person would believe that the defendant was not free to leave because his freedom of movement was restrained by means of physical force or a show of authority. State v. Santos, supra, 267 Conn. 503-504. The defendant was free to leave until the moment that the officers questioned the defendant and learned that he was not a tenant and could not or would not name the person he claimed to be visiting. It was at this time that a Terry stop occurred. The officers then obtained identification from the defendant to check for any outstanding warrants, had an officer arrive as backup and sent another officer upstairs to investigate the defendant’s story about his purpose in the building.

At the time the Terry stop occurred, the police had a reasonable and articulable suspicion that the defendant was committing criminal trespass. We first examine the elements of that statute. Section 53a-109 (a) provides in relevant part: “A person is guilty of criminal trespass in the third degree when, knowing that he is not licensed or privileged to do so: (1) He enters or remains in premises which are posted in a manner prescribed by law or reasonably likely to come to the attention of intruders . . . .” Under this fact pattern, the elements of the crime include that the defendant (1) entered or remained in the premises that were posted in a manner prescribed by law or reasonably likely to come to the attention of intruders and (2) knew he was not licensed or privileged to so enter or remain. See A. Ment & R. Fracasse, Connecticut Selected Jury Instructions: Criminal (3d Ed. 1995) § 9.45. We conclude that given the facts and circumstances of this case, the officers’ suspicion was reasonable and articulable as to each element of criminal trespass in the third degree.

The officers knew before the defendant entered the building that the premises were posted in a manner prescribed by law or reasonably likely to come to the attention of intruders. The Washington Avenue entrance was clear ly marked with a “No Trespassing” sign. In addition, a key was needed to open the door without force, and the entrance lacked a buzzer entry system such as the one at the Sanford Place entrance. These facts support a reasonable inference that the door to the Washington Avenue entrance was not an authorized entrance for visitors.

The defendant does not contest that he entered the building. The officers observed the defendant’s entrance. The defendant forcibly had to yank on the door multiple times before he gained access. Once he entered the building, the defendant could have turned around and walked out. Instead, the defendant stayed and answered the officers’ questions.

The Terry stop was not conducted solely on the basis of the defendant’s entry through the posted door. Other facts added to the officers’ suspicions that a trespass was occurring and fulfilled the requirement that the defendant knew he was not licensed or privileged to enter the premises, but proceeded to do so. The inference that the defendant did not possess a key to the building because he had to yank on the door to force it open and his statement that he was not a tenant and could or would not name the person he was visiting added to the officers’ suspicions. Therefore, we conclude that the officers had a reasonable and articulable suspicion as to each element of the crime of trespass in the third degree on which they could stop the defendant in order to investigate his claim of license to enter the premises.

“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” (Internal quotation marks omitted.) State v. Carcare, 75 Conn. App. 756, 768, 818 A.2d 53 (2003).

The officers already had called for backup. They asked the defendant for identification and sent an officer to the apartment, the number of which the defendant supplied, to see if his story checked out. “One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. A police officer who has proper grounds for stopping a suspect has constitutional permission to immobilize the suspect briefly in order to check a description or an identification, so long as his conduct is strictly tied to and justified by the circumstances which rendered its initiation permissible. . . . Determination of the means that are reasonably necessary to maintain the status quo necessarily depends on a fact-bound examination of the particular circumstances of the particular governmental intrusion on the personal security of a suspect.” (Internal quotation marks omitted.) Id. The facts of this case lead us to conclude that the officers had a reasonable and articulable suspicion as a basis for the initial stop of the defendant.

In addition to his argument regarding the initial stop, the defendant contends that the stop was illegal because the defendant was detained for too long of a time. “In assessing whether a detention is too long in duration to be justified as investigative, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was only to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” (Internal quotation marks omitted.) State v. Bowden, 15 Conn. App. 539, 546, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988). We find nothing in this record to persuade us that the duration of this stop was illegal. The defendant’s method of gaming entrance to the building and his refusal to state the name of the person whom he was visiting made the officers suspicious that the defendant was trespassing. The defendant’s detention was further prolonged by his conduct in exposing a straw he admitted was used for heroin snorting, his movement that the police objectively could have regarded as menacing to them and finally, his running when the officers attempted physically to restrain him, leaving behind the jacket with the concealed loaded gun, which subsequently fired and maimed one of the officers.

