Opinion
HHDCV186092937S
01-02-2020
Icolene Robinson et al. v. Jose Del Castillo
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shapiro, Robert B., J.T.R.
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO JUDGE TRIAL REFEREE
On October 21, 2019, the court heard oral argument concerning the plaintiff’s motion for summary judgment. The plaintiffs move for summary judgment as to liability on the first and second counts of the plaintiffs’ complaint, which seek damages for slander of title and failure to release an ineffective lien or attachment in violation of General Statutes § § 47-33j and 49-8, respectively, and the third and fourth counts, which seek to discharge the liens enumerated in counts one and two, on the grounds that the liens are invalid and lack consideration. For the reasons stated below, the plaintiffs’ motion for summary judgment is denied.
The plaintiffs’ memorandum in support of summary judgment also asserts alternative grounds for recovery that are not in the complaint such as an "action to quiet title" pursuant to General Statutes § § 47-33j and 49-13; the plaintiff also asserts that the agreements are invalid pursuant to General Statutes § 47-36h, and seeks a declaration that they are void pursuant to General Statutes § 47-5. In adjudicating a motion for summary judgment, however, a court is not required to address allegations that are not made in the complaint. See DeCorso v. Calderaro, 118 Conn.App. 617, 627-28, 985 A.2d 349 (2009) ("[i]n adjudicating the motions for summary judgment, the [trial] court was not required to address trespass because the operative complaint did not contain counts alleging trespass."), cert. denied, 295 Conn . 919, 991 A.2d 564 (2010). Therefore, the court is not required to address the plaintiffs’ alternative grounds for recovery because the complaint does not contain counts alleging an action to quiet title, or a declaration that the agreements are either invalid, or void pursuant to § § 47-36h and 47-5, respectively.
I
Standard of Review
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93, 101, 209 A.3d 629 (2019).
II
Discussion
A
First and Second Counts
In the first and second counts, the plaintiffs allege that the defendant’s recording of March 15, 2002 and April 1, 2002 agreements was for the purpose of slandering the plaintiffs’ title in violation of § § 47-33j and 49-8. Section 47-33j provides that "[n]o person may use the privilege of recording notices ... for the purpose of slandering the title to land. In any action brought for the purpose of quieting title to land, if the court finds that any person has recorded a claim for that purpose only, the court shall award the plaintiff all the costs of the action, including such attorneys fees as the court may allow to the plaintiff, and in addition, shall decree that the defendant asserting the claim shall pay to the plaintiff all damages the plaintiff may have sustained as the result of such notice of claim having been so recorded." (Emphasis added.) General Statutes § 47-33j.
An action to quiet title may only be brought pursuant to General Statutes § 47-31. The manner of pleading an action to quiet title is specifically prescribed under General Statutes § 47-31(b) and (d). Those subsections provide, in part, "[t]he complaint ... shall describe the property in question and state the plaintiff’s claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest." General Statutes § 47-31(b). "Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived." General Statutes § 47-31(d). "The claim for relief [must] [call] for a full determination of the rights of the parties in the land ... The plaintiff [is] required not only to allege but to prove that its title was so affected by the claims of the defendants as to justify the litigation." (Citations omitted.) Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967).
In the present case, the plaintiffs do not seek a full determination of the rights of the parties to the property. The plaintiffs’ complaint seeks only damages associated with the defendant’s actions. The pleadings in this case do not fairly contain an action to quiet title. In their memorandum in support of summary judgment, however, the plaintiffs assert that they seek to quiet the title to the property pursuant to General Statutes § § 47-33f, 47-33j, and 49-13.
"The pleadings determine which facts are relevant and frame the issues for summary judgment proceedings or for trial." Lewis v. Newtown, 191 Conn.App. 213, 227, 214 A.3d 405, cert. denied, 333 Conn. 919, 216 A.3d 650 (2019). "The purpose of a complaint ... is to limit the issues at trial, and such pleadings are calculated to prevent surprise ... It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading]." Breiter v. Breiter, 80 Conn.App. 332, 335, 835 A.2d 111 (2003). Because the plaintiffs have neither sought, nor made the allegations necessary for, an action to quiet title, the court cannot award damages pursuant to § 47-33j. Accordingly, the plaintiffs have failed to show their entitlement to damages as a matter of law.
Moreover, the plaintiffs have not proven the requisite elements for a common-law slander of title cause of action. "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." Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn.App. 663, 672-73, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005). "To satisfy the element of malice, the plaintiff must allege that the defendant made the statement with knowledge [it was] false or with a reckless disregard of the truth or falsity of the facts stated." Tassmer v. McManus, Superior Court, judicial district of New Haven, Docket No. CV-09-5028470-S (January 15, 2010, Wilson, J.). Moreover, "[o]ur jurisprudence indicates that a clouded title, alone, does not constitute damages per se. Rather, a plaintiff must present evidence of how the clouded title resulted in some pecuniary loss." Gilbert v. Beaver Dam Assn. of Stratford, Inc., supra, 85 Conn.App. 673.
