Kazemi v. Allen

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HOSSIEN KAZEMI ET AL. v.
LAURENCE ALLEN ET AL.
(AC 44377)
Prescott, Suarez and Palmer, Js.
Syllabus
The plaintiffs sought to recover damages from the defendants, A and G Co.,
for, inter alia, vexatious litigation, in connection with a prior quiet title
action regarding a disputed area of real property. A acquired a parcel
of real property in 1996, and, in 2014, the plaintiffs acquired the adjoining
property. Subsequently, the defendants notified the plaintiffs of their
claim to a strip of land along the northern boundary of the plaintiffs’
property. In October, 2015, the plaintiffs filed on the land records a
notice of intent to dispute and prevent the defendants from acquiring
the right to possess the disputed area. The plaintiffs then commenced
the action to quiet title to their property and to obtain a declaration
that the defendants did not have an interest in the area. In response,
the defendants asserted a two count counterclaim sounding in adverse
possession and trespass, alleging that they had been in possession of
the disputed portion of the plaintiffs’ property for more than fifteen
years prior to the filing of notice on the land records. Following a
trial, the trial court found for the plaintiffs. The plaintiffs then filed
the underlying action in relation to the defendants’ counterclaim, and,
following trial, the court found that the plaintiffs successfully had demon-
strated that the defendants lacked probable cause to bring the counter-
claim and that the defendants had failed to prove their defense of advice
of counsel. On the defendants’ appeal to this court, held:
1. This court determined that the defendants properly appealed from a final
judgment in light of the fact that the trial court, although it did not
explicitly address the plaintiffs’ trespass count in its decision, implicitly
disposed of that count; according to the testimony at trial, the plaintiffs
incurred expenses to remove structures that had been placed on the
property following judgment in the action to quiet title and the court
awarded the plaintiffs costs to remove those structures, such that the
court implicitly found in favor of the plaintiffs on their count alleging
a trespass.
2. The trial court did not err when it determined that the defendants lacked
probable cause to bring the adverse possession and trespass counts of
their counterclaim, there having been a dearth of evidence to support
their claims: the court properly determined, on the basis of the evidence
presented at trial, that the defendants did not have a reasonable good
faith belief in the existence of facts essential to bring the adverse posses-
sion claim with respect to certain encroachments, their use of hedges,
a retaining wall and pillar, a mailbox, and a driveway, because, although
A testified that the alleged encroachments on which their adverse posses-
sion claims were based existed when he purchased the property in 1996,
certain surveys and photographs admitted into evidence showed either
that no such encroachments existed on various dates following the
purchase or that the encroachments were on the defendants’ property
and not the plaintiffs’ property, and the trial court found A’s testimony
not credible and inconsistent; moreover, because the court did not err
in finding that the defendants lacked probable cause to believe that they
had acquired the property by adverse possession, the defendants also
lacked probable cause to assert their trespass claim with respect to the
disputed property over which they had no possessory right.
3. The trial court properly concluded that the defendants did not establish
their advice of counsel defense, as evidence in the record supported
the court’s findings that the defendants withheld and misrepresented
material facts to counsel, limited counsel’s preparation, acted to prevent
counsel from learning adverse material facts by preventing counsel from
independently investigating to corroborate their version of events, and,
thus, their reliance on counsel’s advice necessarily could not have been
made in good faith.
4. The trial court properly inferred that the defendants acted with malice,
that court having properly determined that the defendants lacked proba-
ble cause to bring their claims.
Argued January 4—officially released July 26, 2022
Procedural History
Action, inter alia, to recover damages for vexatious
litigation, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the matter was tried to the court, Hon. Edward
T. Krumeich II, judge trial referee; judgment for the
plaintiffs, from which the defendants appealed to this
court. Affirmed.
Thomas B. Noonan, with whom were Douglas S.
Skalka and, on the brief, Dennis M. Carnelli, for the
appellants (defendants).
Michael J. Leventhal, for the appellees (plaintiffs).
Opinion
SUAREZ, J. In this vexatious litigation action, the
defendants, Lawrence Allen (Allen) and Green Tree
Estate Association, Inc. (Green Tree), appeal from the
judgment of the trial court in favor of the plaintiffs,
Hossien Kazemi and Mahvash Mirzai. On appeal, the
defendants claim that the trial court improperly (1)
determined that the plaintiffs established that the defen-
dants lacked probable cause to bring the claims for
adverse possession and trespass in their counterclaim,
(2) denied the defendants’ motion for a directed judge-
ment, (3) determined that the defendants failed to estab-
lish their advice of counsel defense, and (4) found that
the defendants acted with malice. We affirm the judg-
ment of the trial court.
The following facts, as found by the court or as undis-
puted in the record, and procedural history are relevant
to our resolution of this appeal. The defendants are the
owners of real property known as 43 Maple Avenue (43
Maple) in Greenwich. The property was first acquired
by Allen on October 16, 1996, and was later converted
into a four unit condominium on December 5, 1998.
Allen owns the condominium units, and Green Tree
owns the common areas. On March 10, 2014, the plain-
tiffs acquired real property known as 33 Maple Avenue
(33 Maple), the adjoining property situated to the south
of 43 Maple. On September 14, 2015, John Tesei, Allen’s
attorney, sent a letter to the plaintiffs, on behalf of the
owners of 43 Maple, in which he notified the plaintiffs
of the defendants’ claim to a strip of land along the
northern boundary of 33 Maple. In the letter, Tesei
indicated that the claim was based on the defendants’
adverse use of the disputed area for more than fifteen
years by maintenance of shrubs, a curbed driveway,
and a stone pillar. In response, on October 20, 2015,
the plaintiffs served on the defendants, pursuant to
General Statutes § 52-575,1 a notice of intent to dispute
and prevent the defendants from acquiring the right to
possess the disputed area. The notice was recorded on
the land records on October 22, 2015.
Immediately thereafter, the plaintiffs commenced an
action to quiet title to 33 Maple pursuant to General
Statutes § 47-31 and to obtain a declaration that the
defendants did not have an interest in the disputed area
(prior action). In response, the defendants asserted a
statute of limitations special defense under § 52-575
(a) and a two count counterclaim sounding in adverse
possession of the disputed area and trespass. The defen-
dants alleged that they had been in possession of the
disputed portion of 33 Maple for more than fifteen years
prior to October 22, 2015, the date on which the notice
had been recorded. In their answer, the defendants
alleged that several acts gave rise to adverse possession
of the disputed property, including the defendants’
maintenance of a driveway, a chain link fence, a stone
pillar, certain shrubs, bushes and plants next to the
stone pillar, and a mailbox. The defendants’ trespass
counterclaim alleged that the plaintiffs’ workers had
‘‘destroyed the fence and mailbox . . . .’’ The defen-
dants filed an amended counterclaim on May 2, 2017,
which alleged the maintenance of a ‘‘brick pillar’’ along
with the plants and mailbox. The amended counter-
claim also alleged that the chain link fence was just a
demarcation of the disputed area and it no longer
alleged that the fence was maintained by the defen-
dants. The amended trespass counterclaim alleged that
the plaintiffs’ agents entered the disputed area to
replace the fence and that they ‘‘removed, dismantled,
and/or otherwise displaced the mailbox . . . .’’
The prior action was tried before the court, Hon.
David R. Tobin, judge trial referee, on April 18 and 20,
2018. The court issued a memorandum of decision dated
June 13, 2018, in which it quieted title to 33 Maple in
favor of the plaintiffs and rejected the defendants’ spe-
cial defense and counterclaim of adverse possession.
The court, after examining the evidence adduced at
trial, concluded that the only evidence supporting the
adverse possession counterclaim was Allen’s uncorrob-
orated testimony, which was insufficient to sustain the
defendants’ burden of proof. The court did not address
the defendants’ trespass counterclaim in its memoran-
dum of decision because that claim was withdrawn by
the defendants at trial in the prior action after they had
rested their case.
