CHFA–SMALL PROPERTIES, INC. v. HUSSEIN ELAZAZY ET AL.
(AC 36409)
Gruendel, Beach and Bear, Js.
Argued January 7—officially released May 5, 2015
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John L. Giulietti, with whom was Corey A. Heiks, for the appellants-appellees (defendants).
Joshua A. Hawks-Ladds, with whom were Jonathan A. Kaplan and, on the brief, Zachary D. Schurin, for the appellee-appeallant (plaintiff).
GRUENDEL, J. The defendants, Hussein Elazazy, Fathia Rassyoun, Rafi Khan (also known as M. Rafi Khan), Farhana Khan, Melissa Torriero, Janusz Stolarczyk, Razin Syed (also known as Razin Syad), Rizuana Afag, and Eno Farm Tenant Association, Inc., appeal from the judgment of the trial court in favor of the plaintiff, CHFA–Small Properties, Inc., in its action to quiet title and for injunctive relief. The defendants claim that the court (1) improperly rejected their claim of ownership in real property known as Eno Farms and located at 1602 Hopmeadow Street in Simsbury (property), (2) lacked subject matter jurisdiction over the plaintiff’s request to quiet title, and (3) improperly failed to conclude that certain attorneys violated rule 3.3 of the Rules of Professional Conduct. The plaintiff cross appeals, claiming that the court improperly determined that it had failed to establish its claims for slander of title. We affirm the judgment of the trial court.
The facts underlying this litigation largely are undisputed. In its comprehensive memorandum of decision, the court found: ‘‘[T]he property [at issue] has been the subject of much litigation. . . . In 1883, Amos Eno conveyed to the town of Simsbury [town] a 140 acre parcel of undeveloped land, with the requirement that the parcel be ‘used for the occupation, maintenance and support of the town poor . . . and for no other purpose whatsoever.’ In June, 1991, the [town] set aside approximately ten acres of the land donated by Eno to be used for low and moderate income housing. On June 28, 1991, the town leased that 10 acre parcel to CIL Housing, Incorporated (CIL Housing) for a term of ninety-nine years pursuant to a written ‘Ground Lease.’ The ground lease provided that the land would be used only for ‘residential purposes and only for occupancy by low and moderate income residents,’ pursuant to a plan of development . . . [to construct] approximately fifty housing units. The ground lease also provided that any and all improvements constructed, placed or maintained by CIL Housing on any part of the leased parcel during the term of the lease would be and would remain the property of CIL Housing.
‘‘CIL Housing created the Eno Farms Limited Partnership [partnership] and assigned its interest in the ninety-nine year ground lease [thereto]. [The partnership] financed construction of what came to be known as ‘Eno Farms’ through the [Connecticut Housing Finance Authority (CHFA)] and the state of Connecticut. [The partnership] granted a first leasehold mortgage to CHFA to secure a loan in the amount of $1,495,000. [The partnership] also granted a second leasehold mortgage to the state of Connecticut to secure a loan in the amount of $2,782,000. The second leasehold mortgage was ultimately assigned by the state of Connecticut to CHFA. [The partnership] also qualified the project as a low
‘‘On December 28, 1993, the [partnership] executed a declaration of cooperative (declaration) making the project a limited equity leasehold cooperative pursuant to
‘‘Pursuant to the [declaration], the plaintiff created the Eno Farms Cooperative Association, Inc. (association). The association was comprised of members who occupied their respective units pursuant to continually renewing lease agreements for one year terms. Article IX of the [declaration] provides that the ‘interests allocated to each unit’ include a ‘percentage interest in the association,’ a ‘percentage of liability for the common expenses,’ and ‘one vote in association matters.’ Section 10.4 of the [declaration] provides that each member of the association is ‘entitled to a proprietary lease representing such member’s right to occupy a unit.’ If a member of the association decides to vacate their rental unit while in good standing (a ‘departing member’), section 10.2 of the [declaration] assigns a monetary value to the departing member’s ‘interest in the association and his or her right to occupy the unit during the year of membership.’
‘‘In 2006, CHFA declared [the partnership] in default under the terms of the first and second leasehold mortgages. Thereafter, CHFA commenced a foreclosure action in the Superior Court, judicial district of Hartford . . . . The association appeared in that action, was represented by counsel, and, on behalf of its member tenants, opposed the foreclosure. Among other claims, the association argued that its members held an ownership interest in the property to be foreclosed.
