author: IAVERY, J.

text:
    GORDON MANNWEILER ET AL. v. CHARLES LAFLAMME ET AL.
    (AC 15265)
    Lavery, Schaller and Hennessy, Js.

      Argued January 21
    officially released September 2, 1997

      Edward G. Fitzpatrick, with whom, on the brief, was Jayne Elser Welch, for the appellants (plaintiffs).

      Vincent T. McManus, Jr., for the appellees (defendants).
   Opinion

IAVERY, J.

The plaintiffs appeal from the judgment rendered for the defendants on the plaintiffs’ complaint seeking a permanent injunction to enforce a restrictive covenant to prevent the defendants from constructing more than one house on a lot. The dispositive issue is whether all of the lots in the subject development, including those of the plaintiffs and the defendants, were subject to restrictive covenants that prevented any owner from subdividing an existing lot and creating additional building lots.

The following facts are necessary for the resolution of this appeal. In 1927, the J. H. Whittemore Company (Whittemore) recorded a subdivision map of a tract of land known as the Hop Brook Development (Hop Brook) in the Naugatuck land records. Hop Brook consisted of six sections that were divided into fifty-two lots that were delineated on the subdivision map. The lots were not of equal size. All the parties to this action are owners of property in the development and derive their title from Whittemore, who was the common grantor. In May, 1991, the defendants received approval from the Naugatuck planning and zoning commission to resubdivide their property and to construct two houses, in addition to the house that presently exists, on their lot.

The plaintiffs instituted this action seeking injunctive and declaratory relief to prevent the defendants from constructing the two additional dwellings on their resubdivided parcel. The plaintiffs claim that Whitte-more had created, by restrictive covenant, a uniform plan of development, or common scheme. The plaintiffs contend that this common scheme limits any development within Hop Brook to one residential dwelling per lot, as it is shown on the map to which all subsequent conveyances were subject.

In September, 1927, the first deed conveying a lot from Hop Brook, which was delivered to Howard Bristol, contained the following restrictive covenants: “This conveyance is made subject to the following covenants and restrictions and the said Grantee, his heirs and assigns, by the acceptance of this deed, assents and agrees to take the said premises subject thereto: 1. The aforesaid premises shall be occupied and used by the Grantee, his heirs and assigns, for private residential purposes only and not otherwise, and there shall at no time be erected or maintained thereon anything except one private residence for the use of one family only, which private residence shall cost, exclusive of the land not less than $15,000, together with the necessary outbuildings appurtenant thereto. ... 3. Each and all the foregoing covenants and restrictions are for the mutual benefit of all persons who have derived or who shall derive title, directly or indirectly from the Grantor to any lot or lots shown on the Map hereinbe-fore referred to, and shall run with the land in favor of all lots shown on said Map, and any breach or threatened breach of any one or more or all of the covenants and restrictions aforesaid may be enjoined upon application of the Grantor, its successors and assigns, or any person or persons who have derived or shall derive title directly or indirectly from the Grantor to any lot or lots shown on said map. ” (Emphasis added.) Whittemore subsequently conveyed thirty of the fifty-two lots to grantees within Hop Brook from 1927 until 1937. All of those deeds contained covenants and restrictions that were virtually identical to those set forth above.

In December, 1934, Whittemore and all prior grantees signed and recorded a written modification of the covenants and restrictions changing the minimum cost of construction of a private residence from $15,000 to $10,000 on twenty-two of the lots in Hop Brook. The modified language states: “1. The aforesaid premises shall be occupied and used by the Grantee, his heirs, and assigns, for private residential purposes only and not otherwise, and there shall at no time be erected or maintained thereon anything except one private residence for the use of one family only, which private residence shall cost, exclusive of land, not less than $10,000.00, together with the necessary outbuilding thereto . . . and said lots are hereby released and discharged from any restriction now existing whereby a private residence thereon shall cost more than said sum. Said covenant and restriction shall be for the mutual benefit of all persons who have or shall have title to any lot or lots shown on the Map of said Hop Brook Development, and shall run with the land in favor of all lots shown on said map and any breach or threatened breach thereof may be enjoined upon this application of the Party of the First part, its successors and assigns, or any person or persons who have derived or shall derive title, directly or indirectly, from the Party of the First Part to any lot or lots shown on said Map.”

In September, 1936, the common grantor, Whitte-more, and all prior grantees of Hop Brook, including mortgage holders, agreed to a correction in a deed dated November, 1927, to Helen W. Adams. That deed described the property conveyed to her as one parcel, section D, lots one through seven. The agreement provided that the lots, then owned by Martin L. Martus, consisted of seven separate building lots as set forth in the development map. The pertinent language in the agreement states: “The aforesaid premises shall be occupied and used by the Grantee, his heirs and assigns, for private residential purposes only and not otherwise, and there shall at no time be erected or maintained upon any one lot of the seven lots comprising said aforesaid premises and shown and described on said Map entitled ‘Lot Plan of Hop Brook Development,’ anything except one private residence for the use of one family only, which private residence shall cost, exclusive of the land, not less than $15,000.00, together with the necessary outbuildings appurtenant thereto which said covenant and restriction shall operate to the same purpose and effect as though it had been contained in said deed from J. H. Whittemore Company to Helen W. Adams.” The common grantor, Whittemore, did not reserve any right to revoke, to amend, or to alter any of the restrictive covenants in the deeds of the first thirty-two lots it conveyed out of Hop Brook.

In August, 1937, Whittemore conveyed section E of Hop Brook to Lewis A. Dibble. Whittemore conveyed that land to Dibble with the covenants and restrictions as set out in the prior conveyances of Hop Brook lots, but with an additional paragraph. That paragraph states: “4. It is particularly agreed and understood that should the Grantee, his heirs or assigns, purchase further lands from the Grantor, or its successors, within Block ‘E,’ as shown on said Map, the foregoing covenants and restrictions may be revoked, in whole or in part, and others substituted therefor, by an agreement entered into by and between the Grantor, or its successors, and the Grantee, or his heirs or assigns, alone, and without the consent of any other person or persons.”

After August, 1937, Whittemore conveyed several lots containing the original covenants and restrictions, but without a unilateral right to modify. Dibble had previously purchased lot two of section E from Whittemore in 1927, as well as a portion of lot three in 1930, which was adjacent to lot two. In the conveyance of the portion of lot three from Whittemore to Dibble, the following pertinent covenants and restrictions were put into the deed. “1) The aforesaid premises shall be occupied and used by the Grantee, his heirs and assigns, for private residential purposes only, and not otherwise, in connection with and as part of Lot No. 2 as shown on said Map, heretofore conveyed by the Grantor to the Grantee herein. 2) No house or outbuilding, including garage, stable, or any other structure, or any part or portion thereof, including porches, steps, porte coch-eres, bay windows and any and all projections therefrom shall be at any time erected or placed on or over the within described premises. 3) Each and all the foregoing covenants and restrictions are for the mutual benefit of all persons who have derived or who shall derive title, directly or indirectly, from the Grantor to any lot or lots shown on said Map.

“The Grantee, by the acceptance of this deed, covenants and agrees that this conveyance shall not be deemed a violation of the covenants of the Grantor contained in a certain deed from the Grantor to the Grantee dated September 30, 1927, and recorded in Naugatuck Land Records, Volume 78, pages 41-42, said covenants relating to certain restrictions as to the sale and use of Lot No. 3, as shown on said Map, and it is agreed and understood that said covenants of the Grantor in said deed contained shall hereafter relate to and restrict the Grantor only as to the remaining portion of said Lot No. 3, so that the same shall read as follows: The Grantor covenants and agrees that it will, itself, sell the adjacent parcel to the north, shown as the remaining portion of Lot No. 3 on said Map, only as one parcel.” The conveyance of the portion of lot three made lot two larger but did not create an additional building lot. The remainder of lot three was to be a building lot.