Upon the defendant’s forcible entrance into the building through a locked door, the police had reason to ask the defendant what the nature of his business in the building was. When he was unable to name the person whom he was visiting, it was proper for the officers to detain the defendant briefly while conducting an investigation to maintain the status quo. Under those circumstances, the court properly concluded that the police had a reasonable and articulable suspicion before stopping the defendant and that they acted in accordance with the principles of a constitutionally permissible Terry stop. Therefore, the court properly denied the defendant’s motion to suppress evidence of the gun, the stop and all subsequent events.

II

The defendant next claims that the court improperly precluded him from testifying about the statements the police made during the Terry stop because the statements were essential to his defense that the police officers had a motive and a plan to accuse him falsely of possessing the pistol. The defendant also contends that the statements were admissible as inconsistent statements.

There are three statements that the court precluded the defendant during direct examination from attributing to the police officers. The defendant wanted to testify (1) that Roscoe said, “look what we have here,” (2) that Heaneu stated, “look at this piece of shit garbage” when referring to the pistol, and (3) that Roscoe asked the defendant, “you like to carry guns, don’t you?” As to the latter two statements, after the state’s hearsay objection was sustained, the defendant did not take exception to the ruling. When the defendant was asked if he wanted to make an objection on the record, defendant’s counsel stated that he would not claim an objection. “A party is not entitled to have a claim reviewed on appeal on grounds different from those presented at trial. ... To hold otherwise would result in trial judges’ being found to have erred on questions never fairly presented to them.” (Internal quotation marks omitted.) State v. James, 54 Conn. App. 26, 36, 734 A.2d 1012, cert. denied, 251 Conn. 903, 738 A.2d 1092 (1999). Therefore, we will not review the defendant’s evidentiary claims as to the second and third statements.

The first statement at issue allegedly made by the police was, “look what we have here.” We agree with the state that the defendant did not properly preserve his objection to this statement on the ground he now urges on appeal, namely, that the statement was evidence of motive or bias. Therefore, we will not review this portion of the defendant’s claim. We also are unpersuaded by the argument that the statement was admissible as an inconsistent statement because we conclude that the defendant did not lay the proper foundation to introduce the hearsay. Even if we were to determine that the three statements were excluded improperly, the defendant was not harmed because he was not precluded from confronting the declarants with their alleged statements and was able to introduce his defense through other evidence.

The state objected to the statement, “look what we have here,” as inadmissible hearsay. “An out-of-court statement offered to establish the truth of the matter asserted is hearsay. ... As a general rule, such hearsay statements are inadmissible unless they fall within a recognized exception to the hearsay rule.” (Citation omitted.) State v. Merriam, 264 Conn. 617, 633, 835 A.2d 895 (2003). The defendant’s counsel made a shifting argument regarding the propriety of the statement’s admission into evidence. Although the defendant argued that the statement was not hearsay, he also seemed to believe, incorrectly, that because he did not object to the hearsay statements made in the testimony of the police officers, the court would have to allow him the same latitude. When the court asked him the reason or relevancy of the statement if it was not being offered for the truth of the matter asserted, defense counsel stated that it was admissible as an inconsistent statement made by a declarant. The court sustained the objection because an adequate foundation had not been laid for an inconsistent statement. Although he now argues on appeal that the evidence was admissible to show motive or bias of the police against him, this argument was not made at trial. Therefore, because the defendant did not properly preserve for appeal his claim that the statement was not being offered for the truth of the matter asserted but to show motive or bias, we need not further analyze this claim.

The defendant did preserve his objection that this statement was an inconsistent statement made by a declarant. We agree with the state that a proper foundation was not laid and the court properly sustained the state’s objection. “We review evidentiary claims pursuant to an abuse of discretion standard. Generally, [t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion.” (Internal quotation marks omitted.) Stanley v. Lincoln, 75 Conn. App. 781, 785, 818 A.2d 783 (2003).

