Westview Village v. Barberino

Full title: WESTVIEW VILLAGE v. STEPHEN BARBERINO, JR. ET AL

Court: Connecticut Superior Court, Judicial District of Waterbury

Date published: Mar 22, 1995

1995 Ct. Sup. 2825 (Conn. Super. Ct. 1995)

Opinion

No. 0124447

March 22, 1995

MEMORANDUM OF DECISION

WEST, J.

The plaintiff alleges by way of a two count, amended complaint that it is the owner of a parcel of land located in Watertown. In the first count, the plaintiff alleges that the plaintiff and defendant Barberino entered into a contract for the sale of the parcel; that the defendant caused said contract to be recorded on the land records pursuant to General Statutes § 49-92a¹; that the contract provided for a specific closing date; that the sale was not performed on the date specified by the contract for the closing; and, due to the defendant's failure to close as specified in the contract, the contract lapsed. The plaintiff also alleges that it entered into a second contract with another defendant — Redstone Development Corporation — for the sale of the parcel after the alleged lapse of the first contract. The plaintiff alleges that the Redstone contract was also recorded on the land records pursuant to General Statutes § 49-92a.

1 General Statutes § 49-92a provides as follows: A purchaser's lien is created for the amount of the deposit paid pursuant to and stated in a contract for the conveyance of land by the recording of that contract in the records of the town in which the land is situated, provided the contract is executed by the owner and by the vendee of the land, witnessed and acknowledged in the same manner as required for a deed for the conveyance of land, and describes the particular land to which it refers. That purchaser's lien shall be prior to any other liens and encumbrances originating after the contract is recorded. A purchaser's lien may be foreclosed in the same manner as a mortgage. Transfer of title of the land to the vendee constitutes a release and discharge of the lien.

In the second count, the plaintiff alleges that the recording of both contracts may create purchasers' liens pursuant to General Statutes § 49-92a in favor of the respective parties. As to the first count, the plaintiff by way of equitable relief and pursuant to General Statute § 49-13(a)(3), petitions the court for an order that the first lien, based on the Barberino contract, is invalid and of no effect because the contract lapsed and is therefore null and void. As to the second count, the plaintiff prays for an order dissolving any purchasers' liens created by the recordation of both contracts upon the substitution of bond.

The defendant has moved to dismiss the first count on the ground that the court does not have subject matter jurisdiction to order a lien discharged under General Statutes § 49-13² where the validity of the lien is in dispute.

2 General Statutes § 49-13 provides in relevant part as follows: (a) When the record title to real property is encumbered . . . (3) by an attachment, lis pendens or other lien which has become of no effect, the person owning the property, or the equity in the property, may bring a petition to the superior court within the judicial district in which the property is situated, setting forth the facts and claiming a judgment as hereinafter provided. . . . . . . . (c) [Following the required notice], the court may proceed to a hearing of the cause at such time as it deems proper, and, . . . if the court finds the attachment, lis pendens or other lien has become of no effect, the court may render a judgment reciting the facts and its findings in relation thereto and declaring the mortgage, foreclosure judgment, attachment, lis pendens or other lien invalid as a lien against the real estate. . . .

"A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). "[A]s soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made." Gurliacci v. Mayer, 218 Conn. 531, 544-45, 490 A.2d 509 (1991). "The motion to dismiss . . . `admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.'" Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). In addition, on deciding a motion to dismiss, the court must construe the factual allegations of the complaint most favorably for the plaintiff. American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217, 459 A.2d 1031 (1983).

"No judge or court has the power to order the release of property from the lien of an attachment unless its release is authorized by statute." Clime v. Gregor, 145 Conn. 74, 76, 138 A.2d 794 (1958), citing Csakany v. Takacs, 143 Conn. 485, 487, 123 A.2d 7674 (1956). The statute relied on by the plaintiff, General Statutes § 49-13

is not a Statute of Limitations. A Statute of Limitations is a bar to the maintenance of an action, whereas § 49-13 authorizes an action in which affirmative relief may be granted if, and only if, the requirements of the statute are met. Arnold v. Hollister, 131 Conn. 34, 38, 37 A.2d 695.