Thereafter, on September 12, 2018, the plaintiffs filed
the action underlying the present appeal. The complaint
alleged causes of action against the defendants sound-
ing in slander of title,2 vexatious litigation, vexatious
litigation with malicious intent, and trespass. The vexa-
tious litigation claims3 against the defendants related
to their counterclaim alleging adverse possession and
trespass that they had raised in the prior action. In
their defense against the vexatious litigation claims,
the defendants attempted to demonstrate that they had
brought their counterclaim in good faith and on the
advice of counsel.
Following a trial to the court, Hon. Edward T. Kru-
meich II, judge trial referee, the court found that the
plaintiffs successfully had demonstrated that the defen-
dants lacked probable cause to bring the counterclaim
alleging adverse possession and trespass and that the
defendants had failed to prove their advice of counsel
defense. In its memorandum of decision, the court
found the following facts: ‘‘[The] defendants have dem-
onstrated that they consulted with impartial counsel
who advised them they had viable claims. . . . The
credible evidence established there was not full and
fair disclosure of material facts to counsel. Allen with-
held and misrepresented material facts to counsel, lim-
ited counsel’s preparation and acted to prevent counsel
from learning adverse material facts by preventing
counsel from independently investigating the defense
and claims to corroborate his version of events. Allen
did not rely on counsel’s advice but, rather, manipulated
counsel to accept his false version of events and acted
in bad faith in prosecuting the limitations defense and
[both counts of] the [counterclaim].
‘‘The court finds Allen’s testimony lacked credibility
in many respects. Allen testified that the alleged
encroachments existed when he purchased 43 Maple
. . . in 1996. The 1998 survey belies that claim because
it shows no encroachments and, indeed, shows neither
the pillar and wall nor the mailbox shed. The 2006
survey also omits the mail shed but does show a new
encroaching stone wall without a pillar where the 1998
survey showed a nonencroaching u-shaped structure.
Allen was disingenuous when he testified in this case
he was not familiar with surveys yet claimed the 1998
survey was inaccurate, as he did in the trial before
Judge Tobin. The court rejects Allen’s interpretation of
the 1998 survey that the u-shaped structure shown is
the encroaching wall depicted on the 2006 survey. The
absence of a pillar is also striking because the 1998
survey calls out a pillar at another location. Allen’s
assertion that the surveys are not accurate rings hollow
and is contradicted by other evidence that corroborates
the wall and pillar and the mail shed were constructed
after the 1998 survey.
‘‘The amended counterclaim’s change of allegations
from a stone to a brick pillar was significant. Allen
testified that the pillar was brick when he purchased
the property in 1996 and was subsequently clad in field-
stone as part of the condominium renovations. No brick
was shown in the video of the pillar’s demolition and
the demolition contractor testified the workers found
no brick when the fieldstone pillar was demolished in
2019, along with the encroaching fieldstone, rubble, and
mortar wall to which it was attached. The court finds
that the encroaching wall and pillar were constructed
sometime after 1996 and that Allen’s testimony to the
contrary in both trials was false. The court also finds
that the stone pillar was added later and the testimony
by Allen that there was originally a brick pillar in 1996
was fabricated to explain evidence that the pillar was
formed of stone when the wall was extended and
became an encroachment sometime after the 1998 sur-
vey.
‘‘Hedges are shown on both the 1998 and 2006 surveys
on 43 Maple . . . at the location Allen testified there
were shrubs and other plantings in 1996 that
encroached on 33 Maple . . . which were maintained
by [the] defendants’ landscapers. The only photograph
of the hedges shows tall landscaped hedges that appear
to be on [the] defendants’ side of the property line with
low ground cover beneath, possibly pachysandra or ivy
also depicted nearby. No shrubs or other plantings are
shown in the photograph. Although the court credits
that [the] defendants’ landscapers maintained the hedge
and ground cover beneath, there is no proof of any
encroachment by the hedge and ground cover on 33
Maple . . . that existed in 1996, as Allen testified.4
‘‘The mailbox shed was added sometime after the
condominium conversion in December, 1998, presum-
ably as part of the condominium construction project.
The credible evidence is that the shed was originally
placed on a concrete pad located on 43 Maple . . . and
moved to a new location for the convenience of the
postal service. The photograph of the mail shed and
the concrete pad appear to show both to be on 43 Maple.
[In the prior action] Judge Tobin could not find the
shed encroached on 33 Maple for the requisite period.
‘‘Allen went to great lengths to keep his counsel in
the dark about material facts and surveys that contra-
dicted his version of events and stymied their efforts
to investigate his narrative. All three counsel involved
relied on information supplied by Allen as to the alleged
encroachments and their duration when advising him
as to the merits of his defense and claims. The only
source of information to counsel about the encroach-
ments and their duration came from Allen, who kept
[Attorney David W.] Rubin, and especially [Attorney
Michael] Powers, on a tight leash ostensibly to keep
them from overcharging him but also to prevent them
from learning about Allen’s deception. Allen would not
allow Rubin to interview witnesses he wanted to inter-
view and accused both his trial counsel of trying to run
up their fees when they recommended doing more than
the minimum Allen authorized to prepare and defend
the case. Attorney Rubin twice moved to withdraw as
counsel, in part, because he disagreed with Allen’s
efforts to prevent him from investigating the case to
corroborate what Allen had told him and because Allen
did not take counsel’s advice as to how the case should
be prepared, defended and prosecuted. Allen’s interrog-
atory responses to the first set of interrogatories, pre-
pared by Rubin’s associate and certified as true by Allen,
stated that the stone pillar was located on the property
when he purchased [it] in 1996. In his responses to the
second set of interrogatories, after amendment of the
answer, Allen swore there was a ‘brick’ pillar there
when he purchased the property in 1996. Neither is
supported by the objective evidence adduced at trial,
notably the 1998 and 2006 surveys and the evidence
related to demolition of the pillar in 2019. Allen did not
supply counsel with the 1998 and 2006 surveys done
by his surveyor, which turned out to be pivotal evidence
at trial in the prior action. The 2006 survey was the only
objective evidence that there was any encroachment
at all and forced counsel to rely on Allen’s anecdotal
evidence that the encroachments existed for the requi-
site period.
‘‘Rubin wanted to interview and/or depose Nakolin-
kova Bliznakova in San Francisco but Allen would not
permit him to do so, citing the expense. At trial in the
prior action her testimony as a rebuttal witness was
devastating to [the] defendants. She testified she was
the granddaughter of the owners of 33 Maple . . . and
grantor on the deed to [the] plaintiffs. She testified the
hedge was planted by her grandfather and was main-
tained by her family. She testified the chain link fence
was erected by her grandfather to keep his dogs from
leaving the property. Judge Tobin found the fence was
never intended to demarcate the boundary between 43
Maple and 33 Maple and the hedge was located ‘entirely,
or in large measure,’ north of both the fence and the
property line.
‘‘[Powers] replaced Rubin as defense counsel on July
27, 2017, and he tried the case in the prior action. When
he was retained, he assured Allen he would not need
to conduct an extensive investigation or interview and/
or depose fact witnesses but would rely on the testi-
mony of Allen, his wife Michelle Allen, and one of their
landscapers. Little or no activity occurred in the case
as reflected in the court’s file until the trial date
approached and then there was a flurry of activity that
[appears] calculated to delay trial and encourage settle-
ment.
‘‘On April 18, 2018, the first day of trial before Judge
Tobin, [the] plaintiffs rested after brief testimony by
Kazemi. Allen testified the remainder of the day to con-
clusion. An e-mail from Allen to . . . Powers on Mon-
day, April 16, 2018, two days before trial, listed three
witnesses, [Allen, Michelle Allen] and a landscaper.
