Messina v. Calandro, No. 265018 (Feb. 23, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The defendant, Ralph P. Calandro, has applied for an order discharging a lis pendens on unit 8-A Maplewood Condominium in Derby, filed by the plaintiff, John T. Messina, Sr.

The court finds that the plaintiff has obtained an order, upheld upon appeal to the Connecticut Supreme Court, for an accounting as to a partnership venture. Though the accounting was ordered on April 11, 1989, after the court, Dunnell, J., found that the plaintiff is entitled to forty percent of any profits realized from building and selling condominiums on a certain piece of property, the case is still pending. Nothing in the interlocutory judgment indicated that the plaintiff had acquired an interest in the land or buildings at issue, and at the hearing on the application to discharge the lis pendens, the plaintiff presented no evidence that he claimed title to unit 8-A.

Pursuant to 52-325 C.G.S., a notice of lis pendens may validly be filed only "if the action is intended to affect real property." That phrase is interpreted in 52-325(b) as extending only to "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 interest in real property, [and] 3) actions which may affect in any manner the title or interests in real property, notwithstanding the main purpose of the action may be other than to affect the title of CT Page 1995 such property."

An action for accounting of partnership profits, like an action for appointment of a receiver, see Ratick v. Scalo,165 Conn. 675, 678 (1974), is not "intended to affect real property" within any of the definitions set forth above. The result of the accounting will not be an adjudication of title or any interest in unit 8-A, but a division of the profits, if any, from the venture previously found by the court, Dunnell, J., to have been subject to an agreement to divide profits.

Accordingly, the application to discharge the lis pendens as to unit 8-A is hereby granted.

Beverly J. Hodgson Judge of the Superior Court