Stratton v. Ward , 39 Conn. Super. Ct. 195 ( 1983 )

The plaintiff, John R. Stratton, has brought suit against the defendants Donald L. Ward, owner of a business known as the Hole-N-Wall Bakery, and William Flagg, the real estate agent for Ward, seeking rescission of an agreement signed by all the parties for the purchase of the bakery business and its equipment and for the lease of the premises situated in Somersville. In addition, the plaintiff is seeking restitution of all sums paid to the defendants in connection with this transaction and damages. At the same time the writ, summons and complaint were served, the plaintiff recorded on the land records of the town of Somers a notice of lis pendens pursuant to General Statutes § 52-325 et seq. The notice of lis pendens was, thereafter, duly served on the defendants.

Subsequently, the defendant Ward filed with the court a motion for discharge of invalid notice of lis pendens, as provided by General Statutes § 52-325d, alleging that the lis pendens is not intended to affect real property.

General Statutes § 52-325 (a) allows a party to an action to have recorded on the land records a notice of lis pendens, provided "the action is intended to affect real property." The quoted phrase is defined in General Statutes § 52-325 (b) in the following manner: "(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." This subsection was added by Public Acts 1981, No. 81-8, after the Connecticut Supreme Court struck down the lis pendens statute as unconstitutional in Kukanskis v. Griffith,180 Conn. 501, 509-10, 430 A.2d 21 (1980). The constitutionality of the revised statute was recently considered by the court and upheld. Williams v. Bartlett,189 Conn. 471, 457 A.2d 290, appeal dismissed, 464 U.S. 801,104 S.Ct. 46, 78 L.Ed.2d 67 (1983).

The actions described in General Statutes § 52-325 (b)(1) and (2), cited above, are essentially a codification of the definition the Supreme Court had given to the phrase "intended to affect real estate" in its interpretation of the old statute. Ratick v. Scalo,165 Conn. 675, 677-78, 345 A.2d 26 (1974); Longstaff v. Hurd, 66 Conn. 350, 358, 34 A. 91 (1895). General Statutes § 52-325 (b)(3), however, is an entirely new definition of the phrase which was included within the 1981 Public Acts and, as such, has not yet been the subject of interpretation by our highest court.

General Statutes § 1-1 provides that in construing statutes, words and phrases are to be given their ordinary meaning. "The intention of the legislature is found not in what it meant to say, but in the meaning of what it did say." Colli v. Real Estate Commission, 169 Conn. 445,452, 364 A.2d 167 (1975). "Where the statutory language is plain and unambiguous, intent is to be ascertained from the language of the statute itself."State v. Trent, 182 Conn. 595, 599-600, 438 A.2d 796 (1981).

Subsection (b)(3) of §