Those were the only witnesses [the] defendants
intended to call at trial. Apparently, by the evening of the
first trial day, Allen became concerned [the] defendants
had not met their burden of proof to the satisfaction
of Judge Tobin. That same day, on Wednesday, April
18, 2018, at 6:44 p.m., Allen sent Powers an e-mail stating
that ‘I have the general contractor and architect willing
to sign attestation letters’ as to construction of the
mailbox and fieldstone cladding of the existing retaining
wall. At 8:41 p.m. later that same day, Allen sent Powers
an attestation letter he had drafted. At 9:30 a.m., the
next day, April 19, 2018, the day before the second and
final day of trial, Allen sent Powers proposed attestation
letters he had drafted for signature by Michael Blanc
. . . the architect, and Mark Mantione . . . the general
contractor on the condominium conversion project and
Joann P. Erb, a realtor involved in marketing Allen’s
properties. The attestation letters drafted by Allen and
later signed by the contractor, architect, and realtor
were addressed to Judge Tobin and attested to certain
facts relating to the mailbox, wall, and pillar and land-
scaping at issue. These unsworn letters were never
admitted into evidence and the signatories were never
witnesses at trial of the prior action. Their significance
to the claims in this action is as evidence that Allen
knew the identity of the architect, contractor, and real-
tor and knew they had material information about the
subject property that was kept from his counsel, who
in the ordinary course at least would have interviewed
them and reviewed their files in preparation of the case.
Allen had claimed at his deposition on May 9, 2017, he
could not recall the name of the contractor who had
worked on the pillar. If that was true initially, which
is doubtful, it clearly was not true later as the case
proceeded toward trial.
‘‘Some of the information in the attestation letters is
not helpful to [the] defendants in this case. For example,
Mantione attested his crew poured the slab and built
the mail shed in November, 1998, and then, ‘[i]n or
about January, 1999, my crew moved the mailbox
approximately 3 [to] 5 feet to the left of the cement
slab inside the hedges, at the request of the Greenwich
Post Office.’ That is the position shown in the photo-
graph of the mail shed and concrete pad, which appear
to be on 43 Maple, not 33 Maple, north of the hedge the
surveys place on [the] defendants’ property. Mantione’s
letter also attests that in or about March, 1999, his crew
‘extended the height at the beginning of the retaining
wall to form a small pillar.’ If true, the pillar did not
exist in 1996, when Allen testified it existed. Mantione
backtracked when he testified in this action that he
clad an existing pillar with fieldstone, presumably to
bolster Allen’s testimony about an existing brick pillar,
but that testimony is not credible and is contradicted
by the surveys, the credible testimony of the demolition
contractor and the pillar demolition video. The
encroaching pillar was constructed of fieldstone when
the section of the stone and rubble wall was extended
and then encroached on 33 Maple . . . as shown on
the 2006 survey.
‘‘Blanc, the architect, signed an attestation letter
dated April 17, 2018, the day before the trial started,
which contradicted Mantione by stating the ‘mailbox
stand . . . was not constructed by one of the contrac-
tors or by the present owners of 43 Maple . . . .’ Blanc
corroborated Mantione’s letter, and contradicted Manti-
one’s testimony at trial in this case and the prior case,
by attesting that, in or about March, 1999, the renovation
work ‘[e]xtended height at the beginning of the retaining
wall to form a small pillar.’ This contradicts Allen’s
testimony in both trials that the pillar existed in 1996.
The 1998 survey does not show an existing retaining
wall at that location, while the 2006 survey shows an
encroaching wall there, which is proof the wall was not
merely heightened, as Blanc and Mantione attested, but
rather it was constructed sometime between December
4, 1998, and August 18, 2006, the respective survey dates.
Allen’s testimony that there had been no improvements
since 1998 was false.
‘‘Neither Rubin nor Powers had the benefit of inter-
viewing Blanc or Mantione or reviewing their files. Nei-
ther counsel was provided with their names until Pow-
ers was presented with the attestation letters during
trial. The attestation letters were not admissible; the
realtor letter was offered but not admitted as hearsay
by Judge Tobin. [The] defendants did not offer the archi-
tect and contractor attestation letters. Powers was not
informed of the contractor, architect, and realtor as
potential witnesses until shortly before the second day
of trial. Rubin never knew their identity. Allen knew
who they were, knew that the architect and contractor
and their files would be a likely source of material
information and yet he withheld their identity from his
counsel.
‘‘Also on April 19, 2018, at 10:29 p.m., Allen informed
Powers that his wife found new evidence, including a
1997 survey that showed the wall and overhead photos
of 43 Maple . . . in 1997, 2003 and 2006. By e-mail of
same date at 10:51 p.m., Allen sent Powers the certified
attestation letters and a 1997 survey by S.E. Minor and
stated he would bring a 2005 survey by Ahneman to
court the next day. The 2005 survey showed an
encroaching ‘retaining wall’ as of March, 2005,
according to Judge Tobin’s findings. Neither counsel
had benefit of these late produced documents when
they advised Allen of the viability of the defense and
claims.
‘‘The significance of the late provided evidence and
the attestation letters was that information which
should have been available to counsel was not provided
to them by Allen so any advice counsel gave was not
informed by what counsel would have learned from the
missing evidence and lost opportunities to investigate.
The court does not believe Allen’s testimony that he
wanted Mantione, Blanc and [Erb] to testify at [the]
trial of the prior action but Powers decided not to call
them because he had missed the deadline for listing
them as witnesses or because they had not been
deposed. Instead, the court credits Powers’ testimony
Allen did not want them to testify. Allen’s apparent
strategy for preparing the attestation letters was to
avoid live testimony and use written statements to con-
trol the information to be given to Judge Tobin and
to avoid cross-examination that would contradict his
version of events.
‘‘Allen’s strategy was to defend the prior action based
on the false narrative that there were encroachments
on 33 Maple . . . that existed in 1996 when Allen pur-
chased 43 Maple . . . . He compounded this by fabri-
cating a trespass claim that was bereft of evidence and
was withdrawn at trial of the prior action after [the]
defendants had rested their case. Allen believed that
Kazemi was a real estate developer who planned to
build a new house and flip the property. The Tesei letter
and later the special defense and [counterclaim] were
designed to give him leverage for concessions as to the
disputed strip and to keep any encroaching wall and
pillar, hedge and plantings. His approach to the litiga-
tion was to forestall [the] plaintiffs’ efforts to enforce
their title to 33 Maple . . . while keeping [the] defen-
dants’ expenses low with the expectation of settlement.
When trial loomed, he had his attorney file frivolous
motions with the hope of bringing [the] plaintiffs to the
bargaining table and avoiding trial.5 When he could not
avoid trial, and indeed was in the midst of trial, Allen
manufactured evidence that he sprung on his attorney
at the last minute. He presented testimony by two of
these witnesses, Mantione and [Erb], at trial in this
case. Mantione’s testimony was not credible as it related
to the wall and pillar, which, he testified, was existing
and in need of repair and his crew merely repaired and
clad in fieldstone. It is clear from the surveys that the
portion of the wall that encroached on 33 Maple . . .
was constructed after December 4, 1998, but before
August 18, 2006. Thus, the encroaching wall and pillar
were either new when Mantione came onto the project,
having been constructed by his predecessor contractor,
or, more likely, Mantione constructed the wall or pillar,
which is more consistent with his attestation letter that
states his crew formed the pillar. Either way, these facts
contradict Allen’s testimony that the pillar and wall
existed when he bought the property in 1996. The court
credits [Erb’s] testimony that [the] defendants main-
tained the hedge and ground cover shown in the photo-
graph, but she started representing [the] defendants in
2002 and could not attest to the more than fifteen year
duration of maintenance claimed by [the] defendants.
In any event, neither Mantione nor [Erb] testified in the
trial before Judge Tobin, nor did the architect Blanc,
all of whom were known to and could have been called
by Allen. Powers testified Allen did not want them to
come to court and would not pay for subpoenas.
