Wallingford Staffordshire Commons Ass'n, Inc. v. Staffordshire Associates, 324301

• Decision Date: 08 April 1992
• Docket Number: No. 324301,324301
• Citation: 615 A.2d 188,42 Conn.Supp. 241
• Court: Connecticut Superior Court
• Parties: WALLINGFORD STAFFORDSHIRE COMMONS ASSOCIATION, INC. v. STAFFORDSHIRE ASSOCIATES et al. File

Page 188

615 A.2d 188

42 Conn.Supp. 241

WALLINGFORD STAFFORDSHIRE COMMONS ASSOCIATION, INC. v. STAFFORDSHIRE ASSOCIATES et al.

File No. 324301.

Superior Court of Connecticut Judicial District of New Haven.

April 8, 1992.

Reiner & Reiner, New York City, for plaintiff.

Lendler & Molina, Wallingford, for named defendant and defendant Southwest Village of Farmington Ltd. Partnership.

Fazzone, Nuzzo & Baillie, Cheshire, for defendant Group Concepts, Inc.

Arthur A. Hiller, Bridgeport, for defendant Town of Trumbull.

No appearance for defendant Associated Architects.

DeMAYO, Judge.

The defendants have moved to discharge the notice of lis pendens placed on the land records by the plaintiff when this action was instituted. The defendants claim that the lis pendens statutes, General Statutes § 52-325 et seq., are unconstitutional. They rely heavily on the decision of the United States Supreme Court in Connecticut v. Doehr, --- U.S. ----, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991).

On November 6, 1991, the plaintiff, Wallingford Staffordshire Commons Association, Inc., filed an eight count complaint against the defendants, Staffordshire Associates Limited Partnership (SALP), Southwest Village of Farmington Limited Partnership (SVFLP), Group Concepts, Inc., and Associated Architects, P.C. The plaintiff is an association of the unit owners of the condominium complex called Staffordshire Commons. SALP is the declarant of the condominium. SVFLP is a partnership consisting of the same general and limited partners as those of SALP. Group Concepts is the managing agent of the condominium hired by SALP, and Associated Architects is the firm that prepared plans for the construction of the condominium.

In count one, the plaintiff alleges that the common hallway, staircases, erosion and sedimentation controls, roofs, solarium units, decks, doors and vents, among other things, were defectively constructed, and that, therefore, SALP breached the implied warranties of quality as set forth in General Statutes § 47-275(b). The second count contains allegations that SALP breached its express warranties that (1) there would be adequate lighting in certain common areas and (2) there would be no more than 151 units in the condominium when construction was completed. In count three, the plaintiff alleges that SALP violated the requirements of the Common Interest Ownership Act, which provides for delivery of property and documents, including site plans, drawings, and an accounting for association funds, by the declarant to the association of unit owners. In the fourth count, the plaintiff alleges that SALP collected from each purchaser of a unit a fee equal to two months common association fees, which was to be paid to the association as a reserve for future repairs, but that SALP failed not only to turn the funds over to the association, but also to account for them. In count five, the plaintiff alleges further that the conduct alleged in the first four counts constitutes a violation of the Connecticut Unfair Trade Practices Act (CUTPA).

Count six contained allegations against the defendant Associated Architects. The case as to this defendant, however, was withdrawn on January 9, 1992.

Count seven contains allegations (1) that SALP fraudulently conveyed thirty-four units to SVFLP whose general and limited partners are identical to those of SALP, (2) that SVFLP knowingly and willingly participated in the transfer and (3) that the transfer rendered SALP insolvent and unable to meet its obligations to the plaintiff.

In count eight, the plaintiff alleges that Group Concepts, Inc., was responsible for collecting and accounting for common charges, but failed to account for the funds collected.

The plaintiff seeks damages, an accounting from SALP and Group Concepts of all funds collected, an order requiring SALP to turn over all documents required to be delivered to the plaintiff by law, and an order voiding SALP's transfer of condominium units to SVFLP.

For the purposes of this hearing, counsel have stipulated that the court may assume the truth of the allegations set forth in count seven as well as the underlying indebtedness between the plaintiff and SALP.

SVFLP argues that the lis pendens statute deprives it of property without due process of law in violation of both the federal and state constitutions because it provides for neither a hearing nor any review by an independent magistrate prior to recording, but provides for a hearing only after recording. SVFLP asserts that this procedure of allowing a plaintiff to file a notice of lis pendens based only on the plaintiff's subjective belief that it is appropriate deprives the defendant of property without due process of law.