In the present case, the plaintiffs have not alleged or provided evidence indicating that the defendant made the statement- or recording- with knowledge it was false or with a reckless disregard of the truth or falsity of the facts stated. Rather, the plaintiffs’ complaint alleges that the defendant "requested [the] plaintiff Tanya Dorman grant a security interest in the property as [c]ollateral" and further alleges that "in the absence of consideration [the plaintiffs] did not provide [the] [d]efendant with a security interest." Compl. first and second counts, ¶¶6 and 9. In his answer, the defendant admits the former, but denies the latter. Further, the plaintiffs’ evidence in support of the present motion, specifically both loan agreements and Dorman’s affidavit, indicate language suggesting that a security interest in the property was requested and granted, given that Dorman signed both agreements despite the inclusion of such language in both. Therefore, as it stands, the evidence does not show that the defendant made the recording with knowledge it was false or with a reckless disregard. Moreover, the plaintiffs have not presented evidence indicating how the clouded title resulted in a diminished value to their property. Therefore, the plaintiffs have failed to show the absence of material facts and their entitlement to judgment as a matter of law as to a common-law slander of title cause of action.
Both plaintiffs’ affidavits aver that the defendant’s recording of the agreements has left them without the use and benefit of $60,000, which has been held in escrow, but otherwise the plaintiffs have not shown any other pecuniary damages related to the defendant’s actions.
In the plaintiffs’ second claim, they allege that the defendant refuses to release the liens in violation of General Statutes § 49-8 despite the plaintiffs’ written demand for release as prescribed by § 49-8. Section 49-8 is entitled "Release of satisfied or partially satisfied mortgage or ineffective attachment, lis pendens or lien." Subsection 49-8(c) provides for damages upon refusal to release a lien after compliance with the conditions enumerated under either § 49-8(a), which applies to mortgages; see Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 201, 931 A.2d 916 (2007); or § 49-8(b), which applies to ineffective attachments, lis pendens, or other liens. See id. Subsection 49-8(a) provides that a release shall be executed and delivered, to the extent of the satisfaction of the mortgage, upon a bona fide offer to satisfy the mortgage or when the parties have agreed to a release in writing. Subsection 49-8(h) provides that a release shall be delivered when an attachment has become of no effect pursuant to General Statutes § 52-322, or General Statutes § 52-324, or when a lis pendens or other lien has become of no effect pursuant to General Statutes § 52-326, which incorporates by reference General Statutes § 49-51, the statutory procedure for judicial determination as to whether or not an invalid lien has been filed.
In the present case, the plaintiffs’ complaint does not specifically allege which section of § 49-8 entitles them to a demand and damages for refusal to release the attachment. The complaint includes allegations suggesting the plaintiffs’ attempt to satisfy the statutory requirements of subsection (a), which applies to mortgages. But, elsewhere in the complaint the plaintiffs allege that the defendant never presented the plaintiffs with a mortgage deed and that they never executed a mortgage. See Compl. first and second counts, ¶10. The plaintiffs further attest that they did not execute a mortgage in their affidavits, which raises the question as to the propriety of applying subsection (a) in the first place. Further, the plaintiffs have not alleged any facts indicating that they have satisfied the statutory requirements of a determination that the attachment has become of "no effect" pursuant to § 49-8(b). The plaintiffs have therefore failed to show their entitlement to damages pursuant to § 49-8 as a matter of law.
Accordingly, the plaintiffs’ motion for summary judgment is denied as to the first and second counts.
B
Third and Fourth Counts
The plaintiffs next move for summary judgment as to liability on the third and fourth counts, which seek to discharge the liens enumerated in the first and second counts, on the ground that the liens are invalid and lack consideration. As a preliminary matter, the plaintiffs’ complaint does not identify the statute that the court should use to discharge the liens. The third and fourth counts state generally: "Discharge of Invalid April 1, 2002 Loan Agreement." and "Discharge of Invalid March 15, 2002 Loan Agreement." (Emphasis added.) The prayer for relief associated with each count asks the court to "Declare the Loan Agreement Invalid." The plaintiffs expand upon their claim for discharge in their memorandum in support of summary judgment. There, the plaintiffs assert that General Statutes § 49-13 should be applied to discharge the liens as well as the absence of consideration, citing to Fountain Point, LLC. v. Calpitano, 144 Conn.App. 624, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013) (upholding the trial court’s invalidation of two mortgage liens for lack of consideration).
Practice Book § 10-3(a) provides that "[w]hen any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." Nevertheless, "this court has also emphasized that notice to the other party is the critical consideration in determining the sufficiency of a party’s pleading ... As long as the defendant is sufficiently apprised of the nature of the action ... the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Citations omitted.) Cue Associates, LLC. v. Cast Iron Associates, LLC., 111 Conn.App. 107, 112, 958 A.2d 772 (2008).
Section 49-13 permits the court to discharge a mortgage or ineffective attachment, lis pendens or lien. Here, the court may consider the plaintiffs’ claim pursuant to § 49-13.
