Levinson v. Lawrence ( 2016 )

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JEFFREY R. LEVINSON v. KRISTA D.
LAWRENCE ET AL.
(AC 37217)
Lavine, Beach and Sheldon, Js.
Argued September 29, 2015—officially released January 26, 2016
(Appeal from Superior Court, judicial district of
Hartford, Scholl, J.)
Jeffery R. Levinson, self-represented, the appellant
(plaintiff).
Alexa J. P. Lindauer, for the appellee (named
defendant).
Opinion
BEACH, J. The plaintiff, Jeffrey R. Levinson, appeals
from the judgment of the trial court rendered in favor
of the defendant Krista D. Lawrence.1 He claims that
the court erred in finding (1) that a resulting trust had
not been created, (2) that the defendant had not been
unjustly enriched, and (3) in favor of the defendant on
her counterclaim alleging slander of title. We disagree
with the plaintiff’s first two claims, but agree with the
third, and we accordingly affirm in part, and reverse in
part, the judgment of the trial court.
The trial court made the following findings. ‘‘[The
parties] have known each other since college. They had
a relationship in 1990 and resumed it in 2002. It has
always been a tumultuous one although the plaintiff
has been generous with his money throughout the rela-
tionship. For example, in 2006 [the plaintiff] paid off [the
defendant’s] car loan of about $9000. [The defendant]
bought the subject property with her [former] husband.
They were divorced on March 10, 2003. As part of the
divorce judgment, the property was quitclaimed to [the
defendant] and she became obligated to execute a note
to her [former] husband in the amount of $58,750 pay-
able on February 4, 2007, unless certain other events
occurred earlier. Interest on the note was to accrue
from February 4, 2005, at the rate of 2 percent per year.
A mortgage on the property was placed to secure the
note. When the note became due, [the plaintiff] offered
to give [the defendant] the money to pay her [former]
husband the amount owed him on the note. [The defen-
dant] agreed to accept the money as the easiest option
for her. On February 16, 2007, [the defendant] gave
[the plaintiff] a check for $61,123.50. Even though [the
plaintiff] is a law school graduate, no documentation
was prepared or executed by either party at that time
evidencing the nature of the transaction. [The defen-
dant] believed that it was a loan that she would repay
when the house was sold, if the parties were no longer
together. [The defendant] then gave her [former] hus-
band a check in the same amount on February 17, 2007,
to satisfy the note. [The defendant] claimed that she
would never have agreed to give [the plaintiff] a portion
of the house. The house had been a point of contention
in her divorce.
‘‘In June, 2008, [the plaintiff] moved into the property
with [the defendant]. Although he did not pay the utili-
ties, which increased significantly after he moved in
because he worked from home, he was, as [the defen-
dant] described it, ‘financially generous,’ during their
relationship. [The plaintiff] contributed to the expenses
of the household and paid for certain work to be done
on the house, which [the defendant] could not afford,
such as painting, replacing windows, building a closet,
remodeling a porch, which [the plaintiff] used as an
office. He also purchased a piano as well as a new
washer, dryer and dishwasher for the house, as well as
contributed to the purchase of a couch and loveseat.
‘‘From June to December, 2008, the parties’ relation-
ship continued to be tumultuous even resulting in vio-
lence by [the plaintiff] against [the defendant]. In
December, 2008, the parties broke up, but [the plaintiff]
refused to move out of the property, creating an intoler-
able situation for [the defendant] and her daughter, who
also lived in the property. In January, 2009, the parties
went to counseling where [the plaintiff] presented [the
defendant] with a multipage document entitled
‘Agreement’ in which he claimed to have made signifi-
cant monetary contributions for improvements to the
property during the period of the parties’ cohabitation,
and that stated that they had orally agreed, at the time
[the plaintiff] made the $61,000 payment to [the defen-
dant], that [the plaintiff] would be entitled to a 50 per-
cent interest in the property. The Agreement also
provided that [the plaintiff] would remove himself from
the property within seventy-two hours of the execution
of the Agreement. [The defendant] did not sign the
Agreement. [The plaintiff] would not leave the property
voluntarily so [the defendant] started eviction proceed-
ings against him in February, 2009. There was another
violent confrontation between the parties that month
and [the plaintiff] was arrested and a protective order
issued against him and he agreed to move out of the
property.
