Rocco v. Shaikh , 184 Conn. App. 786 ( 2018 )


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    SHARA ROCCO ET AL. v. ABDULHAMID
    D. SHAIKH ET AL.
    (AC 39774)
    Keller, Elgo and Bright, Js.
    Syllabus
    The plaintiff homeowners, S and P, brought an action, seeking, inter alia,
    to quiet title to certain real property owned by S pursuant to statute
    (§ 47-31) and to discharge an allegedly invalid lien pursuant to statute
    (§§ 49-13 and 49-92e). The plaintiffs and the defendants had executed
    a contract for the sale of the property, but disagreements arose and
    the defendants refused to complete the purchase. The plaintiffs then
    executed a contract with a different buyer for the purchase and sale of
    the property. Before the plaintiffs could close on that sale, the defendants
    filed in the land records a copy of their sales contract with the plaintiffs,
    which the new buyers claimed constituted a cloud on the title of the
    property and precluded them from purchasing the property. After the
    defendants were defaulted for failing to comply with an order of the
    court to file an answer, a hearing in damages was held. Thereafter, the
    trial court rendered judgment in favor of the plaintiffs, from which the
    defendants appealed to this court. The trial court then granted the
    plaintiffs’ motion to lift the appellate stay in part so that the plaintiffs
    could market and sell the property free and clear of the defendants’
    claims or encumbrances. Subsequently, the court denied the defendants’
    motion to open and vacate the judgment, in which they had claimed
    that the plaintiffs lacked standing to bring the statutory causes of action
    because S had transferred her interest in the property to herself as the
    trustee of a trust before the trial court rendered judgment. On appeal
    to this court, the defendants claimed, inter alia, that the plaintiffs’ lack
    of standing deprived the trial court of subject matter jurisdiction over
    the plaintiffs’ statutory causes of action. Held:
    1. The defendants’ claim that the plaintiffs lacked standing to maintain their
    statutory causes of action sounding in quiet title and discharge of a lien
    was moot, as there was no practical relief that this court could afford
    the defendants; the parties conceded that the property has been sold
    and title has vested in a third party, there was no indication that the
    court awarded attorney’s fees under either of those counts of the com-
    plaint, the defendants conceded that they have no legal or equitable
    right or interest in the property, and the defendants did not explain how
    the transfer of the property affected the plaintiffs’ standing to pursue
    their other causes of action for slander to title, tortious interference
    and breach of contract, all of which had accrued prior to the plaintiffs’
    transfer of title.
    2. This court declined to exercise its supervisory authority over the adminis-
    tration of justice to reverse the trial court’s judgment, which the defen-
    dants claimed was procured by fraud; the traditional protections
    available to the defendants through constitutional, statutory and proce-
    dural limitations were not inadequate so as to warrant the exercise of
    this court’s supervisory powers.
    Argued March 19—officially released September 18, 2018
    Procedural History
    Action, inter alia, to quiet title to certain real property,
    and for other relief, brought to the Superior Court in
    the judicial district of New Britain, where the action
    was withdrawn in part; thereafter, the court, Young,
    J., issued an order requiring the defendants to file an
    answer; subsequently, the court defaulted the defen-
    dants; thereafter, the court, Abrams, J., denied the
    defendants’ motion to set aside the default; subse-
    quently, the defendants filed a counterclaim; thereafter,
    the court, Wiese, J., granted the plaintiffs’ motion to
    strike the counterclaim; subsequently, following a hear-
    ing in damages, the court, Hon. William M. Shaugh-
    nessy, Jr., judge trial referee, rendered judgment for
    the plaintiffs; thereafter, the court, Hon. William M.
    Shaughnessy, Jr., judge trial referee, issued an
    amended judgment, from which the defendants
    appealed to this court; subsequently, the court, Hon.
    William M. Shaughnessy, Jr., judge trial referee,
    granted the plaintiffs’ motion to partially terminate the
    appellate stay, issued a clarification of the judgment,
    and denied the defendants’ motion to open and vacate
    the judgment. Affirmed.
    Jon L. Schoenhorn, with whom, on the brief, were
    Kathryn A. Mallach and Magdalena Narozniak, law
    student intern, for the appellants (defendants).
    Garrett S. Flynn, for the appellees (plaintiffs).
    Opinion
    KELLER, J. The defendants, Abdulhamid D. Shaikh
    and Rukaiyabanu A. Shaikh, appeal from the judgment
    of the trial court rendered in favor of the plaintiffs,
    Shara Rocco and Patrick Rocco. On appeal, the defen-
    dants claim that (1) the plaintiffs lacked standing to
    maintain their causes of action because Shara Rocco
    transferred her interest in the subject property to a
    trust before the court rendered judgment; (2) the court
    lacked subject matter jurisdiction over count two of
    the plaintiffs’ complaint because the statutory grounds
    on which the plaintiffs relied did not apply to the type
    of lien at issue in the present case;1 and (3) we should
    exercise our supervisory authority over the administra-
    tion of justice to reverse the judgment because it was
    procured by fraud, both by the plaintiffs and by the
    defendants’ former attorney. We affirm the judgment
    of the trial court.