In September, 1946, Whittemore conveyed to Dibble, the defendants’ predecessor in title, all of the remaining land of section E that had not been previously conveyed to Dibble. This land consisted of the remaining portions of lots one, five and three, as well as lot four in its entirety. The deed conveying this property contained the following language: “In accordance with and to the extent that power to do so has heretofore been reserved by the Grantor, all covenants and restrictions applicable to lands within said Section E heretofore purchased by the Grantee from the Grantor are hereby revoked. In place thereof, and as applicable to all premises located within said Section E, whether heretofore or hereunder acquired, the said Grantee, his heirs and assigns, by the acceptance of this deed, assents and agrees that the premises within said Section E heretofore acquired by the Grantee shall be subject to the following covenants and restrictions: 1. All said premises shall be occupied and used by the Grantee, his heirs and assigns, for private residential purposes only and not otherwise, and there shall at no time be erected or maintained thereon anything except private residences, each for the use of one family only, which private residences shall each cost, exclusive of land, not less than $15,000.00, together with the necessary outbuildings thereto, and except such outbuildings as maybe desired by the Grantee, his heirs and assigns, for use in connection with the occupancy of a private residence located within said Section. No private residence shall be erected or maintained on a lot having a street frontage of less than 100 feet or a total area of less than 15,000 square feet. 2. Said premises may be re-subdivided into building lots of dimensions other than those shown on said Map, provided, however, that no lot shall have a street frontage of less than 100 feet nor a total area of less than 15,000 square feet. On any such lot, or on the original lots if not re-subdivided, no house or outbuildings, including garage, stable, or any other structure, or any part or portion thereof, including porches, steps, porte cochere, bay windows, and any and all projections therefrom, shall be at any time erected or placed nearer to the front or sidewalk lines of any such lot than forty feet, nor nearer to the side line of any such lot than twenty feet or, where such lot sides upon a street, nearer than forty feet to such side or sidewalk line. 3. Each and all the foregoing covenants and restrictions are for the mutual benefit of all persons who have derived or who shall derive title, directly or indirectly, from the Grantor to any lot or lots shown on the Map herein before referred to, and shall run with the land in favor of all lots shown on said Map, and any breach or threatened breach of any one or more or all of the covenants and restrictions aforesaid may be enjoined upon the application of the Grantor, its successors and assigns, or any person or persons who have derived or shall derive title, directly or indirectly, from the Grantor to any lot or lots shown on said Map.”

Language expressly permitting subdivision is contained in the original deed of conveyance in twenty-two of the fifty-two lots in the subdivision. Those twenty-two lots were conveyed subsequent to the conveyance of the first thirty lots, which contained no such language. Until the defendants’ resubdivision, no lots existed other than those shown on the original subdivision map. While some boundary lines have been changed, no new lots have been created and some houses have been built on more than one lot by combining two or more lots. The lots in section E are substantially larger than the other lots in Hop Brook and may be resubdivided under the subdivision regulations of Naugatuck, as was done in lot one in this case.

The defendants took title to lots one, two, five and a portion of lot three, section E, of Hop Brook in June, 1989. The defendants accepted title subject to the following language: “Possible conditions and restriction as set forth in two Warranty Deeds from J. H. Whittemore Company to Louis A. Dibble dated September 30, 1927 and July 15,1930 recorded respectively in Vol. 78 Pages 41 and 642 of the deed from J.H. Whittemore Company to Louis A. Dibble dated September 26, Land Records, as supplemented by a Warranty Deed between those parties dated September 26, 1946 recorded December 7, 1946 in Vol. 97, Page 493 of the Naugatuck Land Records.” The defendants have erected one single-family dwelling on lot one, section E, of the subdivision.

The plaintiffs claim that the construction of additional dwellings on lot one of section E is in violation of the mutual restrictive covenants as set forth in deeds to their lots, and those of their predecessors in title. The plaintiffs sought a temporary injunction to prevent the construction of the additional dwellings. The temporary injunction was granted by the trial court. The trial court, however, subsequently denied the plaintiffs’ request for a permanent injunction. The trial court found that a common plan existed to develop a residential area of single-family homes, but that it was not part of the general plan or scheme to restrict the subdivision of the defendants’ lots except as described in the defendants’ deed. The trial court relied on Whitton v. Clark, 112 Conn. 28, 151 A. 305 (1930), and concluded: “[T]he only restriction that is common to all deeds out of the common grantor is the restriction to construct single family homes of a certain value with a certain minimum lot size. Not common to all deeds, just as in Whitton, is any further limit, such as a restriction on subdividing larger lots to the minimum size requirements imposed by the deed to the lot being subdivided.

“There is no restriction on subdivision in any common deed to which all deeds relevant to this matter may be traced. In fact there is no evidence of any common deed, only evidence regarding a common grantor whom we know changed the restrictions in his deeds over time from those that are silent on the issue of subdivision to those that expressly permit it.”

The trial court found it unnecessary to rule on the defendant’s special defense that they were entitled to judgment in this case pursuant to the provisions of the Marketable Title Act due to the failure of the plaintiffs to preserve their claim, as required by General Statutes § 47-33b, by filing a notice in the defendants’ chain of title within the forty year period specified by the act. The plaintiffs now bring this appeal.

On appeal, the plaintiffs claim that the trial court was incorrect (1) in finding that, although a common scheme of development exists, the language of the restrictive covenant—“one private residence for the use of one family only”—does not constitute an enforceable restriction on the number of dwellings that may be constructed on any one lot as set forth in the 1927 lot plan of Hop Brook recorded in the Naugatuck land records, (2) in not declaring that the attempted reservation of the right to revoke the restrictive covenants by the original grantor in 1937, and the actual revocation in 1946 without the consent of the prior grantees of the lots within Hop Brook was void, invalid and of no effect, and (3) in concluding that the plaintiffs are not entitled to enforce the terms of the restrictive covenants in Hop Brook.

“[T]he 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).

In the present case, we are dealing with uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme. With respect to this type of covenant, any grantee under a general or uniform development scheme “may enforce the restrictions against any other grantee. Hooker v. Alexander, 129 Conn. 433, 436, 29 A.2d 308 [1942].” Pulver v. Mascolo, 155 Conn. 644, 650, 237 A.2d 97 (1967). The 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 on 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. Whitton v. Clark, supra, 112 Conn. 35.

Here, the uniform plan development must be derived from the language of the covenants inserted in the deeds of various owners’ plots and it is necessary to determine “the intent of the owner in creating the restrictions upon any lot to make the benefit of them available . . . to the owners of the other lots in the tract.” “ ‘The meaning and effect of the [restrictions] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances ....’” (Citations omitted.) Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982).

The trial court, on the basis of Contegni v. Payne, supra, 18 Conn. App. 51-53, correctly determined that there are four factors to be considered in determining whether covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme so restricted the use of one or more lots under the plan that neighboring owners whose predecessors in title were grantees of the common grantor may enforce certain of the covenants against other owners. These factors are: “(1) the common grantor’s selling or stating an intention to sell an entire tract of land, (2) the common grantor’s exhibiting a map or plot of the entire tract at the time of the sale of one of the parcels, (3) the actual development of the tract in accordance with the restrictions, and (4) a substantial uniformity in the restrictions imposed in the deeds executed by the common grantor.” Id., 53.

It is undisputed that there was a common scheme or plan of development that limited use to single-family homes of a certain minimum cost. The dispute concerns whether the language in the conveyance of the first thirty lots prevented resubdivision of those lots and all the lots in the subdivision into two or more lots, whether the grantor had a right to revoke the covenants and to allow resubdivision in section E as well as to create minimum lot sizes and frontages, and what remedy the plaintiffs have if there is no right to resubdivide. There is no dispute concerning the first two factors from Contegni. Whittemore sold and intended to sell all the lots in Hop Brook. The map showing all the lots in Hop Brook was recorded in the land records prior to the sale of the first lot, and the map was referred to in every deed by Whittemore in conveying all the lots. The trial court found that the third factor existed but placed no emphasis on it in considering whether there was a right to resubdivide lot one, section E. Further, from the time of the filing of the map of Hop Brook in 1927, until the defendants sought a resubdivision of lot one, section E, no new lots were created in Hop Brook. Some houses were built on two or more lots and some boundary lines were adjusted making some lots larger and some smaller but not a single additional building lot was created. We will refer to this factor later in our analysis. The trial court specifically found “the fourth factor, the uniformity of the restrictions in the deeds from the common grantor, militates against the plaintiffs’ claim here. Of the fifty-two lots conveyed by the common grantor, all appear from the evidence to have contained restrictions limiting use to a single-family dwelling of a minimum size and first cost. None of the deeds specifically restricts subdivision, and eighteen of the deeds specifically allow it with the restriction that no such lot shall be less than a certain size nor with less than a certain frontage.” We disagree with this interpretation by the trial court of the language in the original deeds.

We start with the fact that these covenants were contained in warranty deeds conveying one or more lots from Hop Brook. The language in the covenants and restriction that is pertinent is as follows: “[T]here shall at no time be erected or maintained thereon anything except one private residence for the use of one family only, which private residence, shall cost exclusive of the land not less than $15,000, together with the necessary outbuildings appurtenant thereto.”

The language of the restrictions and covenants in this case is similar to that of the covenants and restrictions in Contegni. The pertinent language in Contegni is as follows: “That the land hereby conveyed shall be used for private residence purposes only, and that there shall not be erected or maintained thereon any buildings other than (1) one family dwelling, the first cost of which shall not be less than $10,000 (2) a stable or carriage house for the horses and vehicles of the occupants of said land only . . . (3) a garage or automobile house for the motor vehicles of the occupants of the said land only . . . .” (Internal quotation marks omitted.) Contegni v. Payne, supra, 18 Conn. App. 62. In Contegni and in the present case, the defendants argued and the trial courts determined, that the plaintiffs could not prevail because of “ ‘the lack of a clear covenant restricting development to one house per lot.’ ” Id., 65.