Section 6-10 (c) of the Connecticut Code of Evidence provides in relevant part: “If a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement extrinsic evidence of the statement is inadmissible, except in the discretion of the court.” “Where a party seeks to impeach a witness by using extrinsic evidence, certain standards must be met. The inconsistent statement must be relevant and of such a kind as would affect the witness’ credibility, and, generally, a foundation for introducing the statement should be laid at the time of cross-examination of the witness. State v. Saia, [172 Conn. 37, 46, 372 A.2d 144 (1976)] .... In this state, we have no inflexible rule regarding the necessity of calling the attention of a witness on cross-examination to his alleged prior inconsistent statements before either questioning him on the subject or introducing extrinsic evidence tending to impeach him. From early times, it has consistently been held that it rests within the judicial discretion of the trial court whether to admit the impeaching statements where no foundation has been laid. . . . The trial court is vested with a liberal discretion as to how the inquiiy should be conducted in any given case.” (Citation omitted; internal quotation marks omitted.) State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988).

However, “[u]sually, the foundation for introducing a prior inconsistent statement is laid by asking the witness on cross-examination whether he made the statement and alerting him to the time and place at which it was made. . . . Where the witness denies having made the statement or is unable to recall having done so, extrinsic evidence may be admitted to show it was made.” (Citations omitted.) Id.; see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 6.35.5, p. 486.

The defendant contends that the statement, “look what we have here,” would “show that Officer Roscoe knew the defendant from prior occasions.” In order for this to have been an inconsistent statement, Roscoe would have had to have stated that he had not previously known the defendant. A review of the record shows no such statement. Roscoe was never asked if he knew the defendant. The only question he was asked was whether “prior to that evening, had you seen the defendant in the building?” (Emphasis added.) The officer replied in the negative. The officer was never asked if he knew the defendant or had prior encounters with him. A statement cannot be inconsistent unless and until it contradicts something the declarant previously has said. In addition, the officer testified that he stopped the defendant after he entered the building. He did not testify as to whether he said anything upon stopping the defendant. The statement that the defendant wanted to testify to was not inconsistent with anything the officer stated at trial. Therefore, the court did not abuse its discretion in precluding the statement because the declarant was never confronted with the statement and never denied making it.

Even if we were to determine that these three challenged statements should have been allowed, their preclusion was harmless error under the circumstances of this case. The defendant was not denied his right to present a defense or to confront witnesses. The court did not preclude the introduction of Roscoe’s statement. It did require that as a witness he be confronted with his statements before the defendant was allowed to testify to them. In addition, the defendant testified about his theory that he was set up by the police. He told the jury that Roscoe knew him, that he was searched immediately upon entry into the building, that he believed the police planted the gun on him and that he never had a straw in his pocket. His defense was placed before the jury. Roscoe’s alleged statement could have been admitted if a proper foundation had been laid. Because the record lacks such a foundation, the statement was properly excluded. Therefore, there was no violation of the defendant’s right to confront witnesses or to present a defense.

III

The defendant also claims that his conviction of carrying a pistol without a permit pursuant to § 29-35 (a) and criminal possession of a firearm pursuant to § 53a-217 (a) (1) constitutes multiple convictions for the same act and thus violates his federal and state constitutional right to be free from double jeopardy. See U.S. Const., amends. X, XTV; Conn. Const., art. I, § 8. The defendant notes that this court previously has decided that conviction of these offenses does not violate the proscription against double jeopardy and asks this court to reconsider the matter because those decisions were decided wrongly. See State v. Laws, 37 Conn. App. 276, 290, 295, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995); State v. Ortiz, 15 Conn. App. 749, 751, 546 A.2d 338, cert. denied, 209 Conn. 820, 551 A.2d 757 (1988); State v. King, 15 Conn. App. 330, 332, 544 A.2d 261 (1988). We are constrained by these precedents and decline to overturn them. Therefore, we conclude that the defendant’s right to be free from double jeopardy was not violated.