    The following procedural history is relevant to the
    present appeal. In November, 2015, the plaintiffs com-
    menced the underlying action against the defendants.
    In their six count complaint, dated October 29, 2015,
    the plaintiffs alleged that, prior to the dissolution of
    their marriage, they resided at 124 Steeple View Drive
    in the Kensington section of Berlin (property), and that
    Shara Rocco was the record owner of the property.
    The plaintiffs further alleged: ‘‘As part of the divorce
    process, the [plaintiffs] agreed to sell the [property]
    and divide the net proceeds of the sale. The [plaintiffs]
    agreed that until the [property] was sold, [Patrick
    Rocco] would be responsible for certain expenses asso-
    ciated with the [property], including real estate taxes,
    utilities, maintenance fees and insurance. . . .
    ‘‘The [plaintiffs] were motivated to sell the [property],
    not only to obtain the sale proceeds, but also to stop
    having to incur further carrying costs. The [plaintiffs]
    were eager to show the [property] in the spring and
    summer, which is customarily regarded as the best time
    to sell [property] in Connecticut. . . . [They] listed for
    sale the property through a real estate agent. Numerous
    potential buyers expressed interest in purchasing the
    property. . . .
    ‘‘On or about April 6, [2015], the [plaintiffs’] real estate
    agent showed the property to the [defendants]. On the
    same day, the [defendants] made an offer to purchase
    the property at a price lower than the asking price.
    The [defendants] expressly said that their offer was to
    purchase the [property] ‘as is,’ which is understood in
    the real estate business to mean that the sellers would
    not offer reductions in the selling price based on condi-
    tions with the house or property. . . .
    ‘‘In the weeks following April 6, [2015], the [plaintiffs]
    and the [defendants] negotiated the price for the prop-
    erty. During those discussions the [defendants]
    repeated their offer to purchase the [property] ‘as is.’
    . . .
    ‘‘On or about April 15, 2015, the [plaintiffs] and the
    [defendants] agreed upon a purchase price of $577,500.
    . . . The [plaintiffs] agreed to accept the [defendants’]
    offer not only because of the price, but also because
    the [defendants’] offer lacked many contingencies often
    found in real estate contracts. . . . As memorialized
    in the contract for the purchase and sale of the property
    . . . the [defendants] agreed to purchase the [property]
    for cash . . . the [defendants] did not condition their
    purchase . . . on the sale of their existing house . . .
    and, as discussed repeatedly during the discussions
    leading up to the execution of the . . . contract, the
    [defendants] agreed to purchase the [property] ‘as is.’ ’’
    The plaintiffs further alleged that the parties’ con-
    tract, executed on April 15, 2015, conspicuously
    included language that the property was being sold ‘‘as
    is’’ and that the contract permitted the defendants to
    terminate the contract in the event that an inspection
    revealed any serious issues with the property. That pro-
    vision of the contract, however, provided that the defen-
    dants’ right to terminate expired if it was not exercised
    within twenty-four days of the signing of the parties’
    contract.
    Additionally, the plaintiffs asserted: ‘‘On or before
    May 5, 2015, the [defendants] forwarded to the [plain-
    tiffs’] real estate agent a copy of a home inspection
    report. The [defendants] asked for a price reduction
    based on issues purportedly found by the inspector and
    set forth in the report. . . . The real estate agent
    reminded the [defendants] that they agreed to purchase
    the [property] on an ‘as is’ basis and that there would
    be no reduction in the price based on issues set forth
    in the report. The [defendants] responded and said that
    they understood. . . .
    ‘‘On May 11, 2015, after a week of the [defendants’]
    repeated requests for credits (which the real estate
    agent rejected), the [defendants] agreed that their
    deposits [with the real estate agent totaling $10,000]
    became firm (i.e., nonrefundable) because the May 9
    termination deadline had passed. The [defendants] said
    that they were moving forward with the purchase.’’
    Prior to the closing on June 2, 2015, ‘‘historically
    significant rainstorms’’ moved through the area where
    the property was located, thereby resulting in the accu-
    mulation of water on the property. ‘‘Members of the
    [defendants’] family visited the property for a walk-
    through on the morning of June 2. Just hours after the
    walk-through, the defendants told the real estate agent
    that they would not close on the property on that day
    and that the [defendants] would not purchase the prop-
    erty unless the plaintiffs reduced the purchase price of
    the [property] based on purported ‘drainage issues.’
    Later in the day, the [defendants] demanded that the
    price of the [property] be reduced by $17,500 on account
    of the purported drainage issues. . . .
    ‘‘The [defendants] persisted in this demand even
    though they were reminded that the property was being
    sold ‘as is’ and that even if drainage issues were relevant
    to the sale price (which they were not), no water
    entered the house and the wet area drained within
    twenty-four hours of the historically significant rain-
    storm . . . .’’
    Relying on the ‘‘as is’’ provision of the contract, the
    plaintiffs declined to deviate from the contract’s terms,
    and the defendants have refused to purchase the prop-
    erty ‘‘as is’’ for the agreed upon purchase price memori-
    alized in the contract. The plaintiffs also contended
    that, until the defendants repudiated the contract, they
    were ready, willing, and able to convey the property to
    the defendants for the agreed upon price of $577,500,
    less deposits already received.