In disagreeing with the trial court’s interpretation of this language in Contegni, this court stated: “We begin with language itself. The deed conveying the property to the defendants’ predecessor forbade the erection of any building on the premises except: (1) one family house ... (2) a stable or carriage house ... (3) a garage or automobile house .... The defendants maintain that the phrase one family house limits the type, but not the number, of dwelling houses that might be built on the property. Thus, they argue that single-family houses, as opposed to duplexes or multi-family structures, may be built on the property. The plaintiffs, on the other hand, see the word one as restricting both the number and type of houses on the lot, namely, one single-family house. We agree with the plaintiffs.

“The plaintiffs’ reading makes more sense grammatically; the first word after each parenthesized numeral would then be an article. On the other hand, reading the word one to mean single, as the defendants suggest, produces, except (1) single family house ... (2) a stable ... (3) a garage .... The more sensible reading of the restriction, in isolation, is that of the plaintiffs.” (Emphasis in original; internal quotation marks omitted.) Id., 65-66.

In this case, the language at issue is clearer than the language in Contegni. The pertinent language reads as follows: “And there shall at no time be erected or maintained thereon anything except one private residence for the use of one family only.” “Thereon” refers to the lot conveyed. As we deduced in Contegni from the language “one family house,” “one private residence . . . for one family only” clearly means one single-family residence. Here, the deed clearly states that one house for one family is the limitation on the lot conveyed.

In concluding that Whittemore’s intention in the thirty lots conveyed until 1937 was that there be one residence per lot in Hop Brook, we look to two other instruments executed by Whittemore. In 1930, Whittemore, in conveying a portion of lot three, section E, to Lewis A. Dibble, put in the deed a restriction stating that the conveyed portion of lot three can be used only in connection with and as part of lot two, which was previously conveyed to Dibble. No buildings could be built on the conveyed portion of lot three. In addition, Whit-temore stipulated in the deed that it would sell the balance of lot three as one parcel and that it would be subject to the covenants as to the sale and use as set forth in a deed from the grantor to the grantee dated September 30,1927, which was recorded in the Nauga-tuck land records. This referred to the deed conveying lot two to Dibble. This instrument, which was executed in 1930, stands for two things. First, the partial conveyance of lot three made lot two larger, yet permitted the construction of only one residence per lot. Second, the remaining portion of lot three was to remain a single lot on which a single residence for a single family could be built. In addition, this parcel was to remain bound by the covenants and restrictions as set forth in the deed of lot two.

In 1927, Whittemore conveyed to Helen W. Adams property described as “Block D” on the map of Hop Brook subject to the same covenants and restrictions that are in controversy here. The map of Hop Brook shows that block D has seven lots. In 1936, Whittemore and all the other owners and holders of mortgages in Hop Brook signed an agreement with Martin Martus, the then owner of parcel D, releasing parcel D from the covenant and restriction in the deed from Whittemore to Helen W. Adams requiring “one private residence for the use of one family. . . .’’In consideration of the release of that covenant and restriction the new owner Martus agreed in pertinent part to the following: “[T]here shall at no time be erected or maintained upon any one lot of the seven lots comprising said aforesaid premises . . . anything except one private residence for the use of one family only. . . .” (Emphasis added.)

Adams was conveyed parcel D subject to the language, “thereon shall be erected one private residence for one family,” clearly indicating that pursuant to the aforementioned deed only one residence could be built on parcel D. The corrective agreement clearly states that only one residence may be built on each of the seven lots in section D. We find that this is the clear intent of that covenant of September, 1936.

It is also clear that the identical language in the covenant and restrictions in the first thirty lot conveyances of Hop Brook satisfy the fourth prong of Contegni, which requires “a substantial uniformity in the restrictions imposed in the deeds executed by the common grantor.” Contegni v. Payne, supra, 18 Conn. App. 53. This substantial uniformity in the clear language of the covenants, coupled with the other Contegni factors, make these restrictions binding on all present and subsequent owners of Hop Brook. We conclude that, on the basis of the clear language in the deeds, the subsequent actions of Whittemore and all of the grantees up to 1936 and on our interpretation of similar language in Contegni that only one private residence may be built on each lot of Hop Brook.

We next consider the effect of Whittemore’s insertion of additional language in the 1937 deed to Dibble, which conveyed portions of lots one and five, section E. This additional language stated that, if Dibble purchased other land in section E, the covenants and restrictions that were the same as in prior deeds could be revoked in whole or in part and others substituted therein. In 1946, Dibble purchased the remaining lots and parts of lots of section E and put in the deed the following pertinent language: “In accordance with and to the extent that power to do so has heretofore been reserved by the Grantor all covenants and restrictions applicable to lands within said section E heretofore purchased by the grantee from the grantor are hereby revoked.” In their place, Whittemore allowed for subdivision, minimum frontage, private residence and minimum cost of the residence. We hold that the covenant and restriction of “one private residence per lot,” which Whittemore created on Hop Brook, are binding and that Whittemore had no power on his own or with any other owners of lots to terminate or amend the original covenants.

We agree with the plaintiffs that when, as here, the owner of a tract of land sells lots with restrictive covenants with the following language: “Each and all the foregoing covenants and restrictions are for the mutual benefit of all persons who have derived or who shall derive title, directly or indirectly from the Grantor to any lot or lots shown on the map hereinbefore referred to and shall ran with the land in favor of all lots shown on said Map, and any breach or threatened breach of any one or more or all of the covenants and restrictions aforesaid may be enjoined upon application of the Grantor, its successors and assigns, or any person or persons who have derived or shall derive title directly or indirectly from the Grantor to any lot or lots shown on said map” and does not retain the right to rescind or amend them and does not provide a method for terminating or amending them, has no right to do so without the consent of all the then property (lot) owners. See 5 R. Powell, Real Property § 677, pp. 60-118-60-122; Hein v. Lee, 549 P.2d 286, 292 (Wyo. 1976). In McCown v. Gottlieb, 465 So. 2d 1120 (Ala. 1985), six lots were sold within a short period of time with uniform restrictive covenants, without a reservation of power to alter or amend the restrictive covenants, and with a declaration in the deed that the restrictive covenants shall ran with the land and shall bind said land as well as the present and future owners thereof. The covenants to the lots prohibited subdivision. Twenty-five years after the six lots were sold, the grantor and one of the lot owners executed an instrument entitled “Amendments to Restrictive Covenants,” which purported to release the covenant prohibiting subdivision. The Alabama Supreme Court subsequently upheld the ruling of a trial court, holding that since the six lots were conveyed according to a common scheme of development, the reservation by the grantor and one of the lot owners was void. Id., 1123.

In this case, the covenants were contained in the original deeds from Whittemore in the first thirty lots conveyed. The covenants expressed in those deeds were uniform and are binding on all the owners of the lots of Hop Brook. The attempt to reserve a power to revoke and amend the covenants in the 1937 deed is void and the subsequent modifications in deeds from Whittemore giving the grantees the right to subdivide are also void. The intent of Whittemore and the grantees is further evidenced by the 1930 deed to Dibble reaffirming the building of one residence each on lots two and three of section E, the 1936 agreement between Whittemore and all the owners of Hop Brook modifying the original deed of section D to Adams providing that each individual lot in section D may have one private residence only, and by the 1934 modification of the minimum cost provision, which was signed by Whitte-more and all the lot owners of Hop Brook. The defendants took title with actual notice of the existence of the restrictions contained in each chain of title. In addition, the facts that no new building lot was created in Hop Brook from the time of the first conveyance by Whittemore until the present case arose and that there was no attempt to subdivide until the present time support our interpretation of the covenants and restrictions. It is also clear that, since a common plan of development exists, the plaintiffs have the right to enforce the restrictions against the defendants. Man-ganini v. Hodgson, 138 Conn. 188, 192-93, 82 A.2d 801 (1951).

The trial court’s reliance on Whitten v. Clark, supra, 112 Conn. 28, is misplaced. Although there are many factual differences between the two cases, the controlling difference is that in Whitten the right to reenter upon a breach was given to the grantor or his legal representatives. Our Supreme Court held “[i]n such a situation it is not reasonably possible to find that [common grantor] adopted any such general plan or scheme for the development of the tract as would create as among the various lot owners a right to enforce among themselves the provisions of the stipulation . . . .’’Id., 38. In the present case, however, a common scheme does exist and the Hop Brook lot owners have a right to enforce the covenants against each other.