In support of its argument, SVFLP cites Connecticut v. Doehr, supra, --- U.S. at ----, 111 S.Ct. at 2116, in which the United States Supreme Court applied the analysis set forth in Mathews v. Eldrige, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) to hold Connecticut's prejudgment attachment statute unconstitutional because it did not provide for a predeprivation hearing. SVFLP contends that the property interest affected by a notice of lis pendens is the same as that affected by an attachment. SVFLP further contends that the risk of an erroneous deprivation is greater in the present case than in the case of an ex parte prejudgment attachment because while a party seeking attachment is required to verify under oath the particulars of the claim, and a judge is required to review it a party seeking to record a notice of lis pendens is subject to no such requirement and "enjoys an unfettered right ... to record a notice...." SVFLP asserts further that the interests of the present plaintiff are no different from the interests of the party seeking attachment in Connecticut v. Doehr, and that the court in that case found that the plaintiff there did not have an interest that outweighed the defendant's property interest. SVFLP argues, therefore, that the holding in Connecticut v. Doehr should apply to the present case.

SVFLP also argues that the court in Doehr rejected the holding of the Connecticut Supreme Court in Williams v. Bartlett, 189 Conn. 471, 457 A.2d 290, aff'd, 464 U.S. 801, 104 S.Ct. 46, 78 L.Ed.2d 67 (1983) that the lis pendens statute is constitutional. First, SVFLP argues that when the court in Doehr held that attachment affects significant property interests, it rejected the view of the court in Williams that an interference with an owner's right to sell or mortgage property as a result of the recording of a notice of lis pendens is a de minimus property interest. Second, in the view of SVFLP, the finding in Doehr that a hearing held after an attachment would not cure the temporary deprivation that a predeprivation hearing might have prevented supersedes the finding in Williams that a prompt hearing after the recording of a notice of lis pendens eliminated the risk of erroneous deprivation. Third, SVFLP interprets Doehr as stating that the importance of the function an attachment serves in providing security for a judgment is outweighed by the property owner's interests. SVFLP maintains that this finding supersedes Williams v. Bartlett, supra, which SVFLP interprets as stating that the notice of lis pendens serves an important function in providing security for payment of a claim pending final resolution of the case. Fourth, SVFLP contends that the court in Doehr rejected the view in Williams that the state has an important interest in minimizing litigation.

Finally, SVFLP contends that the lis pendens statute is unconstitutional because the probable cause standard provided for in General Statutes § 52-325b is vague.

The plaintiff argues that the present case is controlled by Williams v. Bartlett, supra, and not by Connecticut v. Doehr, supra. The plaintiff notes that Williams was summarily affirmed by the United States Supreme Court. The plaintiff notes further that the concurring opinion of Justices Rehnquist and Blackmun in Doehr distinguishes notices of lis pendens from attachments.

The plaintiff argues that the application of the analysis in Doehr does not justify a finding that the lis pendens statute is unconstitutional because the holding in Doehr turned on the facts that the case was based on a tort claim, that there was no showing of exigent circumstances, that the prejudgment remedy statute required no bond from the plaintiff, and that the plaintiff had no preexisting interest in the property attached. The plaintiff asserts that in the present case, the alleged fraudulent conveyances constitute an exigent circumstance because they deprive the plaintiff of any means of collecting on a potential judgment. Moreover, the plaintiff maintains, the real estate is the only asset the defendant has, and if the lis pendens is discharged, the defendant would have the ability to transfer all of the remaining units to a bona fide transferee, thereby defeating the plaintiff's claim.

The plaintiff also maintains that recording a notice of lis pendens contains a far narrower remedy than the attachment statute does in that the lis pendens statute applies only to claims involving the real property itself, while an attachment may be employed in any type of civil action in which money damages are sought. The plaintiff further asserts that a preexisting interest is an independent basis for justifying a prehearing encumbrance.

The due process clauses in both the state and federal constitutions have the same meaning. Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 170 Conn. 155, 159, 365 A.2d 393 (1976). As a threshold matter, it must be determined whether there has been a taking or deprivation by state action. The requirements of procedural due process are triggered only if there has been a taking or a deprivation of a protected interest by the state. Chrysler Corporation v. Fedders Corporation, 670 F.2d 1316, 1321 (3rd...