Opinion
No. CV 09-5028470 S
January 15, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#130)
PROCEDURAL AND FACTUAL BACKGROUND
On April 22, 2009, the plaintiffs Kenneth Tassmer and Richard Perillo filed a complaint seeking damages against the defendants Ronald Vance and Carol Vance (hereinafter "the Vances") and Vincent McManus, Jr., for slander of title. Tassmer and Perillo allege the following facts in their complaint. The Vances, who reside at 131 Cook Hill Road, Wallingford, Connecticut, own property that abuts Tassmer and Perillo's property at 133 Cook Hill Road, Wallingford, Connecticut. The Vances, by and through their attorney McManus, executed a three-page agreement with Tassmer and Perillo on July 31, 2007, whereby the parties agreed to enter into a new boundary agreement to adjust the boundary line between the properties. This agreement was to be recorded on the Wallingford land records, contingent upon Tassmer and Perillo receiving approval of a variance by the Wallingford zoning board of appeals. Tassmer and Perillo applied for the required variance. On September 14, 2007, while the variance application was pending and without giving notice to Tassmer and Perillo, McManus filed the July 31, 2007 agreement on the Wallingford land records as a "Boundary Agreement." McManus had attached a cover sheet to the three-page contingency agreement, labeling the document as a "Boundary Agreement" and providing a property description composed solely by McManus.
The Vances were previously represented by McManus in two prior actions between the parties, but are self-represented in the present action. The motion for summary judgment currently before the court was filed on behalf of McManus alone.
Tassmer and Perillo now allege that the boundary agreement filed by McManus does not comply with General Statutes § 47-33g, as it does not contain an accurate and full description of the land affected. Further, Tassmer and Perillo allege that because the boundary agreement "contains no legal description of the new boundary line, no granting language, is not notarized, and is contingent upon the obtaining of a variance from the Town of Wallingford, this instrument has no other purpose other than to make the [p]laintiffs' property at 133 Cook Hill Road unmarketable and slander the [p]laintiffs' title pursuant to . . . [General Statutes] § 47-33j." As such, Tassmer and Perillo claim that the boundary agreement was filed with the malicious purpose of slandering the title to their land and that no other legally valid purpose for filing the agreement exists. Tassmer and Perillo seek damages in excess of $300,000 for the harm done to the marketability of their property's title, as well as attorneys fees pursuant to General Statutes § 47-33j.
On July 30, 2009, McManus filed an answer denying that he recorded the boundary agreement with the intent to slander Tassmer and Perillo's title. McManus raises five special defenses to Tassmer and Perillo's complaint. He claims that the present action is barred under the doctrine of collateral estoppel, that his act of filing the July 31, 2007 agreement on the Wallingford land records is absolutely privileged and that the document filed was not slanderous, as it was lawfully executed by Tassmer and Perillo and does not contain a false communication. Further, McManus claims that any doubt on Tassmer and Perillo's record chain of title occurred as a result of a previously filed adverse possession suit between Tassmer and Perillo and the Vances, which necessitated the filing of a lis pendens on the Wallingford land records pursuant to General Statutes § 52-325. Finally, McManus argues that Tassmer and Perillo may not seek damages pursuant to General Statutes § 47-33j as they have not filed a claim seeking to quiet title to their property.
McManus filed a request for leave to amend his special defenses on November 12, 2009. Because Tassmer and Perillo did not file an objection to the request, the amended special defenses are deemed to be filed by consent. Practice Book § 10-60(a)(3).