‘‘In July, 2010, [the plaintiff] initiated a small claims
action against [the defendant] alleging that she refused
to return a bottle of wine, a computer, and a camera
he claimed belonged to him. A judgment was entered
in favor of [the defendant] on this claim.
‘‘[The plaintiff] initiated a civil complaint in Superior
Court against [the defendant] in July, 2010, and placed
a lis pendens on the property. That action was dis-
missed. In February, 2011, this action was [com-
menced]. In January and February, 2013, [the plaintiff]
made complaints to the town of West Hartford regard-
ing his claim that improvements to the property were
made without the proper building permits even though
he claimed he paid for them. [The plaintiff] has contin-
ued to harass [the defendant] by this and other actions
such as coming into her place of employment, parking
in front of her house, and contacting her real estate
agent claiming that the house is not described properly
in a listing.’’
In his complaint, the plaintiff alleged that he was
entitled to share in the ownership interest in the prop-
erty by virtue of a resulting trust and that the defendant
had been unjustly enriched by the plaintiff’s expendi-
tures, renovations, and improvements to the property.
The defendant filed a counterclaim alleging, inter alia,
slander of title. The court rendered judgment in favor
of the defendant on all counts of the complaint and in
favor of the defendant on her counterclaim, and
awarded her $13,737.81 in damages and fees. This
appeal followed.
I
The plaintiff first claims that the court erred in finding
that a resulting trust had not been created. We disagree.
The court disagreed with the plaintiff’s claim that the
parties had agreed that the plaintiff was entitled to a
one-half interest in the property by virtue of his having
paid the defendant $61,123.50. The court found that
there was no resulting trust because, although the
defendant accepted the money from the plaintiff in
order to pay her former husband, she never intended
that the plaintiff receive an ownership interest in the
property. At most, she considered the payment to be a
loan to be paid back when the property was sold. The
court determined that the plaintiff, who was trained in
the law, had made no attempt to formalize the claim
until after the parties’ relationship had ended. It con-
cluded that the plaintiff failed to prove facts necessary
to establish a resulting trust.
‘‘A resulting trust arises by operation of law at the
time of a conveyance when the purchase money for
property is paid by one party and the legal title is taken
in the name of another. . . . The presumption of the
existence of such a trust, however, is one of fact rather
than law and may be rebutted by proof of contrary
intent. . . . The existence of a resulting trust is an issue
of fact. . . . If it can be proved that the intention of
the parties was otherwise, there is no resulting trust.
. . . In deciding . . . what the intent of the parties was
at the time of the conveyance, the court [must] rely
upon its impression of the credibility of the witnesses.
Intent is a question of fact, the determination of which
is not reviewable unless the conclusion drawn by the
trier is one which could not reasonably be drawn.’’
(Citations omitted; internal quotation marks omitted.)
Neubig v. Luanci Construction, LLC, 124 Conn. App.
425, 434–35, 4 A.3d 1273 (2010).
‘‘The courts should enforce express contracts
between nonmarital partners except to the extent that
the contract is explicitly founded on the consideration
of meretricious sexual services. . . . In the absence of
an express contract, the courts should inquire into the
conduct of the parties to determine whether that con-
duct demonstrates an implied contract, agreement of
partnership or joint venture, or some other tacit under-
standing between the parties. The courts may also
employ the doctrine of quantum meruit, or equitable
remedies such as constructive or resulting trusts, when
warranted by the facts of the case. . . . Thus, a con-
tract, express or implied, or some other tacit under-
standing between persons who are not married to one
another which does not rely upon their sexual behavior
is enforceable in the courts of this state.’’ (Citations
omitted; internal quotation marks omitted.) Burns v.
Koellmer, 11 Conn. App. 375, 380–81, 527 A.2d 1210
(1987).
The plaintiff claims that the court erred in failing to
find a resulting trust. He argues that the parties mutually
agreed that the defendant would pay the plaintiff
$61,123.50 in return for 50 percent ownership of the
property.2 The defendant testified that her relationship
with the plaintiff was unstable and she was ‘‘conflicted’’
and ‘‘reluctant’’ to accept the $61,123.50 from the plain-
tiff; she did so, however, in February, 2007, because ‘‘it
seemed the easiest way to go,’’ in that she would not
have to burden her family members or sell the property.