‘‘After a trial in which the parties fully, fairly and comprehensively litigated the question of ownership rights in [the property], the court, [Hon. Robert Satter, judge trial referee], issued its memorandum of decision on June 12, 2009. The court rejected all the special defenses asserted by the association, including its claim that ‘the residents and the association are the owners of the project,’ stating that the ‘CHFA itself never promised home ownership to the association or residents [of the property], nor was there evidence of reliance upon a nonexistent promise. Finally, the evidence is that no conveyance by deed or otherwise conferred ownership of [the property] upon the association. . . . As a consequence, the court concludes that the association’s special defense to the foreclosure counts has not been factually proven and is legally invalid.’ The court
The court further found that ‘‘CHFA acquired title to the property subject to the ground lease on August 12, 2009. On August 14, 2009, CHFA recorded a certificate of foreclosure in volume 780 at page 506 of the Simsbury land records. On October 26, 2009, CHFA assigned its interest in [the property] to [the plaintiff]. From that date forward, [the plaintiff] has been the owner of the [property], subject to the terms of the ground lease with the town . . . .
‘‘In May of 2011, the plaintiff, acting through its property management agent, Konover Residential Corporation, commenced summary process actions against [inter alia] the defendant lessees Hussein Elazazy, [M. Rafi Khan], Melissa Torreiro, Janusz Stolarczyk, and Razin Syed in Superior Court, Housing Session, for the judicial district of Hartford. The defendant lessees appeared in each of those actions, were represented by counsel, and strongly contested the summary process actions. The defendant lessees renewed their claims of ownership of the [property] and title superior to that of the plaintiff. In two separate decisions, the court, Oliver, J., rejected the defendant lessees’ ownership claims. The court held that ‘the issue of whether the defendants own the subject dwellings at [the property] was fully, fairly and apparently exhaustively litigated in a prior proceeding’ and [was] necessarily determined in the court’s judgment in [the foreclosure action]. Thus, the court held that the defendants were collaterally estopped from contesting ownership. But, even if collateral estoppel did not apply, the court, based on its own assessment of the evidence, held that the plaintiff ‘established, by a fair preponderance of the evidence . . . ownership of the [property], including each of the subject dwellings, based on the evidence adduced at trial’ and that the defendants ‘failed to prove, by a fair preponderance of the evidence, a superior title to any of the subject premises.’ ’’ (Footnotes omitted.) See Konover Residential Corp. v. Elazazy, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP-161528 (August 29, 2012) (summary process action). From that judgment, the defendant lessees appealed to this court, which affirmed the judgments of the trial court. Konover Residential Corp. v. Elazazy, 148 Conn. App. 470, 472, 87 A.3d 1114, cert. denied, 312 Conn. 908, 93 A.3d 592 (2014).
On June 6, 2012, the plaintiff entered into an agreement (agreement) with Equity Management Corporation (corporation) to sell its interest in the property
As a result, the plaintiff demanded that the defendants withdraw or release the verified claim from the Simsbury land records. When the defendants refused, the plaintiff commenced the present action. Its complaint consisted of four counts. In the first count, the plaintiff sought to quiet title to the property pursuant to
Following a trial, the court ruled in favor of the plaintiff on the quiet title and injunction counts. At the same time, the court ruled in favor of the defendants on the slander of title counts, concluding that the defendants did not act with the requisite malice. The court thus rendered judgment declaring ‘‘that the plaintiff . . . is the sole, absolute record owner of [the property], subject to a ground lease in favor of the [town], free of any claims of title by the [defendants]. Judgment will enter for the defendants on the second and third counts of the complaint. The court grants the plaintiff’s request for a permanent injunction . . . . A permanent injunction shall and hereby does enter against [the defendants], enjoining and prohibiting them from recording any document or instrument on the Simsbury land records which asserts an interest in, makes a claim regarding, or purports to give notice concerning [the property]. In the event of any such filing, upon application by the plaintiff, the court may order a fine assessed against the defendants, jointly and severally, in an amount not to exceed $100 per day per violation. This order shall be effective against and bind all parties to this action, as well as their officers, agents, servants, employees, and attorneys.’’ From that judgment, the defendants now appeal and the plaintiff cross appeals.
I
The defendants first claim that the court improperly
The applicability of the doctrine of collateral estoppel presents a question of law, over which our review is plenary. Testa v. Geressy, 286 Conn. 291, 306, 943 A.2d 1075 (2008). That doctrine ‘‘expresses the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.’’ (Internal quotation marks omitted.) Megin v. New Milford, 125 Conn. App. 35, 38, 6 A.3d 1176 (2010). ‘‘[C]ollateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . . . To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case.’’ (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 555, 848 A.2d 352 (2004).