    In addition to suffering damages in the form of lost
    proceeds from the sale of the property for the purchase
    price set forth in the contract, the plaintiffs alleged that
    they continued to bear the expenses associated with
    owning the property, including expenses related to
    taxes, utilities, insurance, maintenance, attorney’s fees,
    and mortgage charges. The plaintiffs attempted to miti-
    gate their damages by relisting the property for sale.
    In this regard, they alleged: ‘‘New buyers . . . offered
    to purchase the property, and on August 25, 2015, the
    [plaintiffs] and the new buyers executed a contract for
    sale for the property . . . . [The contract with the new
    buyers] obligated the [plaintiffs] to convey title in fee
    simple to the new buyers, free of any liens. . . . Before
    the [plaintiffs could close on the sale of the property
    to the new buyers, the [defendants] caused a copy of
    [the contract entered into by the plaintiffs and the defen-
    dants] to be recorded in the Berlin land records . . . .
    When the new buyers’ counsel performed a title search
    on the property . . . counsel discovered the [defen-
    dants’] filing. On or about September 29, 2015, the new
    buyers’ counsel told the [plaintiffs’] agent that the
    [defendants’] filing constituted a cloud on the title of
    the property that precluded the new buyers from pur-
    chasing the property. Among other things, the new buy-
    ers’ title insurance company refused to insure the
    property because of the [defendants’] land records fil-
    ing. . . .
    ‘‘The [plaintiffs], through counsel, made diligent,
    good faith efforts to attempt to have the [defendants]
    remove the [defendants’] land records filing from the
    Berlin land records. These included repeated communi-
    cations to the [defendants’] counsel and offering addi-
    tional inducements that the [plaintiffs] were not
    obligated to make. On or about September 11, 2015, the
    [plaintiffs’] counsel notified the [defendants] in writing
    that the [defendants’] land records filing constituted an
    improper cloud on the title to the property and sent to
    the [defendants’] counsel a document for the [defen-
    dants’] execution that would release the [defendants’]
    land record filing from the Berlin land records.’’
    The plaintiffs further alleged that the defendants con-
    sistently have refused to remove the filing from the
    land records and have indicated that they intend to
    encumber the plaintiffs’ property. As a result of the
    filing, the plaintiffs asserted that they have suffered
    damages, ‘‘including the lost opportunity to sell the
    property to the new buyers,’’ as well as the varied
    expenses related to their continued ownership of the
    property.
    Relying on the foregoing factual allegations, the plain-
    tiffs set forth six causes of action. In count one, the
    plaintiffs sought to quiet title under General Statutes
    § 47-31. They alleged that Shara Rocco acquired fee
    simple title to the subject property on November 14,
    2013, and that she held title to the property. In relevant
    part, the plaintiffs asserted: ‘‘Shara Rocco seeks a decla-
    ration that her ownership interest in the property is
    unaffected by the [defendants’] land records filing and
    that the [defendants’] land records filing fails to estab-
    lish any estate, interest, or encumbrance on the
    property.’’
    In count two, the plaintiffs sought to discharge an
    invalid lien under General Statutes §§ 49-13 and 49-92e.
    They alleged that the defendants’ land records filing ‘‘is
    an improper and invalid encumbrance on the property,’’
    and that the defendants wrongfully have refused to
    release the filing. The plaintiffs sought ‘‘a judicial decla-
    ration that the [defendants’] land records [filing] is
    invalid, plus an award of costs, attorney’s fees, statutory
    and actual damages, and other damages as to which
    the [plaintiffs] are entitled.’’
    In count three, sounding in ‘‘slander to title,’’ the
    plaintiffs alleged in relevant part that the defendants’
    land records filing ‘‘is a false statement’’ that is meant
    to convey that the defendants have a legal or equitable
    interest in the property and that it has prevented the
    plaintiffs from selling the property. The plaintiffs
    alleged in relevant part that the defendants are acting
    in a ‘‘wilful, wanton, and malicious’’ manner by not
    removing the land records filing, and that they are doing
    so in an effort to coerce the plaintiffs to submit to
    ‘‘unjustified demands for inspection related adjust-
    ments’’ to which they are not entitled under the con-
    tract. The plaintiffs alleged that the defendants’ conduct
    toward them was not the result of an innocent mistake.
    In count four, which sounds in tortious interference,
    the plaintiffs incorporated the previous allegations and
    further alleged in relevant part that after the plaintiffs
    and the new buyer entered into a valid contract on
    August 25, 2015, the defendants, on that same date,
    made the filing on the land records ‘‘for the malicious
    purpose of causing [Shara Rocco’s] contract with the
    new buyers to terminate, which it in fact did as a direct
    and proximate result of the [defendants’] wrongful con-
    duct.’’ Moreover, the plaintiffs alleged that ‘‘[t]he [defen-
    dants] know that Shara Rocco wants to sell the property
    . . . but cannot do so because of the [defendants’] land
    record[s] filing.’’ They allege that these facts establish
    that the defendants tortiously interfered with their
    actual and prospective contractual rights.
