Opinion
No. CV09 4030012
December 10, 2009
MEMORANDUM OF DECISION MOTION FOR DISCHARGE OF LIS PENDENS
This is a habeas corpus action commenced by Darlene Parks, as next friend, in behalf of Tessie Lee Sullivan, a conserved person, by way of an order of the Bridgeport Probate Court, dated December 10, 2007. The present action was commenced by the petitioner pursuant to General Statutes § 45a-705a, which authorizes an application for a writ of habeas corpus by an individual subject to a conservatorship who claims the illegality or invalidity of the appointment of a conservator.
Sec. 45a-705a(a), (b) and (c) Application for writ of habeas corpus by individual subject to guardianship or involuntary representation read as follows:
(a) An individual subject to a guardianship or involuntary representation under this chapter may apply for and is entitled to the benefit of the writ of habeas corpus without having previously exhausted other available remedies including, but not limited to, the right to appeal the order of guardianship or involuntary representation. The question of the legality of such guardianship or involuntary representation shall be determined by the court or judge issuing such writ.
(b) A writ of habeas corpus shall be directed to the guardian of the person or the estate of the ward or to the conservator of the conserved person and if illegality or invalidity of the guardianship or involuntary representation is alleged in such writ, a copy shall also be directed to the judge of the court that issued the order as to such claim.
(c) An application for a writ of habeas corpus under this section shall be brought to either the Superior Court or the Court of Probate . . .
The petition was filed on August 21, 2009. On September 22, 2009, a notice of lis pendens was filed against Sullivan's real property and home at 360 Anton Drive, Bridgeport, Connecticut, citing the instant petition for habeas corpus action as a basis. The petitioner has filed the lis pendens to prevent the sale of her property by the conservator to pay outstanding bills incurred in the care and management of the petitioner's person and estate. The merits of the underlying claims set forth in the habeas corpus petition regarding the allegations that the conservatorship imposed upon her was illegal and invalid has yet to be determined by this court, as the court has been required to render decisions in two separate motions to dismiss and a motion to strike the appearance of the petitioner's court-appointed attorney, Carmine Perri.
On November 30, 2009, the court rendered decisions on the two motions to dismiss and on December 2, 2009, the court rendered its decision the motion to strike the appearance of Attorney Perri. See Sullivan v. Ganim et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV09-4030012 for decisions rendered on November 30, 2009 and December 2, 2009 (Arnold, J.)
The Conservator Lillis points to Ratick v. Scalo, 165 Conn. 675, 677, 345 A.2d 26 (1974), citing Longstaff v. Hurd, 66 Conn. 350, 34 A. 91 (1895), in arguing that General Statutes § 52-325 governing a lis pendens states that a notice of lis pendens "is required to be filed only `in actions intended to affect real estate' . . . one whose object is to determine the title or rights of the parties in, to, or over some particular real estate, which is the subject matter of the action." Id. The Conservator concludes that since the present action is not to determine the rights of parties to, in or over real estate, but rather, to determine the legality of the conservatorship imposed on Sullivan, the petitioner lacks the authority to file a notice of lis pendens in this type of action.
Lillis also argues that the lis pendens lacks probable cause to sustain the validity of the claims raised in the petition. It is the position of the Conservator that the conservatorship proceedings have been diligently litigated in the Bridgeport Probate Court for nearly two years and that abundant evidence has been presented to the probate court judge to unequivocally establish the need for a conservator of both Sullivan's person and her estate. Lillis claims that while Sullivan's next friend and Connecticut Legal Services argue that they are acting in Sullivan's best interests, they are only interested in litigating the novel issues that the present mater presents, at the expense of Sullivan's physical, mental and financial well-being. Lillis argues that the petitioner, to date, has not presented any evidence to establish that the allegations contained in the petition have any merit, whatsoever. Lastly, Lillis argues that a discharge of the lis pendens is not a decision on the merits of the case, despite the petitioner's claim that a discharge of the notice of lis pendens would render the habeas corpus mater moot.
In opposition to the motion to discharge the lis pendens, the petitioner argues that she has a right to file a notice of lis pendens. The object of her challenge to the validity and legality of the conservatorship is to allow her to leave the Northbridge nursing home and return to her home. If her house is sold, the object of this action would be moot. She argues that the outcome of the case, therefore, will "either directly or indirectly affect the title to or an interest in real property." Cadle Company v. Gabel, 69 Conn.App. 279, 286, 794 A.2d 1029 (2002). This "ensures that the [litigant's] claim cannot be defeated by a prejudgment transfer of the property." Id.