Section 49-13(c) permits the court to declare a mortgage, attachment, lis pendens or other lien invalid if any of the acts provided in subsection (a) are satisfied, or if the court finds the mortgage has been satisfied but no release given as evidence of such satisfaction, or if the court finds that a bona fide offer and tender of payment of the foreclosure judgment or mortgage has been made and refused, or if the court finds the attachment, lis pendens or other lien has become of no effect. Similarly, subsection 49-13(a) provides that a mortgage or lien may be discharged "[w]hen the record title to real property is encumbered ... by (1) any undischarged mortgage ... or (2) by a foreclosed mortgage and the mortgager has made a bona fide offer and tender of payment of the foreclosure judgment ... and the mortgagee has refused to accept payment, or (3) by an attachment, lis pendens or other lien which has become of no effect, the person owning the property ... may bring a petition to the superior court for the judicial district in which the property is situated, setting forth the facts and claiming a judgment as provided in this section." (Emphasis added.) General Statutes § 49-13.
"[Section] 49-13 authorizes an action in which affirmative relief may be granted if, and only if, the requirements of the statute are met." Simonelli v. Fitzgerald, 156 Conn. 49, 53, 238 A.2d 418 (1968). "Moreover, our Supreme Court has concluded that if the petitioner can bring himself within the confines of [§ 49-13], the trial court’s authority to grant relief under § 49-13 is discretionary rather than mandatory. Ghent v. Meadowhaven Condominium., Inc., 77 Conn.App. 276, 283, 823 A.2d 355 (2003). Further, where the validity of a mortgage is in dispute, the court does not have jurisdiction to grant relief under § 49-13. See Gordon v. Tufano, 188 Conn. 477, 482-84, 450 A.2d 852 (1982). At least two trial courts have extended the same rule to disputes concerning the validity of liens. See, e.g., Westview Village v. Barberino, Superior Court, judicial district of Waterbury, Docket No. 0124447 (March 20, 1995, West, J.) (denying defendant’s motion to dismiss because the validity of the lien was not in dispute); Advance Mfg. Division of Croydon Co. v. Cohen, Superior Court, judicial district of New Haven, Docket No. CV-97-0395327-S (September 4, 2014, Burke, J.) (denying defendant’s application for discharge of judgment lien because defendant failed to provide evidence that lien was invalid or of "no effect"). "The statute gives the court no jurisdiction to determine the validity or invalidity of a disputed mortgage of long standing." Simonelli v. Fitzgerald, supra, 156 Conn. 54.
In the present case, the plaintiffs have not alleged which section of 49-13 entitles them, and therefore authorizes the court, to release the liens. The plaintiffs have not alleged or provided evidence suggesting that the requirements of subsection (a) have been satisfied, specifically that mortgages are either undischarged or foreclosed or that the liens have become of no effect. At best, from what may be gleaned from the pleadings and evidence, the validity of the liens or mortgages are at the core of the dispute between the parties in this case. Therefore, the court may not grant relief under § 49-13.
Further, the plaintiffs’ reliance on Fountain Point, LLC. v. Calpitano, supra, 144 Conn.App. 624, is misplaced. The Fountain Point plaintiffs sufficiently alleged an action to quiet title pursuant to § 49-31, which allowed the court to settle the parties’ conflicting claims over undisputed mortgage liens that were deemed invalid for lack of consideration. As previously stated, the plaintiffs have not alleged an action to quiet title. Moreover, their evidence does not clarify whether the liens at issue are in fact mortgages, as in Fountain Point, for which consideration is required. The plaintiffs have, therefore, failed to show the absence of material facts and their entitlement to discharge the liens as a matter of law pursuant to § 49-13. Accordingly, the court denies the plaintiffs’ motion for summary judgment as to liability on the third and fourth counts.
As previously stated, the agreements include language suggesting that a security interest, against the property was granted, and not a mortgage.
Notably, the plaintiffs’ memorandum in support of summary judgment mentions General Statutes § 49-51 in support of their assertion that the liens should be discharged. Section 49-51 is entitled "Discharge of invalid lien." This statute, which the plaintiffs do not specifically identify anywhere in their pleadings, would permit the court to assess the validity or invalidity of liens. See General Statutes § 49-51(a). Our Supreme Court, however, has provided that "[t]he essential condition of an action under General Statutes § 49-51 is written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested." (Emphasis in original; internal quotation marks omitted.) Guilford Yacht Club Assn., Inc. v. Northeast Dredging, Inc., 192 Conn. 10, 13, 468 A.2d 1235 (1984). "[W]here a statute or court rule sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case." Commissioner of Public Works v. Middletown, 53 Conn.App. 438, 442, 731 A.2d 749, cert. denied, 250 Conn. 923, 738 A.2d 654 (1999).
In the present case, even if the court, in its discretion, considered applying § 49-51, the plaintiffs have not introduced evidence showing compliance therewith. Therefore, the plaintiffs lack standing and the court is without jurisdiction to grant relief under § 49-51.
CONCLUSION
For the reasons stated above, the plaintiffs’ motion for summary judgment is denied.