Simonelli v. Fitzgerald, 156 Conn. 49, 53, 238 A.2d 418 (1968). Where the evidence indicates that the requirements of General Statutes § 49-13 are not satisfied, the court is without jurisdiction to proceed in favor of the plaintiff. Id., 54.

The defendant cites Gordon v. Tufano, 188 Conn. 477, 450 A.2d 852 (1982) for the proposition that where the validity of the lien is in dispute, the court has no jurisdiction to grant relief under General Statutes § 49-13. In that case, the plaintiff brought an action under General Statutes § 49-13(a)(1) seeking the discharge of a mortgage. Subsection (a)(1) of the statute provides "a simple method whereby a mortgage, the invalidity of which is undisputed, may be declared invalid by the Court and removed as a cloud on the title to property." Id., 483. In addition, General Statutes § 49-13(a)(1) provides with specificity the conditions that must be found to exist in order to discharge a mortgage.³ The evidence before the trial court indicated that within the statutory seventeen year period (see note 3, supra), the parties had acted in a manner recognizing the validity of the mortgage. Based on this fact, the supreme court held that the trial court had no jurisdiction to discharge the mortgage under General Statutes § 49-13. Gordon v. Tufano, supra, 188 Conn. 482-84. The supreme court did not hold, however, that the trial court had no jurisdiction over the petition. Rather, the court held that the trial court did not have jurisdiction to render a judgment for the plaintiffs following the submission of evidence indicating that the mortgage was in dispute. Gordon v. Tufano, supra, 188 Conn. 482-84. Similarly, in Simonelli v. Fitzgerald, supra, 156 Conn. 54, the court held that General Statutes § 49-13(a)(1)

3 General Statutes § 49-13(a)(1) provides as follows: (a) When the record title to real property is encumbered (1) by any undischarged mortgage, and (A) the mortgagor or those owning his interest therein have been in undisturbed possession of the property for at least seventeen years after the expiration of the time limited in the mortgage for the full performance of the conditions thereof, and for seventeen years next preceding the commencement of any action under this section, or (B) when the promissory note or other written evidence of the indebtedness secured by the mortgage is payable on demand and seventeen years have passed without any payment on account of such note or other written evidence of indebtedness, or (C) when the mortgage does not disclose the time when the note or indebtedness is payable or disclose the time for full performance of the conditions of the mortgage and seventeen years have passed without any payment on account of the promissory note or other written evidence of indebtedness, or (D) when the note or evidence of indebtedness has been paid or bona fide offer and tender of the payment made pursuant to section 49-8, or (E) when the mortgage has become invalid, and in any of such cases no release of the encumbrance to secure such note or evidence of indebtedness has been given. . .

gives the court no jurisdiction to determine the validity or invalidity of a disputed mortgage of long standing. . . . Thus, the Superior Court, pursuant to § 49-13, could render judgment for the plaintiffs only if no evidence was offered of a payment on account of the mortgage debt within seventeen years, or of any other act within such period in recognition of the existence of a valid mortgage. When such evidence is offered, the court has no jurisdiction to proceed further in favor of the plaintiffs.

(Citations omitted.)

In the present case, the plaintiff alleges that the purchaser's lien under General Statutes § 49-92a is invalid because the Barberino contract has lapsed and become void. For the purposes of the motion to dismiss, this allegation must be favorably construed. American Laundary Machinery, Inc. v. State, supra, 190 Conn. 217. Therefore, the validity of the lien is not yet in dispute until the defendant offers evidence to this effect. See Simonelli v. Fitzgerald, supra, 156 Conn. 54 (when evidence was offered by defendants indicating that the mortgage was in dispute, the court has no jurisdiction to proceed further in favor of the plaintiffs). Therefore, in accordance with the foregoing, the court finds that it has jurisdiction over the petition and the defendant's motion to dismiss is denied.

WEST, J.