Opinion
No. CV07-5013231 S
November 24, 2008
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ( #116)
This motion for summary judgment on the defendant's counterclaim comes before the court on a stipulation of facts with an agreed upon dispositive legal issue. Was the plaintiff entitled to file a lis pendens because her action did not affect title to the defendant's property?
In Connecticut, the statutory authority to record a notice of lis pendens can be found in General Statutes § 52-325. That section defines "intended to affect real property" in relevant part, 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; (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." General Statutes § 52-325(b).
"From the face of the statute 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 . . . Here . . . 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." (Citation omitted.) Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988). "[U]nder the view that the doctrine of lis pendens cannot, ordinarily, operate with respect to litigation whose outcome will not affect specific property, and that the ordinary action that is brought on a pecuniary demand does not place any specific property in litigation, it has been held that the doctrine has no application to litigation aimed at recovering merely a money judgment." 51 Am.Jur.2d, Lis Pendens § 21.
Regarding the appropriateness of lis pendens in cases seeking only pecuniary damages, one Superior Court decision has observed, "[n]otwithstanding the broad and inclusive language of the statute, it has been consistently held that actions which seek solely monetary damages do not affect title to property and should not be viewed as intending to affect title to property under the statute." South Mill Village Association, Inc. v. Still Hill Development Corp., Superior Court, judicial district of New Britain, Docket No. CV96 0563009S (May 11, 1998, Lavine, J.) ( 22 Conn. L. Rptr. 154); see, e.g., Eaton v. Ocasio, Superior Court, judicial district of Tolland, Docket No. CV 07 5001974S (October 23, 2007, Sferrazza, 1) ( 44 Conn. L. Rptr. 327) ("[t]he complaint lacks any claim bearing on title or interest in the property which is the subject of the lis pendens . . . The breach of contract and unjust enrichment counts assert that the plaintiff is owed money by the defendant as reimbursement"); B H Drilling, Inc. v. R.S. Associates, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0075883S (March 13, 2002, Moran, J.) ( 31 Conn. L. Rptr. 525) ("[n]one of the allegations contained in the complaint involves a determination of title or rights to property, enforcement or establishment of an interest in property or in any manner affects the title to the defendant's property. A review of the ad damnum clause of the complaint reveals that the plaintiff is seeking money damages, punitive damages and attorneys fees"); Widlitz v. Conklin, Superior Court, judicial district of New Haven, Docket No. CV 98 0419812 (January 29, 1999, Hadden, J.T.R.) ("[t]his action is one where the plaintiffs are seeking money damages . . . This case does not affect the title to the defendant's property in any way and therefore the lis pendens is improper"). Finally, "[m]erely because [a property is] alleged to have contributed to the problem alleged does not transform [it] into an action affecting the title to or interest in the property itself." Bielonko v. Blanchette Builders, Inc., Superior Court, judicial district of Hartford, Docket No. CV 98 0581 188S (February 2, 1999, Lavine, J.).
It has been held that a notice of lis pendens is inappropriate when a complaint only alleges nuisance or trespass. Jansen v. Pontillo, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 06 4006294S (June 3, 2008, Tyma, J.) ( 45 Conn. L. Rptr. 638). "[T]he doctrine of lis pendens is not set into operation by the initiation of an action to recover for damage allegedly resulting from a trespass on real property." 51 Am.Jur.2d, Lis Pendens § 21. "Accordingly, Connecticut courts have consistently granted motions to discharge a notice of lis pendens in cases where the notice of lis pendens is filed in association with a nuisance and/or trespass action." CT Page 18626 Perri v. Constantine, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 4007854S (April 21, 2008, Downey, J.). Additionally, several Superior Court opinions have noted that the torts of diversion of surface water and trespass are analogous, leading to the inference that lis pendens is inappropriate in these cases as well. See id.; see also Day v. Gabriele, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0196802S (August 10, 2005, Tobin, J.).
The case at hand, however, is arguably distinguishable from this aforementioned line of decisions because the plaintiff claimed an injunction in addition to monetary damages. In Garcia, the Supreme Court noted that the plaintiff conceded her claim for injunctive relief. Garcia v. Brooks Street Associates, supra, 209 Conn. 22 ("[the plaintiff] no longer claims any interest or right in the real estate itself"). It can be implied from the phrase "no longer" that the plaintiff's original claim for an injunction would have qualified as affecting "title to or interest in real property." Subsequent Superior Court decisions have seemingly taken a broad approach when interpreting the applicable sections of the General Statutes. See Bielonko v. Blanchette Builders, Inc., supra, Superior Court, Docket No. CV 98 0581188S ("[a]s noted in Stratton v. Ward, 39 Conn.Sup. 195, 197 (1983), the language of subsection [General Statutes § 52-325](b)(3) is extremely broad"). This liberal approach has lead to courts holding that a cause of action to enjoin specific activity on an adverse party's land satisfies the affects "title to or interest in" requirement. Founders C.D. v. Bray, Superior Court, judicial district of Hartford, Docket No. CV 03 0830337S (January 9, 2004, Berger, J.) ( 36 Conn. L. Rptr. 315) (defendant's action seeking an injunction that required the plaintiff to repair or maintain a pond on the plaintiff's property met standard); Coveland Farms, Inc. v. Perrotta, Superior Court, judicial district of Middlesex, Docket No. CV 02 0099452S (October 24, 2002, Robinson J.), (holding that a notice of lis pendens is proper when the plaintiff seeks multiple injunctions forcing the defendant to alter his land).
Furthermore, "lis pendens generally applies not only to those actions which involve the question of title, or a possessory interest, but also to litigation that does not seek to change the ownership of land in any way but does involve a determination of certain rights and liabilities incident to ownership. Thus lis pendens applies to actions which are brought to enforce any lien, charge, or encumbrance against real property. Further, it is not improper to file a lis pendens pursuant to an action seeking equitable relief with respect to the property that is the subject of the lis pendens." 54 C.J.S. 507-08, Lis Pendens § 10 (2005).