‘‘Allen’s false and deceptive misconduct in the prior
action provides graphic evidence of his lack of probable
cause, bad faith and malice. . . . Allen’s false testi-
mony in this case, and in the prior action, confirms his
willingness to dissemble if he believes perjury and false
pleading would advance what he perceives to be his
interests. [The] defendants’ defense and [counterclaim]
in the prior action were grounded in the fiction that
there were encroachments on 33 Maple . . . that
existed when Allen purchased 43 Maple . . . in 1996.
The trespass claim was based on an alleged event that
did not happen and fictional possessory rights. Allen
did not have probable cause to assert the defense and
[both counts of the counterclaim] and did so maliciously
to obtain leverage over [the] plaintiffs, who he believed
planned to flip the property for sale and would be ame-
nable to settlement on Allen’s terms.’’ (Citations omit-
ted; footnotes in original; footnotes omitted.)
After finding that the plaintiffs had ‘‘proven their vex-
atious litigation claim by a fair preponderance of the
evidence,’’ the court awarded them compensatory dam-
ages, which included ‘‘demolition costs of $304.69,’’
‘‘surveying costs of $505,’’ and ‘‘attorney’s fees in the
prior action of $58,680.50 . . . .’’ Because the court
found both a lack of probable cause and that the defen-
dants acted with malice, the court awarded the plaintiffs
treble damages under General Statues § 52-568, for a
total damages award of $178,470.57. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
As a preliminary matter, we address whether the
defendants appealed from a final judgment in light of
the fact that the court, in its decision, did not explicitly
address the plaintiffs’ trespass count. ‘‘[E]ven where
the appellee fails to bring to our attention the lack of
a final judgment, either by motion to dismiss or in its
brief, or at oral argument, we must, nonetheless, act
sua sponte.’’ (Internal quotation marks omitted.) Mase
v. Riverview Realty Associates, LLC, 208 Conn. App.
719, 726, 265 A.3d 944 (2021). As a result of our final
judgment concerns, we notified the parties that ‘‘[a]t
oral argument, counsel of record . . . [should] be pre-
pared to address whether the defendants appealed from
a final judgment given that the trial court’s October
26, 2020 memorandum of decision does not expressly
dispose of the fourth count of the plaintiffs’ complaint
alleging a cause of action for trespass.’’
The right of appeal is purely statutory, and General
Statutes § 52-2636 provides that parties may appeal to
this court from the final judgment of the trial court.
See In re Teagan K.-O., 335 Conn. 745, 754, 242 A.3d
59 (2020) (‘‘a final judgment . . . is a statutory prereq-
uisite to appellate jurisdiction’’ (citations omitted)).
‘‘[L]ack of a final judgment is a jurisdictional defect
that mandates dismissal.’’ (Internal quotation marks
omitted.) RAL Management, Inc. v. Valley View Associ-
ates, 278 Conn. 672, 686, 899 A.2d 586 (2006).
‘‘When judgment has been rendered on an entire com-
plaint . . . such judgment shall constitute a final judg-
ment. . . . As a general rule, however, a judgment that
disposes of only a part of a complaint is not final, unless
it disposes of all of the causes of action against the
appellant.’’ (Citation omitted; internal quotation marks
omitted.) Meribear Productions, Inc. v. Frank, 328
Conn. 709, 717, 183 A.3d 1164 (2018). ‘‘In assessing
whether a judgment disposes of all of the causes of
action against a party, this court has recognized that
the trial court’s failure to expressly dispose of all of
the counts in the judgment itself will not necessarily
render the judgment not final. Rather, the reviewing
court looks to the complaint and the memorandum of
decision to determine whether the trial court explicitly
or implicitly disposed of each count.’’ (Emphasis omit-
ted.) Id., 718.
In the present case, the court’s October 26, 2020 mem-
orandum of decision clearly disposed of the plaintiffs’
vexatious litigation claims. The court explicitly found
that the defendants lacked probable cause to bring both
counts of their counterclaim for adverse possession
and trespass and, as a result, the plaintiffs had proven
their vexatious litigation claims. The court also found
that the defendants had acted with malice. The court
did not, however, expressly analyze or render judgment
with respect to the plaintiffs’ count alleging trespass,
which raises the issue of whether the court rendered
a final judgment. We conclude, nevertheless, that the
court implicitly disposed of the plaintiffs’ trespass count
and, thus, it rendered a final judgment.
The plaintiffs’ claims against the defendants included
vexatious litigation, vexatious litigation with malicious
intent, and trespass. In their complaint, the plaintiffs
sought as relief, inter alia, ‘‘[d]amages in the amount
required to restore and repair 33 Maple after the defen-
dants’ trespass.’’ Generally, ‘‘[w]hen injury to property
resulting from a trespass is remedial by restoration or
repair . . . the measure o[f] damages is the cost of
restoration and repair.’’ (Internal quotation marks omit-
ted.) Argentinis v. Fortuna, 134 Conn. App. 538, 556,
39 A.3d 1207 (2012). In contrast, ‘‘[t]he purpose of [an]
action [for vexatious litigation] is to compensate a
wronged individual for damage to his reputation and
to reimburse him for the expense of defending against
the unwarranted action.’’ (Internal quotation marks
omitted.) Bernhard-Thomas Building Systems, LLC v.
Dunican, 286 Conn. 548, 554, 944 A.2d 329 (2008).
According to the testimony at trial, the plaintiffs, after
prevailing in the prior action, ‘‘incur[red] expenses to
remove structures that had been placed on [the] prop-
erty,’’ including $505 to have ‘‘surveyors . . . come and
stake out the property correctly’’ and $304.69 ‘‘for demo-
lition of the wall . . . .’’ Although the court did not
explicitly address the trespass cause of action in its
memorandum of decision, the court awarded the plain-
tiffs ‘‘demolition costs of $304.69’’ and ‘‘surveying costs
of $505 . . . .’’ Taking into consideration the com-
plaint, the memorandum of decision, and the award of
expenses incurred to restore and replace the property,
we conclude that the court implicitly found in favor of
the plaintiffs on their count alleging a trespass. Because
we have determined that the court implicitly disposed
of the plaintiffs’ count alleging a trespass, it follows that
the court disposed of all of the counts in the plaintiffs’
complaint, and, therefore, we conclude that the court
rendered a final judgment.
II
On appeal, the defendants first claim that the court
erred in concluding that the plaintiffs established, for
purposes of the vexatious litigation claims,7 a lack of
probable cause related to the defendants’ counterclaim
in the prior action alleging claims for adverse posses-
sion and trespass. Specifically, the defendants argue
that they ‘‘alleged facts and presented a viable claim
for adverse possession in the [prior] action with respect
to the [use of the] disputed property due to [the] defen-
dants’ having, for a period of not less than fifteen years,
maintained the hedges and grounds up to the chain-
link fence, erected the retaining wall and pillar, erected
and placed the mailbox shed, and placed the Belgian
block along the driveway.’’ (Footnote omitted.) The
defendants, therefore, argue that there was probable
cause to bring the claim of adverse possession.8 The
defendants also argue that they had probable cause
to bring the counterclaim of trespass because ‘‘[t]he
evidence . . . demonstrates that [the] defendants had
a possessory right to [the disputed area] based on
adverse possession and that [the] plaintiffs entered this
area and moved the mailbox without permission and
constructed a fence in the disputed [area].’’9
We begin by setting forth the legal principles relevant
to our resolution of this claim. ‘‘In Connecticut, the
cause of action for vexatious litigation exists both at
common law and pursuant to statute. . . . [T]o estab-
lish a claim for vexatious litigation at common law,
one must prove want of probable cause, malice and a
termination of suit in the plaintiff’s favor.’’ (Citation
omitted; internal quotation marks omitted.) Bernhard-
Thomas Building Systems, LLC v. Dunican, supra, 286
Conn. 554. ‘‘For purposes of a vexatious suit action,
[t]he legal idea of probable cause is a bona fide belief
in the existence of the facts essential under the law for
the action and such as would warrant a man of ordinary
caution, prudence and judgment, under the circum-
stances, in entertaining it. . . . Probable cause is the
knowledge of facts, actual or apparent, strong enough
to justify a reasonable man in the belief that he has
lawful grounds for prosecuting the defendant in the
manner complained of. . . . Thus, in the context of a
vexatious suit action, the defendant lacks probable
cause if he lacks a reasonable, good faith belief in the
facts alleged and the validity of the claim asserted.’’
