Casner v. Roberts

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Casner v. Roberts

ROBERT CASNER v. RAYMOND E.
ROBERTS ET AL.
(AC 47463)
Suarez, Seeley and Eveleigh, Js.

Syllabus

The defendant property owners appealed from the trial court’s judgment
determining that they had breached the terms of a restrictive covenant that
runs with their property by constructing a six car commercial garage and
operating a commercial roofing business therefrom without having received
prior approval from the plaintiff, the owner and developer of the subdivision
where the defendants’ property was located. The defendants claimed, inter
alia, that the court improperly determined that the three year statute of
limitations (§ 52-575a) did not bar the plaintiff’s action. Held:

The trial court properly determined that the plaintiff’s action was not barred
by § 52-575a, as the three year limitation period of § 52-575a was suspended
by Governor Ned Lamont’s Executive Order No. 7G, seven and one-half
months after the plaintiff was notified of the defendants’ construction of
the garage, and the plaintiff subsequently commenced the present action
less than eighteen months after the suspension of § 52-575a was lifted by
Executive Order No. 10A.

The trial court did not abuse its discretion in denying the defendants’ request
to amend their special defenses to include laches, which was based on their
assertion that the plaintiff had more knowledge than the ordinary person
concerning the town’s municipal building department operations and infor-
mation, as the plaintiff’s trial testimony did not reasonably reflect that he
had or should have had the special knowledge asserted by the defendants, and
the existence or nonexistence of that knowledge on the part of the plaintiff
was not relevant.

This court declined to review the defendants’ claim that the trial court
improperly determined that the restrictive covenant was enforceable, as this
claim was raised by the defendants for the first time on appeal.

The trial court’s determination that the defendants had violated the restric-
tive covenant by failing to obtain the plaintiff’s approval for the construction
of the six car garage was not clearly erroneous and was legally sound, as the
terms of the restrictive covenant regarding what constituted a permissible
residential garage were clear and unambiguous, and the court, as the trier of
fact and sole arbiter of credibility, clearly accepted the plaintiff’s testimony
that the defendants’ garage accommodated six cars and was commercial in
appearance, and the question of whether the plaintiff’s approval was unrea-
sonably withheld was not reached because the parties stipulated that the
defendants constructed the garage without plan approval from the plaintiff.

The trial court did not abuse its discretion in granting the plaintiff’s requested
equitable relief and ordering the defendants, inter alia, to erect a fence, as the
Casner v. Roberts

court weighed competing equities, acknowledged the burden that the remedy
requested by the plaintiff would have on the defendants, and exercised its
discretion in favor of the plaintiff.

The trial court improperly interpreted the restrictive covenant as prohibiting
all commercial use of the defendants’ property, as language in the restrictive
covenant permits the display of one commercial sign for an office within a
residence, indicating that, although the restrictive covenant generally envi-
sions residential use, it does not preclude all commercial uses of a property,
and, accordingly, the court’s injunction ordering the defendants to cease
and desist all commercial use of their property was overly broad and the
imposition of a fine could not stand.

Argued September 15, 2025—officially released February 3, 2026

Procedural History

Action to recover damages for, inter alia, breach of
a restrictive covenant, and for other relief, brought to
the Superior Court in the judicial district of Middlesex
and tried to the court, Swienton, J.; judgment for the
plaintiff, from which the defendants appealed to this
court. Reversed in part; further proceedings.
Sandra R. Stanfield, for the appellants (defendants).
Deborah L. Barbi, for the appellee (plaintiff).

Opinion

EVELEIGH, J. The defendants, Raymond E. Roberts
(Raymond) and Jacqueline Roberts, appeal from the judg-
ment of the trial court rendered in favor of the plaintiff,
Robert Casner. On appeal, the defendants claim that
the court (1) improperly determined that the statute of
limitations, General Statutes § 52-575a, did not bar the
plaintiff’s claims, (2) abused its discretion in denying
their request for leave to file an amended special defense,
(3) improperly determined that a restrictive covenant was
enforceable against the defendants, (4) improperly (a)
determined that they breached the terms of the restric-
tive covenant by constructing an unauthorized garage
without prior approval and (b) ordered them to make
architectural changes to the garage and to erect a fence,
and (5) improperly interpreted the restrictive covenant
as precluding all business use of their property and, in
Casner v. Roberts