IV

The defendant’s last claim is that the evidence was insufficient to sustain his conviction of criminal trespass in the third degree in violation of § 53a-109 (a) (1). The state had to prove beyond a reasonable doubt that the defendant (1) entered or remained in the premises that were posted in a manner prescribed by law or reasonably likely to come to the attention of intruders and (2) knew he was not licensed or privileged to so enter or remain. See General Statutes § 53a-109 (a) (1); see also A. Ment & R. Fracasse, supra, § 9.45. The defendant argues that the state failed to prove both that he was not licensed or privileged to enter or to remain in the building and that the premises were posted in a manner prescribed by law or reasonably likely to come to the attention of intruders. We disagree.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged [offense], each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . [I]n determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . [A]n inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.” (Citation omitted; internal quotation marks omitted.) State v. Moore, 82 Conn. App. 267, 270, 843 A.2d 652, cert. denied, 269 Conn. 904, 852 A.2d 734 (2004).

From the evidence presented at trial, read in the light most favorable to sustaining the verdict, the jury reasonably could have found that the entranceway was properly posted and that the defendant entered and remained in the premises knowing that he did not have a right to be in the building. The defendant does not contest that he entered and remained in the building. The officers observed his entrance and the defendant admitted to being in the building. The jury also could have found that the defendant had knowledge that he did not have a right to enter the building. He entered the building by forcing open a locked door by yanking it multiple times. He chose not to use the main entrance that he knew had a buzzer system for the admittance of visitors. The defendant argues that many individuals, not just tenants, used this door for entrance into the building. The mere fact that others had forced the lock on the door to gain admittance does not render this entranceway a public or semipublic entrance that visitors were permitted to use. The jury was entitled to infer and to find that there was a lock and lack of a buzzer system on this door for a reason; it was to be used only by persons possessing keys. The defendant also told the police and the jury conflicting stories about the individual he was supposedly visiting. He testified that the person he was going to see knew he was coming; yet, when the police knocked on the apartment door, no one answered. A juiy reasonably could have found that the defendant knew he had entered the building without permission.

In addition, a jury reasonably could have found that the premises were posted in a manner prescribed by law or reasonably likely to come to the attention of intruders. The entrance had a “No Trespassing” sign clearly displayed outside of the building doorway that he entered. The defendant had to force his way through a locked door. He also knew that there was a main entranceway with a buzzer system, something the doorway he used did not contain. A jury clearly could have concluded that the defendant was not licensed or privileged to enter and knew of this upon entering the building. Therefore, we conclude that there was sufficient evidence before the jury for it to determine that the defendant was guilty of criminal trespass in the third degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       Prior to entering the premises, the officers called Officer Jesse Pizarro, who was familiar with the building, to assist them in the walk-through.

       At trial, the defendant changed the version of the story that he had told the police and testified that the Sanford Place entrance’s buzzer system was not working and that he was really at the building to visit a girl named Tasha. He also stated that the police set him up, that he was searched immediately upon his entry into the building and that he never had the gun or the straw on his person that the police claimed to have found.

         Because we have concluded that the defendant was not deprived of his right to present a defense or to confront witnesses, the defendant’s claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), must also fail. Therefore, an analysis of this claim is not warranted.

       The defendant also argues that the statement would give meaning and significance to the actions being taken by the police, illustrate the officer’s state of mind and show the effect on the hearer. These reasons do not further his argument that this statement is an inconsistent statement made by Roscoe, and they need not be addressed by this court.

       The defendant testified that the buzzer system was not functioning. Without evidence that this was true, the jury was under no obligation to believe the testimony of the defendant. See State v. Robinson, 81 Conn. App. 26, 33, 838 A.2d 243, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004).

       The defendant chose not to present the affirmative defense embodied in General Statutes § 53a-110. This statute relieves a defendant of criminal liability if he believes that he is authorized or can prove that an authorized person would have given him permission to enter or remain at the premises. See General Statutes § 53a-110. “[The statute’s] purpose is to relieve from criminal liability one who is, in a sense, an innocent intruder.” Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-110 (West 2001), commission comment, p. 213.