    In count five, the plaintiffs alleged that the defen-
    dants’ actions were in violation of the Connecticut
    Unfair Trade Practices Act, General Statutes § 42-110a
    et seq. The plaintiffs, however, subsequently withdrew
    this count of their complaint.
    In count six, which sounds in breach of contract, the
    plaintiffs alleged in relevant part that the defendants
    repudiated the parties’ contract, the plaintiffs appropri-
    ately treated the repudiation as a default, and the plain-
    tiffs are entitled under the contract to retain deposits
    made by the defendants as liquidated damages to com-
    pensate them for the defendants’ conduct in breaching
    the contract.
    In their prayer for relief, the plaintiffs requested com-
    pensatory damages, consequential damages, common-
    law punitive damages, common-law attorney’s fees, pre-
    judgment and postjudgment interest, and any further
    relief that the court deemed just and proper. They also
    sought statutory damages under § 42-110a et seq., but
    they later withdrew that request.
    On November 13, 2015, pursuant to Practice Book
    § 17-20, the plaintiffs filed a motion requesting that the
    defendants be defaulted for failing to appear. On
    November 20, 2015, the motion for default was granted.
    Represented by counsel, the defendants did not file an
    appearance until January 11, 2016. At that time, they
    also filed a motion to dismiss the action. On March 24,
    2016, the court denied the defendants’ motion to
    dismiss.
    On April 26, 2016, pursuant to Practice Book § 17-
    32, the plaintiffs filed a motion for default for failure
    to plead. Thereafter, on May 3, 2016, the defendants
    filed a motion for an extension of time in which to
    plead. The court motion for default was denied, and the
    court ordered that any answer or responsive pleading
    be filed on or before May 12, 2016, and that the trial
    would be held on June 1, 2016. On June 2, 2016, the
    court ordered that the defendants had to file an answer
    prior to noon on June 6, 2016, and that the trial in the
    matter was rescheduled to June 30, 2016. Thereafter,
    over the plaintiffs’ objection, the court granted the
    defendants additional time in which to file their answer.
    Upon motion of the defendants, the court granted the
    defendants a ‘‘final extension’’ of time in which to plead,
    until 4 p.m., on June 24, 2016. On June 24, 2016, the
    defendants filed a request to revise totaling eighty-five
    pages. The court rejected the filing under Practice Book
    § 10-7 and ordered the defendants to file an answer by
    5 p.m., on June 28, 2016.
    The defendants did not file a responsive pleading.
    On June 29, 2016, the plaintiffs filed a motion requesting
    that the defendants be defaulted for their failure to
    plead and that the trial, scheduled for June 30, 2016,
    be converted into a hearing in damages. The court held
    a hearing on the plaintiffs’ motion, following which it
    entered a default against the defendants for failing to
    comply with its order. The court scheduled a hearing
    in damages for July 6, 2016. On June 30, 2016, the plain-
    tiffs filed a certificate of closed pleadings. On July 5,
    2016, the defendants moved to set aside the default.
    The court denied the motion and sustained the plain-
    tiffs’ objection.
    The hearing in damages took place on July 20, 2016.
    On that day, the defendants filed a three count counter-
    claim against the plaintiffs, sounding in breach of con-
    tract, misrepresentation, and specific performance. On
    July 28, 2016, the plaintiffs moved to strike all counts
    of the counterclaim. On September 13, 2016, the court
    granted the motion to strike.
    On September 28, 2016, the court rendered judgment
    in favor of the plaintiffs. The court subsequently
    amended and clarified its judgment to reflect that, as
    against both defendants, the court awarded monetary
    damages in favor of the plaintiffs in the amount of
    $30,996.22, plus attorney’s fees in the amount of $60,862.
    It also awarded postjudgment interest at 5 percent. The
    court found that Shara Rocco was the record owner of
    the property at issue as of July 20, 2016, and that neither
    defendant had any right, title, or interest in the property
    or any portion thereof. Further, in addition to its
    $91,858.22 award of monetary damages in favor of the
    plaintiffs, the court ruled that the defendants’ $10,000
    deposit, which had been given to the real estate agency
    that represented the parties in connection with the sale
    of the property, was to be delivered to the plaintiffs.
    The defendants filed the present appeal on November
    1, 2016.
    On November 30, 2016, the plaintiffs filed a motion
    for a partial termination of the appellate stay, which,
    on December 7, 2016, the trial court granted in order
    to permit the plaintiffs to market and sell the subject
    property free and clear of any claims or encumbrances
    by the defendants. The defendants sought review of
    that order, which this court granted, but we denied the
    relief requested.2
    On December 28, 2016, the defendants filed a motion
    to open and vacate the judgment of the trial court.3 In
    the motion, which was opposed by the plaintiffs, the
    defendants raised claims of lack of standing and fraud.
