Opinion
No. CV10 600 76 76 S
September 27, 2011
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
On March 16, 2010, the plaintiff, Paul Miller d/b/a/ Paul Miller, Trustee filed a complaint to quiet title to real property known as 1612 Reservoir Avenue, Bridgeport, Connecticut. The complaint alleges that the Bridgeport land records indicate that David Miller was foreclosed of title by a committee deed recorded on April 4, 2003. That deed was ineffective as to David Miller as he was never served with a complaint as abode service was made at his former residence and he did not have notice of the action until after title had been transferred on the land records. The complaint alleges that David Miller recorded a notice of equitable lien on February 18, 2005 in the Bridgeport Land Records to place all subsequent transferees or holders of title on notice of his claim. The complaint alleges that based upon a review of the Bridgeport Land Records, the defendant, Federal National Mortgage Association, claims to hold title as owner of the property pursuant to a quit claim deed recorded on January 29, 2009 in the Bridgeport Land Records and that the interest of the defendant in the property is subordinate and inferior to the claim of the plaintiff. The complaint alleges that since the plaintiff holds title through David Miller, who was never foreclosed thereof, title should be declared to be in the plaintiff free and clear of the claims of the defendant. The plaintiff is seeking a judgment declaring title in favor of the plaintiff, free and clear of the claims of the defendant, costs of the suit, and such other relief as may be required.
The defendant filed a motion to dismiss on April 23, 2010, and an amended motion to dismiss on January 5, 2011, based on an alleged lack of subject matter jurisdiction. An evidentiary hearing on the amended motion to dismiss was held on March 7, 2011. Subsequent to post-hearing briefs being filed by the parties, a hearing on the defendant's motion to reopen evidence was conducted on June 8, 2011. The motion to reopen evidence was denied. Thereafter, the defendant filed its Notice Of Supplemental Authority dated July 20, 2011.
In its proposed finding of fact and conclusions of law filed April 14, 2011, the defendant raised two issues in support of its argument that the plaintiff lacks standing: (1) that the plaintiff took title to the property at a time when the grantor, David Miller, was ousted from possession; and (2) plaintiff has been deprived of possession of the premises due to the lis pendens statute, Connecticut General Statutes § 52-325.
MOTION TO DISMISS STANDARD
"A motion to dismiss . . . properly attacks the jurisdiction of the court essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether on the face of the record the court is without jurisdiction . . . The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14, (2009). "Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802 (2009). "[T]he plaintiff bears the burden of proving subject matter jurisdiction whenever and however raised" (internal quotation marks omitted). Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, (2003). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., supra, 294 Conn. 213-14.
The issue of standing implicates subject matter jurisdiction and thus is a basis for granting a motion to dismiss. Practice Book § 10-31(a). "It is a basic principal of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." Ganim v. Smith Wesson Corp., 258 Conn. 313, 347 (2001).
To have standing to bring a quiet title action claiming record title to property based upon a deed, that deed cannot be void. Recording does not give validity to a void deed or mortgage. "Recording places on file, in a public place, the written evidence of a conveyance; if that conveyance was void for want of delivery, forgery, lack of capacity in the grantor due to infancy or insanity, etc., it is void still." (Citation omitted.) Graham v. Zimmerman, 181 Conn. 367, 378 (1980, (Healy, J., dissenting)).
FINDINGS OF FACT
On June 30, 1997, David Miller, the brother of the plaintiff Paul Miller, d/b/a/ Paul Miller, Trustee, was record owner of the subject property known as 1612 Reservoir Avenue, Bridgeport. On June 30, 1997, David Miller executed a $65,000 note and mortgage to Walsh Securities, Inc., which mortgage was recorded in the Bridgeport Land Records. Attorney John Bryk conducted the closing of that loan for David Miller. David Miller became delinquent on that mortgage loan and a foreclosure action was commenced, Liberty Savings Bank v. David Miller, CV02-0389924, judicial district of Fairfield at Bridgeport. A judgment of foreclosure by sale was entered by the court on July 22, 2002.
Attorney Bryk was retained by Paul Miller in 2006 to conduct a closing on 67 properties which were the subject of an "as is" sale from his brother, David Miller, to Paul Miller. Included in those properties was the subject property, 1612 Reservoir Avenue, Bridgeport. Attorney Bryk did not conduct a title search for the transaction. Attorney Bryk did draft a quit claim deed, for no consideration. Attorney Bryk testified that he allocated $100,000.00 of consideration to one property, 1644 Reservoir Avenue, when that deed was recorded. Attorney Bryk testified that the $100,000.00 was for the entire transaction. There was no evidence presented concerning the value of 1644 Reservoir Avenue. At the time of the closing, March 22, 2006, Attorney Bryk did not know of any pending foreclosures as to the 1612 Reservoir Avenue property. The transaction between David Miller and Paul Miller was an "as is" transaction, whereby Paul Miller was to take any interest held by David Miller. Attorney Bryk did not conduct a title search on the properties contained in the quit claim deed because there were numerous properties and "[i]t would have been a massive undertaking."
Attorney Bryk understood that this transaction was one in which Paul Miller was buying properties from his brother, David Miller, paid him consideration, and Paul Miller was going to take over the interest in the properties whether there was any interest in any property at all. There were no representations made by David Miller that he had any interest. It was an "as is" purchase.
The closing occurred on March 22, 2006. At the closing David Miller executed the quit claim deed which was retained by Attorney Bryk for a few months, and then provided to Paul Miller. The quit claim deed was not recorded until 2010, approximately four years after the closing. At the closing on March 22, 2006, Attorney Bryk did not pro-rate or adjust for real estate taxes, oil, gas, or any of the other things that one would normally pro-rate for when conducting a real estate closing. There was no HUD-1 Settlement Statement or any other closing statement. No keys were delivered for the property and there was no closing binder. Attorney Bryk did not know who was paying the taxes on the subject property at the time of the closing.