On September 18, 2009, McManus filed a motion for summary judgment and a memorandum of law in support of his motion. Tassmer and Perillo filed an objection to McManus' motion for summary judgment on September 24, 2009. Both parties then filed supplemental briefs in support of their respective arguments for and against summary judgment. The matter was heard at short calendar on November 23, 2009.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). Further, "[i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . [The movant must show] the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Emphasis added; internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "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." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
The affidavits and other documentary proof the parties submitted establish the following facts. Tassmer and Perillo's property at 133 Cook Hill Road abuts the Vances' property at 131 Cook Hill Road. In October 2006, the Vances, by and through their attorney McManus, commenced an adverse possession action against Tassmer and Perillo. Vance v. Tassmer, Superior Court, judicial district of New Haven, Docket No. CV 06 4022908. The Vances simultaneously filed a notice of lis pendens on the Wallingford land records, which stated that the Vances were seeking a judgment declaring that they were the legal owners of a triangularly shaped parcel located at the northwest corner of their lot located at 131 Cook Hill Road in Wallingford, where the driveway meets the southerly highway line of Cook Hill Road with eleven feet of frontage on Cook Hill Road and extending for a distance of approximately one hundred ten feet (110') southerly to a point.
Practice Book § 17-45 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." The Appellate Court has held that § 17-45 "contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The rules would be meaningless if they could be circumvented by filing [unauthenticated documents in support of or in opposition to summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). Moreover, "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).
In support of his motion for summary judgment, McManus submitted the following evidence: (1) a certified copy of the lis pendens which had been filed in volume 1270, pages 944-45 of the Wallingford land records; (2) a copy of Tassmer and Perillo's motion to reopen the settlement agreement dated July 31, 2007, which had been filed in the adverse possession case between Tassmer and Perillo and the Vances ( Vance v. Tassmer, Superior Court, judicial district of New Haven, Docket No. CV 06 4022908); (3) a copy of Tassmer's letter to the Wallingford zoning board of appeals that withdrew Tassmer and Perillo's application for a variance; (4) the court's May 8, 2008 decision, DeMayo, J., in the adverse possession case, ordering Tassmer and Perillo to perform in accordance with the terms of the July 31, 2007 settlement agreement; (5) a copy of Tassmer and Perillo's amended complaint alleging an intentional interference with a contractual relationship cause of action against McManus, which had been filed in the case Tassmer v. McManus, Superior Court, judicial district of New Haven, Docket No. CV 08 5018961; (6) the court's decision, Robinson, J., in the intentional interference with a contractual relationship case, which granted McManus' motion for summary judgment; (7) an affidavit of McManus; (8) a copy of the "Boundary Agreement" filed on the Wallingford land records by McManus on September 14, 2007; (9) an excerpt of the deposition transcript of Kenneth Tassmer taken on September 16, 2008 in the intentional interference with a contractual relationship case; (10) an affidavit of Michael E. Cassello, the owner and president of Cassello Real Estate, Inc.; (11) Tassmer and Perillo's responses to McManus' requests for admissions; and (12) the court's November 18, 2009 decision, DeMayo, J., after dismissal of the appeal in the adverse possession case in which the court granted the Vances' motion for an order entering a conveyance decree.
In support of their memorandum in opposition to McManus' motion for summary judgment, Tassmer and Perillo submitted the following evidence: (1) a copy of the three-page settlement agreement entered into by Tassmer and Perillo and the Vances in the adverse possession case on July 31, 2007; (2) a copy of the town of Wallingford's zoning regulations; (3) a copy of the "Boundary Agreement" filed on the Wallingford land records by McManus on September 14, 2007; (4) the court's decision, Robinson, J., in the intentional interference with a contractual relationship case, which granted McManus' motion for summary judgment; and (5) an affidavit of Alexander W. Tighe, an attorney licensed in the states of Connecticut and Massachusetts who has experience as an expert witness and litigation consultant in the area of real estate title matters.
In support of their arguments, the parties in this action have cited to two previously filed actions that were brought in this court. In the first action, Vance v. Tassmer, Superior Court, judicial district of New Haven, Docket No. CV 06 4022908, the Vances commenced an adverse possession action against Tassmer and Perillo. In the second action, Tassmer v. McManus, Superior Court, judicial district of New Haven, Docket No. CV 08 5018961, Tassmer and Perillo brought an intentional interference with a contractual relationship cause of action against McManus and the Vances. Because the parties have made reference to certain facts, pleadings, transcripts and actions taken by the parties in the previous actions, this court finds it necessary to take judicial notice of the prior actions between the parties. "The Superior Court can take judicial notice of the files and records in another suit formerly pending in that court between the parties." McCleave v. John J. Flanagan Co., 115 Conn. 36, 38, 160 A. 305 (1932); see also Jewett v. Jewett, 265 Conn. 669, 678 n. 7, 830 A.2d 193 (2003) ("[t]here is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties").