It is undisputed that, in the foreclosure action, the association raised and submitted for determination the question of whether residents at Eno Farms possessed an ownership interest in the property. In its memorandum of decision, the court stated that the association claimed that ‘‘the residents and the association are the owners of the project . . . .’’ The court also cited to an exchange with its counsel, Attorney John L. Giulietti,3 at oral argument, in which the court sought to ‘‘understand the association’s defense.’’ In that colloquy, the court asked, ‘‘Now, if I understand what your defense is, as you just attempted to tell me, [the plaintiff] conspired . . . to deprive your clients of home ownership—is that,’’ at which point Giulietti answered, ‘‘That’s a correct statement, yes.’’ After recounting this colloquy, the court then considered ‘‘the association’s claims of ownership of Eno Farms’’ and ultimately rejected those claims, concluding that the association did not possess ‘‘a right to ownership’’ of the property. For that reason, the court concluded that the ‘‘association’s special defense to the foreclosure counts has not been factually proven and is legally invalid.’’ That determination plainly was essential to the court’s decision to render a judgment of strict foreclosure on the property.
The remaining question, therefore, is whether that action was litigated between the parties or their privies.4 Rocco v. Garrison, supra, 268 Conn. 555. We conclude
As such, the court properly determined that ‘‘the claims . . . questions and disputes regarding title to the [property] have been previously adjudicated . . . and their relitigation is barred by the application of the doctrine of collateral estoppel.’’5 (Internal quotation marks omitted.) The court, therefore, properly rendered judgment in favor of the plaintiff on the quiet title and injunction counts of its complaint.
II
The next claim raised by the defendants is difficult to decipher. In its principal appellate brief, the defendants state that the ‘‘[t]rial court lacked subject matter [jurisdiction] in a
Consisting of four sentences—including two dedicated to the standard of review—the claim amounts to little more than bald assertion. It is well established that ‘‘[w]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges
‘‘Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.’’ (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727–28, 724 A.2d 1084 (1999).
The defendants have furnished no basis to conclude that the court lacked subject matter jurisdiction over the plaintiff’s action to quiet title. The court specifically found that the plaintiff at all relevant times was ‘‘the sole, absolute record owner’’ of the property and that the defendants’ filing of the verified claim on the Simsbury land records served to cloud title to that property. The plaintiff thus brought its action to quiet title pursuant to
III
Even more inscrutable is the defendants’ third claim, which appears to allege a violation of rule 3.3 of the Rules of Professional Conduct9 on the part of the plaintiff’s counsel, as well as Attorney Robert DeCrescenzo
First, the defendants’ two sentence analysis of that claim patently is deficient, as it merely directs this court to review a transcript and Giulietti’s May 6, 2014 letter to the plaintiff’s attorney and DeCrescenzo. Such does not constitute adequate briefing, rendering the claim abandoned. See Robert J. Barnabei Contracting, LLC v. Greater Hartford Jewish Community Center, Inc., 127 Conn. App. 507, 517, 14 A.3d 461 (analysis rather than abstract assertion required to avoid abandoning issue by failure to brief issue properly), cert. denied, 301 Conn. 914, 19 A.3d 1260 (2011); Krondes v. O’Boy, 37 Conn. App. 430, 436, 656 A.2d 692 (1995) (‘‘[w]e do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed’’ [internal quotation marks omitted]).
Second, the defendants’ claim is largely identical to one recently rejected by this court in Doctor’s Associates, Inc. v. Windham, 146 Conn. App. 768, 81 A.3d 230 (2013). As this court explained: ‘‘[I]t appears that [the defendant and his counsel], essentially, are attempting to fault [the plaintiff’s counsel] for not protecting [the defendant’s] interests in the face of their nonfeasance, by accusing [the plaintiff’s counsel] of violating rule 3.3 of the Rules of Professional Conduct by not telling the arbitrator about [the defendant’s] alleged claims and defenses. We note that the Rules of Professional Conduct are not to be used in the way that [the defendant and his counsel] have used rule 3.3 in this appeal: As we previously have recognized, however, the rules governing the professional conduct of attorneys, without more, do not give rise to a cause of action. . . . [A] violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. . . . [N]othing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.’’ (Citations omitted; internal quotation marks omitted.) Id., 779–80. Accordingly, rule 3.3 furnishes no basis for the claim advanced by the defendants in the case.