She further testified that ‘‘[t]here were no terms’’ when
she accepted the money from the plaintiff other than
the plaintiff’s statement that ‘‘if this relationship goes
south then you’ll just pay me when you sell the house.’’
She testified that there was ‘‘never’’ an agreement with
the plaintiff to give him an ownership interest in the
house. She further stated that, at the time the plaintiff
gave her the money, the plaintiff did not ask her to sign
any document to memorialize the transaction, which
omission was inconsistent with the plaintiff’s ‘‘very
meticulous . . . very detailed . . . record keeping.’’
The defendant continued to explain that although the
relationship was ‘‘tumultuous,’’ the plaintiff moved into
the property in June 2008, more than a year after he
gave the defendant $61,123.50.
There was no documentary evidence signed or
approved by both parties regarding any intent with
respect to the transaction. The evidence regarding
intent at the time of the transfer was the testimony
of the parties themselves. The plaintiff argues that he
demonstrated his ownership interest by producing evi-
dence that he spent $45,000 to improve the property and
his writing the word ‘‘mortgage’’ in the memorandum
portion of certain other checks that he gave to the
defendant during their cohabitation. As explained in
more detail in part II of this opinion, the court found
that the plaintiff’s expenditures were not made to safe-
guard his claimed interest in the property, but rather
to increase his, as well as the defendant’s, comfort and
enjoyment in the home. This finding was not clearly
erroneous; the defendant testified that the improve-
ments and renovations were done at the plaintiff’s insis-
tence and that it was not her understanding that the
plaintiff was making the improvements because he was
claiming an ownership interest in the house. Even if
the plaintiff’s notations on the checks did indicate his
intent, such intent was not mutual. The court credited
the defendant’s testimony that it was not her intent that
the plaintiff receive an ownership interest in the
property.
The plaintiff argues that the defendant did not offer
evidence, other than self-serving testimony, showing
intent contrary to the creation of a resulting trust. It
was, however, within the province of the trial court to
credit or to discredit testimony as it deemed fit. See
Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844 A.2d
836 (2004) (‘‘In a case tried before a court, the trial judge
is the sole arbiter of the credibility of the witnesses and
the weight to be given specific testimony. . . . It is
within the province of the trial court, as the fact finder,
to weigh the evidence presented and determine the
credibility and effect to be given the evidence.’’ [Citation
omitted; internal quotation marks omitted.]). The
court’s crediting of this testimony is dispositive of the
defendant’s claim of a resulting trust because ‘‘[i]f it
can be proved that the intention of the parties was
otherwise, there is no resulting trust.’’ (Internal quota-
tion marks omitted.) Neubig v. Luanci Construction,
LLC, supra, 124 Conn. App. 435. The court made a
finding, supported by the record, that there was no
mutual intention sufficient to require the imposition of
a resulting trust. The court did not err in finding that
there was no equitable basis for imposing a resulting
trust.3
II
The plaintiff next claims that the court erred in deny-
ing his claim of unjust enrichment. We do not agree.
The plaintiff alleged in the trial court that the defen-
dant was unjustly enriched by his expenditures made
to improve the property. The court disagreed and found
that ‘‘the improvements and renovations regarding the
property made by [the plaintiff] were for his as well as
[the defendant’s] benefit. They made the property a
more liveable one for them both. Although the parties
discussed certain improvements together and [the
defendant] made certain decisions such as the color
the house was to be painted and the type of shutter
hardware to be installed, most of the expenditures were
at [the plaintiff’s] initiative and not at [the defendant’s]
request. [The plaintiff] admitted he gave money for
these items ‘willingly.’ Although [the plaintiff] claims
that he would not have made these expenditures if he
did not expect to receive an interest in the property,
it was clear to the court that the plaintiff made the
expenditures for what he described as the ‘family home’
for his as well as [the defendant’s] comfort and enjoy-
ment, and with the expectation that their relationship
would endure. [The plaintiff] did not make the improve-
ments to the home for the primary purpose of safe-
guarding his claimed interest in the property. Therefore,
the court concludes that [the defendant] was not
unjustly enriched by [the plaintiff’s] expenditures.’’