The petitioner additionally argues that it is the public policy of the State of Connecticut and the right of the conserved person to be allowed to live independently if it can be shown that she is able to do so. See General Statutes §§ 45a-650(l), 45a-656(b)." To prevent this right from being taken away and to challenge the conservatorship, she has a right to bring a habeas corpus action in the Superior Court pursuant to General Statutes § 45a-650(m) and General Statutes § 45a-705a. Accordingly, the petitioner claims that until the habeas corpus action is resolved, the petitioner's home should not be subject to a possible sale by the conservator. General Statutes § 52-325(a). The petitioner lastly argues that the party requesting the discharge of the notice of lis pendens must show there is no probable cause to sustain the validity of the petitioner's claim.
General Statutes § 45a-650(l) reads as follows:
(l) The court shall assign to a conservator appointed under this section only the duties and authority that are the least restrictive means of intervention necessary to meet the needs of the conserved person. The court shall find by clear and convincing evidence that such duties and authority restrict the decision-making authority of the conserved person only to the extent necessary to provide for the personal needs or property management of the conserved person. Such personal needs and property management shall be provided in a manner appropriate to the conserved person. The court shall make a finding of the clear and convincing evidence that supports the need for each duty and authority assigned to the conservator.
General Statutes § 45a-656(b) reads in relevant part as follows:
(b) In carrying out the duties and authority assigned by the court, the conservator of the person shall exercise such duties and authority in a manner that is the least restrictive means of intervention and shall (1) assist the conserved person in removing obstacles to independence, (2) assist the conserved person in achieving self-reliance, . . .
I Background
According to the petition, the conserved person, Jessie Lee Sullivan "is an 87-year old woman who owns real property at 360 Anton Drive in Bridgeport, Connecticut, where she has lived for most of her life." In October 2007, Charlene Reid, one of Sullivan's nieces, petitioned the Probate Court to appoint a conservator for Sullivan, who was then residing at Bridgeport Hospital. That application "rais[ed] concerns that Sullivan had bills that had not been paid by her power of attorney, including a large arrearage owed to the gas company, and that her home health care for conditions including diabetes requiring regular blood testing and a restricted diet was inadequate." On October 16, 2007, the Probate Court appointed Attorney Carmine Perri to represent Sullivan's legal interests in that conservatorship proceeding. Thereafter, on October 30, 2007, the Probate Court appointed Attorney Brian Winter to serve as guardian ad litem for Sullivan.The Probate Court scheduled a hearing on the application for appointment of a conservator on December 10, 2007. In advance of that hearing, the Probate Court received a letter from Lillis, Sullivan's Power of Attorney and Healthcare Manager, seeking to release funds to pay her outstanding bills. Lillis additionally raised concerns that Sullivan's nieces, Reid and Darlene Parks and her sister, Bertha Parks were "the reason she is in the hospital" and that they had taken Sullivan's personal property, identification, and Social Security card from Sullivan's home. The Probate Court also received a letter from Attorney Perri, Ms. Sullivan's court-appointed counsel, notifying the Probate Court that Sullivan objected to the appointment of a conservator and appeared to be able to comprehend conversations.
Two weeks after the Probate Court received the letter from her court-appointed counsel indicating that Sullivan objected to the appointment of a conservator and approximately two weeks before the December 10, 2007 hearing, Sullivan's guardian ad litem filed an Application for Appointment of a Conservator indicating that Sullivan had designated Lillis as conservator. The guardian ad litem's application also represented that Sullivan needed a conservator of the estate to protect her property rights and a conservator of the person because her condition made her "unable to receive and evaluate information or make or communicate decisions to such an extent that [she was] unable, even with appropriate assistance, to meet essential requirements for personal needs." On December 10, 2007, Sullivan's court-appointed counsel indicated that Sullivan had decided not to object to Lillis' application for appointment as conservator, but wished to make it clear that she wanted to remain residing in her home.
