Opinion
No. LLI-CV-106002788S
December 30, 2010
MEMORANDUM OF DECISION RE MOTION TO DISCHARGE RECORDED LIS PENDENS NO. 101
ISSUE
At issue is whether the court should grant the defendants' motion to discharge the recorded lis pendens on the grounds that the underlying action does not affect title to or interest in real property and the lis pendens is defective on its face?
FACTS
On July 19, 2010, the plaintiff, Sean Woodward, filed a five-count complaint against the defendants, Ted Lazarus and Eva Margit Lazarus, alleging breach of contract, promissory estoppel, fraud, quantum meruit and unjust enrichment. According to the plaintiff, the defendants solicited WOODCO, LLC, of which the plaintiff is a member, to complete renovations on their property. The plaintiff alleges that after the work on the property was completed, the defendants informed him that they did not have the money to pay the plaintiff, but promised payment within a month. The plaintiff contends that the defendants now refuse to make payment for the work completed and the services performed.
On September 15, 2010, the plaintiff recorded a notice of lis pendens on the defendants' property in the Litchfield Land Records. The defendants filed a motion (#101) to discharge the recorded lis pendens on September 17, 2010. The plaintiff filed an objection on September 24, 2010, and the court, Roche, J., denied the defendants' motion on September 29, 2010. The defendants filed a motion to reargue on September 30, 2010, which the court, Roche, J., granted on November 22, 2010. The matter was reargued on the December 20, 2010 short calendar.
On September 27, 2010, the plaintiff recorded an amended notice of lis pendens on the defendants' property in the Litchfield Land Records. According to the plaintiff, the amended notice was filed "in an over abundance of caution" and more specifically identified the subject property. The defendants filed a motion (#109) to discharge the amended recorded lis pendens on October 7, 2010. That motion, however, is not the subject of this decision.
DISCUSSION
In the motion to discharge the recorded lis pendens, the defendants assert that the lis pendens must be discharged because the underlying action does not affect the title to or interest in the defendants' real property and because the lis pendens is defective on its face. In his objection, the plaintiff argues that the lis pendens is proper because the defendants' property has been significantly enhanced by the work performed by the plaintiff, the defendants would reap a financial windfall as a result of that work if the property were sold before the underlying issue was resolved, and the plaintiff could be left without a remedy after trial if the property were sold without the lis pendens.
A notice of lis pendens may be recorded "[i]n any action . . . if the action is intended to affect real property . . ." General Statutes § 52-325(a). "`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; (2) actions whose object and purpose is to establish or enforce previously acquired interests in 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." General Statutes § 52-325(b).
The notice of lis pendens puts "potential buyers of the real estate and creditors of its owners on notice that the real estate may be subject to pending adverse interests that may affect the title or right to the property." Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988). "[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." (Internal quotation marks omitted.) Wallingford Staffordshire Commons Assn., Inc. v. Staffordshire Associates, 42 Conn.Sup. 241, 250, 615 A.2d 188 [ 6 Conn. L. Rptr. 304] (1992). "[A] notice of lis pendens ensures that the plaintiffs' claim cannot be defeated by a prejudgment transfer of the property . . . [T]he lis pendens procedure provides security for payment of the claim pending final resolution of the case." Williams v. Bartlett, 189 Conn. 471, 479-80, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S.Ct. 46, 78 L.Ed.2d 67 (1983). The "property owner burdened by a notice of lis pendens may rightfully challenge its validity on two independent grounds: (1) the absence of probable cause to sustain the lis pendens claim; or (2) noncompliance with the procedural requirements of an effective lis pendens notice." Dunham v. Dunham, 217 Conn. 24, 35, 584 A.2d 445 (1991), overruled on other grounds by Santopietro v. New Haven, 239 Conn. 207, 682 A.2d 106 (1996). The defendants have challenged the notice of lis pendens on both grounds.
"When the defendant seeks to dissolve the lis pendens, the plaintiff is required to establish probable cause to sustain the validity of the claims. The burden of proof is upon the plaintiff to demonstrate that there is probable cause. Our rules regarding the standard of proof for establishing probable cause are well settled. It is important to remember that the plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim." Joseph v. Joseph, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 09 5013113 (October 26, 2010, Brazzel-Massaro, J.); see Dow Condon, Inc. v. Anderson, 203 Conn. 475, 479, 525 A.2d 935 (1987); Village Linc Corp. v. Children's Store, Inc., 31 Conn.App. 652, 657, 626 A.2d 813 (1993). "The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." Wall v. Toomy, 52 Conn. 35, 36 (1884). "Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." Joseph v. Joseph, supra, Superior Court, Docket No. CV 09 5013113; see Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). "The trial court's duty is to weigh the probabilities based on the facts and to exercise its broad discretion in determining whether there is probable cause to sustain the lis pendens." Sanstrom v. Strickland, 11 Conn.App. 211, 212, 525 A.2d 989 (1987).
"Connecticut courts have interpreted [the statutory] language as requiring the denial of motions to discharge a lis pendens where the courts' disposition of the main cause of action could affect in some manner an interest in property." Jansen v. Pontillo, Superior Court, judicial district of Ansonia, Docket No. CV 06 4006294 (June 3, 2008, Tyma, J.) [ 45 Conn. L. Rptr. 638]. The complaint in this matter consists of five counts: breach of contract, promissory estoppel, fraud, quantum meruit and unjust enrichment. Each of the five counts relates to an agreement between the plaintiff and the defendants for home improvement services. The plaintiff seeks to recover monetary damages for the work performed on the defendants' property.
"In Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988), the court held that, [f]rom the face of [ § 52-325] it is clear that a notice of lis pendens is appropriate only where the pending action will in some way, either directly or indirectly, affect the title to or an interest in the real property itself . . . Where . . . a party to a pending action seeks only monetary damages that will not affect the title of the real estate owned by an adverse party, a notice of [lis] pendens is properly discharged as it no longer serves its purpose, which is to put potential buyers of the real estate and creditors of its owners on notice that the real estate may be subject to pending adverse interests that may affect the title or right to the property." (Emphasis in original; internal quotation marks omitted.) Jansen v. Pontillo, supra, Superior Court, Docket No. CV 06 4006294.
"[L]egal scholars have noted that [c]ourts are willing to [discharge] the effect of a notice of lis pendens if the litigation does not involve a remedy that will affect the property. The cloud on the title caused by the mere filing of a notice of lis pendens should be lifted if the complaint does not state a cause of action that may affect property. Normally, the court in considering a motion to [discharge] . . . is not determining the probable outcome of the litigation, unless it does so under the auspices of equity; rather courts generally focus on the issue of whether the relief sought under the cause of action against the property is the kind that triggers the doctrine of lis pendens." (Internal quotation marks omitted.) Id.
In the present case, "there is no issue concerning who owns the [property] . . . Further, there is no other property interest raised by the plaintiff . . ." Id. Accordingly, because the present action is one for monetary damages and not one intended to affect real property, a lis pendens is not proper. Therefore, the Court amends its earlier finding and holds that the defendants' motion to discharge the lis pendens (#101) is to be granted.
As such, it is not necessary for the court to reach the merits of the defendants' second ground for discharge — that the notice of lis pendens was defective on its face.