‘‘Unjust enrichment is a legal doctrine to be applied
when no remedy is available pursuant to a contract.’’
(Internal quotation marks omitted.) Burns v. Koellmer,
supra, 11 Conn. App. 383. ‘‘A right of recovery under
the doctrine of unjust enrichment is essentially equita-
ble . . . . With no other test than what, under a given
set of circumstances, is just or unjust, equitable or ineq-
uitable, conscionable or unconscionable, it becomes
necessary in any case where the benefit of the doctrine
is claimed, to examine the circumstances and the con-
duct of the parties and apply this standard. . . . Plain-
tiffs seeking recovery for unjust enrichment must prove
(1) that the defendants were benefited, (2) that the
defendants unjustly did not pay the plaintiffs for the
benefits, and (3) that the failure of payment was to the
plaintiffs’ detriment. . . .
‘‘[E]quitable remedies are not bound by formula but
are molded to the needs of justice. . . . The court’s
determinations of whether a particular failure to pay
was unjust and whether the defendant was benefited
are essentially factual findings . . . that are subject
only to a limited scope of review on appeal. . . . Those
findings must stand, therefore, unless they are clearly
erroneous or involve an abuse of discretion. . . . This
limited scope of review is consistent with the general
proposition that equitable determinations that depend
on the balancing of many factors are committed to the
sound discretion of the trial court.’’ (Internal quotation
marks omitted.) Waterview Site Services, Inc. v. Pay
Day, Inc., 125 Conn. App. 561, 569, 11 A.3d 692 (2010),
cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011).
‘‘As a general rule, for the benefit to be unjust, the
defendant must have solicited it. This doctrine [of
unjust enrichment] is inapplicable where the payment
has been made officiously, i.e., where the circumstances
do not justify the interference with another’s affairs
resulting from conferring a benefit upon him. . . .
[W]here a person has officiously conferred a benefit
upon another, the other is enriched but is not consid-
ered to be unjustly enriched.’’ (Citation omitted; internal
quotation marks omitted.) Schirmer v. Souza, 126
Conn. App. 759, 770, 12 A.3d 1048 (2011).
The plaintiff claims that there is no evidentiary basis
to support the court’s finding that the defendant was
not unjustly enriched by the improvements and renova-
tions he made to the property. He argues that the defen-
dant ‘‘gave inconsistent testimony which abhors logic,
and confirms [his] position that the improvements were
done by mutual agreement, and both parties partici-
pated equally.’’ He contends that he was ousted from
the property two months after the improvements were
complete and was unable to enjoy such improvements.
The defendant’s testimony supports the court’s find-
ings that the improvements and renovations on the
property were made for the benefit of both parties to
make the home in which they both resided more livable,
not to safeguard the plaintiff’s claimed interest in the
property, and that most of the expenditures were made
at the plaintiff’s initiative, not by the defendant’s
request. The defendant testified at trial to the following.
In June, 2008, when the plaintiff moved in, the overall
condition of the house was ‘‘fine,’’ with some cosmetic
issues. At the plaintiff’s ‘‘insistence,’’ he ‘‘immediately
started having work done on the house.’’ When asked
if she requested that any of the work be done, the
defendant responded, ‘‘No.’’ According to the defen-
dant, it was the plaintiff’s idea to paint the exterior of
the house and she had minimal involvement in that
project; it was the plaintiff’s idea to install new windows
and he did so because he did not like the existing win-
dows; improvements were made to the three season
porch, such as adding French doors and enabling com-
puter usage, because the plaintiff used the porch for
office space; the plaintiff replaced some appliances,
such as the washer, dryer, and dishwasher, but not at
her request; she did not request the plaintiff to replace
the storm door and, although the plaintiff contributed
to the purchase of a new storm door, it was never
installed because the defendant preferred the look of
the house without one; she did not request a chimney
sweep, she was not happy when the plaintiff sent her
a message saying he had scheduled one to come to the
house, and she did not think the chimney needed to be
swept; she did not request the plaintiff to make plumb-
ing repairs or to renovate the closet; she did not request
that the plaintiff have two birch trees removed and, in
fact, she did not want them removed; she did not request
that new shutter hardware be purchased, but that, as
part of the process of painting the exterior of the house,
the original shutter hardware had to be taken down
and was not usable when the house was painted, so
new shutter hardware had to be purchased; the plaintiff
did not like the existing couch and loveseat, which were
tattered and used by the defendant and her [former]
husband, and both parties made payments for a new
couch and loveseat. She testified that until her relation-
ship with the plaintiff ended, he had never asked her
to reimburse him for the expenditures associated with
the improvements or renovations. The plaintiff testified
that she believed that the plaintiff wanted the work to
be done ‘‘primarily for his comfort. . . . I was a single
mom and my [former] husband didn’t do a lot of stuff
and I think it gave him a great sense of satisfaction to
show my friends, and neighbors, and family that he
could do all of these wonderful things in the house.’’