The December 10, 2007 hearing at the Probate Court hearing was recorded. Upon the conclusion of the December 10, 2007 hearing, Ganim granted the application based on his what he alleged were findings of "[c]lear and convincing" evidence. He appointed Lillis as conservator, with the express caveats that the conservator: (1) "shall use the least restrictive means of intervention in the exercise" of his authority; (2) was "bounded by all health care decisions properly made by the conserved person's health care representative;" and (3) that Sullivan "shall retain all rights and authority not expressly assigned to the conservator." Sullivan did not appeal that decision.
This court notes for the purposes of determining the merits of the motion to dismiss, it did not make any findings that there was clear and convincing evidence. The court is stating the position of the respondent Ganim. The court acknowledged that when considering a motion to dismiss under § 23-29, the allegations contained in the petition were deemed admitted, and resorting to facts outside those allegations in the petition was prohibited. Liljedahl Bros., Inc. v. Grigsby, supra, 215 Conn. 348.
The December 10, 2007 probate court hearing was recorded and transcripts of that hearing have recently been provided to this court.
On or about October 21, 2008, the conservator filed a request to place Sullivan in long-term care at the Park City Residential Care Home in Bridgeport ("Park City") because her health required supervised care which could not be provided by the current primary care provider, Gregory Brown, Sullivan's grandson. The conservator's request additionally stated that Brown's presence was "causing emotional stress" for Sullivan. The placement request was supported by a letter from Sullivan's treating physician indicating that Sullivan may be able to receive the best care at an extended care facility.
On December 2, 2008, before the Court had acted on the request to place Sullivan at Park City, she was taken from her home and admitted to Northbridge Health Care Center in Bridgeport ("Northbridge") for respite care. On February 2, 2009, Attorney Mark Moore of Connecticut Legal Services, who represents Darlene Parks, the next friend petitioner in this action, filed an appearance in the probate matter on behalf of Sullivan. On February 4, 2009, Moore filed a Motion for Continuance, indicating that Sullivan's "new attorneys need additional time to prepare" for a scheduled February 9, 2009 hearing on several issues, including the maintenance of Sullivan in long-term care. Sullivan's court-appointed counsel responded to Moore's appearance on behalf of Sullivan by moving to strike Moore's appearance claiming said appearance violated the rules of professional conduct. Judge Ganim struck Moore's appearance on behalf of Sullivan following a hearing. Neither Sullivan nor Moore appealed, or otherwise sought review of, that decision.
On April 6, 2009, the Court ordered the parties to appear to discuss the outstanding issues, including Sullivan's objection to her conservator's request that she be kept in a nursing home. Although, at that time, the parties believed it might be appropriate to return Sullivan home, in the intervening months both Sullivan's conservator and her guardian ad litem concluded that it was in her best interests to remain in Northbridge. The Probate Court held a hearing on this issue on July 13, 2009, and allegedly found clear and convincing evidence that it was in the best interest of Sullivan to remain in her current residence at Northbridge Healthcare Center in Bridgeport, Connecticut. Again, despite having the services of court-appointed counsel, Sullivan did not appeal the probate court's decision. On August 24, 2009, Moore filed the instant Petition for a Writ of Habeas Corpus on behalf of Sullivan, acting by her niece and next friend Darlene Parks. The petitioner has named Judge Ganim and the conservator, James Lillis. This habeas corpus proceeding challenges the legality and validity of the conservatorship imposed on Sullivan by the Bridgeport Probate Court for various reasons set forth in the petition. The petition's primary purpose in challenging the legality and validity of the conservatorship is to pursue Sullivan's wish to return to her private home at 360 Anton Drive in Bridgeport, Connecticut.
II Applicability of Notice of Lis Pendens to a Writ of Habeas Corpus
Lillis has filed a motion to discharge the lis pendens filed by the petitioner, arguing that there is no authority to support the filing of a notice of lis pendens in a habeas corpus action filed pursuant to General Statutes § 45a-705a. The conservator states that the habeas corpus petition challenges the legality and validity of the conservatorship imposed on Sullivan, the person, and not her real estate. Therefore, the initial question for the court to answer is whether a notice of lis pendens is applicable to a petition for a writ of habeas corpus brought pursuant to General Statutes § 45a-705a. This appears to be a case of first impression in Connecticut.