The defendants claim, as an alternative ground for affirmance, that the plaintiffs’ interest in the right to enforce the restriction against resubdivision of the subject property has been rendered null and void by operation of law under the Marketable Title Act. Specifically, they argue that the act obligates the plaintiffs to record in the defendants’ chain of title a notice setting forth the nature of their claim. In the absence of such a notice, they contend, the plaintiffs’ interest in the defendants’ land is nonexistent. As noted earlier, the trial court did not rule on that claim, which was raised as a special defense. Although that ground was raised as an alternate ground for sustaining the judgment, “we believe that it is better left to the trial court to determine. We therefore decline to review this claim.” Essex Leasing, Inc. v. Zoning Board of Appeals, 9 Conn. App. 391, 395-96, 518 A.2d 970 (1986), aff'd, 206 Conn. 595, 539 A.2d 101 (1988).

The judgment is reversed and the case is remanded for further proceedings to consider the defendants’ special defense relating to the Marketable Title Act.

In this opinion the other judges concurred.

       One of the plaintiffs, Gordon Mannweiler, is the owner of three lots in Hop Brook and is a successor in interest to Franklin Bristol, who took title to said lots in August, 1930, from Whittemore. The other plaintiff, William Boies, owns two lots in Hop Brook and also derives his title from Whittemore, with his wife first acquiring title in 1936. The aforementioned covenants and restrictions were placed in the deeds of both plaintiffs.

       Dibble is a predecessor in title to the defendants’ portion of the section one and five lots.

       General Statutes § 47-33b et seq.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    IN RE JONATHAN M.

    (AC 14693)
    O’Connell, C. J., and Herman and Hennessy, Js.

      Argued May 30
    officially released September 2, 1997

      Mark Shapera, deputy assistant public defender, for the appellant (respondent).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Francis J. Carino and Joseph J. Frisian, Jr., juvenile prosecutors, for the appellee (petitioner).

       In accordance with the spirit and intent of General Stautes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HENNESSY, J.

The juvenile respondent appeals from the order of the Superior Court, Juvenile Matters, transferring his case to the regular criminal docket of the Superior Court in accordance with General Statutes (Rev. to 1993) § 46b-127. The trial court, after a hearing, found that the respondent was fifteen years of age at the time the murder was committed and that there was probable cause to believe that the respondent actually committed the acts with which he was charged. The respondent claims on appeal that the trial court improperly (1) denied his motion to suppress evidence, (2) denied his motion for discovery, (3) denied his motion to dismiss the motion to transfer as untimely and (4) granted the motion to transfer. We affirm the judgment of the trial court.

I

The respondent first claims that his confession and the resulting physical evidence procured as a result of that confession should be suppressed because they were obtained in violation of General Statutes (Rev. to 1993) § 46b-137 and both the federal and state constitutions. The respondent sets forth six grounds to support his claim. We address each ground in turn.

A

The respondent argues that he did not voluntarily waive his federal and state constitutional right to remain silent before he confessed to the offenses. The respondent claims that his waiver was not knowing or voluntary, and was therefore invalid, for the following reasons: (1) the police withheld significant information from both him and his mother thereby vitiating the purported waiver; (2) his mother’s conflict of interest was so strong that she could not have been “present” as that term is used in § 46b-137; and (3) the totality of the circumstances under which the confession was given prevented the respondent from voluntarily waiving his right to remain silent. We are unpersuaded.

The respondent avers that the police did not inform him of the following significant information: he could be tried as an adult; he was a suspect in the murder of his grandmother; his mother provided a written statement to the police in which she stated that she suspected that her son, the respondent, was involved in the murder of her mother; he was free to leave at any time; if he asked the questioning police officers for an attorney or stopped answering questions, he would be given a ride home by the police. He further claims that he was denied the opportunity to consult privately with his mother. This, he claims, coupled with the withholding of significant information by the police, deprived him of the ability to appraise and understand his circumstances. The respondent argues that without this understanding it was impossible for him to make a knowing and intelligent waiver of his constitutional right to remain silent. We disagree.

“[T]he overwhelming weight of the authorities . . . have applied a totality of the circumstances test to confessions by juveniles, and have rejected the notion that such a confession is rendered involuntary solely by virtue of the fact that the police did not inform the juvenile that he could be prosecuted as an adult, rather than as a juvenile.” State v. Perez, 218 Conn. 714, 727, 591 A.2d 119 (1991). The waiver analysis “requires consideration of ‘the particular facts or circumstances surrounding [the] case, including the background, experience, and conduct of the accused.’ ” State v. Mercer, 208 Conn. 52, 70, 544 A.2d 611 (1988). We note that there is no statutory or case law precedent that we have been able to find, or that has been cited by the respondent, that requires the police to inform a minor suspect that his parent suspects that he has committed an offense or that the police would give him a ride home if he stopped answering questions.

The record belies the respondent’s factual claims regarding the circumstances of the confession. The trial court found and the record shows that the respondent and his mother were informed (1) that the respondent had the right to have a lawyer present during questioning and, if he could not pay for one, a lawyer would be provided, (2) that he had the right to refuse to make any statements, (3) that he had the right to cease answering questions at any time, and (4) that any statements he made during the interview could be introduced into evidence against him. The respondent and his mother acknowledged in writing that they had received these advisements as part of the Miranda warnings given them, understood the warnings, and voluntarily chose to proceed without an attorney present. In addition, testimony at the transfer hearing showed that just after receiving the Miranda warnings the respondent acknowledged that he had prior experience with the police. Furthermore, the trial court found that the respondent’s mother was given ample opportunity to talk with her son privately but she did not accept the offer and that the respondent did not make a request to speak to his mother privately.

The respondent further claims that his waiver was not valid because his mother had a conflict of interest based on her relationships to both the victim and the accused and that her emotional state precluded her from meaningful compliance with the parental presence requirement of § 46b-137. The respondent argues that the “parental presence” component of § 46b-137 requires that the parent be conflict-free and emotionally stable.

The record shows that the respondent’s mother was the daughter of the murder victim, had voiced her suspicions about the respondent’s involvement in the crimes, and was visibly upset. “The warnings required by § 46b-137 (a) are equivalent to the Miranda warnings. J. Bruckmann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook (1992 Sup.) p. 90. The purpose of the Miranda warnings is to enhance an accused’s ability to exercise fifth amendment rights knowingly, intelligently and voluntarily. State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987). Thus, the propose of the § 46b-137 (a) warnings is to help an accused make a valid decision to speak or remain silent. See id. Provided both the accused and the accused’s parents or guardian receive that information, the purpose of § 46b-137 (a) is achieved.” In re Enrique S., 32 Conn. App. 431, 436, 629 A.2d 476 (1993).

The record also shows that the respondent’s mother understood the Miranda warnings. We conclude, therefore, that the trial court properly found that the mother adequately met the statutory standard of parental presence.

B

The respondent next argues that the evidence should have been suppressed because his mother was not “present” when the inculpatory statements were made. The respondent argues that the meaning of “present” under § 46b-137 strictly requires that the child and parent be within each other’s sight. He maintains that while he was being questioned, his mother left the room and, because of this, she was not present for purposes of the statute during a period when the respondent made incriminating statements. The record does not support this claim.

The trial court found and the record reflects the following facts. The respondent’s mother left the interview room when it became clear to her that the respondent had taken part in the murder of her mother because she could no longer bear to look across the table at him. When she left the room, the police ceased questioning the respondent. The respondent’s mother was immediately told that the interview with her son could not continue in her absence. In order that the interview could continue, a detective situated a chair in the hallway just outside the open door to the interview room, approximately six to eight feet from her son. From this vantage point, the respondent’s mother could hear and be heard, although she could not see her son without standing in the doorway. The record supports the trial court’s finding that the respondent was aware of her presence and that a portion of the interview in which inculpatory statements were made was conducted while the mother was seated in the hall.

After the respondent confessed, he and his mother were escorted to another room where the respondent reviewed and signed a statement of the facts setting forth his involvement in the death of his grandmother. The respondent was then placed under arrest.

From the trial court’s factual findings, it is clear that the mother, from her vantage point in the hall, was in a position to monitor the tone of voice and the manner in which the questions were being asked and the manner in which the respondent was responding to them. The respondent, aware of his mother’s presence, could have requested her advice or intervention at any time. We conclude that under these circumstances the mother was present as required by § 46b-137 when the inculpa-tory statements were made.

C

The respondent also contends that his inculpatory statements were made as a result of coercion in that they were made after he overheard his mother say he was lying, that he committed the crime and that she could not face him. The record shows that the detectives interviewing the respondent told him that they knew he was lying and that he should tell them what really happened. We are not persuaded that the suspicions of his mother and the fact that the police communicated their doubts as to the respondent’s veracity are acts of coercion that would undermine the trustworthiness of the respondent’s statements.