so doing, abused its discretion in fashioning an overly
broad cease and desist order. We disagree with claims
one through four raised by the defendants. We agree,
in part, with the defendants’ last claim. Accordingly,
we reverse in part and affirm in part the judgment of
the trial court and remand the case to the trial court for
further proceedings according to law.
The following relevant facts, as stipulated to by the
parties or as found by the court, are as follows. The plain-
tiff, a residential real estate developer, owned a subdivi-
sion development in East Haddam known as Southwinds.
On April 15, 2016, the defendants acquired lot 6 of that
subdivision, commonly referred to as 6 Southwinds Road,
Moodus (East Haddam), by warranty deed. The plaintiff
moved into his residence at 1 Southwinds Road in June
or July, 2019, but has since moved out of that home. He
still owns lot 3.
The defendants’ lot, like all lots in the Southwinds
subdivision, was subject to a Declaration of Restrictions
and Covenants (restrictive covenant), which runs with
the land for a period of thirty years from the date of
recording, which was September 15, 1999. Paragraph 1
of that restrictive covenant provides that no structures
shall be erected or maintained on the lot except a single,
one-family residence building for use and occupancy
by one family only; one private garage for not more
than three cars, except with the written approval of
the owner; and outbuildings as are commonly used in
conjunction with a private residence. It further provides
in paragraph 12 that, as long as the plaintiff owns any
lot within the Southwinds subdivision, he shall have the
right to approve the architectural plan for any struc-
tures constructed on any lot, which approval shall not
be unreasonably withheld. Additionally, paragraph 6
permits the display of one professional sign for an office
within the residence.
In August, 2019, the owners of lot 4, which is adja-
cent to the defendants’ property, informed the plaintiff
that the defendants had constructed a garage on their
Casner v. Roberts

property. Additionally, Raymond received two home
occupation approvals from the administrator of the
East Haddam Land Use Office and uses his property for
his slate roofing business, Affordable Slate Roofing,
LLC, which lists as its address 6 Southwinds Road. On
November 17, 2020, the defendants were issued a notice
of violation by the East Haddam Planning and Zoning
Commission, Land Use Department, for conditions at the
defendants’ property in violation of the East Haddam
zoning regulations pertaining to the permitted home
occupation, noting, among other things, that pallets
of construction materials were stored visibly from the
street and that heavy construction equipment was stored
on the property.
In 2022, the plaintiff brought an action against the
defendants alleging, in his operative amended complaint,
that the defendants breached the restrictive covenant
by (1) constructing an unauthorized outbuilding and (2)
using that outbuilding for a commercial enterprise. The
defendants filed an answer and special defense, asserting
that the plaintiff’s claims were barred by the applicable
statute of limitations, § 52-575a.
In a February 28, 2024 memorandum of decision, the
court rejected the defendants’ special defense and con-
cluded that the plaintiff prevailed on both of his claims.
Concerning the defendants’ breach of the restrictive
covenant for the construction of an outbuilding with-
out prior approval, the court ordered the defendants
to submit to the court within thirty days a proposal to
make architectural changes to align it with the resi-
dential nature of the Southwinds subdivision, as well
as a proposal for the erection of a fence and landscaping
in order to act as a buffer. Concerning the defendants’
breach of the restrictive covenant for the business use of
their property, the court ordered them to cease and desist
all commercial operations of Affordable Slate Roofing,
LLC, from their property, and gave them ninety days
to relocate the business, assigning a penalty of $100 per
day for every day past that ninety day period that the
Casner v. Roberts

defendants continue to house the commercial business
on the premises. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendants claim that the court improperly deter-
mined that § 52-575a did not bar the plaintiff’s claims.
We disagree.
“The question of whether a party’s claim is barred by
the statute of limitations is one of law subject to plenary
review.” Haas v. Haas, 137 Conn. App. 424, 432, 48
A.3d 713 (2012). The existence of knowledge, either
actual or constructive, is a question of fact. See, e.g.,
Maffucci v. Royal Park Ltd. Partnership, 243 Conn.
552, 564–65, 707 A.2d 15 (1998). “A finding of fact is
clearly erroneous when there is no evidence in the record
to support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake
has been committed.” (Internal quotation marks omit-
ted.) Haas v. Haas, supra, 432.
Section 52-575a provides in relevant part: “No action
or any other type of court proceeding shall be brought to
enforce a private restriction recorded in the land records
of the municipality in which the property is located or a
notation on a filed map pertaining to the use of privately
owned land, the type of structures that may be erected
thereon or the location of same unless such action or pro-
ceeding shall be commenced within three years of the time
that the person seeking to enforce such restriction had
actual or constructive knowledge of such violation. . . .”
The defendants argue that the plaintiff had construc-
tive knowledge in October, 2018, of their breach of the
restrictive covenant when they began construction on
their property of an outbuilding garage. This argument
is without merit.
The three year statute of limitations set forth in
§ 52-575a does not begin to run until a plaintiff knows or
Casner v. Roberts