She explained that she allowed the plaintiff to do all
the projects because ‘‘it seemed the easier path to take.
Mostly I allowed it to happen, I was indifferent,’’ and
that if she resisted the plaintiff’s efforts, he would get
‘‘angry.’’ She stated that she first learned that the plain-
tiff was claiming that she owed him money for the
projects in a couple’s therapy session that occurred
after their relationship had soured.
Accordingly, there was evidence from which the
court could reasonably conclude that the plaintiff’s
expenditures were made officiously and not at the
defendant’s request. The trial judge, as the finder of
fact in this case, was the sole arbiter of credibility. ‘‘[I]t
is the exclusive province of the trier of fact to weigh
the conflicting evidence, determine the credibility of
witnesses and determine whether to accept some, all or
none of a witness’ testimony. . . . Thus, if the court’s
dispositive finding . . . was not clearly erroneous,
then the judgment must be affirmed.’’ (Emphasis omit-
ted; internal quotation marks omitted.) Stein v. Tong,
117 Conn. App. 19, 24, 979 A.2d 494 (2009). The court’s
findings that the plaintiff did not request that the expen-
ditures be made, and, rather, that most resulted from
the plaintiff’s insistence, were not clearly erroneous
and are dispositive of this claim. The court did not
err in concluding that, although the defendant perhaps
benefitted from the plaintiff’s expenditures, she was
not unjustly enriched.
III
The plaintiff’s final claim is that the court erred in
finding in favor of the defendant on her counterclaim
alleging slander of title. She alleged in the counterclaim
that the plaintiff had refused to release two invalid
notices of lis pendens on the property in a timely man-
ner, in violation of General Statutes § 49-8. We agree
with the plaintiff.
In the trial court, the defendant sought statutory dam-
ages and attorney’s fees, pursuant to § 49-8, for the
plaintiff’s failure to release two notices of lis pendens
on the property that were filed in 2010 and 2011 respec-
tively.4 In finding in favor of the defendant on this claim,
the court made the following factual findings and legal
conclusions. ‘‘The evidence establishes that by letter
dated June 23, 2011, [the defendant’s] attorney made
demand that [the plaintiff] release the lis pendens he
had recorded on July 20, 2010, because it was not served
as required by statute. See General Statutes § 52-325
(c). By letter dated February 15, 2013, [the defendant’s]
attorney made demand that [the plaintiff] release the
lis pendens he had recorded on August 3, 2011. . . .
By stipulation entered in the context of this lawsuit on
July 1, 2013, the parties agreed that the plaintiff would
file releases of the lis pendens by July 5, 2013, and
the defendant would market the property. The plaintiff
executed a release of the 2010 lis pendens on July 30,
2013, which was recorded on August 8, 2013, and a
release of the 2011 lis pendens on August 7, 2013, which
was recorded on August 13, 2013. Because of the delay
in the execution of the releases, [the defendant] is enti-
tled to statutory damages in the amount of $5000 as to
the 2010 lis pendens and $3000 as to the 2011 lis pen-
dens. She is also entitled to attorney’s fees which she
incurred pursuing the release of the liens in the amount
of $5,737.81, based on the evidence presented.’’