    Specifically, the defendants alleged that Shara Rocco
    falsely had represented to the court that, during the
    pendency of the litigation, she was the record owner
    of the subject property despite the fact that, on March
    14, 2016, she transferred all of her interest in the prop-
    erty to a trust. The defendants contended that Shara
    Rocco committed fraud by her false representations
    and that the plaintiffs lacked standing once Shara Rocco
    transferred her interest in the subject property to her-
    self as trustee of the trust. The plaintiffs opposed the
    motion and submitted an affidavit from Shara Rocco
    in which she averred in relevant part that she had exe-
    cuted the transfer purely on the basis of advice from
    an estate planning attorney and that she was unaware
    that this transfer constituted ‘‘a sale’’ of the property
    to anyone other than herself. She further averred that
    she had since conveyed the property back to herself.
    On March 8, 2017, following a hearing and argument
    on the motion, the court denied the defendants’ motion
    in a one sentence memorandum of decision.4 Additional
    facts will be set forth as necessary.
    I
    SUBJECT MATTER JURISDICTION
    First, we address the defendants’ claim that the trial
    court lacked subject matter jurisdiction over one or
    more of the plaintiffs’ causes of action due to the plain-
    tiffs’ alleged lack of standing. In their first claim on
    appeal, the defendants argue that because Shara Rocco
    transferred her interest in the subject property before
    the court rendered judgment, the plaintiffs had no
    standing to maintain their causes of action.
    The defendants argue in relevant part: ‘‘Prior to the
    entry of default against the defendants, trial in damages,
    and for many months after entry of judgment, until its
    discovery by defense counsel, the plaintiffs withheld
    the fact that [the] plaintiff Shara Rocco executed a
    quitclaim deed in March, 2016, transferring all interest
    in the [subject] property to a living trust. The plaintiffs
    did not record the deed in the Berlin land records until
    after the July 20, 2016 trial, and just before judgment
    entered in September, 2016. Shara Rocco falsely stated
    under oath at the trial and in an affidavit that she person-
    ally was the ‘sole owner’ of the property when, in fact,
    she was not.
    ‘‘The defendants submit that because neither plaintiff
    possessed title to the property at the time of the trial
    or entry of judgment, they lacked standing to adjudicate
    most of their claims, thereby depriving the court of
    jurisdiction to adjudicate them in their favor.’’ (Empha-
    sis omitted.) We conclude that this claim is moot, and,
    therefore, we do not have subject matter jurisdiction
    to adjudicate it; there is no practical relief we can afford
    to the defendants in relation to counts one and two of
    the plaintiffs’ complaint because the property has been
    sold to a third party.
    The following additional facts are relevant to the
    present claim. The plaintiffs presented evidence, in the
    form of a deed signed by Patrick Rocco, that Shara
    Rocco acquired title to the subject property after Pat-
    rick Rocco transferred his interest in the property to
    her by means of a quitclaim deed on November 7, 2013.
    Moreover, just prior to the trial on July 20, 2016, the
    plaintiffs submitted ‘‘affidavits of damages’’ to the court,
    including an affidavit in which Shara Rocco averred
    that she was the sole owner of the subject property
    and had ‘‘not deeded the property to anyone else.’’ Dur-
    ing the hearing in damages, Shara Rocco testified that
    she currently owned the subject property and that she
    wanted the court to quiet title in her favor.
    As the defendants correctly observe, after the court
    rendered judgment in the plaintiffs’ favor, the plaintiffs
    asked the court to clarify that Shara Rocco was the
    ‘‘sole record owner’’ of the subject property. The court
    amended its judgment to reflect that Shara Rocco was
    ‘‘the record owner’’ of the subject property and that
    neither defendant had any right, title, or interest in the
    subject property.5
    After the defendants filed the present appeal, the
    plaintiffs filed a motion to terminate the appellate stay
    in part, which the trial court granted by partially lifting
    the stay to permit the plaintiffs to market and sell the
    subject property free and clear of any claims from the
    defendants. The parties agree that the plaintiffs, there-
    after, sold the property to a third party and that the
    defendants have neither a legal nor equitable interest
    or right in the property.
    In their December 28, 2016 motion to open and vacate
    the judgment, filed after the defendants brought the
    present appeal, the defendants relied on the fact that,
    on March 14, 2016, prior to the hearing, Shara Rocco
    transferred her interest in the subject property, did not
    apprise the court or the defendants of this fact, and
    did not record the transfer on the land records until
    September 22, 2016. Attached to the defendants’ motion
    was a March 14, 2016 quitclaim deed executed by ‘‘Shara
    C. Rocco also known as Sharon C. Rocco’’ in favor of
    ‘‘Sharon C. Rocco, Trustee of the Sharon C. Rocco Liv-
    ing Trust Agreement . . . .’’ The defendants argued
    that because Shara Rocco no longer had a personal
    interest in the property after March 14, 2016, and
    because neither the Shara C. Rocco trust nor its trustee
    have ever been parties to the present case, the plaintiffs’
    controversy had become moot due to the plaintiffs’
    lack of standing, and, thus, the court lacked subject
    matter jurisdiction.
    In opposing the defendants’ motion, the plaintiffs
    argued in relevant part that the defendants engaged in
    misconduct that caused the plaintiffs to incur substan-
    tial damages, not only in terms of their lost opportunity
    to sell the subject property, but in the carrying costs
    they continued to incur until and through the hearing
    in damages. The plaintiffs argued: ‘‘When the plaintiffs
    filed suit in this action (in November, 2015), it is undis-
    puted that Shara Rocco had both legal and record title
    to the [subject] property. It is also undisputed that well
    before this action was filed, the plaintiffs had agreed
    in their divorce court filing to sell the property and to
    absorb the carrying costs associated with the property
    until it could be sold. Thus, both plaintiffs had a direct
    pecuniary interest in seeing the false lien removed so
    the property could be sold.
