Christopher Beganski et al. v. Richard C. Beganski et al. (2015)

MEMORANDUM OF DECISION ON MOTION FOR DISCHARGE OF NOTICE OF LIS PENDENS (# 111)

The defendant Judith Beganski moved on November 21, 2014, pursuant to General Statutes § 52–325a(c), for discharge of a notice of lis pendens filed on the Salem, Connecticut, land records.¹  The action to which the lis pendens pertains had not been returned to court here in Connecticut when the defendant filed the motion for discharge.   Indeed, the action is not a Connecticut lawsuit:  the lawsuit to which the lis pendens pertains, as stated in its caption, is Doe v. Beganski in the Superior Court of the Commonwealth of Massachusetts, Department of the Trial Court at Middlesex County, Docket No. 2014–CV–06368 L2. Briefs were filed both in support of and in opposition to the motion, on which a hearing was held on January 12, 2015.

General Statutes § 52–325(a) provides, in pertinent part, as follows:  “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 ․ Because the action which is the foundation for the subject notice of lis pendens is not “any action in a court of this state or in a court of the United States,” the motion must be granted.   Only by reading into § 52–325 what is clearly absent—that a notice of lis pendens may be recorded in this state concerning a claim against land based on an action in another state (and not in a federal court)—could this court deny the present motion.   The plain meaning rule, General Statutes § 1–2z, forbids such an interpretation.

The fact that the motion is not a separate “application”—the procedure described in § 52–325a—does not matter.   The fact that the motion is filed in the present case between the same essential parties as the Massachusetts action does not matter.   There is no prejudice to the respondents—the plaintiffs in this action, Christopher Beganski and Monique Beganski, both PPA their minor son Erek Beganski—from considering the present § 52–325a “application” as a motion in this case.   If the notice of lis pendens had concerned a claim in this Connecticut case, rather than the attachment order of the Massachusetts court, there would be no reasonable question about the use of a “motion” rather than an “application.”

The subject notice of lis pendens is ordered discharged of record for failure of the plaintiffs to show probable cause to sustain it, i.e., that it is valid under § 52–325(a).

Cole–Chu, J.

FOOTNOTES

FN1. General Statutes § 52–325a(a) provides, in pertinent part, as follows:  “Whenever a notice of lis pendens is recorded against any real property pursuant to subsection (a) of section 52–325, the property owner, if the action has not then been returned to court, may make application, together with a proposed order and summons, to the superior court for the judicial district to which the action is made returnable, or to any judge thereof that a hearing or hearings be held to determine whether such notice of lis pendens should be discharged.   The court or judge shall thereupon order reasonable notice of such application to be given to the plaintiff and shall set a date or dates for the hearing or hearings to be held thereon.   If such plaintiff is not a resident of this state such notice shall be given by personal service, registered or certified mail, publication or such other method as the court or judge shall direct.   At least seven days notice shall be given to the plaintiff prior to the date of such hearing.”   Further, General Statutes § 52–325a(c) provides, in pertinent part, as follows:  “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.”.  FN1. General Statutes § 52–325a(a) provides, in pertinent part, as follows:  “Whenever a notice of lis pendens is recorded against any real property pursuant to subsection (a) of section 52–325, the property owner, if the action has not then been returned to court, may make application, together with a proposed order and summons, to the superior court for the judicial district to which the action is made returnable, or to any judge thereof that a hearing or hearings be held to determine whether such notice of lis pendens should be discharged.   The court or judge shall thereupon order reasonable notice of such application to be given to the plaintiff and shall set a date or dates for the hearing or hearings to be held thereon.   If such plaintiff is not a resident of this state such notice shall be given by personal service, registered or certified mail, publication or such other method as the court or judge shall direct.   At least seven days notice shall be given to the plaintiff prior to the date of such hearing.”   Further, General Statutes § 52–325a(c) provides, in pertinent part, as follows:  “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.”

Cole–Chu, Leeland J., J.