The plaintiff argues that he was justified in filing the
lis pendens pursuant to § 52-325 to protect his claim of
an ownership interest in the property and that the court
erred when it awarded the defendant damages and
attorney’s fees pursuant to § 49-8. He also contends
that the defendant violated a July 1, 2013 stipulated
agreement between the parties by not marketing and
selling the property and that the defendant should not
be able to recover under § 49-8 as a result of her alleged
breach of the agreement.5 The defendant argues that
she did not waive her claim for damages pursuant to
§ 49-8 in the July 1, 2013 stipulated agreement; that her
alleged noncompliance with the stipulated agreement
was irrelevant to the propriety of relief under § 49-8;
and, alternatively, that she did not violate the stipulated
agreement, as it contained no date by which she was
to sell or market the property. The defendant argues
that the plain language of § 49-8, which provides that
damages are mandatory and not merely permissive, jus-
tified the court’s award of damages and attorney’s fees.
We agree with the plaintiff that the court’s award of
relief pursuant to § 49-8 was not proper in the circum-
stances of this case.
Resolution of the issue requires an interpretation of
§ 49-8 and the statutory scheme regarding releases of
notices of lis pendens. ‘‘When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . In seeking to
determine that meaning . . . [we first] consider the
text of the statute itself and its relationship to other
statutes.’’ (Internal quotation marks omitted.) Stone-
Krete Construction, Inc. v. Eder, 280 Conn. 672, 677,
911 A.2d 300 (2006).
Section 49-8 (b) provides in relevant part: ‘‘The plain-
tiff or the plaintiff’s attorney shall execute and deliver
a release . . . when a lis pendens or other lien has
become of no effect pursuant to section 52-326.’’ In the
event that a lis pendens that has become ineffective
under General Statutes § 52-326 is not released within
sixty days of the sending or receiving of a written
request for release, § 49-8 (c) provides that the ‘‘plaintiff
shall be liable for damages to any person aggrieved at
the rate of two hundred dollars for each week after the
expiration of such sixty days up to a maximum of five
thousand dollars or in an amount equal to the loss
sustained by such aggrieved person as a result of the
failure of the . . . plaintiff or the plaintiff’s attorney to
execute and deliver a release, whichever is greater, plus
costs and reasonable attorney’s fees.’’
Therefore, pursuant to § 49-8 (b), in order for a party
to obtain relief under § 49-8, the lis pendens must first
have ‘‘become of no effect’’ under § 52-326. ‘‘Section
52-326 provides that a lis pendens may be discharged
only under . . . very limited circumstances . . . .
See §§ 52-322 and 52-324 of the General Statutes.’’
Kukanskis v. Griffith, 180 Conn. 501, 507 n.4, 430 A.2d
21 (1980). Section 52-326 provides: ‘‘The provisions of
sections 52-322 and 52-324 shall apply, mutatis mutan-
dis,6 to any lis pendens recorded according to the provi-
sions of section 52-325 . . . .’’7 (Footnote added.)
Section 52-322 provides in relevant part: ‘‘When the
estate of any person has been attached . . . and the
plaintiff therein has received satisfaction for the plain-
tiff’s claim, or final judgment has been rendered against
the plaintiff thereon, or when for any reason such
attachment has become of no effect, such plaintiff or
the plaintiff’s attorney, at the request of any person
interested in the estate attached or in having the attach-
ment lien removed, shall file a certificate with such
town clerk that such attachment is dissolved and such
lien removed. . . .’’ Section 52-324 provides: ‘‘If an
attachment, such as is set forth in section 52-322, has
been made and the plaintiff has withdrawn the plaintiff’s
suit or has been nonsuited or final judgment has been
rendered against the plaintiff, or if such suit has not
been returned, or if for any reason such attachment
has become of no effect, the clerk of the court to which
such suit has been made returnable shall, upon the
request of any person interested, issue a certificate in
accordance with the facts, which certificate may be
filed in the office of the town clerk, and such town
clerk shall record such certificate in the land records.’’
Sections 52-322 and 52-324 provide for the release of
lis pendens in situations in which there has been a
resolution of the controversy underlying the lis pen-
dens, such as a plaintiff’s receiving satisfaction for his
or her claim, the entering of a final judgment, with-
drawal of the suit, the summons and complaint not
being returned, a nonsuit against the plaintiff, or other
reason for the lis pendens to have become ineffective.