(Citations omitted; internal quotation marks omitted.)
DeLaurentis v. New Haven, 220 Conn. 225, 256, 597
A.2d 807 (1991).
‘‘We are mindful that [p]robable cause may be present
even where a suit lacks merit. Favorable termination
of the suit often establishes lack of merit, yet the plain-
tiff in [vexatious litigation] must separately show lack
of probable cause. . . . The lower threshold of proba-
ble cause allows attorneys and litigants to present
issues that are arguably correct, even if it is extremely
unlikely that they will win . . . . Were we to conclude
. . . that a claim is unreasonable wherever the law
would clearly hold for the other side, we could stifle
the willingness of a lawyer to challenge established
precedent in an effort to change the law. The vitality
of our common law system is dependent upon the free-
dom of attorneys to pursue novel, although potentially
unsuccessful, legal theories.’’ (Internal quotation marks
omitted.) Tatoian v. Tyler, 194 Conn. App. 1, 59, 220
A.3d 802 (2019), cert. denied, 334 Conn. 919, 222 A.3d
513 (2020).
‘‘A statutory action for vexatious litigation under . . .
§ 52-568 . . . differs from a common-law action only
in that a finding of malice is not an essential element,
but will serve as a basis for higher damages. In either
type of action, however, [t]he existence of probable
cause is an absolute protection against an action for
malicious prosecution . . . .’’ (Footnote omitted; inter-
nal quotation marks omitted.) Ferri v. Powell-Ferri, 200
Conn. App. 63, 68, 239 A.3d 1216, cert. denied, 335 Conn.
970, 240 A.3d 285 (2020).
We next set forth the standard of review for this
claim. ‘‘[W]hat facts, and whether particular facts, con-
stitute probable cause is always a question of law. . . .
Accordingly, our review is plenary.’’ (Internal quotation
marks omitted.) Id. When our review is plenary, ‘‘we
must decide whether [the court’s] conclusions are
legally and logically correct and find support in the
facts that appear in the record.’’ (Internal quotation
marks omitted.) Barber v. Barber, 193 Conn. App. 190,
196, 219 A.3d 378 (2019).
We first address the defendants’ challenge to the fac-
tual findings on which the court relied when it deter-
mined that the defendants lacked probable cause to
bring the adverse possession claim. When an appellant
challenges the factual findings on which the court’s
finding of a lack of probable cause is based, we apply
the clearly erroneous standard of review. ‘‘A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Casiraghi v. Casiraghi, 200
Conn. App. 771, 788, 241 A.3d 717 (2020). ‘‘Because
factual findings and credibility determinations are
squarely within the trial court’s purview, we afford them
great deference. . . . In reviewing factual findings,
[w]e do not examine the record to determine whether
the [court] could have reached a conclusion other than
the one reached. . . . Instead, we make every reason-
able presumption . . . in favor of the trial court’s rul-
ing.’’ (Citation omitted; internal quotation marks omit-
ted.) Lyme Land Conservation Trust, Inc. v. Platner,
325 Conn. 737, 755, 159 A.3d 666 (2017).
In the present case, the defendants argue that the
court erred in finding that the hedges do not encroach
onto 33 Maple. The defendants assert that the court’s
finding that the hedges did not encroach on 33 Maple
‘‘contradicts the testimony of the only witnesses who
had personal knowledge of the hedges.’’ They further
argue that the court’s finding was based on the 1998 and
2006 surveys, ‘‘which the court purported to interpret
in the absence of requisite expert testimony.’’ They con-
tend that the court’s finding is clearly erroneous
because ‘‘the court appears to have found that there
was no evidence that the hedges encroached onto 33
Maple because it disbelieved Allen, not because there
is evidence in the record permitting a reasonable infer-
ence that the hedges did not encroach onto 33 Maple.’’
We are not persuaded.
At trial, Allen testified that there were shrubs and
other plantings that encroached on 33 Maple, which
were maintained by the defendants’ landscapers. There
was also testimony from Mantione that the hedges
extended to the pillar and retaining wall that he built
in 1998 and from Erb that the defendants maintained
the hedges and ground cover shown in a photograph
that was entered into evidence at trial. As we recited
previously in this opinion, however, the court, in its
memorandum of decision, found that ‘‘Allen’s testimony
lacked credibility in many respects.’’ There was also
evidence in addition to Allen’s testimony, by way of the
1998 and 2006 surveys,10 that depicted the hedges at the
location that Allen described. This evidence, however,
shows that the hedges are located on 43 Maple, not 33
Maple. Additionally, contrary to Allen’s testimony, the
only photograph of the hedges that was entered into
evidence shows tall landscaped hedges that appear to
be on the defendants’ side of the property line, and
the photograph does not depict any shrubs or other
plantings. Consequently, the court’s finding that the
hedges did not encroach onto 33 Maple was not clearly
erroneous because there is evidence in the record,
namely the surveys and photographs, to support this
finding, and the court specifically found Allen’s testi-
mony not credible.
We now turn to whether, on the basis of the facts
found by the court, the defendants had probable cause
to bring the adverse possession and trespass claims.
The defendants argue that the court erred in determin-
ing that the plaintiffs established a lack of probable
cause for the adverse possession claim with respect to
the defendants’ use of the hedges, the retaining wall
and pillar, the mailbox, and the driveway. Allen testified
that the alleged encroachments onto 33 Maple on which
the adverse possession claims are based existed when
he purchased 43 Maple in 1996. The defendants argue,
therefore, that they had probable cause to assert the
adverse possession claim having met the requirements
of adverse possession for the statutory period of fifteen
years. The 1998 survey, however, shows no such
encroachments. Moreover, as previously mentioned,
the court did not credit Allen’s testimony with respect to
the encroachments and concluded that ‘‘Allen’s strategy
was to defend the prior action based on the false narra-
tive that there were encroachments on 33 Maple . . .
that existed in 1996 when Allen purchased 43 Maple
. . . .’’ The court therefore determined that the defen-
dants lacked probable cause to bring the adverse pos-
session claim. We agree and affirm the judgment of
the court.
We begin by examining the defendants’ adverse pos-
session claim as it pertained to the defendants’ use of
the property—specifically, with respect to the hedges.
As previously mentioned, Allen testified that there were
shrubs and other plantings that encroached onto 33
Maple and that they were maintained by the defendants’
landscapers. Both the 1998 and 2006 surveys depict
hedges at the location that Allen described; however,
the surveys depict these hedges to be on 43 Maple,
not 33 Maple. Additionally, the only photograph of the
hedges entered into evidence depicts them to be on
the defendants’ side of the property line, which also
indicates that the hedges did not encroach on 33 Maple.
Although Allen testified that shrubs and bushes
encroached onto 33 Maple, there were no shrubs or
other plantings depicted in the photograph, and the
court did not find Allen’s testimony credible. Further,
when asked about the depiction of the hedges in the
survey, Allen admitted that the survey showed the
hedges to be located entirely on the property of 43
Maple. The court found, contrary to Allen’s testimony,
that there was no proof of any encroachment by the
hedges or other plantings onto 33 Maple that existed
in 1996. The court further noted that the defendants
never engaged a surveyor to specifically map out the
area that they claimed to adversely possess or to stake
the property line, and, as a result, there was a lack of
evidence as to the location of any encroachments. We
conclude that the court properly determined, on the
basis of the evidence presented at trial, that the defen-
dants did not have a reasonable good faith belief in the
existence of facts essential to bring the claim and thus
lacked probable cause to bring the adverse possession
claim as it pertained to the defendants’ use of the prop-
erty—specifically, with respect to the hedges.