One Superior Court opinion, however, adopted a different approach. In Eppoliti Realty Co. v. Piacentini, Superior Court, judicial district of Danbury, Docket No. CV 920311135S (January 28, 1999, Fuller, J.) ( 8 C.S.C.R. 284), the court followed New York case law and distinguished injunctions against the defendant from injunctions against the property itself. In that case, the court reasoned, "[i]f the plaintiff recovers under either a nuisance or trespass theory, it may obtain an injunction against further discharges, recover damages, or both, depending upon the evidence at trial . . . It claims that it is entitled to a lis pendens under subsection (3) of section 52-325(a) and that this is an action which may affect in any manner the title to or interest in real property. This claim breaks down under analysis. If an injunction is issued to stop or alter the drainage, it will be issued against the defendants, not their land. The plaintiff will not receive any interest in the defendants property, and the injunction will not affect the title to it. Where the remedy requested in the action does not affect the title of the real estate owned by the 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." (Citations omitted; internal quotation marks omitted.)
In Eppoliti, the court cites the New York Court of Appeals case Braunston v. Anchorage Woods, Inc., 10 N.Y.2d 302, 178 N.E.2d 717, 222 N.Y.S.2d 316 (1961), in support of its analysis. In subsequent cases, the New York Court of Appeals has extrapolated its methodology in lis pendens determinations. "The courts have been frequently confronted by attempts to file a notice of pendency in controversies that more or less referred to real property, but which did not necessarily seek to directly affect title to or possession of the land. In the absence of this direct relationship, the remedy was denied. For example, an action brought under a will for an accounting and for a determination of rights to and sale of real property supported filing a notice of pendency . . . In contrast, a trespass action seeking money damages only did not justify a notice of pendency as the judgment would not affect title to or possession of the realty . . . Other decisions carry out this differentiation . . .
"Two other cases demonstrate the niceties of the distinction involved in applying the doctrine. In Moeller v. Wolkenberg, ( 67 App.Div. 487), the plaintiff sought an injunction to have defendant remove a portion of his building that was encroaching on plaintiff's property and to restrict defendant's further construction that would weaken plaintiff's building. A notice of pendency was deemed proper because the action would limit defendant's use of the property. But a notice of pendency was held inappropriate in another encroachment action when the only relief sought was removal of the offending portions of defendant's building ( McManus v. Weinstein, 108 App.Div. 301). McManus distinguished Moeller on the ground that, in McManus, no restriction on the defendant's use of his property was involved . . .
"This court has affirmed this strict approach. In Braunston v. Anchorage Woods ( 10 N.Y.2d 302), plaintiffs brought an action for nuisance for the dumping of surface water on their property. This court held that a notice of pendency was inappropriate in such a suit, which was to recover for a tort rather than to determine a claim of title to property . . . The usual object of filing a notice of lis pendens is to protect some right, title or interest claimed by a plaintiff in the lands of a defendant which might be lost under the recording acts in event of a transfer of the subject property by the defendant to a purchaser for value and without notice of the claim. This is not that kind of situation." (Citations omitted; internal quotation marks omitted.) 5303 Realty v. O Y Equity, 64 N.Y.2d 313, 476 N.E.2d 276, 486 N.Y.S.2d 877 (1984).
New York's "strict approach," has never been explicitly adopted by our appellate courts. For this reason, this court need not adopt this standard over the broader understanding of lis pendens seemingly used in other Superior Court decisions. Furthermore, in this case, the court need not choose one methodology over another because the result will be the same regardless. The revised complaint filed by the plaintiff on August 21, 2008 satisfies both the strict and the broad approaches. In her prayer for relief, the plaintiff claimed "Specific Performance to compel the Defendant or any subsequent purchaser of 11 Priscilla Road from wrongfully discharging water and silt onto the Plaintiff's property." Unlike McManus, the plaintiff in this case seeks to do more than merely restrain the defendant's use of the plaintiff's property. Rather, she seeks a court order that would require the defendant and subsequent owners to refrain from "rais[ing] the surface of the lot and [change] the contours of the land" in such a way to produce surface water runoff on her property. In McManus, the court reasoned, "[t]here is, therefore, nothing in any judgment that can be entered in this action which could in any way affect the title of the defendants to their property, or their right to its possession, use or enjoyment." McManus v. Weinstein, 108 App.Div. 301, 302, 95 N.Y.S. 724 (1905). The relief that the plaintiff in this case seeks would affect the defendant's, or a future owner's, use of the property itself. The complaint, therefore, satisfies even the rigid New York approach.
For the reasons stated above, the court finds that the plaintiff's complaint intended to affect real property. Although a claim solely for monetary damages can never fulfill the statutory requirements of § 52-325, the specific performance sought in the plaintiff's prayer for relief may have affected the title to or interest in the defendant's real property. Therefore, the use of a lis pendens was proper.
Summary judgment is denied.
Query: Where do the parties go from here? Had the court found the plaintiff's use of a lis pendens was improper the parties had further stipulated that judgment on the counterclaim in the amount of $5,000.00, should enter for the defendant.
Nomenclature aside, in essence, the parties have used this motion as a substitute for a court trial upon a set of stipulated facts. As such, the logical flip side is that having found no improper use judgment on the counterclaim should now enter in favor of the plaintiff in order to resolve the counterclaim. It does not appear that there is anything left to litigate. However, in view of the silence of the parties should the plaintiff prevail, which she has, and the limited option the denial of summary judgment provides, absent further motion, this court is constrained to do no more than deny summary judgment.