"[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.'" Baker v. Commissioner of Corrections, 281 Conn. 241, 249, 914 A.2d 1034 (2007) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), overruled in part on other grounds by Heck v. Humphrey, 512 U.S. 477, 481-82 (1994)). "[T]he writ of habeas corpus does not act upon the [person] who seeks relief, but upon the person who holds him in what is alleged to be an unlawful custody . . . The whole force of the writ is spent upon the [custodian]." (Citations omitted.) Hickey v. Commissioner of Corrections, 82 Conn.App. 25, 33, 842 A.2d 606 (2004). An application for a writ of habeas corpus brought pursuant to § 45a-705a(b) is a civil action governed by General Statutes § 52-466 and Practice Book §§ 23-21 through 23-42.
General Statutes § 52-466 in relevant parts reads as follows:
(a)(1) An application for a writ of habeas corpus, other than an application pursuant to subdivision (2) of this subsection, shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person's liberty.
(2) An application for a writ of habeas corpus claiming illegal confinement or deprivation of liberty, made by or on behalf of an inmate or prisoner confined in a correctional facility as a result of a conviction of a crime, shall be made to the superior court, or to a judge thereof, for the judicial district of Tolland.
(b) The application shall be verified by the affidavit of the applicant for the writ alleging that he truly believes that the person on whose account the writ is sought is illegally confined or deprived of his liberty.
(c) The writ shall be directed to some proper officer to serve and return, who shall serve the same by putting a true and attested copy of it into the hands of the person who has the custody of the body of the person who is directed to be presented upon the writ. If the officer fails to make immediate return of the writ, with his actions thereon, he shall pay fifty dollars to the person so held in custody . . .
General Statutes § 52-325 authorizes the filing of a notice of lis pendens in any action in a court of this state . . . if the action is intended to affect real property." (Emphasis supplied.) General Statutes § 52-325(a). Section 52-325(b)(1)and (3) define actions "intended to affect real property as: "(1) actions whose object and purpose is to determine the title or rights of the parties in, to, under or over some particular real property; . . . (3) actions which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property." Id.
Sec. 52-325. Notice of lis pendens, states in relevant part:
(a) In any action in a court of this state or in a court of the United States (1) the plaintiff or his attorney, at the time the action is commenced or afterwards, . . . if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property, . . ." 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 descent 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 . . .
(b) As used in this section, actions "intended to affect real property" means (1) actions whose object and purpose is to determine the title or rights of the parties in, to, under or over some particular real property; . . . (3) actions which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property.
A review of General Statutes § 52-325 and General Statutes § 45a-705a (formerly Public Acts 2007, No. 07-116, § 24) is necessary to determine if a habeas corpus action brought under the statute can affect an interest or title in real property and might be subject to a notice of lis pendens filed pursuant to § 52-325. "The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply." (Citations omitted; internal quotation marks omitted.) Rainforest Cafe v. Dept. of Revenue Services, 293 Conn. 363, 371-72, 977 A.2d 650 (2009) "In seeking to determine that meaning . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . ." Id., 372. "The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Weems v. Citigroup, Inc., 289 Conn. 769, 778-79, 961 A.2d 349 (2008); see also State v. Marsh McLennan Cos., 286 Conn. 454, 464-65, 944 A.2d 315 (2008). "When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." Rainforest Cafe v. Dept. of Revenue Services, supra, 293 Conn. 372-73. "We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . ." (Citations omitted.) Id.; State v. Lutters, 270 Conn. 198, 206, 853 A.2d 434 (2004).
General Statutes § 1-2z reads as follows:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
The court's analysis begins with the text of General Statutes § 45a-705a.(a). Section 45a-705a(a) reads as follows:
(a) An individual subject to a guardianship or involuntary representation under this chapter may apply for and is entitled to the benefit of the writ of habeas corpus without having previously exhausted other available remedies including, but not limited to, the right to appeal the order of guardianship or involuntary representation. The question of the legality of such guardianship or involuntary representation shall be determined by the court or judge issuing such writ.
The text of the statute solely by its terms is not clear and unambiguous in answering the question before the court, which is whether a petition for a writ of habeas corpus is an action which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property.
When reviewing Public Act 07-116, the court notes the significant procedural and substantive safeguards that have been afforded a person before a conservatorship can be imposed and before a conserved person can be placed in an institution for long-term care. It is clear that the legislature, by the passage of Public Act 07-116, was indicating a preference for independent living in a less restrictive setting, as long as, the conserved person's "physical, mental and psychosocial" needs could be met. Independent living can include living in one's own home with the assistance of community resources and services provided by area social agencies, the Department of Social Services, and others. See General Statutes § 45a-656b(c).