reasonably should have known of the violation. We note
that it is the burden of the defendants, who asserted the
special defense, to demonstrate that the plaintiff failed
to commence the present action alleging violations of
the restrictive covenant within three years after he had
either actual or constructive knowledge of the alleged
violations. See, e.g., O & G Industries, Inc. v. American
Home Assurance Co., 204 Conn. App. 614, 625, 254 A.3d
955 (2021) (defendant bears burden of proving special
defenses by fair preponderance of evidence).
The court rejected the argument raised in the defen-
dants’ posttrial brief that the plaintiff had constructive
knowledge of the alleged violations of the restrictive
covenant when Raymond was issued a building permit
for the garage on August 15, 2018, or at least by the fall
of 2018 when “nearly forty-five loads carried by large
semi-sized tractors with dump body trucks brought sand
and gravel to the defendants’ property for site work to
construct a three car garage.”1 The court stated that
“[t]he defendants attempt to argue that the plaintiff
had constructive notice of the violations on August 15,
2018, when the building department issued a permit for
the construction of the outbuilding, and thereafter. The
court cannot find any credible evidence to support that
claim.” Rather, the court found that, in August 2019,
the owners of lot 4, which is adjacent to the defendants’
property, informed the plaintiff that the defendants
had constructed a garage. The court also found that the
plaintiff did not move into his lot on Southwinds Road
until June or July, 2019, and that both of his lots were
1
The defendants claim, for the first time on appeal, that the plaintiff
had constructive knowledge of the use of their property for a slate roof-
ing company in May, 2016, subsequent to when the East Haddam Land
Use Office approved Raymond’s first home occupation application for
a business permit. We decline to review this claim because we “will not
review a claim that is not distinctly raised at trial. . . . A claim is dis-
tinctly raised if it is so stated as to bring to the attention of the court
the precise matter on which its decision is being asked.” (Emphasis
omitted; internal quotation marks omitted.) Commissioner of Mental
Health & Addiction Services v. Saeedi, 143 Conn. App. 839, 856, 71
A.3d 619 (2013).
Casner v. Roberts

reached on the Southwinds Road cul-de-sac without
driving past the defendants’ property located at lot 6
on the opposite side of the street.
The court found that § 52-575a was tolled by Governor
Ned Lamont’s pandemic related executive orders. Execu-
tive Order No. 7G, effective March 19, 2020, provides
in relevant part: “I hereby suspend, for the duration of
this public health and civil preparedness emergency,
unless earlier modified or terminated by me, all statu-
tory . . . (2) . . . statutes of limitation . . . including, but
not limited to, the following . . . e. All statutes of limita-
tions provided in Chapter 926 of the General Statutes.
. . . Unless otherwise specified herein, this order shall
take effect immediately and shall remain in effect for
the duration of the public health and civil preparedness
emergency, unless earlier modified by me.” Executive
Order No. 10A, effective February 8, 2021, provides in
relevant part: “[T]he provisions of Executive Order No.
7G, Section 2, dated March 19, 2020 . . . as they relate
to the following, shall expire on March 1, 2021 . . . b.
all statutory time requirements . . . including, but not
limited to . . . iii. All statutes of limitations provided in
Chapter 926 of the Connecticut General Statutes. . . .”
The defendants acknowledge that Governor Lamont’s
Executive Orders Nos. 7G and 10A suspended statutory
time requirements, including statutes of limitations,
from March 19, 2020, to March 1, 2021. They, how-
ever, argue that the language of Executive Order No. 7G
suspends, but does not toll, statutes of limitations and,
furthermore, that Executive Order No. 7G does not toll
statutes of repose, such as § 52-575a. The defendants’
argument is unavailing.
The express language of Executive Order No. 7G applies
to all statutes of limitations, including, but not limited
to, those provided in chapter 926 of the General Statutes,
in which § 52-575a is set forth. There is no distinction
in Executive Order No. 7G or within Connecticut law
Casner v. Roberts

between statutes of limitations and statutes of repose.2
See State v. Lombardo Bros. Mason Contractors, Inc.,
307 Conn. 412, 443, 54 A.3d 1005 (2012) (no distinction
in Connecticut law between statutes of limitations and
statutes of repose). Additionally, although Executive
Order No. 7G uses the word “suspend,” our Supreme
Court has noted that the term “toll” is a synonym for
the term “suspend.” State v. Ali, 233 Conn. 403, 413
n.8, 660 A.2d 337 (1995).
The three year limitation period of § 52-575a was sus-
pended as a result of Governor Lamont’s Executive Order
No. 7G, effective March 19, 2020, and that suspension
subsequently was lifted on March 1, 2021, by Governor
Lamont’s Executive Order No. 10A. The court found that
the plaintiff was notified of the defendants’ construction
of the garage in August, 2019, approximately seven and
one-half months before the March 19, 2020 effective date
of Executive Order No. 7G. The plaintiff commenced the
action on August 19, 2022, less than eighteen months
after the suspension of the three year statute of limita-
tions had been lifted on March 1, 2021. Accordingly, we
conclude that the court properly determined that the
plaintiff’s action was not barred by the three year time
limit in § 52-575a.
II
The defendants next claim that the court abused its
discretion in denying their request for leave to file an
amended special defense to include laches.3 We disagree.
“Whether to allow an amendment is a matter left to
the sound discretion of the trial court. [An appellate]
2
“While statutes of limitation[s] are sometimes called statutes of
repose, the former bars [a] right of action unless it is filed within a
specified period of time after injury occurs, while statute[s] of repose
[terminate] any right of action after a specific time has elapsed, regard-
less of whether there has as yet been an injury.” (Internal quotation
marks omitted.) Baxter v. Sturm, Ruger & Co., 230 Conn. 335, 341,
644 A.2d 1297 (1994).
3
The defendants also argue that the court erred in failing to find in
their favor on their special defense of laches. Because we conclude that
Casner v. Roberts