D

The respondent argues that the motion to supress his confession was improperly denied because the questioning session was not preserved by a recording. He claims that the failure of the detective to record the reading of his rights and the interview denied him his constitutional right to due process. Our Supreme Court has addressed this argument in State v. James, 237 Conn. 390, 434, 678 A.2d 1338 (1996). In that case, the court stated that, “although we agree with the defendant that the recording of confessions and interrogations generally might be a desirable investigative practice, which is to be encouraged, we are not persuaded, in light of our history, precedent and the flexible notions of due process, that conditioning the admissibility of confessions on their recording is a requirement of due process under the state constitution.” Id. Accordingly, we reject this claim.

E

The respondent next complains that any inculpatory statements made prior to his being brought to a juvenile detention facility as required by General Statutes § 46b-133 should be excluded. The respondent contends that § 46b-133 mandates that he be taken to a juvenile detention facility immediately upon arrest and, because he was not, he was deprived of his due process rights. He argues that, therefore, all of his statements and the evidence obtained as a result of those statements prior to his being taken to a juvenile detention facility should be suppressed.

The relevant statute does not support his contention nor does the respondent offer any Connecticut case law interpreting the statute as he suggests. Section 46b-133 (c) provides: “Upon the arrest of any child by an officer, such officer may release him to the custody of his parent or parents . . . or may immediately turn him over to a juvenile detention center. . . .” “The word immediately where used in connection with human conduct, as in the case of a requirement that a certain thing shall be done immediately, is generally held to require that the act shall be performed, not instantly, but without unreasonable delay, having regard to the nature of the thing to be done.” (Internal quotation marks omitted.) Bailey v. Bruneau’s Truck Service, Inc., 149 Conn. 46, 52, 175 A.2d 372 (1961). The use of the word “immediately” in § 46b-133 (c) gives guidance to the police when a juvenile is arrested. In this case, the respondent’s questioning and written statement that resulted in his arrest concluded around midnight. Keeping the child overnight in a juvenile holding cell rather than transporting him from Danielson to Hartford in the early morning hours is not unreasonable and not a violation of the statute. We, therefore, cannot conclude that failure to bring the respondent to a juvenile detention facility immediately upon his arrest violated his due process rights.

F

The respondent further claims that inculpatory statements he made to a high school friend were inadmissible pursuant to General Statutes (Rev. to 1993) § 46b-137 (a) and, therefore, should have been suppressed. At the time of the respondent’s arrest, § 46b-137 (a) provided: “Any admission, confession or statement, written or oral, by a child shall be inadmissible in any proceeding . . . unless made by such child in the presence of his parent or parents . . . .” He contends that the statute was broadly written and interpreted so that any admission or inculpatory statement made by a juvenile without a parent or guardian present is inadmissible. We disagree.

There is no support in the wording or the history of § 46b-137 (a) to indicate that the legislature intended this statute to extend to all statements made by a juvenile in the absence of a parent or guardian. To interpret the statute as suggested by the respondent would lead to “absurd consequences or bizarre results” contrary to the canons of statutory construction. See In re Enrique S., supra, 32 Conn. App. 435. Indeed, the legislative amendment passed in 1995 supports a more restrictive reading of the statute rather than the respondent’s broad interpretation. The amended statute provides that only statements or confessions made to a “police official or juvenile court official” without a parent or guardian present are inadmissible. We conclude that the respondent’s statements made to a high school friend are not protected under § 46b-137 (a).

II

The respondent next contends that the trial court improperly denied his motion for discovery filed in the context of the transfer hearing. He argues that the trial court should have used its discretionary powers pursuant to Practice Book § 1058.1 rather than following the rules of discovery pursuant to statute.

The respondent maintains that the holding in State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974), mandates that this court find General Statutes (Rev. to 1993) § 46b-127 and General Statutes § 54-46a (b) unconstitutional. This argument is predicated on the notion that the statutes prohibit discovery and extinguish the discretion granted to the trial court in juvenile matters by Practice Book § 1058.1. He further complains that the discovery prohibition in the statutes violates his right to the effective assistance of counsel, his right to confrontation and his right to have compulsory process to obtain witnesses on one’s behalf in a timely fashion. We are not persuaded by these arguments.

“As a general proposition, the General Assembly lacks the power to enact rules governing procedure, and the Superior Court lacks the power to promulgate rules governing substantive rights and remedies. . . . However uncertain the line between procedure and substance sometimes may be, there is no room for doubt with regard to § 54-46a. . . . [T]he implementing procedures contained in § 54-46a [are] ‘constituent parts’ of the substantive rights created by amendment seventeen [of the Connecticut constitution]. That constitutional amendment, by its own terms, conferred upon the legislature, and not upon the courts, the authority to fashion ‘procedures prescribed by law’ for hearings to determine probable cause. In these circumstances, the validity of § 54-46a is not subject to constitutional attack as a violation of separation of powers.” (Citations omitted.) State v. Rollinson, 203 Conn. 641, 650-51, 526 A.2d 1283 (1987).

In Clemente, our Supreme Court found General Statutes § 54-86b unconstitutional because it prohibited the exercise of judicial discretion and controlled the judiciary’s inherent power of discovery. State v. Clemente, supra, 166 Conn. 516. This legislative control over the judiciary was found to violate article second of the Connecticut constitution. Id.

In the present case, the respondent challenges the constitutionality of §§ 46b-127 and 54-46a (b) because their provisions require the trial court to deny any motion for discovery in connection with a transfer hearing, except motions to discover exculpatory information. These statutory provisions do not control or limit the judiciary’s discretion in discovery matters to the same extent as the statute in Clemente because they apply only to a preliminary stage of the proceedings and have been held constitutional. In State v. Mitchell, 200 Conn. 323, 338, 512 A.2d 140 (1986), the court concluded that “§ 54-46a (b) is constitutional when read in conjunction with the prosecution’s on-going constitutional duty to disclose exculpatory material to a criminal defendant independent of a defense motion or request.” The Mitchell court stated further that, “[s]ince the adversarial probable cause hearing at issue here is an essential part of a defendant’s criminal prosecution, the constitutional obligation to disclose exculpatory material attaches at that time. Consequently, § 54-46a (b)’s ban on defense discovery motions did not impair the defendant’s constitutional rights.” Id. Section § 46b-127 similarly grants the right to discovery of exculpatory information, and the rationale of Mitchell would apply. Thus, the respondent’s claim that the statutes are unconstitutional must fail. We find that the trial court properly denied his motion for discovery that exceeded the bounds of exculpatory information.

Ill

The respondent’s final claim is that the trial court improperly denied his motion to dismiss the transfer motion. The respondent claims that, as a matter of law, the transfer motion should have been dismissed because the transfer hearing was held more than sixty days after the motion for the transfer was filed in violation of § 54-46a. The respondent contends that because § 46b-127 provides that the procedures set forth in § 54-46a apply to juvenile transfer hearings, the legislature intended that certain specific procedural provisions of § 54-46a apply. In particular, the respondent argues that because § 54-46a allows a criminal defendant to move to dismiss if the probable cause hearing commences more than sixty days after the filing of the complaint or information, a juvenile should also have this right. We disagree.

As a preliminary matter, our Supreme Court has stated that prior to the completion of the transfer, a juvenile is not yet a criminal defendant and, therefore, § 54-46a requiring a hearing within sixty days cannot apply. “We have characterized an appeal from a transfer order as a juvenile rather than a criminal matter for the purposes of assessing the relevant procedural rules on appeal. . . . Thus, under our statutory framework, the juvenile whose transfer has been ordered stands poised at the doors of our criminal justice system, but not yet within them.” (Citation omitted; internal quotation marks omitted.) In re Prudencio O., 229 Conn. 691, 698, 643 A.2d 265 (1994).

“The language of [§ 54-46a] makes it plain that it applies only to criminal prosecutions, and is triggered only by the filing of a charge, by information or complaint, that places a defendant at risk of punishment by death or life imprisonment. A child charged under § 46b-120, by contrast, may not ‘stand trial’ or ‘be prosecuted for an offense before the superior court’ until effectuation of a transfer to the regular criminal docket. General Statutes §§ 46b-127 and 46b-145.” (Emphasis in original.) In re Prudencio O., supra, 229 Conn. 698-99.

Accordingly, we conclude that the requirements of § 54-46a are not applicable to the respondent because his transfer to the regular criminal docket has not yet been effectuated and an information has not been filed. The trial court properly denied his motion to dismiss the transfer motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 46b-127 provides in pertinent part: “The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years .... No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. . . . The procedures provided in section 54-46a shall apply at such hearing, except that the child shall have the right to move to suppress any admission made by Mm on the ground that it was obtained in violation of the provisions of subsection (a) of section 46M137 and to obtain discovery of exculpatory information. . .

       We do not address this claim separately because it raises the same issues as the respondent's other three claims on appeal.