The plaintiff, Paul Miller, who admitted to State and Federal criminal convictions, was aware prior to the closing on the 67 properties that his brother, David Miller, was facing foreclosure on a number of those properties. In 2007, Paul Miller attempted to intervene in PHH Mortgage Corp. v. Sonia Reyes, CV-07-6000687, judicial district of Bridgeport, which involved the subject property here. That motion was denied by the court.
CONCLUSIONS OF LAW
As a procedural matter the plaintiff argues that the court must take the allegations of the plaintiff's complaint as conclusively established because the defendant is in default. On April 9, 2010, the plaintiff moved to default the defendant for its failure to plead. The motion was granted by this court on April 9, 2010. The defendant has been in default since that time but here, the defendant seeks to submit evidence contesting the allegations of the complaint in support of its motion to dismiss, while still in default. This court previously addressed a similar issue in U.S. Bank v. Curtis, Superior Court, judicial district of Fairfield at Bridgeport, docket no. 09-5021948-S (July 23, 2010, Hartmere, J.) [ 50 Conn. L. Rptr. 389]. There, the court stated that while the court may examine the question of subject matter jurisdiction upon its own recognizance regardless of the defendant's defaulted status, the court is not obliged to address the arguments of a defaulted party as to liability.
Nonetheless, as referenced earlier, subsequent to the hearing on this motion, the defendant advanced two arguments as grounds to dismiss the plaintiff's complaint.
The only argument advanced in the defendant's brief which emanated from the amended motion to dismiss dated January 4, 2011, is that the deed which purportedly gives rise to this action is void because neither David Miller nor Paul Miller were in physical possession or otherwise in possession of the property as required under General Statutes § 47-21. The defendant argues that consequently the plaintiff has no standing to maintain this action. General Statutes § 47-21 provides any conveyance or lease, for any term, of any building, land or tenement, of which the grantor or lessor is ousted by the entry and possession of another, unless made to the person in actual possession, shall be void.
The defendant correctly posits that "ouster which will render a grantor's deed void under this statute [C.G.S. § 47-21] is the same which is required to establish adverse possession. Palmer v. Uhl, 112 Conn. 125, 127, 151 A. 355." Robinson v. Meyer, 135 Conn. 691, 693 (1949). "The possession necessary to constitute an ouster under § 47-21 is not some fleeting or ephemeral technical invasion of the property nor the occasional technical invasion tolerated by adjoining neighbors on good terms with one another. Rather it is possession of a character such that it would, if continued for the requisite period, ripen into title by adverse possession." (Emphasis added.) Loewenberg v. Wallace, 147 Conn. 689, 694 (1960).
The supplemental authority filed by the defendant on July 20, 2011, is inapposite. In Thomas v. Collins, 129 Conn.App. 686 (2011), the appellate court affirmed the dismissal of a quiet title action due to an admission in the pleadings that the predecessor in title had been ousted from possession under Connecticut General Statutes § 46-21. Here, there has been no admission by the plaintiff.
In the present case, there is nothing from which the court can conclude that ouster or adverse possession has been established as to either David Miller or the plaintiff, Paul Miller. "To establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner." (Citations omitted.) 1525 Highland Associates, LLC v. Fohl, 62 Conn.App. 612, 622 (2001).
Thus, the defendant's argument concerning ouster and adverse possession must fail. In order to establish ouster, the defendant must show the same elements necessary to establish a claim of adverse possession, that is, the owner must be kept out of possession for 15 years, by an open, visible and exclusive possession under a claim of right with intent to keep the property as his own, with a lack of consent. This, the defendant has failed to demonstrate.
The second argument advanced in the defendant's proposed findings of fact and conclusions of law is that the plaintiff's interest in the property was extinguished either under the lis pendens statute or the common law.
The lis pendens statute provides in pertinent part:
Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by dissent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action . . .
Connecticut General Statutes § 52-325.
A notice of lis pendens warns all persons that certain property is the subject matter of litigation and that any interests acquired during the pendency of the action are subject to its outcome . . . Accordingly, any party whose interest in the property arose during the interim period is subject to the final judgment. (Internal quotation marks omitted; citation omitted.) Town of Trumbull v. Palmer, 123 Conn.App. 244, 254 (2010).
The defendant argues that the plaintiff lacks standing because of the lis pendens statute. However, ". . . [t]he effect of the lis pendens is simply to give notice to the world of the remedy being sought in the lawsuit itself. The lis pendens, itself creates no additional right in the property on the part of the plaintiff, but simply allows third parties to know that a lawsuit is pending in which the plaintiff is seeking to establish such a right." Connecticut v. Doehr, 501 U.S. 1, 29 (1991) (Rehnquist, J., concurring); Wallingford Staffordshire Commons Assn., Inc v. Staffordshire Associates, 42 Conn.Sup. 241, 250 [ 6 Conn. L. Rptr. 304] (1992).
Here, the defendant's argument concerning the lis pendens statute does not implicate the court's subject matter jurisdiction.
Most troublesome to this court is the defendant's argument that the plaintiff's delay of some four years in recording the deed obtained from his brother was an unreasonable delay. While the case law on this issue cited by the parties lends some support to the defendant's argument, see CT Page 20620 Cottiero v. Ifkovic, 35 Conn.App. 682 (1994), none of the authority cited implicates the court's subject matter jurisdiction.
CONCLUSION
Based on all of the foregoing, the court will find that it does have jurisdiction in this matter. Accordingly, the defendant's motion to dismiss, based upon lack of subject matter jurisdiction, is denied.