General Statutes § 45a-656b(c) reads in relevant part as follows:
(c) A report filed under subsection (b) of this section with respect to placement in an institution for long-term care shall set forth the basis for the conservator's determination, what community resources are available and have been considered to avoid the placement, and the reasons why the conserved person's physical, mental and psychosocial needs cannot be met in a less restrictive and more integrated setting. Such community resources include, but are not limited to, resources provided by the area agencies on aging, the Department of Social Services, the Office of Protection and Advocacy for Persons with Disabilities, the Department of Mental Health and Addiction Services, the Department of Developmental Services, any center for independent living, as defined in section 17b-613, any residential care home or any congregate or subsidized housing . . .
A review of the legislative history of § 45a-705 (formerly Public Acts 2007, No. 07-116, § 24) is also instructive. The purpose of Public Act 07-116 was a comprehensive revision of laws regarding conservatorships to insure the highest due process safeguards before the court interferes with the civil rights of a person and their property and to establish that the appointment of a conservator is a last resort. Concerns were noted that the property and assets of persons subject to a conservatorship were being sold, liquidated and otherwise disposed of, while the conserved person and their estate was under the control of a conservator. If a conserved person was successful in terminating the conservatorship at a later date, the person had no home, belongings or financial assets to allow them to successfully resume independent living.
The history surrounding the passage of Public Act 07-116 included significant discussion and testimony regarding changes in procedural due process elements including: (1) notice provisions to known necessary parties; (2) a right to counsel; (3) recordings of hearings; (4) streamlined and accelerated time tables for adjudicating these matters; and (5) the adoption of the superior court rules of evidence. Changes in substantive due process were also discussed, including: (1) the use of superior court rules of evidence; (2) detailed findings by the court; (3) a burden of proof of "clear and convincing evidence" before a conservator is to be appointed; and (4) a revised procedure for the termination of a conservatorship. The petition for a writ of habeas corpus for a review of any orders of confinement was noted. The habeas corpus action provides for an accelerated adjudication schedule as compared to a probate appeal. Each of these provisions and other provisions were included in the enacted version of Public Act 07-116.
The court understands that the object of the petitioner's challenge to the validity and legality of the conservatorship is to allow her to leave the Northbridge nursing home and return to her own home, which she claims is a less restrictive setting. It is also true that if her house is sold by the conservator before the underlying merits of the habeas corpus petition is adjudicated, the stated object of this action might be moot. Nevertheless, the court does not believe that the filing of a notice of lis pendens is the proper procedural tool to prevent a sale of the petitioner's home.
A reading of the text of General Statutes § 52-325a reveals that a notice of lis pendens does not apply to a petition for a writ of habeas corpus brought pursuant to General Statutes § 45a-705a. Section 52-325a sets forth the steps that a property owner can take to discharge a notice of lis pendens that has been filed against the owner's property. Section 52-325a(e) states:
If the action for which notice of lis pendens was recorded, is pending before any court, the property owner may at any time, unless the application under subsection (a) of this section has previously been ruled upon, move that such notice of lis pendens be discharged of record.
The petitioner is the property owner. The owner is "the person in whom is vested the ownership, dominion or title of property." Black's Law Dictionary (Revised Fourth Ed., 1968). She has filed a notice of lis pendens against her own property in an attempt to prevent the conservator from selling it. The legislature never envisioned this scenario, as evidenced by Section 52-325a(a), (b) and (c) which set forth the steps a property owner can take in an attempt to discharge a notice of lis pendens. (Emphasis supplied.) The conservator may have custody or possession of the petitioner's real estate, but he is not the owner of the property. The petitioner is the one in whom "the legal or equitable title rests." Ballentine's Law Dictionary (Third Ed., 1969). In effect, you have a petitioner, who is property owner, filing a notice of lis pendens against her own property. As the conservator is not the property owner, the conservator could not avail himself of the ability to discharge the notice of lis pendens pursuant to General Statutes § 52-325a(c).
Additionally, a review of the state marshal's return of service regarding the filed notice of lis pendens reveals that the recorded and certified notice of lis pendens was served on the conservator at his abode in Southport, Connecticut. General Statutes § 52-325(c) provides that the notice of lis pendens shall not be valid unless served on the "owner of record of the property affected, thereby." Id. The conservator is not the owner of record. The notice of lis pendens is defective and is invalid. It may be discharged pursuant to General Statutes § 52-325d(3).