       General Statutes (Rev. to 1993) § 46b-137 (a) provides: “Any admission, confession or statement, written or oral, by a child shall be inadmissible in any proceeding for delinquency against the child making such admission, confession or statement unless made by such child in the presence of his parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements and (3) that any statements he makes may be introduced into evidence against Mm.”

        Johnson v. Zerbst; 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), requires that a waiver be “an intentional relinquishment or abandonment of a known right or privilege.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       See footnote 3.

       General Statutes § 46b-133 provides in relevant part: “(a) Nothing in this part shall be construed as preventing the arrest of a child, with or without a warrant, as may be provided by law, or as preventing the issuance of warrants by judges in the manner provided by section 54-2a, except that no child shall be taken into custody on such process except on apprehension in the act, or on speedy information, or in other cases when the use of such process appears imperative. Whenever a child is arrested and charged with a crime, such child may be required to submit to the taking of his photograph, physical description and fingerprints. Notwithstanding the provisions of section 46b-124, the photograph of any child arrested for the commission of a capital felony or class A felony may be disclosed to the public.
      “(b) Whenever a child is brought before a judge of the Superior Court, such judge shall immediately have the case proceeded upon as a juvenile matter. Such judge may admit such child to bail or release him in the custody of his parent or parents, his guardian or some other suitable person t,o appear before the Superior Court when ordered. If detention becomes necessary or desirable, the same shall be in the manner prescribed by this chapter.
      “(c) Upon the arrest of any child by an officer, such officer may release him to the custody of his parent or parents, guardian or some other suitable person or agency or may immediately turn him over to a juvenile detention center. . . .”

       General Statutes § 46b-137 (a) was amended in 1995 to provide in pertinent part: “Any admission, confession or statement, written or oral, by a child to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission . . . unless made by such child in the presence of his parent or parents . . . .” (Emphasis added.)

       Seo footnote 8.

       Practice Book § 1058.1 provides: “(1) Pre-trial discovery by interrogatory, production, inspection or deposition of a person may be allowed with the permission of the court only if the information or material sought is not otherwise obtainable and upon a finding that proceedings will not be unduly delayed.
      “(2) Upon its own motion or upon the request of a party, the court may limit discovery methods, and specify overall timing and sequence, provided that the parties shall be allowed a reasonable opportunity to obtain information needed for the preparation of their case. The court may grant the requested discovery, order reciprocal discovery, order appropriate sanctions for any clear misuse of discovery or arbitrary delay or refusal to comply with a discovery request, and deny, limit, or set conditions on the requested discovery, including any protective orders under Sec. 221.”

       See footnote 1.

       General Statutes § 54-46a provides in relevant part: “(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in Superior Court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. . . .”

       See footnote 10.

       There is no statutory authority to grant the respondent the relief he requests.

       See footnote 12.

       General Statutes § 54-46a provides in relevant part: “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in Superior Court. . .


author: PER CURIAM.

text:
    ANTHONY R. MARTIN v. LIBERTY BANK ET AL.
    (AC 16035)
    O’Connell, C. J., and Landau and Hennessy, Js.
    Argued June 3
    officially released September 2, 1997

      William S. Palmieri, with whom, on the brief, was John R. Williams, for the appellant (plaintiff).

      James Stedronsky, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Anthony R. Martin, appeals from the trial court’s order permanently enjoining him from, inter alia, representing himself in any manner, other than testifying as a witness or submitting affidavits, during the course of any action in which leave to file is granted and from intervening, appearing or participating in any capacity, without leave to do so, in any future action pending in the Superior Court. On appeal, the plaintiff claims that the trial court improperly (1) violated his right of access to the courts and freedom of speech as guaranteed by the first and fourteenth amendments to the United States constitution and article first, §§ 4, 5, 10 and 14, of the Connecticut constitution, (2) prohibited him from representing himself pro se in any litigation that the court had permitted him to institute and violated his right of self-representation guaranteed by the first and fourteenth amendments to the United States constitution and article first, §§ 4, 5, 10 and 14, of the Connecticut constitution, and (3) issued apermanent injunction. We reverse the judgment of the trial court.

The plaintiff brought the underlying action to foreclose a mortgage. During a recess in the foreclosure trial, the plaintiff, responding to an admonition by his counsel that he was not to speak to the defendants’ counsel until after the case was over, stated, “[WJe’ll take care of [the defendants’ counsel].” Following the recess, the defendants applied to the trial court, Gordon, J., for an injunction restraining the plaintiff from filing any further actions against the defendants, their counsel or witnesses in the case. The defendants’ application was apparently made on the basis of their counsel’s previous experience with the plaintiff. The law firm of the defendants’ counsel, Levy and Droney, had previously been sued by the plaintiff in Florida, because of its role in the underlying foreclosure case, and the defendants’ counsel had knowledge of the plaintiff’s history of elaborate litigation. The trial court referred the motion to Judge Richard J. Stanley, the administrative judge of the Middlesex judicial district, who heard the motion the next morning.

Even after a careful reading of the transcript and record, it is difficult to characterize the proceeding on the application before the court as to both procedure and substance. In what was a demanding and trying hearing, the court heard representations of counsel for the plaintiff and the defendants and statements from the plaintiff. No testimony or evidence was offered. Subsequently, the court, on the basis of the pleadings, ordered a permanent injunction.

The defendants maintain that the plaintiffs courtroom actions, including his continuing disruption of the proceedings, his derogatory references to the federal judiciary and his statements to the court that it “was playing games with the law” and “conducting a kangaroo court” were sufficient to support the court’s ruling. If this were a summary criminal contempt proceeding, the defendants would be correct. See Mayberry v. Pennsylvania, 400 U.S. 455, 462-63, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971); Whiteside v. State, 148 Conn. 77, 78, 167 A.2d 450 (1961). The proceeding before the court, however, concerned an injunction and not a summary criminal contempt.

The plaintiff states in his brief that no evidence was proffered in support of the application for an injunction and the court improperly relied on the representations of counsel only. As a threshold issue, we must therefore determine whether any evidence was proffered by any party from which the court could have made its findings. We note that representations of counsel are not evidence and are certainly not proof. See Celentano v. Zoning Board of Appeals, 135 Conn. 16, 18, 60 A.2d 510 (1948). “Fairly stated, evidence legally is the means by which alleged matters of fact are properly submitted to the trier of fact for the purpose of proving a fact in issue. On the other hand, proof is the result or the effect of such evidence. Moreover, these representations were not testimony, which, in turn, when given under oath or stipulated to, is a species of evidence. It is well settled that representations of counsel are not, legally speaking, evidence. See, e.g., Curtis v. Rives, 123 F.2d 936, 941 (D.C. Cir. 1941); Dunn v. Stewart, 235 F. Sup. 955, 964 (S.D. Miss. 1964); Celentano v. Zoning Board of Appeals, supra [18]; American National Bank & Trust Co. v. Long, 281 Ala. 654, 656, 207 So. 2d 129 (1968); Sloan v. Sloan, 393 So. 2d 642, 644 (Fla. App. 1981); Davis v. Independence, 404 S.W.2d 718, 720 (Mo. 1966); Wilson v. Motors Ins. Corporation, 349 S.W.2d 250, 254 (Mo. App. 1961) (statements of unsworn attorney do not prove themselves or constitute evidence); O’Hearn v. O’HeaRN, 55 App. Div. 2d 766, 767, 389 N.Y.S.2d 651 (1976).” (Internal quotation marks omitted.) Cologne v. Westfarms Associates, 197 Conn. 141, 153-54, 496 A.2d 476 (1985).

Our review of the record reveals that no evidence was offered by the parties in support of the application for an injunction. The trial court seemingly decided a motion for summary criminal contempt rather than an application for an injunction. Because no evidence was adduced that was sufficient to support the trial court’s granting of the injunction, the injunction was improperly granted.

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

       The plaintiffs history of litigation has been well documented. See, e.g., In re Martin-Trigona, 737 F.2d 1254, 1256-57, 1270-74 (2d Cir. 1984).

       This issue was not raised before Judge Stanley, nor was it argued or briefed by the parties on appeal. Generally, we will not afford review of such an issue. See Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994). In Lynch v. Granby Holdings, Inc., supra, 99, the Supreme Court reversed a decision of this court because we “addressed [an] issue sua sponte rather than at the behest of one of the parties, thereby depriving the parties of an opportunity to brief the issue.” We can review a claim, however, when it rises to the level of plain error. “ ‘Plain error is reserved for extraordinary circumstances and situations in which the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” Barrese v. DeFillippo, 45 Conn. App. 102, 105, 694 A.2d 797 (1997). Here, plain error review is appropriate because the error is apparent on the face of the record, or lack of a record, as in this case, and permitting the parties to brief the issue is unnecessary. See Leary v. Citizens & Manufacturers National Bank, 128 Conn. 475, 479, 23 A.2d 863 (1942); Riggs v. Zaleski, 44 Conn. 120, 121 (1876). We therefore address this issue.