"On July 31, 2007, on the eve of trial, the parties reached a settlement agreement in which they stipulated in relevant part as follows: `Judgment of adverse possession may enter in favor of the [Vances], contingent upon [A.] [T]he new shared boundary line between the properties of the parties shall run the course as shown on the attached exhibits . . . [E.] [Tassmer and Perillo] will apply for and pursue approval of a variance from the [zoning board of appeals of the town of Wallingford (board)] to permit this new shared boundary line at their own expense on or before [November 30, 2007]. In default of [board] approval by [November 30, 2007], the parties will appear for trial in this matter, at the convenience of the court in December 2007. The application shall be filed no later than [August 18, 2007]. [F.] Counsel for the . . . [Vances] will submit a letter to the [board], in support of the variance application. [G.] Upon approval of the variance above [the] parties will enter into a boundary agreement for the new boundary line in accordance herewith [and] record same on the land records.' The agreement was signed by all of the parties on July 31, 2007, and was placed on the record before the court on that date . . . [Tassmer and Perillo] applied for a variance as required by the agreement on August 16, 2007. [Thereafter,] [o]n August 31, 2007 . . . [Tassmer and Perillo] filed a motion to open the settlement agreement, alleging that their attorney, James Loughliin, `put them under "duress" . . . at the beginning of the settlement negotiations.'" Vance v. Tassmer, 115 Conn.App. 696, 697-98, 975 A.2d 85 (2009). This motion was denied by the trial court.
On September 14, 2007, after Tassmer and Perillo filed their motion to open, McManus, on behalf of the Vances, recorded the settlement agreement on the Wallingford land records. The recorded document contained a cover page entitled "Boundary Agreement," and that page contained a properly description. This initial page was not signed by Tassmer or Perillo.
Thereafter, on November 26, 2007, Tassmer and Perillo withdrew their application for a variance, without a hearing by the Wallingford zoning board of appeals. "Upon the . . . [Vances'] motion, the [trial] court held a hearing to enforce the agreement on April 8, 2008, pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993) . . . The court concluded that the agreement was clear and unambiguous and `order[ed] . . . [Tassmer and Perillo] to proceed to perform in accordance with the terms of the July 31, 2007 settlement agreement.'" Vance v. Tassmer, supra, 115 Conn.App. 699. Tassmer and Perillo appealed to the Appellate Court, who dismissed their appeal. On November 18, 2009, the trial court subsequently granted the Vances' motion requesting that the court transfer the disputed property by decree.
The Appellate Court in Vance v. Tassmer, supra, 115 Conn.App. 696, dismissed Tassmer and Perillo's appeal on the ground that the trial court's April 8, 2008 decision was not an appealable final judgment.
While the adverse possession lawsuit was pending, Tassmer and Perillo filed a lawsuit against the Vances and McManus, alleging the defendants had intentionally interfered with a contractual relationship by filing the "Boundary Agreement" on the Wallingford land records. Tassmer v. McManus, Superior Court, judicial district of New Haven, Docket No. CV 08 5018961. McManus filed a motion for summary judgment as to the issue of his liability. On April 9, 2009, the trial court granted McManus' motion, holding that Tassmer and Perillo could not prove the existence of a contract or that McManus had knowledge of a contract. Shortly thereafter, Tassmer and Perillo filed this action against McManus.