Allen also testified that the retaining wall and pillar
existed in 1996. The 1998 survey, however, does not
show an existing retaining wall or pillar. The 2006 sur-
vey does show a retaining wall, which indicates that
the portion of the wall that encroached onto 33 Maple
was constructed sometime between December 4, 1998,
and August 18, 2006, the dates on which the respective
surveys were completed. Because the 2006 survey also
depicts the pillar, the surveys further indicate that the
encroaching pillar was constructed when the section
of the retaining wall was extended, which then caused
it to encroach on 33 Maple. Both surveys contradict
Allen’s testimony that the pillar and wall existed when
he bought the property in 1996.
Further, Allen’s testimony at trial about the interroga-
tories that he answered in the prior action reveals that
his answers to the first and second sets of interrogato-
ries are internally inconsistent. Additionally, Mantione’s
attestation letter in the prior action, which was drafted
by Allen, is also inconsistent with Allen’s testimony at
trial in the present case. On the basis of these inconsis-
tencies, the court found that ‘‘Allen’s apparent strategy
for preparing the attestation letters was to avoid live
testimony and use written statements to control the
information to be given to Judge Tobin and to avoid
cross-examination that would contradict his version of
events.’’ In Allen’s first set of interrogatories in the prior
action, Allen stated that there was a stone pillar located
on the property when he purchased it in 1996. In the
second set of interrogatories, however, he stated that
there was a brick pillar on the property when he pur-
chased it in 1996. Allen testified at trial that the pillar
was brick when he purchased the property in 1996
and subsequently was clad in fieldstone as part of the
condominium renovations. Contrary to Allen’s testi-
mony, there was no brick shown in the video of the
pillar’s demolition, and the demolition contractor testi-
fied that the workers found no brick when the pillar
was demolished in 2019.
Additionally, Mantione’s attestation letter, which was
drafted by Allen, stated that Mantione and his crew
extended the height at the beginning of the retaining
wall to form a small pillar during their work on the
property in 1999. If the statement in the letter is true,
it would indicate that the pillar did not exist in 1996 as
Allen testified. When Mantione testified in the present
matter, however, he asserted that he did not form a
new pillar in 1999; rather, he clad an existing pillar with
fieldstone. Mantione’s testimony is contradicted by the
surveys and the testimony about the demolition of the
pillar, and the court ultimately found it to be not credi-
ble. Instead, the court found this change in testimony
to be an effort to bolster Allen’s testimony about the
existing brick pillar. On the basis of the surveys and
the significant inconsistencies in the testimony of both
Allen and Mantione, we agree with the court that the
defendants did not have a reasonable, good faith belief
in the existence of the facts essential to bring the
adverse possession claim, and, therefore, they lacked
probable cause to bring the claim as it pertained to
the defendants’ use of the property—specifically, with
respect to the retaining wall and pillar.
Allen also claimed that the mailbox existed when he
purchased the property in 1996 and that it encroached
onto 33 Maple. In spite of this claim, Allen himself
testified that the 1998 and 2006 surveys did not show
an encroaching mailbox on 33 Maple. Moreover, a pho-
tograph introduced as an exhibit at trial also showed
the mailbox to be on 43 Maple, rather than on 33 Maple.
The evidence in the record does not support a reason-
able, good faith belief in the existence of a claim for
adverse possession as it pertained to the defendants’
use of the property—specifically, with respect to the
mailbox.
Finally, with respect to the driveway, Allen claimed
that the driveway was in existence in 1996 when he
purchased the property and that it was located on the
property of 33 Maple. When Allen testified, however,
he admitted that neither the 1998 or 2006 surveys
depicted any driveway encroaching onto 33 Maple. Fur-
ther, during Rubin’s testimony, Rubin indicated that, in
an interrogatory answered by Allen in the prior action,
Allen asserted that he did not have knowledge of when
the portion of the curbed driveway that is located on
the common property line came into existence. Allen
also indicated in that interrogatory that he did not know
whether that portion of the driveway was located on
the common property line or on 33 Maple. On the basis
of these inconsistencies in Allen’s statements and the
facts in the record, we determine that the court did not
err in finding that the defendants did not have probable
cause to bring the adverse possession claim as it per-
tained to the defendants’ use of the property—specifi-
cally, with respect to the driveway.
The defendants further argue that the court erred
in determining that the plaintiffs established a lack of
probable cause to bring the trespass counterclaim. The
defendants argue that they had probable cause for a
trespass claim based on the plaintiffs’ modifications to
the disputed portion of 33 Maple because the defen-
dants had acquired it by adverse possession. Because
we determine that the court did not err in finding that
the defendants lacked probable cause to believe that
they had acquired the property by adverse possession,
they also lacked probable cause to assert the trespass
claim with respect to the disputed property over which
they had no possessory right.
Specifically, with respect to this claim, the court
found that Allen ‘‘fabricat[ed] a trespass claim that was
bereft of evidence and was withdrawn at trial of the
prior action after [the] defendants had rested their
case.’’ The court noted that Powers testified that the
defendants withdrew the trespass claim because there
was insufficient evidence.
We agree with the court that the dearth of evidence
to support the defendants’ claims evidences the defen-
dants’ lack of probable cause to bring the adverse pos-
session and trespass counts of the counterclaim. The
court’s conclusion that the defendants lacked probable
cause to bring the adverse possession and trespass
claims is legally and logically correct and has support
from the facts that appear in the record. Accordingly,
we conclude that the court did not err when it deter-
mined that the defendants lacked probable cause to
bring both counts of the counterclaim.
III
The defendants next claim that the court improperly
denied their motion for a directed verdict. The defen-
dants argue that, ‘‘[e]ven if the trial court fully discredits
Allen’s testimony in finding lack of probable cause, the
balance of the evidence unequivocally and completely
supports [the] defendants’ good faith, reasonable, and
bona fide belief that they had a viable claim for adverse
possession in the quiet title action.’’ They claim that the
court could not conclude the opposite simply because
it disbelieved Allen. In support thereof, they cite Essex
Ins. Co. v. William Kramer & Associates, LLC, 331
Conn. 493, 205 A.3d 534 (2019), without any analysis
whatsoever.
‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . [When] a claim is asserted in
the statement of issues but thereafter receives only
cursory attention in the brief without substantive dis-
cussion or citation of authorities, it is deemed to be
abandoned. . . . For a reviewing court to judiciously
and efficiently . . . consider claims of error raised on
appeal . . . the parties must clearly and fully set forth
their arguments in their briefs.’’ (Citation omitted; inter-
nal quotation marks omitted.) Burton v. Dept. of Envi-
ronmental Protection, 337 Conn. 781, 803, 256 A.3d 655(2021). Because the defendants’ brief did not provide
any analysis of their claim that the court improperly
denied their motion for a directed verdict, we conclude
that the claim was inadequately briefed. We, therefore,
decline to review it on appeal.
IV
The defendants further claim that the court improp-
erly determined that they failed to establish their advice
of counsel defense. We disagree.
We begin by setting forth the legal principles related
to this claim. ‘‘[T]he defense [of advice of counsel] has
five essential elements. First, the defendant must actu-
ally have consulted with legal counsel about his deci-
sion to institute a civil action . . . . Second, the con-
sultation with legal counsel must be based on a full and
fair disclosure by the defendant of all facts he knew or
was charged with knowing concerning the basis for his
contemplated . . . action . . . . Third, the lawyer to
whom the defendant turns for advice must be one from
whom the defendant can reasonably expect to receive
an accurate, impartial opinion as to the viability of his
claim . . . . The fourth element . . . is, of course,
that the defendant, having sought such advice, actually
did rely upon it . . . . Fifth and finally, if all other
elements of the defense are satisfactorily established,
the defendant must show that his reliance on counsel’s
advice was made in good faith.’’ (Internal quotation
marks omitted.) Rieffel v. Johnston-Foote, Superior
Court, judicial district of Stamford-Norwalk, Docket
No. CV-XX-XXXXXXX-S (February 19, 2015) (reprinted at
165 Conn. App. 391, 406–407, 139 A.3d 729), aff’d, 165
Conn. App. 391, 139 A.3d 729, cert. denied, 322 Conn.