The statutory scheme, then, specifically refers to situa-
tions in which a notice of lis pendens must be released
because the underlying controversy no longer exists; it
also provides for mechanisms by which a property
owner may show that she is entitled to release of a lis
pendens.8 Once that determination has been made, the
property owner may request release of the lis pendens,
and subsequent failure to comply prompts liability for
statutory damages. Pursuant to § 49-8, the remedy, stat-
utory damages of $200 per week after a sixty day period
for compliance or actual damages, is commensurate
with the purpose served by lis pendens. ‘‘A lis pendens
is a prejudgment remedy intended to preserve the prop-
erty until the [court] had an opportunity to hear fully
the case and render a final judgment. . . . A notice of
lis pendens warns all persons that certain property is
the subject matter of litigation and that any interests
acquired during the pendency of the action are subject
to its outcome. . . . Accordingly, any party whose
interest in the property arose during the interim period
is subject to the final judgment. . . . Generally, the
doctrine of lis pendens is not applicable to a sale after
the proceeding in question has finally been passed upon,
even if the litigation ends in a settlement agreement
. . . . Lis pendens ends ordinarily with the entry of a
final decree from which no appeal is taken.’’ (Citations
omitted; internal quotation marks omitted.) Lee v. Dun-
can, 88 Conn. App. 319, 328–29, 870 A.2d 1, cert. denied,
274 Conn. 902, 876 A.2d 12 (2005).
None of the situations provided for in the statutory
scheme apply to the circumstances of the present case.
An encumbrancer has no obligation to release a notice
of lis pendens simply because a letter, perhaps replete
with good reasons, has been sent by the property owner.
The plaintiff’s demand letters for the release of the 2010
and 2011 lis pendens, which seem to form a basis for
the court’s granting of relief,9 were sent, in June 23,
2011, and February 15, 2013, respectively, dates which
occurred during the pendency of this action in the trial
court. At that time, there had been no resolution of this
action and no determination that the lis pendens were
of no effect.
The defendant’s two written demands for the release
of the 2010 and 2011 notices of lis pendens stated that
both notices were invalid because (1) they had not
been properly served, and (2) the plaintiff’s claim of
ownership interest in the property was without merit.
As explained previously, the remedy of statutory dam-
ages is available only after the lis pendens has been
judicially determined to be invalid or the lis pendens
has become inoperative because the underlying contro-
versy no longer exists.
‘‘When a property owner challenges the existence of
probable cause for the validity of the lis pendens claim,
resolution of this application for discharge is governed
by General Statutes §§ 52-325a, 52-325b and 52-325c.
Section 52-325a prescribes the required content of an
application for discharge grounded on an alleged lack of
probable cause. Section 52-325b describes the requisite
hearing to be held on a § 52-325a application, if probable
cause is contested, and assigns the burden of proof on
this issue to the lis pendens claimant. Subsection (b)
of § 52-325b empowers the trial court, having resolved
the probable cause issue, either to deny the application
for discharge or to order the notice of lis pendens dis-
charged. To complete the scenario, § 52-325c (a) then
provides that ‘[a]ny order entered as provided in subsec-
tion (b) of section 52-325b shall be deemed a final judg-
ment for the purpose of appeal.’ Other subsections of
§ 52-325c: require an appeal to be taken within seven
days; provide for a hearing upon an application for a
stay, supported by a surety bond, once a timely appeal
has been taken; and authorize recordation of an order
discharging a notice of lis pendens.
‘‘When, however, a property owner files a motion
for discharge alleging an invalid notice of lis pendens,
resolution of this motion is governed in its entirety by
General Statutes § 52-325d. Section 52-325d provides
relief if the recorded notice of lis pendens: ‘(1) . . . is
not intended to affect real property, or (2) . . . does
not contain the information required by subsection (a)
of section 52-325 or section 46b-80 . . . or (3) . . .
was not [served] in accordance with statutory require-
ments, or (4) . . . for any other reason . . . never
became effective or has become of no effect . . . .’
Upon a judicial finding that the notice of lis pendens
‘never became effective or has become of no effect,’
the court is empowered to issue its order ‘declaring that
such notice of lis pendens is invalid and discharged.’
General Statutes § 52-325d. A certified copy of the order
of discharge ‘may be recorded in the land records
. . . .’ General Statutes § 52-325d.’’ (Footnotes omit-
ted.) Dunham v. Dunham, 217 Conn. 24, 35–39, 584
A.2d 445 (1991).