I. Res Judicata and Collateral Estoppel
In his memorandum in support of his motion for summary judgment, McManus argues that the doctrines of collateral estoppel and res judicata bar the present suit for slander of title. McManus maintains that because the parties in both the intentional interference with a contractual relationship suit and this suit are the same, the complaints in each suit deal with identical events, that is, the recording of the July 31, 2007 settlement agreement, both complaints allege a malicious intent on behalf of McManus in the filing of the agreement on the Wallingford land records, and because Tassmer and Perillo seek damages for harm allegedly done to the marketability of their property in both suits, the present action must be barred. As an initial matter, Tassmer and Perillo argue that McManus never specifically pleaded the doctrine of res judicata as a special defense, and that Practice Book § 10-50 therefore prevents this court from considering the doctrine as a bar to their claim. Further, Tassmer and Perillo maintain that the doctrine of collateral estoppel does not bar their claim as the issue of slander of title was never litigated or determined in any prior action between the parties.
"The related doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter that it already has had a fair and full opportunity to litigate . . . Despite being close cousins, those doctrines are not alternate expressions of the same . . . [C]ollateral estoppel operates to bar the reassertion of an issue already fully litigated, [while] res judicata precludes one from raising causes of action, facts or issues that either already were adjudicated or could have been litigated fully in a prior action between the same parties or those in privity with them." (Citation omitted; internal quotation marks omitted.) Sellers v. Work Force One, Inc., 92 Conn.App. 683, 685-86, 866 A.2d 850 (2005). Practice Book § 10-50 provides in relevant part that "[n]o facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specifically alleged. Thus . . . res judicata must be specifically pleaded." Because McManus did not specifically plead the doctrine of res judicata as a defense to Tassmer and Perillo's claim, he has waived his right to argue the doctrine as a ground for dismissal in his motion for summary judgment. McManus' defense of collateral estoppel was properly pleaded, however, and it therefore remains a viable defense to Tassmer and Perillo's claim.
"Collateral estoppel, or issue preclusion . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action." (Citations omitted; emphasis in original; internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). Collateral estoppel does not bar the "subsequent relitigation of any claims relating to the same cause of action . . . which might have been made [in the original action]." (Internal quotation marks omitted.) Isaac v. Truck Service, Inc., 253 Conn. 416, 421, 752 A.2d 509 (2001). Rather, it is the doctrine of res judicata that would prevent such claims from being litigated in the subsequent action. Id.
McManus has noticed accurately the similarities that exist between Tassmer and Perillo's present complaint and the 2008 complaint for intentional interference with a contractual relationship. In the 2008 case, Tassmer's and Perillo's complaint alleged that McManus had "intentionally and unilaterally filed the contingent and unapproved settlement of a court case as a `Boundary Agreement' on the [l]and [r]ecords, causing impairment of the [p]laintiffs' title to their property," had "filed a boundary agreement before judgment, [thereby] impairing the [p]laintiffs' pecuniary interest in their property" and had "intentionally and with malice, sought to tortiously interfere with the [p]laintiffs' title, impairing their property's value, and ability to sell it." Tassmer and Perillo claimed to "have been damaged by [McManus'] tortious conduct in the amount of the full market value of their property, [an amount] in excess of Three Hundred Thousand Dollars." Such allegations are similar to the allegations made in the present case where Tassmer and Perillo claim that "[t]he recording of the `Boundary Agreement' was filed for no other purpose than the malicious purpose of slandering the title to the [p]laintiffs' land," that "[t]he `Boundary Agreement maliciously misrepresents and misleads the condition of [the] [p]laintiffs' title and does not allow persons to rely on a record chain of their title pursuant to . . . [General Statutes] § 47-33k" and that they have "sustained damages in excess of $300,000 of unmarketable value." The fact that the complaints contains similar allegations, seek identical amounts in damages for harm done to the market value of Tassmer and Perillo's property and appear to allege causes of action arising out of the same event, that is the recording of the July 31, 2007 settlement agreement on the Wallingford land records as a "Boundary Agreement," does not automatically prevent Tassmer and Perillo's slander of title claim from being litigated.
The only cause of action litigated in the 2008 case was an intentional interference with a contractual relationship claim. "A claim of tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000). These elements differ significantly from those necessary to establish slander of title. "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 the 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). 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).
