Ginsberg and Ginsberg, LLC v. Alexandria Estates, LLC

This case involves a determination of priorities of encumbrances in an action to foreclose an $880,000 mortgage brought by the plaintiff, Ginsberg & Ginsberg, LLC, trustee of the Wiyot Trust, against the defendants, Alexandria Estates, LLC (Alexandria Estates), a mortgagor, and Elizabeth Mazzucco, Ben Mazzucco, Jitendra Patel, Sean Drinan, John Neubig, Empire Paving, Inc., and Statewide Construction, Inc., which was heard by the court on a short calendar motion.1 The principal issue arises between the plaintiff and Neubig over his claimed entitlement to payment of the sum of $35,000 for each lot that might be developed on the mortgaged premises, which, by virtue of an agreement made between Neubig and Dale Construction 01, LLC (Dale Construction), was recorded on the land records.2 The trial court rendered judgment for Neubig, holding that Neubig had an interest in the land mortgaged to the plaintiff that was prior to the plaintiff's lien. We reverse that judgment of the court, and further reverse the judgment of strict foreclosure, and remand the case to the trial court for the purpose of determining lien priorities and rendering judgment consistent with this opinion.

In its brief to the trial court, the plaintiff claims that Dale Construction ''never had any ownership interest in the property,'' and the filing of the agreement did not ''bind heirs, successors and assigns of the property . . . whether or not they were recorded prior in time to the mortgage.'' In its fourth argument before the court against Neubig's claim of priority, the plaintiff argued that Neubig's claim arose by virtue of an agreement between Neubig and Dale Construction, which ''never had an interest in the real estate.'' Neubig further argued through counsel: ''I mean, you talk about something that's outside of the chain of title, it was never in.'' Because it was outside the chain of title, the plaintiff argued that ''no title searcher's ever going to find that, and so what, even if they found it, it doesn't mean anything, [be]cause [Dale Construction] never owned anything.''3

On appeal, the plaintiff claims that the Dale Construction- Neubig filing was outside its chain of title and was a personal agreement that did not run with the land. Resolution of the issues depends on whether the interest Neubig claims was in the plaintiff's chain of title, and whether Neubig has an interest in the mortgaged premises that was a real, as opposed to a personal, covenant that did not run with the land, and whether such interest had priority over the plaintiff's mortgage. The trial court heard oral argument from the attorneys in which they made representations and took briefs, to which they appended documents and deposition extracts, but no evidence was taken from witnesses under oath, no documentary exhibits were marked as exhibits, no stipulation of facts was entered, and there were no admissions in the pleadings on which the court could rely.

Our standard of review is plenary when we are required to determine the intent behind language in a deed or other written instrument by which litigants claim an interest in real estate. Under that plenary standard, we are not required to give customary deference to the trial court's factual inferences. See Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989).

The plaintiff's principal claims on appeal can be distilled down to two. First, the plaintiff claims that Neubig's claimed interest in the land cannot be prior to the plaintiff's mortgage because Neubig's interest represents only a personal contract or covenant rather than a ''real covenant,'' which could run with the land. Leaving that argument aside for the moment, there is a second issue on appeal, namely, that the document by which Neubig claimed an interest in the land was not in the plaintiff's chain of title. Specifically, the plaintiff briefs its claim that the August, 2002 agreement, by which Neubig claims an interest, establishes that Dale Construction ''never had any ownership interest in the property . . . . [T]he deed conveying the property from Neubig to Alexandria Estates made no reference to the agreements and there was no reservation in the warranty deed conveying the property to Alexandria Estates that would alert subsequent title holders of the Agreement made between Neubig and Alexandria Estates.''

The principal issues to be decided, namely, whether Neubig's agreement with Dale Construction is in the plaintiff's chain of title and is a real covenant running with the land, depend necessarily upon a review of the pertinent deeds relating to the parties' claims. The concept of the chain of title is well explained and expressed in the Connecticut Standards of Title: ''The 'chain of title' concept is a principle of case law, developed to protect subsequent parties from being charged with constructive notice of the existence and contents of those recorded instruments which a title searcher would not be expected to discover by the customary search of land records. . . .'' Connecticut Bar Association, Connecticut Standards of Title (1999), standard 2.2.

Key to making any decision in this case is a review of the deed of conveyance from Neubig to Alexandria Estates. If this deed made the conveyance subject to the Neubig-Dale Construction agreement, it bears on the issue as to whether the Neubig agreement is prior to the plaintiff's mortgage.4 This deed is not in the record before us. We are unable to review this matter without it, and the court could not properly determine priorities without this document.

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See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP136/136AP406.pdf

The judgments are reversed and the case is remanded for further proceedings to determine the order of priorities in accordance with this opinion.