       As a result of the foregoing, we need not address the plaintiffs claims.


author: LAVERY, J. HEIMAN, J.,

text:
    CONNECTICUT RESOURCES RECOVERY AUTHORITY v. PLANNING AND ZONING COMMISSION OF THE TOWN OF TORRINGTON ET AL.
    (AC 16529)
    Foü, Lavery and Heiman, Js.

      Argued June 2
    officially released September 2, 1997

      Douglas A. Cho, for the appellant (plaintiff).

      Peter C. Herbst, for the appellee (defendant Torring-ton Land Associates, Inc.).

      Albert G. Vasko, corporation counsel, for the appellee (named defendant).
   Opinion

LAVERY, J.

The plaintiff, Connecticut Resources Recovery Authority (CRRA), appeals from the judgment of the trial court sustaining its appeal from the defendant Torrington planning and zoning commission’s (commission) granting a special exception in favor of the defendant Torrington Land Associates, Inc. (TLA). On appeal, the plaintiff challenges the trial court’s rejection of its claim that the commission lacked discretion to approve TLA’s special exception application because TLA did not post a proper sign providing public notice of its application.

TLA applied to the commission for a special exception to construct a solid waste transfer station and leaf composting facility on the real property it owns in Tor-rington. TLA’s land abuts property owned by CRRA. A public hearing and site visit was conducted concerning TLA’s application, and the commission subsequently approved TLA’s application for special exception.

CRRA appealed to the Superior Court, raising four separate issues concerning the commission’s decision: TLA improperly posted a sign that was to provide public notice of its special exception application; TLA’s proposed facility constituted an impermissible flag lot; TLA’s proposed facility would hamper Torrington’s traffic circulation; and leaf composting was not allowed in said area. The trial court sustained CRRA’s appeal on the ground that the TLA parcel was a flag lot and that Torrington’s regulations do not provide for the use of a flag lot in an industrial zone. TLA and the commission filed petitions for certification to appeal to this court, which were subsequently granted. CRRA’s petition for certification to appeal on the ground that the trial court incorrectly decided the sign posting issue was also granted by this court.

Practice Book § 4000 provides that “[a]n aggrieved party may appeal from a final judgment, except as otherwise provided by law.” The test for demonstrating aggrievement is well settled: “First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” (Internal quotation marks omitted.) Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). “Mere status as a party or a participant in the proceedings below does not in and of itself constitute aggrievement for the purposes of appellate review.” Windham Taxpayers Assn. v. Board of Selectmen, 234 Conn. 513, 523, 662 A.2d 1281 (1995).'

We conclude that CRRA is not aggrieved because it prevailed at trial and has not otherwise indicated how its interests were affected by the decision. The plaintiff does not have standing and we do not have jurisdiction to consider the issues raised in their appeal. Id.

The appeal is dismissed.

In this opinion FOTI, J., concurred.

HEIMAN, J.,

concurring. While I agree that the appeal in this case must be dismissed, it appears to me that it should more properly be dismissed on the ground that certification was improvidently granted, since we were without jurisdiction to entertain this appeal in the first instance. See Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991), citing Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984).

I would, therefore, dismiss the appeal on the ground that we improvidently granted certification. See Sabel-lico v. Planning & Zoning Commission, 24 Conn. App. 809, 584 A.2d 488 (1991).


author: LAVERY, J.

text:
    CONNECTICUT RESOURCES RECOVERY AUTHORITY v. PLANNING AND ZONING COMMISSION OF THE TOWN OF TORRINGTON ET AL.
    (AC 16526)
    (AC 16528)
    Foti, Lavery and Heiman, Js.

      Argued June 2
    officially released September 2, 1997

      Peter C. Herbst, for the appellant (defendant Torring-ton Land Associates, Inc.).

      Albert G. Vasko, corporation counsel, for the appellant (named defendant).

      Douglas A. Cho, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendants, Torrington planning and zoning commission (commission) and Torrington Land Associates, Inc. (TLA), appeal from the judgment of the trial court sustaining the plaintiff, Connecticut Resources Recoveiy Authority’s (CRRA), appeal from the granting of a special exception in favor of TLA. On appeal, the defendants contend that the trial court improperly found that the subject premises constituted a flag lot and, therefore, did not conform with Torring-ton’s zoning regulations.

The following facts and procedural history are necessary for disposition of this appeal. TLA applied to the commission for a special exception and a site plan approval to construct a solid waste transfer station and leaf composting facility on real property it owns in Torrington. TLA’s land abuts property owned by CRRA. A public hearing and site visit was conducted concerning TLA’s applications, and the commission subsequently approved them.

CRRA appealed to the Superior Court from the special exception approval, but not from the site plan approval, raising four separate issues concerning the commission’s decision. CRRA claimed that (1) TLA improperly posted a sign that was to provide public notice of its special exception application, (2) TLA’s proposed facility constituted an impermissible flag lot, (3) TLA’s proposed facility would hamper Torrington’s traffic circulation, and (4) leaf composting was not allowed in the area in question. The trial court sustained CRRA’s appeal on the ground that the TLA parcel was a flag lot and that Torrington’s regulations do not provide for the use of a flag lot in an industrial zone. The defendants filed petitions for certification to appeal to this court. Both petitions were subsequently granted.

The defendants claim that, when the commission approved TLA’s special exception application, it found that the subject premises was a legal lot and not a flag lot. The defendants contend that the proper issue before the trial court was whether the commission correctly interpreted the regulations concerning the definition of a flag lot and applied them with reasonable discretion to the facts.

In the present case, TLA’s lot is in an industrial, as opposed to a residential, zone. The lot is landlocked, having no frontage on a city accepted street and is accessible only by an easement over property owned by the town of Torrington and by CRRA. The defendants contend that the subject parcel is located in an industrial zone and is nonconforming because of its lack of frontage on a city accepted street. Furthermore, the defendants argue that zoning regulations for a flag lot apply only to residential areas, and the commission was correct in granting TLA’s application for a special exception and concluding that TLA’s proposed facility constitutes a valid building lot. We agree with the defendants.

“The terms special permit and special exception have the same legal import and can be used interchangeably. ... A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values. . . . Acting in this administrative capacity, the [zoning commission’s] function is to determine whether the applicant’s proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied. . . .

“It is well settled that in granting a special permit, an applicant must satisf[y] all conditions imposed by the regulations. . . . The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied. . . . When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. . . . The zoning [commission’s] action must be sustained if even one of the stated reasons is sufficient to support it.” (Citations omitted; internal quotation marks omitted.) Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 520-22, 630 A.2d 108 (1993).

A site plan is a “plan filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building, use or structure with specific provisions of the zoning regulations. It is a physical plan showing the layout and design of a proposed use, including structures, parking areas and open space and their relation to adjacent uses and roads, and containing the information required by the zoning regulations for that use. The agency has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated by reference. ‘A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations. ’ ” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 2.2, pp. 17-18; see also Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 613-14, 610 A.2d 1205 (1992); SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 15 Conn. App. 561, 566-67, 545 A.2d 602 (1988), aff'd, 211 Conn. 331, 559 A.2d 196 (1989); Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984).

CRRA claims that the decision of the trial court should be affirmed because it corrected an error of law by the commission. CRRA’s position is that TLA’s lot is a flag lot and the commission does not have the authority to approve it for industrial use as a special exception under the regulations. It claims flag lots can be used only for residential purposes, and since TLA’s lot is in an industrial zone it cannot be used because that use is not expressly permitted under the regulations.

We disagree with CRRA and the trial court, and conclude that the commission, interpreting the regulations that it promulgated, correctly determined that flag lot restrictions were applicable only in residential zones and not industrial zones. “A local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances. ... A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation.” (Citations omitted; internal quotation marks omitted.) Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 154, 561 A.2d 1373 (1989). “A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words employed are to be interpreted in their natural and usual meaning.” (Citation omitted.) Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511, 264 A.2d 552 (1969). The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 601, 539 A.2d 101 (1988). “The regulations must be construed as a whole and in such a way as to reconcile all their provisions as far as possible.” Weigel v. Planning & Zoning Commission, 160 Conn. 239, 246, 278 A.2d 766 (1971). “[Regulations are to be construed as a whole since particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them. ” (Internal quotation marks omitted.) Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 679, 236 A.2d 917 (1967).

While it is true that the definition of a flag lot does not state that it is limited to a particular zone, the regulations taken as a whole limit the application and utility of flag lots to residential zones. The Torrington zoning regulations provide for fifteen zones, ten of which are residential and are prefixed by an “R” in the regulations. There are also two business zones, an industrial park zone, a restricted commercial and industrial zone and an industrial zone. Torrington Zoning Regs., § 1.2. The subject property is in an industrial zone that does not allow residential dwellings.

