Opinion
No. CV 03-0830337S
January 9, 2004
MEMORANDUM OF DECISION
I
Founders C.D., LLC (Founders) seeks to discharge a lis pendens that was filed against its property in connection with a lawsuit returnable September 9, 2003, requesting money damages and injunctive relief and seeking to require Founders "to repair and maintain a retention pond in a proper fashion and take appropriate measures to prevent the accumulation of soil, mud and salt from defendant's lots from running into plaintiffs' property." Evidently a prior lis pendens was filed in August 2003 but in the instant application, Founders is seeking to discharge the lis pendens filed November 26, 2003 and amended December 11, 2003. Founders maintains that the allegations of the complaint do not affect real property and thus the lis pendens must be discharged.
General Statutes § 52-325 states:
Sec. 52-325. Notice of lis pendens. (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, or (2) a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief at the time the answer is filed, 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, except that no such notice may be recorded in an action that alleges an illegal, invalid or defective transfer of an interest in real property unless the complaint or affirmative cause of action contains the date of the initial illegal, invalid or defective transfer of an interest in real property and such transfer has occurred less than sixty years prior to the commencement of such action. 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. For the purpose of this section an action shall be deemed to be pending from the time of the recording of such notice; provided such notice shall be of no avail unless service of the process is completed within the time provided by law. This section shall be construed to apply to mechanics' liens and all other inchoate liens, certificates of which are recorded subsequent to the recording of the notice of the pendency of the action; and, in suits to foreclose mortgages or other liens, the persons whose conveyances or encumbrances are subsequently executed or subsequently recorded shall forfeit their rights thereunder, unless they apply to the court in which such action is brought to be made parties thereto, prior to the date when the judgment or decree in such action is rendered. CT Page 437
(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; (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.
Steven L. Bray and Ann Marie C. Bray v. Founders, CD., LLC, No. CV 03-0827961, Judicial District of Hartford. The instant case is an application to discharge the lis pendens. Even though Steven and Ana Marie Bray are the defendants in the instant action, they will be referred to in this opinion as the plaintiffs.
In an application to discharge a lis pendens, pursuant to General Statutes § 52-325b, the burden of proof is switched to the plaintiffs, Steven and Ana Marie Bray, to show that there is probable cause to sustain their claim. The plaintiffs, both lawyers, maintain that the retention pond, as they call it in their complaint (paragraphs 6, 7, 8, 9, 10, 11, 12 of the first count; and paragraphs 6, 7, 8, (incorporated by reference), 9, 10, 11, 12(a) and 13 of the second count), that was created in a declaration of drainage easement dated November 15, 2001 (Exhibit 4) in favor of lots 5, 6 and 7, is being unreasonably maintained because salt, mud, and soil have remained in the pond. Additionally, the pond has standing water, which, they argue, violates their understanding that water would drain in less than 48 hours. Mr. Bray testified that the defendant should be enjoined and prevented from allowing any further drainage into the pond until it works properly. The plaintiffs believe that the pond should be cleaned on a more regular basis and also have concern about the safety of children around the pond.
Thomas Mocko, the environmental planner from the Town of Glastonbury, testified that he has been involved with the plan for the retention pond from its conception. He called it a detention basin that had two functions: (1) to capture sediment during construction; and (2) to function as a retention pond after construction is finished. Construction is ongoing, especially on lot S directly above the plaintiff's home, and has been the major source of silt and sediment runoff into the pond. Mr. Mocko testified that the pond is functioning precisely as designed because it is now collecting runoff and sediment. This court notes that Connecticut has received above normal rainfall this past year.
Mr. Mocko testified that he did ask Founders to clean the pond in the spring of 2003, but he did not issue any formal orders. The pond was cleaned in the fall after there were discussions between he and Mr. Doran, a principal of Founders, and after lot 5 was stabilized. Founders has provided a construction bond to the town and part of it covers construction and maintenance of the pond.
James Dalton, a land surveyor and part of the civil engineering and surveying firm that developed this project, testified similarly that the basin or pond had a dual feature: to trap sediment during construction and to act as a retention basin upon completion. He stressed that the dry well that is located at the bottom of the pond is, by design, not now functioning because it must be protected during the construction phase; indeed, it is now protected by a salt fence and fabric. He testified that the pond is working as planned but that water will certainly remain in the pond longer during construction due to the sediment. He stated that when construction is finished, the water will disperse through the dry well. He also added that the water that is now in the pond is there, in part, because of the ice that has formed during this season.
Mr. Doran testified that as a result of the lis pendens, he has lost a sale for lot 5 and cannot finalize pending financing. The court notes that there is no way to bond over a lis pendens.
II A. CT Page 434
The court finds that the plaintiffs have not established probable cause to sustain the validity of their claim. The pond is working precisely as designed and while it may at times be aesthetically unsightly, it is trapping silt and sediment. The town has not issued any orders that require maintenance other than what is being done. The slow disbursement of water is a result of the dry well not functioning at this time; the dry well must be protected during construction.
The plaintiffs were aware that they purchased a parcel of land with a drainage easement, a retention basin and property subject to the right to drain in favor of the up gradient lots. The court notes that this lawsuit, seeking injunctive relief, and the lis pendens, were filed shortly after the plaintiffs filed another lawsuit against Founders alleging building defects present in their home.
B.
In Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988), the court stated: "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 . . . Where, as 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.)
This case seeks the repair and maintenance of a pond on the plaintiffs' property; nothing sought in the pleadings will affect lots 6 and 7. The plaintiffs only ask this court to order Founders to spend money to dig out sediment. The declaration of easement, however, as well as the testimony of James Dalton, indicates that part of the drainage easement is on lot 5. While not argued by the plaintiffs, because of lot 5's subservient interest in the easement, the notice does indeed affect that parcel.
There are, except for lot 5, no adverse interests that may affect the title or right to Founders' property. A similar analysis was reached by Judge Lavine in Bielonko v. Blanchette Builders, Inc., Superior Court, judicial district of Hartford, Docket No. CV 980581188 (February. 2, 1999, Lavine, J.), a case in which both injunctive relief as well as a nuisance claim were brought. The plaintiff sued due to the flow of water that came on the defendant's property as a result, in part, of the change of topographing due to residential development, the ineffectiveness of a retention basin and the abnormally high rainfall. The injunctive relief was denied because the plaintiffs failed to prove that the development was a substantial factor in causing the harm.
Noting that the General Statutes § 52-325(b) definition is broad and inclusive, Judge Lavine discharged the lis pendens stating "merely because the Blanchette properties are alleged to have contributed to the problem alleged does not transform this into an action affecting the title to or interest in the property itself . . . The issuance of injunctive relief, or money damages following trial, would not alter this fact. Nor would the possibility of future litigation against individual lot owners, in connection with future problems." Id. Such is our case. Similar results were reached in Eppoliti Realty Co. v. Piacentini, Superior Court, judicial district of Danbury, Docket No. CV 92 0311135 (January, 28, 1993, Fuller, J.) ( 8 Conn. L. Rptr. 322, 8 C.S.C.R. 284), and Widlitz v. Conklin, Superior Court, judicial district of New Haven, Docket No. CV 98 0419812 (January 29 1999, Hadden, J.).
Therefore, except as noted, the plaintiffs' argument that the action is intended to "enforce a previously acquired interest in real property" does not pass muster because it seeks only to require the owners of that land to repair or maintain the plaintiffs' property. Nevertheless, as the plaintiffs have failed to establish probable cause to sustain the validity of their claim, as required by General Statutes § 52-325b(a), the lis pendens is discharged.
BERGER, JUDGE.