court will not disturb a trial court’s ruling on a proposed
amendment unless there has been a clear abuse of that
discretion. . . . It is the [defendant’s] burden . . . to demon-
strate that the trial court clearly abused its discretion. . .
. A trial court may allow, in its discretion, an amendment
to pleadings before, during, or after trial to conform to
the proof. . . . Factors to be considered in passing on a
motion to amend are the length of the delay, fairness to
the opposing parties and the negligence, if any, of the
party offering the amendment. . . . The essential tests
are whether the ruling of the court will work an injustice
to either the plaintiff or the defendant and whether the
granting of the motion will unduly delay a trial.” (Inter-
nal quotation marks omitted.) Fountain Pointe, LLC v.
Calpitano, 144 Conn. App. 624, 640, 76 A.3d 636, cert.
denied, 310 Conn. 928, 78 A.3d 147 (2013).
“Laches consists of two elements. First, there must
have been a delay that was inexcusable, and, second, that
delay must have prejudiced the defendant.” (Internal
quotation marks omitted.) Burrier v. Burrier, 59 Conn.
App. 593, 596, 758 A.2d 373 (2000).
A trial took place on November 1, 2023. On Novem-
ber 21, 2023, the defendants filed a request for leave to
amend their special defenses to include laches, reasoning
that it was discovered during the plaintiff’s testimony
that he has or should have more knowledge than an ordi-
nary person concerning the town’s municipal building
department operations and information, and, therefore,
he knew or should have known about the defendants’
construction of the garage either on August 15, 2018,
when the defendants were issued a building permit, or in
October, 2018, when building materials were delivered
to the defendants’ property. The court denied the defen-
dants’ request for leave to amend their special defenses,
reasoning that it was unaware of any evidence in the
record supporting the defendants’ assertion that the
plaintiff had more knowledge than an ordinary person
the court did not abuse its discretion in denying their request for leave
to file an amended special defense, we do not address this argument.
Casner v. Roberts

concerning the town’s municipal building department
operations and information and that, even if such evi-
dence had been offered, it was not relevant.
The defendants have failed to demonstrate that the
court abused its discretion in denying their request to
amend their special defenses. The court determined that
the asserted special defense, which relied on the notion
that the plaintiff had or should have more knowledge
than an ordinary person concerning the town’s municipal
building department operations and information, did
not conform to the proof. On the basis of our review of
the plaintiff’s trial testimony, which does not reason-
ably reflect that he had or should have had the special
knowledge asserted by the defendants, and on the basis
of the court’s sound determination that the existence
or nonexistence of such knowledge on the part of the
plaintiff was not relevant, we conclude that the court’s
ruling does not reflect an abuse of its discretion.
III
The defendants next claim that the court improperly
determined that the restrictive covenant was enforceable.
Specifically, they contend that the restrictive covenant
lacks substantial uniformity and, therefore, enforce-
ment would be inequitable because some provisions are
applicable only to lots of a certain acreage and because
some lots in the Southwinds subdivision are allowed to
have a three car garage while the defendants were not.
We decline to review this unpreserved claim.
The court found that the restrictive covenant was uni-
formly contained in all deeds executed by the plaintiff,
who divided his property into building lots under a gen-
eral development scheme.4 The court further determined
4
“Restrictive covenants generally fall into one of three categories:
(1) mutual covenants in deeds exchanged by adjoining landowners; (2)
uniform covenants contained in deeds executed by the owner of property
who is dividing his property into building lots under a general develop-
ment scheme; and (3) covenants exacted by a grantor from his grantee
presumptively or actually for the benefit and protection of his adjoining
land which he retains.” (Internal quotation marks omitted.) DaSilva v.
Casner v. Roberts