Section 4.1.5 of Torrington’s area and setback requirements states: “[A]ll buildings containing one or more dwelling units shall be on a lot abutting a street.” (Emphasis added.) There is, however, no similar requirement that a building not containing a dwelling unit shall be on a lot abutting a street. Furthermore, Torrington’s zoning regulations do not prohibit construction of a nondwelling structure on a landlocked parcel. Section 5.7 et seq. of the Torrington zoning regulations, entitled “flag lots,” sets forth when a flag lot may be used, stating: “In R-15, R-15s, R-25, R-40, R-60 and R-WP zoning districts, the Planning and Zoning Commission may approve as part of a subdivision, or by special exception when no subdivision is required, the use of an accessway to serve a lot which does not comply with the minimum lot width requirements provided all the following conditions are met.” Section 5.7.4 provides that “a flag lot shall be used for no more than one dwelling unit.” Section 5.7.8 provides that “the driveway from the street to the dwelling unit shall not exceed 1,200’ in length.” Section 5.5.13 provided in pertinent part: “The owner of a flag must own the accessway in fee simple. ...” There is no reference in the regulations to flag lots other than in connection with residential zones. TLA’s lot complies with the area and setback requirements that are set forth in § 4.1.3 of the regulations. This regulation specifies that industrial lots have a minimum lot width in excess of eighty feet. TLA’s parcel has a minimum lot width in excess of eighty feet.

Additionally, both the commission and the trial court found that TLA’s proposed use of the premises is a permitted use authorized by special exception in an industrial zone. The commission found that all the standards set forth in the regulations were met. Furthermore, the commission approved TLA’s site plan, which was not challenged on appeal. The approval of the site plan means that the commission found that TLA’s parcel was in conformity with all of the applicable zoning regulations. Allied Plywood, Inc. v. Planning & Zoning Commission, supra, 2 Conn. App. 512.

We conclude that flag lots exist only in residential zones because only residential zones are required to have the minimum width set forth in the regulations abutting a city accepted street and because all references to flag lots are applicable only to residential zones.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the appeal.

In this opinion the other judges concurred.

       Section 2.2 of the Torrington zoning regulations defines a flag lot as “a lot which has less than the minimum required lot width on a city accepted street and which is accessed by an accessway.’'

       This court also granted CRRA’s petition for certification to appeal the trial court’s rejection of the sign posting issue. This issue is the subject of a separate appeal.


author: O’CONNELL, C. J.

text:
    RICHARD B. POLIVY v. AIR ONE, INC., ET AL.
    (AC 15926)
    O'Connell, C. J., and Hennessy and Mottolese, Js.

      Argued March 21
    officially released September 9, 1997

      Vincent F. Sabatini, with whom were Tara Lyons and, on the brief, Sandra Rachel Baker, for the appellant (intervening defendant).

      David A. Hill, Jr., for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

In this replevin action for an aircraft, the defendant Arstol, Inc. (Arstol), appeals from the judgment for the plaintiff on its counterclaim. Arstol claims that the trial court improperly (1) interpreted the effect of a prior trial court decision, (2) found that Arstol had not proved its conversion claim, (3) ruled on the respective repossession rights of senior and junior secured parties, (4) found that Arstol had not proved its negligence claim and (5) found that Arstol had not proved its tortious interference with a business expectancy claim. We reverse the judgment of the trial court.

The scenario leading to this appeal commenced on December 1, 1992, when the defendant Air One, Inc. (Air One), sold a Rockwell Commander aircraft to the defendant Brainard Flight Services, Inc. (Brainard), and took back an aircraft security agreement representing a portion of the purchase price. This security agreement was properly recorded pursuant to Federal Aviation Administration (FAA) regulations in Oklahoma City, Oklahoma.

On August 11, 1993, Brainard executed a promissory note in favor of the plaintiff, who took a security interest in the aircraft’s engine, propeller and various other component parts. On October 8, 1993, the plaintiff filed his security interest with the Connecticut secretary of the state. On October 28, 1993, the plaintiff also filed his security interest with the FAA. Brainard thereafter defaulted on its obligations to the plaintiff and to Air One. On February 14, 1994, the plaintiff instituted this writ of replevin against Brainard and Air One. Shortly after the plaintiff instituted this action, Air One assigned its security interest to Capital Assistance Corporation, which assigned the note and security interest to Arstol, a Connecticut corporation formed on February 22,1994. On or about March 11, 1994, Arstol, relying on the right of self-help, flew the aircraft from its location at Brain-ard Airport in Hartford to Keene, New Hampshire. Ars-tol also sent written notification of the repossession of the aircraft to Brainard.

On or about March 24,1994, the plaintiff learned that Arstol was the assignee of Air One’s interest in the note and the aircraft. The plaintiff eventually learned the location of the aircraft in New Hampshire, seized it, and flew it from Keene to Ware, Massachusetts. The plaintiff did not notify Arstol of the aircraft’s location.

Almost simultaneously, the plaintiff filed a motion to cite Arstol into this action, and Arstol filed a motion to intervene. In addition, Arstol filed a motion for a temporary injunction and restraining order against the plaintiff, claiming that the plaintiff had wrongfully repossessed the aircraft. The trial court, O’Neill, J., ordered that the aircraft be restored to a safe place in Hartford where all concerned would know its location and that it not be moved again subject to the issues being litigated.

The action was bifurcated after the plaintiff and Ars-tol filed motions for summary judgment to determine the priorities of their respective security interests. The trial court, Sheldon, J., granted the motion in favor of Arstol and unequivocally concluded that Arstol’s security interest was superior to that of the plaintiff. The plaintiff did not appeal from the partial summary judgment, thereby making it the law of the case. Pursuant to Judge Sheldon’s determination of priorities, the aircraft was released to Arstol on July 31, 1995.

The case proceeded on Arstol’s three counterclaims—(1) conversion, (2) interference with contractual rights, and (3) negligence for damage allegedly caused to the aircraft by the plaintiff. Additional facts are included in the course of our analysis.

Conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner’s rights. Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251 (1994).

Because Brainard, the owner of the aircraft, is not a party to the counterclaim, we limit our determination to whether it was the plaintiff or Arstol that had the superior right to immediate possession of the aircraft. Judge Sheldon had undisputedly determined that Ars-tol’s security interest was superior to that of the plaintiff, and that finding remained the law of the case as to Arstol’s counterclaims. The plaintiff nevertheless contends that Arstol did not have a right to immediate possession. The plaintiff bases that argument on the fact that, when Arstol took the aircraft, it was chained by Connecticut Air Motive, Inc. (Air Motive), as security for mechanical services it had performed. The plaintiff also relied on his knowledge that, in a suit between Brainard and Air One, an injunction was issued that prohibited Air One from interfering with Brainard’s use of the aircraft.

The plaintiff argues that Arstol’s right to self-help repossession was limited to the extent that it could not exercise this right if it resulted in a breach of the peace. General Statutes § 42a-9-503 is controlling. It provides that “in taking possession a secured party may proceed without judicial process if this can be done without breach of the peace.” (Emphasis added.) The plaintiff claims that breaking the chains that Air Motive used to immobilize the aircraft constituted a breach of the peace. The trial court made no finding that this constituted breach of the peace and this court is powerless to find facts. Griffin v. Planning & Zoning Commission, 30 Conn. App. 643, 652, 621 A.2d 1359 (1993). We note, however, that, on the facts of this case, only Air Motive would arguably have a superior right to possession because the broken chains belonged to Air Motive. The trial court, however, found that Air Motive had disclaimed any right to possession, and that finding has not been challenged. Therefore, in the absence of a finding of breach of the peace and in view of Air Motive’s disclaimer, Arstol had a right to immediate possession of the aircraft as against the plaintiffs inferior interest.

The trial court found that the plaintiffs actions were induced by the improper action of Arstol. In view of our conclusion that Arstol properly exercised its self-help right to obtain immediate possession, we reverse the judgment of the trial court. Because the trial court’s judgment on the conversion claim was inextricably related to the remaining claims, we also reverse the trial court on those claims.

The judgment on Arstol’s counterclaims is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Air One participated in the trial, but is not a party to this appeal.

       Brainard was defaulted in the trial court for failure to appear.

       In the memorandum of decision on the motions for summary judgment, Judge Sheldon expressly found that Arstol’s security interest was first filed. In addition, the court found that the security interest extended to the airframe, as well as to the engine, propellers, equipment and accessories.

       Because the plaintiff was not a party to the suit between Brainard and Air One, the plaintiff relied on the injunction in that case to his peril.

       The record is devoid of any other evidence that would even arguably support a finding of breach of the peace.