904, 138 A.3d 289 (2016).
‘‘Advice of counsel is a complete defense to an action
of . . . [vexatious litigation] when it is shown that the
[client] . . . instituted his [or her] civil action relying
in good faith on such advice, given after a full and fair
statement of all facts within his [or her] knowledge, or
which he [or she] was charged with knowing. . . .
‘‘In determining whether a [client] gave a full and fair
statement of the facts within his or her knowledge to
counsel, reliance on whether the omitted information
would have had any impact on counsel’s decision to
bring the allegedly vexatious action . . . is irrelevant
. . . because, as a matter of law, showing an impact
on an attorney’s ultimate course of action is not an
element of the defense of reliance on counsel. . . . In
other words, a client should not be permitted to rely
upon the defense of advice of counsel if the client did
not disclose all of the material facts related to a poten-
tial claim, because the lawyer cannot render full and
accurate legal advice regarding whether there is a good
faith basis to bring the claim in the absence of knowl-
edge of all material facts. In such instances, a client’s
reliance on the advice of counsel is unreasonable
regardless of whether the material facts would have
altered counsel’s assessment of the validity of the
claim.’’ (Internal quotation marks omitted.) Rozbicki v.
Sconyers, 198 Conn. App. 767, 783–84, 234 A.3d 1061(2020).
‘‘Whether there was a full and fair disclosure of mate-
rial facts as required by the advice of counsel defense
is a question of fact . . . .’’ (Citation omitted; internal
quotation marks omitted.) Verspyck v. Franco, 274
Conn. 105, 112–13, 874 A.2d 249 (2005). As previously
noted, ‘‘[a] finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . We do not examine the record to
determine whether the trier of fact could have reached
a conclusion other than the one reached.’’ (Citation
omitted; internal quotation marks omitted.) Id., 113.
In its memorandum of decision, the court rejected the
defendants’ reliance on the advice of counsel defense.
Specifically, the court determined that the defendants
failed to establish both that they had made a full and
fair disclosure to their attorneys of all facts they knew
or were charged with knowing and that their reliance
on counsel’s advice was made in good faith.
With respect to the second element of the advice of
counsel defense, the defendants argue that ‘‘[a]n objec-
tive review of the evidence presented at trial reveals
that Allen provided both of his counsel with all of the
material facts within his knowledge.’’ We disagree and
conclude that there is evidence in the record to support
the court’s finding, and, thus, the court’s finding is not
clearly erroneous.
As we stated previously in this opinion, the court
ultimately found that ‘‘Allen withheld and misrepre-
sented material facts to counsel, limited counsel’s prep-
aration, and acted to prevent counsel from learning
adverse material facts by preventing counsel from inde-
pendently investigating the defense and claims to cor-
roborate his version of events.’’ The court further found
that all of the information related to encroachments on
33 Maple came from Allen, who kept his counsel, Rubin,
and subsequently, Powers, ‘‘on a tight leash . . . to
prevent them from learning about Allen’s deception.’’
Moreover, the court found that, at the trial in the prior
action, Allen withheld from his counsel the 1998 and
2006 surveys done by his surveyor, which were pivotal
evidence against his position.
Following the first day of trial in the prior action, on
the evening of April 18, 2018, Allen notified Powers that
the general contractor and architect on the condomin-
ium conversion project as well as a realtor involved in
marketing Allen’s properties were willing to sign attes-
tation letters with respect to facts in issue including the
construction of the mailbox, the pillar, and landscaping.
The attestation letters, which were drafted by Allen and
later signed by the contractor, architect, and realtor,
were never admitted into evidence, however, and the
signatories did not appear as witnesses at the trial. In
the present action, the court noted that no evidence
was presented to indicate that Rubin was aware of the
facts recited in the attestation letters or the identity of
the signatories prior to Allen’s preparation of the letters
after the first day of trial. Additionally, Rubin testified
in the present action that, while he was representing
Allen, he had asked Allen for the names of the contrac-
tors who worked on the property, but Allen had failed
to identify them. On the basis of these facts, the court
inferred that ‘‘Allen knew the identity of the architect,
contractor, and realtor and knew they had material
information about the subject property that was kept
from his counsel, who in the ordinary course at least
would have interviewed them and reviewed their files
in preparation of the case.’’
Further, as the court found, Rubin advised Allen of
the need to corroborate Allen’s testimony about the
encroachments, but Allen did not do so despite the fact
that he obtained two separate surveys of the property
that depicted the disputed area. Allen did not produce
any documentation of the condominium project, includ-
ing the 1998 and 2006 surveys, both of which were
prepared at the defendants’ request. Rubin saw the sur-
veys for the first time on May 9, 2017, when they were
produced by the plaintiffs’ counsel as deposition exhib-
its at Allen’s deposition. The surveys were critical, mate-
rial evidence at trial because they depicted the disputed
area and the existence or nonexistence of each of the
claimed encroachments at two different periods in time.
On the basis of the foregoing facts, we conclude that
there is evidence in the record to support the court’s
finding that the defendants had not made a full and fair
disclosure to counsel of the material facts within their
knowledge. On the basis of the evidence in the record,
the court reasonably could have found that Allen omit-
ted information that he was charged with knowing
based on the events surrounding the attestation letters
and his failure to provide his counsel with the 1998 and
2006 surveys. Accordingly, the court’s finding that the
defendants did not make a full and fair disclosure to
counsel of the material facts within their knowledge is
not clearly erroneous.
With respect to the fifth element of the defense, the
defendants argue that ‘‘[t]he court’s finding that [the]
defendants did not rely on their counsel’s advice in
good faith is clearly erroneous based on the evidence
corroborating [the] defendants’ claims and the . . .
court’s improper focus on [the] defendants’ right to
supervise and direct the litigation, including discovery.’’
We disagree. Because we conclude that the defendants
knowingly did not make a full and fair disclosure to
counsel, their reliance on counsel’s advice necessarily
could not have been made in good faith. We, therefore,
uphold the court’s conclusion that the defendants did
not establish their advice of counsel defense.
V
Last, the defendants claim, summarily, that the court
improperly found that they acted with malice. Specifi-
cally, the defendants argue that, because there was
probable cause to bring the prior action, the court could
not ‘‘properly infer malice from a lack of probable
cause.’’ Additionally, the defendants seem to argue that
the court’s finding of their ‘‘improper motives’’ is not
supported by the record but, rather, it is based on the
court’s disbelief of Allen, ‘‘which constitutes clear
error.’’
‘‘In a vexatious suit action, the defendant is said to
have acted with malice if he acted primarily for an
improper purpose; that is, for a purpose other than that
of securing the proper adjudication of the claim on
which [the proceedings] are based . . . .’’ (Citation
omitted; internal quotation marks omitted.) DeLaurentis
v. New Haven, supra, 220 Conn. 256 n.16. ‘‘Malice may
be inferred from lack of probable cause.’’ (Internal quo-
tation marks omitted.) Tatoian v. Tyler, supra, 194
Conn. App. 57.
Because we have concluded in this opinion that the
court properly determined that the defendants lacked
probable cause to bring their claims, it was proper for
the court to infer that the defendants acted with malice.