    ‘‘It is also undisputed that as of the date of the hearing
    in damages (July 20, 2016), [Shara] Rocco was the
    record title owner of the property. At the hearing,
    [Shara] Rocco authenticated and introduced the deed
    from the Berlin land records, which showed how she
    acquired title to the property.’’
    The plaintiffs argued that they demonstrated their
    entitlement to the monetary damages, as well as the
    liquidated damages to which they were entitled under
    the purchase and sale agreement, specifically, the
    $10,000 deposited with the real estate agency. The plain-
    tiffs argued that the court properly determined that
    the defendants had no interest in the property or any
    portion thereof. They further argued in relevant part:
    ‘‘The defendants’ motion is based on a single docu-
    ment—a deed in which [Shara] Rocco conveyed the
    property to herself as trustee for a revocable trust (for
    which she was both trustee and beneficiary) for no
    consideration. The [defendants’] motion confirms that
    the deed was not recorded until September, 2016—long
    after the hearing in damages. At the time she testified,
    [Shara] Rocco did not have the deed in mind. . . . What
    [Shara] Rocco did recall was that the malicious lien
    filed by the defendants was preventing her from selling
    the property as required by the filed settlement
    agreement in her divorce case.’’6 (Citation omitted.)
    Additionally, the plaintiffs argued: ‘‘Here, it is undis-
    puted that at the time of the bringing [of the] action
    and through the hearing in damages, plaintiff Shara
    Rocco was the legal and record owner of the property.
    It is also undisputed that at all material times both
    plaintiffs were contractually and judicially obligated to
    sell the property and were incurring carrying costs until
    they could do so. Both plaintiffs had a direct pecuniary
    interest in seeing that the lien was removed so that the
    property could be sold and carrying costs could stop
    running. Ownership of property at the time of the initia-
    tion of the action, plus a contractual obligation to clear
    title, is sufficient to establish standing to maintain a
    quiet title action, even if the plaintiff [Shara Rocco]
    conveys the property during the pendency of the
    action.’’7 The plaintiffs argued that they, therefore, had
    a direct pecuniary interest in bringing the action and
    in maintaining the action, which interest continued until
    and through the date of judgment. The plaintiffs argued
    that Shara Rocco’s unrecorded deed was not relevant
    to the issues before the court.
    Further, the plaintiffs also argued that the defendants
    failed to demonstrate how the unrecorded deed exe-
    cuted by Shara Rocco in any way deprived the plaintiffs
    of standing to pursue claims related to breach of con-
    tract, tortious interference, and slander to title, which
    claims were based on the defendants’ repudiation of
    the contract that formed the basis of their invalid lien
    and which clearly accrued prior to the execution of
    the deed to the trust. The plaintiffs argued that the
    defendants had failed to bring to the court’s attention
    any facts that would have changed its ruling on the
    central decision in the case related to the defendants’
    interest in the property. Following the hearing on the
    motion, the court, on March 8, 2017, issued a one sen-
    tence memorandum of decision stating that the motion
    to open and vacate the judgment was denied.
    Initially, we observe that the defendants’ claim
    regarding the plaintiffs’ lack of standing is unclear with
    respect to a key issue. Specifically, in their principal
    appellate brief, the defendants argue that the plaintiffs
    ‘‘lacked standing to adjudicate most of their claims
    . . . .’’ (Emphasis added.) They then go on to further
    limit the scope of their claim to the plaintiffs’ causes
    of action ‘‘to quiet title and remove liens’’ on the subject
    property, as set forth in counts one and two of the
    plaintiffs’ complaint. They also argue that ‘‘[a]t the date
    of the transfer, the trust became the owner of the prop-
    erty, and only the trust, acting through a trustee, had
    the right to assert its interest in clear title.’’ In their
    reply brief, however, the defendants argue that it is
    ‘‘abundantly clear that the plaintiffs maintained no per-
    sonal financial interest in the property, and therefore
    no standing to pursue any of their claims, both at the
    time default entered and at the hearing in damages.’’
    (Emphasis in original.) The defendants do not explain,
    however, how the transfer of the subject property in
    March, 2016, would affect the plaintiffs’ standing to
    pursue the causes of action for slander of title, tortious
    interference, and breach of contract, all of which had
    accrued prior to the transfer of title. Rather, they pre-
    sent argument only with respect to the counts to quiet
    title and to discharge the defendants’ lien.
    In their appellate brief, the plaintiffs respond that the
    defendants’ claim that they lack standing involves only
    counts one and two of their complaint, and that the
    defendants’ claim is moot because there is no practical
    relief that can be afforded to them because the property
    now has been sold and title vested in a third party.
    During oral argument before this court, the defendants’
    attorney was asked whether the lack of standing claim
    also involved other counts of the complaint, and coun-
    sel stated that the claim did not implicate other counts.