In its April 9, 2009 decision regarding McManus' motion for summary judgment in the intentional interference with a contractual relationship case, the court, Robinson, J., granted the motion "because based upon the undisputed facts, neither the existence of a contract nor knowledge of the contract can be proven by the plaintiff[s]." The existence, or rather nonexistence of the contract, and McManus' knowledge about such contract were the only issues actually litigated and necessarily determined in the 2008 case. Because neither of these issues are pertinent to the court's current determination of whether Tassmer and Perillo can establish that title to the property has been slandered, the doctrine of collateral estoppel does not bar Tassmer and Perillo's claim of slander of title.
II. Privileged Publication
In support of his motion for summary judgment, McManus argues that his filing of the July 31, 2007 settlement agreement on the Wallingford land records was privileged because the agreement contains statements made in furtherance of judicial proceedings. Further, McManus argues the recording of the document was privileged as the settlement document is within the "umbrella" of the lis pendens. That is, because the filing of the lis pendens was statutorily mandated pursuant to General Statutes § 52-325, and because McManus felt ethically obligated to record the July 31, 2007 agreement, the filing of the boundary agreement, which modified the original claim to Tassmer and Perillo's property to a lesser claim, should be protected. Tassmer and Perillo argue, however, that the privilege on which McManus relies refers to defamatory communications made in the course of judicial proceedings and does not provide for the publication of a settlement agreement on the land records. Further, they argue that there is no statute or case law to support McManus' lis pendens "umbrella" concept.
"There is a long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy . . . The `judicial proceeding' to which . . . [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not . . . It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or `quasi-judicial' in character." (Citations omitted; internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986). Further, "[t]he common law absolute privilege itself . . . extends to any statement made in the course of a judicial proceeding, whether or not given under oath, so long as it is pertinent to the controversy . . . Thus it applies to statements made in pleadings or other documents prepared in connection with a court proceeding." (Citation omitted.) Id., 251-52. "Whether a defamatory communication implicates an interest worthy of protection is a question of law for the trial court to determine." Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985).
The four-page document filed by McManus on the Wallingford land records, entitled "Boundary Agreement," was not published in the course of a judicial proceeding. The Wallingford town clerk's office, the office in charge of recording the town's land records, is not a tribunal or administrative agency, and it therefore does not have the powers of discretion to hear or apply the law. Because the office of the town's land records is neither judicial nor quasi-judicial in nature, McManus cannot defend his publication of the boundary agreement by claiming that the publication was privileged.
Additionally, McManus may not defend the present action by claiming that the recording of the boundary agreement falls under the "umbrella" of the lis pendens. General Statutes § 52-325(a) provides in relevant part: "In any action in a court of this state . . . the plaintiff or his attorney, at the time the action is commenced or afterwards, or . . . if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property . . . Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action." This section does not, nor do any subsequent sections of the General Statutes, place an obligation on the party who filed the lis pendens to modify the lis pendens until there has been a transfer of property which affects the deeded boundaries of the property. McManus' "umbrella" argument is therefore without merit. McManus' filing of the boundary agreement on the Wallingford land records was not a privileged act.
III. Slander of Title
Also as a defense to this action, McManus argues that Tassmer and Perillo cannot prove that he slandered title to their property. As an initial attack on Tassmer and Perillo's claim, McManus argues that Tassmer and Perillo cannot bring an action for slander of title pursuant to General Statutes § 47-33j as they are not seeking to quiet title to their land. McManus further argues that Tassmer and Perillo cannot produce evidence establishing that the document filed on the land records contained a falsehood, that McManus filed the document intending to slander title to their property or that they suffered damages to the marketability of their property as a result of the agreement having been filed on the land records. Tassmer and Perillo contend, however, that genuine issues of material fact exist as to whether they can establish a cause of action for slander of title.
General Statutes § 47-33j provides: "No person may use the privilege of recording notices under sections 47-33f and 47-33g 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 a result of such notice of claim having been so recorded." In the present case, Tassmer and Perillo's complaint does not seek to quiet title to land. Rather, Tassmer and Perillo seek to recover damages for slander of title only. Subsequently, Tassmer and Perillo's ability to recover the costs of this action, including attorneys fees, is not possible pursuant to General Statutes § 47-33j.