See id.The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-575 (a) provides in relevant part: ‘‘No person shall
make entry into any lands or tenements but within fifteen years next after
his right or title to the same first descends or accrues or within fifteen years
next after such person or persons have been ousted from possession of
such land or tenements; and every person, not entering as aforesaid, and
his heirs, shall be utterly disabled to make such entry afterwards; and no
such entry shall be sufficient, unless within such fifteen-year period, any
person or persons claiming ownership of such lands and tenements and the
right of entry and possession thereof against any person or persons who
are in actual possession of such lands or tenements, gives notice in writing
to the person or persons in possession of the land or tenements of the
intention of the person giving the notice to dispute the right of possession
of the person or persons to whom such notice is given and to prevent the
other party or parties from acquiring such right, and the notice being served
and recorded . . . shall be deemed an interruption of the use and possession
and shall prevent the acquiring of a right thereto by the continuance of the
use and possession for any length of time thereafter, provided an action is
commenced thereupon within one year next after the recording of such
notice. The limitation herein prescribed shall not begin to run against the
right of entry of any owner of a remainder or reversionary interest in real
estate, which is in the adverse possession of another, until the expiration
of the particular estate preceding such remainder or reversionary estate.’’
2
On December 27, 2019, the court granted the defendants’ motion to
dismiss the slander of title count after finding that the defendants were
entitled to the absolute litigation privilege. There are no claims on appeal
related to this issue.
3
In the counts of the complaint alleging vexatious litigation, the plaintiffs
do not specifically indicate whether the claims are statutory claims, brought
under General Statutes § 52-568, or common-law claims. In the prayer for
relief, however, the plaintiffs requested, for the second count, ‘‘[d]ouble
damages pursuant to . . . § 52-568 (1)’’ and for the third count, ‘‘[t]reble
damages pursuant to . . . § 52-568 (2) . . . .’’ Despite the plaintiffs’ lack
of precision in the counts of the complaint, the court, in its memorandum
of decision, asserted that the ‘‘plaintiffs claim that in . . . prosecuting the
counterclaims in the prior action [the] defendants committed vexatious
litigation under . . . § 52-568 and at common law.’’ (Emphasis added.)
After finding that the defendants lacked probable cause to bring the claims
and that they acted with malice, the court ultimately awarded the plaintiffs’
treble damages under § 52-568 (2). We note that, regardless of whether the
plaintiffs’ claims in the present case were brought under § 52-568 or the
common law, our analysis in this opinion with respect to probable cause
is the same. See Ferri v. Powell-Ferri, 200 Conn. App. 63, 68, 239 A.3d 1216(noting that ‘‘[a] statutory action for vexatious litigation under . . . § 52-
568 . . . differs from a common-law action only in that a finding of malice
is not an essential element, but will serve as a basis for higher damages’’
(footnote omitted; internal quotation marks omitted)), cert. denied, 335
Conn. 970, 240 A.3d 285 (2020).
4
‘‘Because [the] defendants never engaged a surveyor to map out the
claim to have adversely possessed a portion of 33 Maple . . . or to stake
the line, there is a paucity of evidence as to the location of any alleged
encroachments other than a portion of the wall where the pillar and wall
were located on the 2006 survey.’’
5
‘‘Two egregious examples of frivolous and dilatory motions filed by [the]
defendants were the motion to dismiss filed on February 22, 2018, less than
two months before trial was scheduled, and the application for ex parte
temporary injunction filed the week before on February 16, 2018. In the
motion to dismiss [the] defendants denied they were owners of 43 Maple
. . . and referred to various conveyances to Allen’s entities. The motion to
dismiss was denied after a hearing. In fact, [the] defendants were the owners
of 43 Maple . . . . In the application for ex parte temporary injunction
[the] defendants falsely represented: ‘[The] plaintiffs are in the process of
removing stone walls, shrubbery, and other physical structures that exist
on the disputed portions of real property for which are the corpus of this
case.’ The court vacated the ex parte injunction that had been issued on
February 23, 2018 . . . . There was no evidence that the events sworn to
by Allen ever occurred and it appears Allen’s affidavit was either based on
pure hearsay from his wife that turned out not to be true or was simply
made up.’’
6
General Statutes § 52-263 provides in relevant part: ‘‘[I]f either party is
aggrieved by the decision of the court . . . upon any question or questions
of law arising in the trial . . . he may appeal to the court having jurisdic-
tion from the final judgment of the court . . . .’’ (Emphasis added.)
7
As we noted previously in this opinion, in their complaint, the plaintiffs
alleged two separate counts of vexatious litigation against the defendants,
both of which were based on the defendants’ underlying claims of adverse
possession and trespass. One of the counts was labeled ‘‘vexatious suit’’
and the other count was labeled ‘‘malicious vexatious suit.’’
8
‘‘The essential elements of adverse possession are that the owner shall
be ousted from possession and kept out uninterruptedly for fifteen years
under a claim of right by an open, visible and exclusive possession of the
claimant without license or consent of the owner.’’ (Internal quotation marks
omitted.) Anderson v. Poirier, 121 Conn. App. 748, 752, 997 A.2d 604, cert.
denied, 298 Conn. 904, 3 A.3d 68 (2010).
9
In their brief, the defendants also argue, albeit in a conclusory manner,
that the court conflated its analysis of probable cause with its analysis of
the advice of counsel defense, specifically with respect to its findings that
Allen had lied to his counsel. In the introductory section of the defendants’
brief, the defendants assert that ‘‘the court purported to consider and deter-
mine an essential element of [the] plaintiffs’ claim—lack of probable cause—
through the lens of [the] defendants’ advice of counsel defense, thereby
commingling the parties’ burdens to a point where factual evidence of
probable cause clearly was not considered.’’
We observe that the defendants did not adequately brief this aspect of
their claim with reference to any authority or an analysis of the court’s
written decision. As this court has explained previously, ‘‘[w]e are not
required to review issues that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than [mere] abstract
assertion, is required in order to avoid abandoning an issue by failure to
brief the issue properly. . . . We do not reverse the judgment of a trial
court on the basis of challenges to its rulings that have not been adequately
briefed.’’ (Internal quotation marks omitted.) Starboard Fairfield Develop-
ment, LLC v. Gremp, 195 Conn. App. 21, 31, 223 A.3d 75 (2019). When,
during oral argument, a member of this panel asked counsel for the defen-
dants about this aspect of their claim, counsel did not seem to remember
having made this argument at all and did not pursue it.
Even if the argument is properly before us, we note that the court’s
memorandum of decision reflects that, in a single sentence, the court stated
that ‘‘Allen’s false and deceptive misconduct in the prior action provides
graphic evidence of his lack of probable cause, bad faith, and malice.’’
Despite this isolated reference linking its analysis of ‘‘probable cause’’ with
its finding concerning Allen’s ‘‘deceptive misconduct,’’ our review of the
decision as a whole reflects that the court did not conflate probable cause
with its findings that Allen had lied to counsel. The court’s analysis of
probable cause was supported by reference to appropriate legal principles
and it does not appear to have been intertwined with its analysis of the
advice of counsel defense raised by the defendants. ‘‘It is well settled that
[we] do not presume error; the trial court’s ruling is entitled to the reasonable
presumption that it is correct unless the party challenging the ruling has
satisfied its burden demonstrating the contrary.’’ (Internal quotation marks
omitted.) Ellen S. v. Katlyn F., 175 Conn. App. 559, 565, 167 A.3d 1182 (2017).
10
Both the 1998 and 2006 surveys were entered into evidence as full
exhibits without objection at trial. The defendants never claimed at trial
that an expert was necessary to interpret the surveys. To the extent that
the defendants argue that the court was unable to rely on the surveys in
the manner that it did, they appear to raise a claim related to the admissibility
of the surveys. We decline to entertain an unpreserved evidentiary claim in
the context of this claim. ‘‘Whenever evidence is admitted without objection,
the trier of fact can rely on its contents for whatever they are worth on
their face. . . . In order to preserve an evidentiary ruling for review, trial
counsel must object properly. . . . These requirements are not simply for-
malities. They serve to alert the trial court to potential error while there is
still time for the court to act. . . . Assigning error to a court’s evidentiary
rulings on the basis of objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush.’’ (Internal quotation marks
omitted.) Lambert v. Donahue, 78 Conn. App. 493, 501, 827 A.2d 729 (2003).
Because these surveys were admitted into evidence without limitation, the
court properly drew whatever inferences from the surveys that it deemed
to be reasonable.