that the restrictive covenant should be enforced because
it is reflective of a common plan of development. “Restric-
tive covenants should be enforced when they are reflective
of a common plan of development. . . . The factors that
help to establish the existence of an intent by a grantor
to develop a common plan are: (1) a common grantor
sells or expresses an intent to put an entire tract on the
market subject to the plan; (2) a map of the entire tract
exists at the time of the sale of one of the parcels; (3)
actual development according to the plan has occurred;
and (4) substantial uniformity exists in the restrictions
imposed in the deeds executed by the grantor.” (Citation
omitted; internal quotation marks omitted.) DaSilva
v. Barone, 83 Conn. App. 365, 372, 849 A.2d 902, cert.
denied, 271 Conn. 908, 859 A.2d 560 (2004). The court
found that the plaintiff had proven all four factors of
a common development scheme because the plaintiff
“intended to sell all the lots, a map of the subdivision
exists, the development did occur, and the same restric-
tive covenants exist in all the deeds.”
The court, however, did not address the specific issue
raised by the defendants on appeal. This is because they
did not raise it before the trial court and, instead, raised
it for the first time on appeal. “Our appellate courts, as
a general practice, will not review claims made for the
first time on appeal. . . . [A]n appellate court is under no
obligation to consider a claim that is not distinctly raised
at the trial level. . . . [B]ecause our review is limited to
matters in the record, we [also] will not address issues
not decided by the trial court. . . . The purpose of our
preservation requirements is to ensure fair notice of a
party’s claims to both the trial court and opposing par-
ties. . . . These requirements are not simply formalities.
They serve to alert the trial court to potential error while
there is still time for the court to act. . . . The reason for
the rule is obvious: to permit a party to raise a claim on
appeal that has not been raised at trial—after it is too
late for the trial court or the opposing party to address
Barone, 83 Conn. App. 365, 371–72, 849 A.2d 902, cert. denied, 271
Conn. 908, 859 A.2d 560 (2004).
Casner v. Roberts

the claim—would encourage trial by ambuscade, which
is unfair to both the trial court and the opposing party.”
(Internal quotation marks omitted.) Guddo v. Guddo,
185 Conn. App. 283, 286–87, 196 A.3d 1246 (2018); see
also Practice Book § 60-5 (appellate court is generally not
bound to consider claim not distinctly raised at trial or
arising subsequent to trial). Accordingly, we decline to
review the defendants’ unpreserved claim.
IV
The defendants next claim that the court improp-
erly (a) determined that they breached the terms of the
restrictive covenant by constructing an unauthorized
garage without approval and (b) ordered them to make
architectural changes to the garage and to erect a fence.
We are not persuaded.
A
Breach
The following legal principles and standards are rel-
evant. “Where the language of the contract is clear and
unambiguous, the contract is to be given effect according
to its terms. A court will not torture words to import
ambiguity where the ordinary meaning leaves no room
for ambiguity . . . . Similarly, any ambiguity in a contract
must emanate from the language used in the contract
rather than from one party’s subjective perception of
the terms. . . . Although the words in a restrictive cov-
enant are to be interpreted in their ordinary and popular
sense, if any of the words have acquired a particular or
special meaning in the particular relationship in which
they appear, such particular or special meaning will
control. . . . A restrictive covenant must be narrowly
construed and ought not to be extended by implication.”
(Citations omitted; internal quotation marks omitted.)
Morgenbesser v. Aquarion Water Co. of Connecticut, 276
Conn. 825, 829, 888 A.2d 1078 (2006). “The interpreta-
tion of definitive contract language is a question of law
over which our review is plenary. . . . By contrast, the
trial court’s factual findings as to whether and by whom
Casner v. Roberts

a contract has been breached are subject to the clearly
erroneous standard of review and, if supported by evi-
dence in the record, are not to be disturbed on appeal.”
(Footnote omitted; internal quotation marks omitted.)
New Milford v. Standard Demolition Services, Inc., 212
Conn. App. 30, 55–56, 274 A.3d 911, cert. denied, 345
Conn. 908, 283 A.3d 506 (2022).
1
Paragraph 1B
Paragraph 1B of the restrictive covenant provides in
relevant part that “[n]o structures other than the follow-
ing shall be erected or maintained on said lot. . . . One
private garage for not more than three (3) cars, except
with the written approval of [o]wner or his designee for
this purpose.”
The defendants argue that the court erred in failing
to find that their outbuilding was a three car garage.
Specifically, they contend that it constitutes a three car
garage because it has three bays and three doors and that,
as such, they were not required to obtain the plaintiff’s
approval for its construction pursuant to paragraph 1B.
They note that paragraph 1B contains no size limitations
and argue that, if the language “one private garage for
not more than three cars” could “be defined differently
than a garage with three doors, the paragraph is argu-
ably ambiguous . . . .” We are not persuaded.
The court determined that “[t]he [restrictive cove-
nant] unequivocally provides that construction of any
outbuilding or private garage for more than three cars
requires the written approval of the plaintiff as does the
preapproval of the site plan and architectural plan for
any building or structure. . . .” Specifically, the court
found that “[t]he structure is a commercial building
unfitting for a residential area . . . . The structure mea-
sures forty [feet] by forty [feet] with three ten [foot] by
ten [foot] garage doors, which doors are much larger
than doors found on a residential garage. The structure
Casner v. Roberts