Tassmer's and Perillo's inability to seek damages under § 47-33j, however, does not necessarily preclude their ability to recover damages for common-law slander of title. As stated by the Supreme Court, "[s]lander of title is a tort whereby the plaintiff's claim of title [to] land or other property is disparaged by a letter, caveat, mortgage, lien or some other written instrument." (Emphasis in original; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 202, 931 A.2d 916 (2007). "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 the 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). Gilbert v. Beaver Dam Ass'n. of Stratford, Inc., supra, 85 Conn.App. 663, 672-73. To succeed on his motion for summary judgment, McManus need only establish that Tassmer and Perillo cannot prove any one of these elements.
The facts alleged in Tassmer's and Perillo's complaint are sufficient to set forth a claim for common-law slander of title. "Acts . . . may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove." Practice Book § 10-2. While Tassmer and Perillo's complaint is somewhat ambiguous, the allegations contained therein are such that the court believes they are seeking to recover for common-law slander of title. Tassmer's and Perillo's reference to and reliance upon General Statutes § 47-33j was an attempt to seek additional relief, the costs of this action and attorneys fees, which are not available at common law. Because recovering damages under § 47-33j requires proof of the common-law elements of slander of title; Ravenwood Construction, LLC v. Bysiewicz, Superior Court, judicial district of Middlesex, Docket No. CV04 0103857 (June 1, 2006, Booth, J.); this court must consider the plaintiffs' ability to recover damages under the common-law tort of slander of title.
The element of "publication" is not controverted by the parties. McManus has admitted to filing the document on the Wallingford land records.
A. Malice
"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." (Internal quotation marks omitted.) Ravenswood Construction, LLC v. Bysiewicz, Superior Court, judicial district of Middlesex, Docket No. CV 04 0103857 (June 1, 2006, Booth, J.); accord Marks v. Matulevich, Superior Court, judicial district of Middlesex, Docket No. CV 02 0099337 (January 31, 2005, Silbert, J.) ( 38 Conn. L. Rptr. 725, 732 n. 10). McManus argues that the document filed on the land records is not slanderous because it does not contain a false statement. As evidence, in an affidavit submitted before this court, McManus stated: "At the time of filing the settlement agreement on the land records, I believed that [t]here is nothing untruthful or false about the document that was recorded. It is an accurate fact to say that on July 31, 2007, the defendants Tassmer and Perillo signed that document." Further, McManus has introduced Tassmer and Perillo's answers to his request for admissions, whereby Tassmer and Perillo admit that they signed three of the four pages recorded on the Wallingford land records. Tassmer and Perillo maintain, however, that they did not execute or participate in the creation of the first page of the document filed on the land records. As evidence of this, they have submitted a certified copy of the document filed on the Wallingford land records in volume 1309 at pages 920 through 923. This document does not contain their signatures on the first page. Furthermore, their signatures do not follow the property description detailed on the first page of the document entitled "Boundary Agreement." The evidence submitted by Tassmer and Perillo has established that genuine issues of material fact exist regarding the creation of the first page of the document that was filed on the land records. Further, the evidence has also demonstrated that genuine issues of material fact also remain regarding whether the document, or at least the first page of the document, contains a falsity or was filed with a reckless disregard as to the truth or falsity of the statements made therein.
"The request for admissions is an instrument of discovery . . . governed by Practice Book §§ 13-22 through 13-25 . . . A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment." (Citations omitted; internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004).