    Shortly thereafter, the panel asked counsel why this
    issue was not moot, and counsel responded that attor-
    ney’s fees may have been awarded under these counts.
    Pressed further, the panel then commented that it
    appeared that the plaintiffs sought attorney’s fees only
    under the contract and common law, rather than under
    statutory law. The defendants’ counsel responded:
    ‘‘That is correct, Your Honor.’’
    Although we are mindful that the plaintiffs requested
    ‘‘costs, attorney’s fees, statutory and actual damages’’
    in the second count of their complaint, a request for
    statutory damages is not included in the prayer for
    relief except a request pursuant to § 42-110a, which
    later was withdrawn.
    The plaintiffs also submitted their own affidavits, and
    the affidavits of their attorneys, in support of their
    claims for damages and attorney’s fees. Additionally,
    the plaintiffs submitted a proposed judgment in which
    they requested that the court render judgment in their
    favor against the defendants with the following dam-
    ages (plus interest):
    ‘‘Monetary Damages other than
    Attorney’s Fees:                            $30,996.22
    ‘‘Attorney’s Fees (authorized by contract,
    and as common-law punitive damages, and
    in the case of Attorneys [Robert A.] Feiner
    and [Dara P.] Goings, on the foregoing bases
    and as damages proximately caused by the
    recording of the purported lien):            $60,862
    ‘‘Costs of Suit:                            $1782.24’’
    The plaintiffs did not allege a right to attorney’s fees
    under any statute or under counts one and two of their
    complaint. The defendants did not file a motion or a
    memorandum in opposition.
    The court, thereafter, awarded the plaintiffs
    $30,996.22 in damages and $60,862 in attorney’s fees,
    with no award of costs, with postjudgment interest at
    a rate of 5 percent.
    Having thoroughly examined the record, and having
    taken into consideration counsels’ appellate briefs and
    arguments, we conclude that the defendants’ claim that
    the plaintiffs lacked standing to maintain their statutory
    causes of action under counts one and two of their
    complaint, sounding in quiet title and discharge of a
    lien, are moot; there is no practical relief we could
    afford the defendants because title to the subject prop-
    erty already has vested in a third party. Further, there
    is no indication in the record that the court awarded
    attorney’s fees under either the first or second count
    of the plaintiffs’ complaint.
    ‘‘Mootness is a threshold issue that implicates subject
    matter jurisdiction, which imposes a duty on the court
    to dismiss a case if the court can no longer grant practi-
    cal relief to the parties. . . . Mootness presents a cir-
    cumstance wherein the issue before the court has been
    resolved or had lost its significance because of a change
    in the condition of affairs between the parties. . . .
    [T]he existence of an actual controversy is an essential
    requisite to appellate jurisdiction; it is not the province
    of appellate courts to decide moot questions, discon-
    nected from the granting of actual relief or from the
    determination of which no practical relief can follow.
    . . . In determining mootness, the dispositive question
    is whether a successful appeal would benefit the plain-
    tiff or defendant in any way.’’ (Internal quotation marks
    omitted.) Pryor v. Pryor, 
    162 Conn. App. 451
    , 455, 
    133 A.3d 463
    (2016); see also Morgan v. Morgan, 139 Conn.
    App. 808, 811–12, 
    57 A.3d 790
    (2012) (plaintiff’s sale of
    real property to nonparty during pendency of appeal
    rendered moot her challenge to order requiring sale of
    property because sale could not be undone). Here, the
    parties concede that the property has been sold to a
    third party, and the defendants concede that they have
    no legal or equitable right or interest in the property.
    This court, therefore, lacks jurisdiction to entertain the
    defendants’ claims concerning the causes of action to
    quiet title and to discharge the lien. There is no practical
    relief we could afford the defendants, as a third party
    now has legal title to the property.
    II
    FRAUD
    The defendants next claim that this court should exer-
    cise its supervisory authority over the administration
    of justice and reverse the trial court’s judgment because
    the judgment was procured by fraud, both by the plain-
    tiffs and by the defendants’ former attorney. The defen-
    dants argue that the trial court failed to address their
    fraud allegations, and, therefore, we should address
    these allegations under our supervisory authority. They
    argue that because the ‘‘fraud impacts at least count
    one (action to quiet title), count two (action to dis-
    charge invalid liens), and count three (slander to title),
    remand is necessary to determine whether and to what
    extent the misconduct tainted the entire judgment,
    requiring reversal.’’8 They also argue that the fraud com-
    mitted by their former attorney resulted in the default
    that was rendered against them in this case.9
    The plaintiffs respond that we have no record to
    ascertain whether the trial court fully considered and
    then rejected the defendants’ allegations of fraud by
    the plaintiffs and on what ground the court may have
    rejected the allegations that fraud affected the judg-
    ment. They contend that the defendants specifically
    raised a claim of fraud against the plaintiffs in their
    motion to open the judgment, and the court denied
    that motion, in a one sentence written opinion, after a
    hearing. They argue that, at most, we should review
    the court’s denial of the defendants’ motion to open
    the judgment, using the abuse of discretion standard,
    but maintain, nonetheless, that the defendants have
    failed to provide an adequate record for review of the
    denial of the motion to open.10 We decline the defen-
    dants’ invitation to exercise our supervisory powers in
    this instance.