The remedy provided by § 49-8, then, does not pro-
vide relief to the defendant. To the extent that the stipu-
lated agreement of July, 2013, could be deemed to
trigger the running of the sixty day compliance period;
see, e.g., General Statutes § 49-8 (a) (3); the remedy of
statutory damages and attorney’s fees was still unavail-
able, because the notices of lis pendens were released
in August, 2013, before the expiration of sixty days from
the date of the agreement. We conclude that the court
erred in granting the plaintiff damages and attorney’s
fees pursuant to § 49-8.10
The judgment is reversed only with respect to the
defendant’s slander of title counterclaim under § 49-
8 and the case is remanded with direction to render
judgment in favor of the plaintiff on the counterclaim.
The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The plaintiff also named Daniel P. Jones as a defendant in this case, but
the trial court rendered judgment dismissing those claims and the plaintiff
does not challenge that determination on appeal. We refer to Lawrence as
the defendant.
2
The plaintiff further argues that the principles of promissory estoppel
apply. ‘‘It is fundamental that claims of error must be distinctly raised and
decided in the trial court. . . Our rules of practice require a party, as a
prerequisite to appellate review, to distinctly raise such claims before the
trial court. See Practice Book § 5-2 . . . see also Practice Book § 60-5. . . .
Connecticut appellate courts generally will not address issues not decided
by the trial court.’’ (Citations omitted; internal quotation marks omitted.)
Gagne v. Vaccaro, 154 Conn. App. 656, 670, 109 A.3d 500 (2015). This claim
was not presented to or decided by the trial court. Accordingly, we decline
to afford review.
3
Additionally, the $61,123.50 was given by the plaintiff to the defendant
so that the defendant could satisfy her debt to her former husband. The
creation of a resulting trust requires that ‘‘purchase money’’ be paid ‘‘at the
time of conveyance by one and legal title be taken in the name of another.’’
(Internal quotation marks omitted.) Neubig v. Luanci Construction, LLC,
supra, 124 Conn. App. 434. It is clear from the facts found by the trial court
that the $61,123.50 was not paid at the time of conveyance of the property.
Rather, the defendant was, at the time of the payment, the owner of the
property, which had been quitclaimed to her by her former husband as part
of the dissolution judgment. Nor was the $61,123.50 ‘‘purchase money’’ which
is defined as ‘‘the initial payment made on property secured by a mortgage.’’
Black’s Law Dictionary (9th Ed. 2009).
4
The defendant also sought damages and attorney’s fees pursuant to
General Statutes § 14-13. The trial court found that statute inapplicable; that
finding is not contested on appeal.
5
No claim was made for the recovery of ordinary contractual damages.
6
The term ‘‘mutatis mutandis’’ is defined as: ‘‘Those things being changed
which should be changed; the respective differences taken into consider-
ation; changed according to circumstances; with the necessary changes.’’
Ballentine’s Law Dictionary (3d Ed. 1969).
7
Section 52-325 sets forth the process by which a lis pendens is to be
recorded, including, in subsection (c), a requirement that ‘‘the party
recording such notice, not later than thirty days after such recording, serves
a true and attested copy of the recorded notice of the lis pendens upon the
owner of record of the property affected thereby.’’
8
See General Statutes § 52-325a, which provides for a hearing when a
property owner claims that a notice of lis pendens should be discharged.
9
The court’s award of damages as to the 2010 and 2011 lis pendens,
respectively, establishes that the court did not calculate the $200 per week
to begin sixty days from July 5, 2013, the date of the stipulated agreement,
and to end approximately one month later, when the releases were executed.
Rather, damages were calculated to run from the sixty day mark following
the request for relief. Damages arising from the allegedly tardy release of
the 2010 lis pendens, which occurred more than two years after the sixty
day period following the June 23, 2011 request for relief, were set at the
$5000 maximum. Damages arising from the release of the 2011 lis pendens
were calculated on the basis of the fifteen weeks between the February 15,
2013 request and the August, 2013 release date, less the sixty days allowed
for compliance with the request.
10
The parties argued the case in the trial court and in this court in terms
of § 49-8. We consider the issues as argued by the parties. We note, however,
that the statutory scheme regarding releases of liens on property generally
is consistent with the analysis in the present case. See, e.g., General Statutes
§ 49-51.