B. Pecuniary Damages
Finally, the evidence submitted by McManus has not established that Tassmer and Perillo did not suffer pecuniary damages as a result of the filing of the boundary agreement on the Wallingford land records. "Our 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., 85 Conn.App. 663, 673-74, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005). Tassmer and Perillo have pleaded that they have sustained damages in excess of $300,000 of unmarketable value to their property. Because McManus is the movant, he bears the burden of showing the nonexistence of any issue of fact. He must first demonstrate that Tassmer and Perillo have not suffered damages before Tassmer and Perillo, as the nonmoving party, must present evidence that demonstrates the existence of some disputed factual issue. See Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
McManus has introduced evidence that prior to March 3, 2008, Tassmer and Perillo did not make an effort to sell their property, and he has introduced evidence that on November 13, 2008, at least one realtor, Michael E. Cassello, may have been interested in attempting to sell Tassmer and Perillo's property had they allowed it. McManus has not, however, introduced evidence establishing that Tassmer and Perillo have not suffered pecuniary harm from the period of March 3, 2008 through the date of this action. He has therefore not met his burden as the moving party. As such, a genuine issue of material fact remains as to whether Tassmer and Perillo can demonstrate that they suffered pecuniary damages resulting from McManus' filing of the document on the Wallingford land records.
McManus has presented as evidence a partial transcript of the deposition of Kenneth Tassmer taken on September 16, 2008, for the case Tassmer v. McManus, Superior Court, judicial district of New Haven, Docket No. CV 08 5018961. "[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Uncertified documents may be "admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists . . ." Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
In the present case, the deposition transcript is without certification or authentication, and, as such, is hearsay and lacks "the necessary indicia of reliability required for a summary judgment determination." Torrenti v. Kancir, Superior Court, judicial district of New Haven, Docket No. CV 07 5012366 (December 19, 2007, Holden, J.). Tassmer and Perillo have not, however, objected to its admissibility; thus, "any objection is deemed waived and all documents are admissible" within the court's discretion. Hall v. Gallo, Superior Court, judicial district of New Haven, Docket No. 03 0476708 (June 25, 2008, Cosgrove, J.).
During his deposition, Tassmer testified as follows on pages 9-11:
"Q. Describe to me your efforts to sell 133 Cook Hill Road [prior to March 3rd of `08].
A. Prior to March 3rd, we didn't. There was no efforts . . .
Q. Let's go back to my first question. Describe your efforts to sell the property prior to March 3rd of `08.
A. There were no efforts.
Q. No efforts. Describe the context you made in preparation to sell the property prior to March 3rd of `08.
A. Can't answer that question.
Q. Sure you can. Either there were preparations or there weren't. Would you answer the question, please?
A. There were no preparations.
Q. Describe the persons you contacted in an effort to sell the property prior to March 3rd of `08.
A. We didn't contact anybody.
In an affidavit executed on December 2, 2008, real estate agent Michael E. Cassello states:
On Thursday, November 13th [2008], I was looking for real estate in the Cook Hill Road area for a client who owns property in the area but wants to relocate in that same area. Therefore, I was canvassing homes on Cook Hill Road. I approached the residence at 133 Cook Hill Road and engaged a Kenneth Tassmer and Richard Perillo in conversation about the possibility of listing their house for sale . . . I offered to list their house for sale. Mr. Tassmer and Mr. Perillo told me they could not list their house for sale because they were in litigation. They gave me a brief description of the litigation and I told them that I did not think that would be an impediment to my purchaser as I did not think frankly that my buyers would think that a dispute regarding that small corner of the front of their lot would be all that significant.
Tassmer and Perillo argue that Cassello's testimony is not credible as Cassello was sent by McManus to knock on their door and to get them to use him as a realtor. Further, they claim that Cassello was deposed and at that time admitted that he had no knowledge of the condition of the property's title. Tassmer and Perillo failed, however, to attach a copy of the deposition as evidence. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Whether Cassello's statements are credible is an issue more appropriate before a trier of fact.
CONCLUSION
For the foregoing reasons, McManus' motion for summary judgment is denied. McManus' special defenses of collateral estoppel and privileged publication are without merit. Furthermore, while the statutory remedy for slander of title is not available to Tassmer and Perillo as they have not brought an action to quiet title, genuine issues of material fact exist which preclude the court from rendering judgment in McManus' favor as to the plaintiffs' common-law slander of title claim. McManus' motion is therefore denied.