    ‘‘It is well settled that [a]ppellate courts possess an
    inherent supervisory authority over the administration
    of justice. . . . Generally, cases in which we have
    invoked our supervisory authority for rule making have
    fallen into two categories. . . . In the first category are
    cases wherein we have utilized our supervisory power
    to articulate a procedural rule as a matter of policy,
    either as [a] holding or dictum, but without reversing
    [the underlying judgment] or portions thereof. . . . In
    the second category are cases wherein we have utilized
    our supervisory powers to articulate a rule or otherwise
    take measures necessary to remedy a perceived injus-
    tice with respect to a preserved or unpreserved claim
    on appeal. . . . In other words, in the first category of
    cases we employ only the rule-making power of our
    supervisory authority; in the second category we
    employ our rule-making power and our power to
    reverse a judgment. . . .
    ‘‘[T]he salient distinction between these two catego-
    ries of cases is that in one category we afford a remedy
    and in the other we do not. . . . In the second category
    of cases, where we exercise both powers under our
    supervisory authority, the party must establish that the
    invocation of our supervisory authority is truly neces-
    sary because [o]ur supervisory powers are not a last
    bastion of hope for every untenable appeal. . . . In
    almost all cases, [c]onstitutional, statutory and proce-
    dural limitations are generally adequate to protect the
    rights of the [appellant] and the integrity of the judicial
    system. . . . [O]nly in the rare circumstance [in which]
    these traditional protections are inadequate to ensure
    the fair and just administration of the courts will we
    exercise our supervisory authority to reverse a judg-
    ment. . . . In such a circumstance, the issue at hand,
    while not rising to the level of a constitutional violation,
    is nonetheless of [the] utmost seriousness, not only for
    the integrity of a particular trial but also for the per-
    ceived fairness of the judicial system as a whole.’’ (Cita-
    tions omitted; emphasis omitted; footnote omitted;
    internal quotation marks omitted.) In re Daniel N., 
    323 Conn. 640
    , 645–48, 
    150 A.3d 657
    (2016).
    In this case, we are unable to conclude that traditional
    protections available to the defendants were not and are
    not adequate, thereby warranting the rare and extreme
    exercise of our supervisory powers.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    Because we conclude that the defendants’ claim that the plaintiffs lacked
    standing to maintain their causes of action under counts one and two of
    the complaint is moot, we need not reach the merits of the second claim
    on appeal, which also addresses count two of the complaint.
    2
    There is no dispute that the property, thereafter, was sold to a third party.
    3
    Alternatively, the defendants asked the court to consider the motion as
    a writ of audita querela because the defense arose postjudgment and, there-
    fore, could only be raised postjudgment. ‘‘A writ of audita querela affords
    a remedy to a defendant against whom judgment has already been rendered.’’
    TD Banknorth, N.A. v. White Water Mountain Resorts of Connecticut, Inc.,
    
    133 Conn. App. 536
    , 547 n.10, 
    37 A.3d 766
    (2012). The court considered and
    denied the defendants’ motion to open and vacate judgment on its merits
    and, therefore, did not explicitly address this request.
    4
    The defendants did not ask the court for a detailed decision setting forth
    its analysis regarding the court’s denial of the motion to open. See Practice
    Book § 64-1. They also did not amend their appeal to include the trial court’s
    denial of their motion to open.
    5
    The defendants concede that they ‘‘possess no current legal or equitable
    interest or right to the property . . . .’’
    6
    Attached to their opposition to the defendants’ motion, the plaintiffs
    presented an affidavit of Shara Rocco in which she averred in relevant part
    that she transferred her interest in the property to the trust as part of her
    estate planning, that she did not understand this action to constitute ‘‘a
    sale’’ of the property or a conveyance to anyone other than herself, and
    that she did not receive any consideration for this conveyance. Moreover,
    she averred that during the foregoing proceedings in this matter, she was
    motivated to sell the property and believed that she owned the property.
    She also averred that the property subsequently was transferred back to her.
    7
    On appeal, the plaintiffs argue that this sufficiently establishes that they
    were classically aggrieved, despite the fact that Shara Rocco temporarily
    had transferred the property to the trust.
    8
    We already have concluded that any claim regarding counts one and
    two is moot for the reasons set forth in part I of this opinion.
    9
    The allegation that the fraudulent acts committed by the defendants’
    former attorney was the cause the default judgment against them and a
    judgment in favor of the plaintiffs was not raised by the defendants in their
    motion to open the judgment.
    10
    We do not review the merits of the court’s denial of the defendants’
    motion to open the judgment on the basis of fraud because the plaintiffs
    did not appeal from that judgment, which was rendered after the filing of
    the present appeal. See footnote 4 of this opinion.
    

Document Info

Docket Number: AC39774

Citation Numbers: 196 A.3d 366, 184 Conn. App. 786

Judges: Keller, Elgo, Bright

Filed Date: 9/18/2018

Precedential Status: Precedential

Modified Date: 10/19/2024