IV
In its cross appeal, the plaintiff maintains that the trial court improperly concluded that it had failed to establish its claims for slander of title. Specifically, the plaintiff contends that the court improperly determined that the defendants relied in good faith on the advice of their counsel and, thus, lacked the element of malice essential to those claims.11
‘‘A cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiff’s title, with malice, causing special damages as a result of diminished value of the plaintiff’s property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim.’’ (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn. App. 657, 669–70, 778 A.2d 237 (2001). The court in the present case found the malice element of that action lacking.
This court recently detailed the parameters of the malice element of a slander of title action in Fountain Pointe, LLC v. Calpitano, 144 Conn. App. 624, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013). We stated: ‘‘Whether a defendant has knowledge of the falsity of a defamatory statement is a question within the province of the trier of fact. . . . The proper inquiry is whether a defendant believes, honestly and in good faith, in the truth of his statements and whether he has grounds for such belief. . . . Notably, however, a trial court is not required merely to accept a defendant’s self-serving assertion that he published a defamatory statement without knowing that it was false. . . . [A]ctual malice requires a showing that a statement was made with knowledge that it was false or with reckless disregard for its truth. . . . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth. . . . Further, proof that a defamatory falsehood has been uttered with bad or corrupt motive or with an intent to inflict harm will not be sufficient to support a finding of actual malice . . . although such evidence may assist in drawing an inference of knowledge or reckless disregard of falsity.’’ (Citation omitted; internal quotation marks omitted.) Id., 655–56.
In its memorandum of decision, the court credited the testimony of the defendants in reaching its determination that they had not acted with malice in filing the verified claim on the Simsbury land records. The court stated in relevant part: ‘‘In response [to the slander of title counts], the defendants have asserted the special defense of ‘advice of counsel,’ namely, that as regards the content and the timing of the verified claim, they
In its appellate brief, the plaintiff repeatedly asserts that ‘‘the defendants’ testimony as to the purpose for recording the verified claim and the basis for their ownership assertions was self-serving, not credible and should be disregarded.’’ It thus argues that the court ‘‘erroneously credited the defendants’ self-serving testimony and ignored the plaintiff’s controlling evidence to the contrary.’’ In so doing, the plaintiff misunderstands the applicable standard. Although the court is ‘‘not required merely to accept a defendant’s self-serving assertion that he published a defamatory statement without knowing that it was false’’; Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 638, 969 A.2d 736 (2009); our law does not prohibit a court from doing so. Indeed, the court, as trier of fact, was ‘‘free to accept or reject, in whole or in part, the testimony offered by either party.’’ (Internal quotation marks omitted.) Jay v. A & A Ventures, LLC, 118 Conn. App. 506, 514, 984 A.2d 784 (2009).
The determination of whether a defendant possesses knowledge of the falsity of a defamatory statement and believes, honestly and in good faith, in the truth of his
The essence of the plaintiff’s claim is that the court improperly credited the testimony of the defendants. ‘‘[I]t is well established that the evaluation of a witness’ testimony and credibility are wholly within the province of the trier of fact. . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.’’ (Citation omitted; internal quotation marks omitted.) Schoenborn v. Schoenborn, 144 Conn. App. 846, 851, 74 A.3d 482 (2013).
It is axiomatic that ‘‘this court cannot retry the facts or pass on issues of credibility.’’ CitiMortgage, Inc. v. Gaudiano, 142 Conn. App. 440, 449, 68 A.3d 101, cert. denied, 310 Conn. 902, 75 A.3d 29 (2013); see also Montville v. Antonino, 77 Conn. App. 862, 871, 825 A.2d 230 (2003) (‘‘[c]ourts of appeal do not pass on the credibility of witnesses’’). We therefore refuse to disturb the credibility determinations reached by the court in the present case. Under the applicable standard of review, this court inquires as to whether there is evidence in the record to substantiate the court’s factual finding that the defendants lacked malice in filing the verified claim. In light of the aforementioned testimony, which expressly was credited by the court, we answer that query in the affirmative. The testimony of the defendants furnished an evidentiary basis for the court to conclude that the defendants relied in good faith on the advice of their counsel.12 As such, the court properly concluded that, without the requisite showing of malice, the plaintiff could not establish its claims for slander of title.
In this opinion the other judges concurred.