accommodates six garage bays. . . . Raymond acknowl-
edges that he never submitted any plans for the structure
in advance to [the plaintiff] as required by the [restrictive
covenant] . . . .”
Although the defendants contend that a three door,
three bay garage is a three car garage, the restrictive
covenant mentions neither doors nor bays. Rather, it
unambiguously provides that no structure other than
“[o]ne private garage for not more than three (3) cars”
shall be erected or maintained on said lot except with
written approval. Although the defendants argue that
paragraph 1B is ambiguous if a three door garage is not
considered to be a three car garage, “[w]e will not torture
words to import ambiguity where the ordinary meaning
leaves no room for ambiguity . . . .” (Internal quotation
marks omitted.) Community Action for Greater Middle-
sex Community, Inc. v. American Alliance Ins. Co., 254
Conn. 387, 401, 757 A.2d 1074 (2000).
The court found that the three garage doors measure
ten feet by ten feet and “are much larger than doors found
on a residential garage” and that the garage accommo-
dates six garage bays. The court’s findings are supported
by the testimony of the plaintiff, who explained that
there are “three main doors but they’re double width,
they’re double depth and so you could actually get six
vehicles into that garage.” He further testified that,
“[b]asically, the . . . garage doors are commercial doors.
They’re ten feet by ten feet, that would be way out of the
ordinary. Matter of fact there is no such thing as hav-
ing—doing that on a residential building. Basically, we
would be using a nine [foot] by seven [foot] door for the
garage doors. And I think that that’s something that
we use all the time, it’s a standard door that goes on a
residential garage.”
As the trier of fact and sole arbiter of credibility, the
court was free to accept or reject, in whole or in part, the
testimony of the plaintiff. See Jay v. A & A Ventures,
LLC, 118 Conn. App. 506, 514, 984 A.2d 784 (2009). The
Casner v. Roberts

court clearly accepted the plaintiff’s testimony that the
defendants’ garage doors were much larger than doors
found on residential garages and that the garage accom-
modates six garage bays.
Therefore, according to the clear and unambiguous
terms of paragraph 1B, and in light of the court’s find-
ing that the defendants constructed a six car garage, the
court’s determination that the defendants violated para-
graph 1B by failing to obtain the plaintiff’s approval for
their garage is not clearly erroneous and is legally sound.
2
Paragraph 12
Although the language of paragraph 1B supports the
court’s determination that the defendants violated the
terms of the restrictive covenant concerning their con-
struction of a garage, we note that the court also deter-
mined that the defendants’ garage construction violated
paragraph 12. Paragraph 12 of the restrictive covenant
provides: “So long as [the plaintiff] is the [o]wner of any
[l]ot within said [s]ubdivision, said [plaintiff] shall have
the right to approve the [s]ite [p]lan and architectural
plan for any building, improvements or structures to be
constructed upon the [l]ots to which these covenants and
restrictions apply, which approval shall not be unreason-
ably withheld.” The parties stipulated that the plaintiff
owns lot 3 in the Southwinds subdivision and that the
defendants constructed the garage without plan approval
from the plaintiff.
The defendants argue that, according to paragraph
12, the plaintiff cannot unreasonably withhold approval
and that not allowing them to have a three car garage
would be unreasonable in light of the fact that lot 5 in
the Southwinds subdivision has a three car garage. First,
the defendants do not have a three car garage: rather,
the court found that they have a six car garage. Sec-
ond, because the defendants failed to ask for approval to
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construct their garage, the question of whether approval
was unreasonably withheld cannot be reached.
For the foregoing reasons, we conclude that the court
properly determined that the defendants’ construction
of a six car garage violated the terms of the restrictive
covenant.
B
Remedy
The defendants next argue that the court’s equitable
remedy was improper because the plaintiff “did not spe-
cifically seek any specific remedy regarding the defen-
dants’ garage, nor should he have been granted such,”
and that “there is no support for any issue or remedy
requested such that the court was justified in ordering
the defendants to erect a fence.” We are not persuaded.
“The issuance of an injunction and the scope and quan-
tum of injunctive relief rests in the sound discretion of
the trier. . . . A party seeking injunctive relief has the
burden of alleging and proving irreparable harm and lack
of an adequate remedy at law. . . . A prayer for injunctive
relief is addressed to the sound discretion of the court and
the court’s ruling can be reviewed only for the purpose
of determining whether the decision was based on an
erroneous statement of law or an abuse of discretion.”
(Internal quotation marks omitted.) Welles v. Lichaj,
136 Conn. App. 347, 354, 46 A.3d 246, cert. denied,
306 Conn. 904, 52 A.3d 730 (2012). “[I]n exercising its
discretion, the court . . . may consider and balance the
injury complained of with that which will result from
interference by injunction.” (Internal quotation marks
omitted.) Castonguay v. Plourde, 46 Conn. App. 251,
266–67, 699 A.2d 226, cert. denied, 243 Conn. 931,
701 A.2d 660 (1997). “[T]he general rule requiring that
substantial irreparable injury must threaten before an
injunction will issue is subject to an exception. A restric-
tive covenant may be enforced by injunction without a
showing that violation of the covenant will cause harm
to the plaintiff, so long as such relief is not inequitable.”
Casner v. Roberts

Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22,
376 A.2d 381 (1977). “When presented with a viola-
tion of a restrictive covenant, the court is obligated to
enforce the covenant unless the defendant can show
that enforcement would be inequitable.” Gino’s Pizza
of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 139,
475 A.2d 305 (1984).
The plaintiff requested in the operative amended com-
plaint “[s]uch other and further relief as the court deems
just and equitable, both at law and in equity to protect
the plaintiff’s rights.” In his posttrial brief, the plain-
tiff specifically requested architectural changes to the
defendants’ garage and the erection of a fence. The court
ordered that “the defendants submit to the court within
thirty (30) days a proposal to make architectural changes
to the outbuilding to align it with the residential nature
of Southwinds development, as well as a proposal for the
erection of a fence and landscaping in order to act as a
buffer and shield for the adjoining lot and visibility from
the street. The plaintiff shall have the right to request
a hearing within ten (10) days of the receipt of the pro-
posal. Should the plaintiff fail to do so, the court shall
consider both proposals and make orders accordingly.”
In its memorandum of decision, the court weighed
the competing equities, acknowledged the burden that
the remedy requested by the plaintiff would have on the
defendants, and exercised its discretion in favor of the
plaintiff, stating that he has the right to the defendants’
compliance with the term of the restrictive covenant. It
is apparent that the trial court considered, weighed, and
balanced the opposing equities in granting the injunc-
tion. We cannot conclude that the court’s granting of
the equitable relief requested amounted to an abuse of
its discretion.
V
The defendants last claim that the court improperly
interpreted the restrictive covenant as precluding all
business use of their property because their use of the
Casner v. Roberts

property for a slate roofing business did not violate the
terms of the covenant and that the court abused its dis-
cretion in fashioning an overly broad order. We disagree
with the defendants’ argument only to the extent that
we conclude that the court properly determined that the
defendants’ business use of their outbuilding garage
violated paragraph 1C of the restrictive covenant. We,
however, agree with the defendants’ argument that the
court improperly interpreted the restrictive covenant as
prohibiting all business use of their property and, as a
result, fashioned an overly broad cease and desist order.
The interpretation of definitive contract language
is a question of law over which our review is plenary,
and the trial court’s factual findings as to whether the
restrictive covenant has been breached are subject to a
clearly erroneous standard of review. See New Milford
v. Standard Demolition Services, Inc., supra, 212 Conn.
App. 55–56.
The court found that Raymond operates “his com-
mercial business out of his home, which business is a
home improvement business, specifically a slate roofing
company. Due to the nature of the business, there are
heavy trucks and cargo style trailers on the parcel” and
“[t]here are construction materials consisting of pal-
lets of slate roofing materials being stored outside.” In
concluding that the defendants breached the restrictive
covenant by engaging in the unauthorized use of their
property for commercial purposes, the court reasoned
that, “[a]lthough the [restrictive covenant] does not
specifically state that the property shall not be used
for commercial purposes, it does provide [in paragraph
1C] that any outbuildings located on the property shall
be ones ‘commonly used in conjunction with a private
residence.’ . . . The evidence showed that the outbuilding
housed commercial vehicles used in conjunction with the
business operated by [Raymond] and that materials used
in connection with the slating business were stored on the
property visible from the road. The [restrictive covenant]
provided that the plaintiff subdivided his property ‘for
Casner v. Roberts

the purpose of establishing a residential area limited
solely to the construction of single-family residences.’ .
. . The operation of a commercial business is contrary to
the [restrictive covenant] and the commercial nature of
the building is unfitting for a residential area.”
The court determined that the defendants’ business
use of their property violated the terms of the restrictive
covenant in the following two ways. First, it violated
paragraph 1C, which provides in relevant part that “[n]o
structures other than the following shall be erected or
maintained on said lot. . . . Such outbuildings as are
commonly used in conjunction with a private residence,
provided the plans and location thereof have received
the written approval of [o]wner or his designee for the
purpose.” Second, the court determined that the defen-
dants’ commercial use of the property violated the gen-
eral principles of the restrictive covenant providing for
single family use. Specifically, at the outset, the restric-
tive covenant provides that “the [o]wner has subdivided
said [l]ots for the purpose of establishing a residential
area limited solely to the construction of single family
residences.” We address each alleged violation in turn.
We first conclude that the court’s interpretation and
application of paragraph 1C was both legally sound and
supported by the evidence. By its plain and unambiguous
terms, paragraph 1C provides that no structure shall
be “erected or maintained” except outbuildings that
are “commonly used in conjunction with a private resi-
dence.” This provision clearly contemplates residential
use of outbuildings as opposed to commercial use. See,
e.g., Neptune Park Assn. v. Steinberg, 138 Conn. 357,
361–62, 84 A.2d 687 (1951) (restrictive covenant pro-
viding that no structure except “dwelling house” shall
be erected on premises “refer[s] to a building erected in
such a form that it is designed to be occupied as a dwell-
ing as distinguished from a place of business”).
The court found that the defendants used their out-
building garage for a slate roofing business. Evidence
adduced at trial supports this finding. The defendants’
Casner v. Roberts