General Statutes § 52-325(c) reads in relevant part:
(c) Notwithstanding the provisions of subsection (a) of this section, in any action except a suit to foreclose a mortgage or other lien, no recorded notice of lis pendens shall be valid or constitute constructive notice thereof unless the party recording such notice, not later than thirty days after such recording, serves a true and attested copy of the recorded notice of lis pendens upon the owner of record of the property affected thereby. The notice shall be served upon the owner, if the owner resides in the same town in which the real property is located, by any proper officer or indifferent person, by leaving a true and attested copy of such recorded notice with the owner or at the owner's usual place of abode. If the property owner does not reside in such town, such copy may be served by any proper officer or indifferent person, by mailing such copy, by registered or certified mail, to the owner at the place where the owner resides.
General Statutes § 52-325d reads in relevant part, as follows:
In any action in which . . . (3) service of process or service of the certified copy of the notice of lis pendens was not made in accordance with statutory requirements, . . . any interested party may file a motion requesting the court to discharge the recorded notice of lis pendens. If the court finds that such notice never became effective or has become of no effect, it shall issue its order declaring that such notice of lis pendens is invalid and discharged, . . . A certified copy of such order may be recorded in the land records of the town in which the notice of lis pendens was recorded.
The court takes seriously the legislature's concerns regarding the possibility of a premature disposal of a conserved person's real and personal property when an action is pending to determine the validity and legality of the underlying conservatorship proceedings. Despite the fact that the filing of a notice of lis pendens does not apply to this petition for a writ of habeas corpus, the petitioner has other statutory safeguards at her disposal to prevent a sale of her real property.
General Statutes § 45a-656b(a) authorizes a conservator to sell or dispose of real property and the household furnishings of the conserved person, only with the permission of the probate court. Section 45a-656b(a) states:
(a) Except as provided in subsections (b), (c), (d), (e) and (f) of this section, a conservator may not terminate a tenancy or lease of a conserved person, as defined in section 45a-644, sell or dispose of any real property or household furnishings of the conserved person, or change the conserved person's residence unless a court of probate finds, after a hearing, that such termination, sale, disposal or change is necessary or that the conserved person agrees to such termination, sale, disposal or change.
In the event the probate court does order a sale of the petitioner's real property, over the objection of the petitioner, while final adjudication of this matter is pending, the petitioner can file an appeal of that order pursuant to General Statutes § 45a-186. While a stay of enforcement of the probate court's order or decree from which the appeal is taken is not automatic, a motion for a stay may be made to the Court of Probate or the Superior Court pursuant to General Statutes § 45a-186(f).
General Statutes § 45a-186(a) reads as follows:
(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may, not later than forty-five days after the mailing of an order, denial or decree for a matter heard under any provision of section 45a-593, 45a-594, 45a-595 or 45a-597, sections 45a-644 to 45a-677, inclusive, or sections 45a-690 to 45a-705, inclusive, and not later than thirty days after mailing of an order, denial or decree for any other matter in a court of probate, appeal therefrom to the Superior Court.
General Statutes § 45a-186(f) reads as follows:
(f) The filing of an appeal under this section shall not, of itself, stay enforcement of the order, denial or decree from which the appeal is taken. A motion for a stay may be made to the Court of Probate or the Superior Court. The filing of a motion with the Court of Probate shall not preclude action by the Superior Court.
As the notice of lis pendens is not applicable to this matter and is also invalid, as it was not served on the property owner, the court needs not address whether the petitioner has sustained her burden of establishing probable cause. "Upon consideration of the facts before it, the court or judge may . . . order such notice of lis pendens discharged of record if . . . probable cause to sustain the validity of the plaintiff's claim is not established." General Statutes § 52-325b(b).
Sec. 52-325b(a)(b) read in relevant parts:
(a) Upon the hearing held on the application or motion set forth in section 52-325a, the plaintiff shall first be required to establish that there is probable cause to sustain the validity of his claim . . .
(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if (A) probable cause to sustain the validity of the claim is established or . . . or (2) order such notice of lis pendens discharged of record if (A) probable cause to sustain the validity of the plaintiff's claim is not established . . .
Accordingly, the motion to discharge the notice of lis pendens is granted and the notice of lis pendens, which has been filed on the land records in the City of Bridgeport, is hereby ordered discharged.