2019 application with the East Haddam Land Use Office
for a home occupation business permit, which was admit-
ted as a full exhibit at trial, specified garage storage of
equipment. The plaintiff testified that “[w]hat’s, basi-
cally, happening on lot 6 is . . . a business, a commercial
business is on that property,” which is “just contrary to
all of the other residency in this area that there’s a busi-
ness going on here.” He further explained that “[t]here
are heavy trucks. Slate roofing is a—it’s a . . . heavy
business. It’s . . . heavy stuff so you have heavy trucks.
They have trailers, which are, again, heavy-duty trail-
ers. These trailers have to carry multiple stuff of slate or
demolition or whatever they have on them. And they’re
also are trailers with, basically, machinery, basically.”
Accordingly, the court’s determination that the defen-
dants violated the terms of the restrictive covenant by
using their outbuilding garage for commercial purposes
in violation of paragraph 1C is not clearly erroneous and
is legally sound.
Second, the restrictive covenant provides at the out-
set that “the [o]wner has subdivided said [l]ots for the
purpose of establishing a residential area limited solely
to the construction of single family residences.” On the
basis of this language and the language in paragraph 1
limiting structures to use by one family only and limiting
outbuildings to those commonly used in conjunction with
a private residence, it is clear that, in general, the restric-
tive covenant permits only single family residential uses.
Paragraph 6, however, provides in relevant part that
“[n]o sign of any kind shall be displayed to public view on
any lot except one professional sign for an office within
the residence and used in conjunction therewith by an
occupant thereof . . . .” Given this language, it is clear
that, although the restrictive covenant generally envi-
sions residential use, it does not preclude all business
uses of a property. Accordingly, we conclude that the
court improperly interpreted the restrictive covenant as
prohibiting all commercial use of the defendants’ prop-
erty. It naturally follows from this conclusion that the
Casner v. Roberts

court’s injunction ordering the defendants to cease and
desist all commercial use of their property is overly broad
and that its imposition of a fine cannot stand as well.5
Consistent with the principles expressed in this opinion,
and in light of the court’s proper determination that the
defendants breached paragraph 1C and the language in
paragraph 6 of the restrictive covenant, we remand the
case to the trial court for further proceedings as to the
second count of the complaint.6
The judgment is reversed only as to count two with
respect to the trial court’s determination that the restric-
tive covenant prohibits all business use of the property
and as to the trial court’s cease and desist order and its
imposition of a fine, and the case is remanded for further
5
Specifically, the court “order[ed] that the defendants cease the com-
mercial operation of the business known as Affordable Slate Roofing,
LLC, from their property located at 6 Southwinds Road, Moodus (East
Haddam). The defendants shall have ninety (90) days to relocate the
business. Should the defendants fail to do so, a penalty of $100 per
day shall be issued for every day past the ninety days the defendants
continue to house the commercial business on the premises.”
6
The defendants also argue that it is unclear whether the court’s cease
and desist order requires his trucks to be permanently removed from
the property and further argues that there was no evidence at trial
that they violated paragraph 7 of the restrictive covenant. Paragraph
7 of the restrictive covenant provides: “No motor vehicle of more than
two ton carrying capacity shall be regularly parked on said lot, except
currently registered passenger motor vehicles; and except that on lots
of four (4) acres or more, motor vehicles of more than two ton carrying
capacity may be parked on said lot within a garage. No boat, truck, or
motor home shall be regularly parked on a lot, except behind the line
of the rear wall of the residence building extended to both sidelines of
said lot.”
In its memorandum of decision, the court mentioned paragraph 7,
found that the defendants’ trucks were “heavy,” and further found that
the outbuilding garage housed commercial vehicles used in conjunc-
tion with the business, but made no specific finding as to whether the
defendants violated paragraph 7 and made no specific mention of the
trucks in its cease and desist order. In light of our determination that
the court improperly determined that the restrictive covenant prohib-
its all business use of the property and improperly fashioned an overly
broad order, we need not further address the defendants’ argument on
appeal concerning the trucks as it is more appropriately addressed by
the trial court on remand.
Casner v. Roberts

proceedings with respect to count two; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.