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Rocco v. Shaikh

Court of Appeals of Connecticut

September 18, 2018


          Argued March 19, 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and for other relief, brought to the Superior Court in the judicial district of New Britain, where the action was withdrawn in part; thereafter, the court, Young, J., issued an order requiring the defendants to file an answer; subsequently, the court defaulted the defendants; thereafter, the court, Abrams, J., denied the defendants' motion to set aside the default; subsequently, the defendants filed a counterclaim; thereafter, the court, Wiese, J., granted the plaintiffs' motion to strike the counterclaim; subsequently, following a hearing in damages, the court, Hon. William M. Shaughnessy, 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).

          Keller, Elgo and Bright, Js.


          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 defendants 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 administration 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 commenced 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 associated 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 conditions with the house or property. . . .

         ‘‘In the weeks following April 6, [2015], the [plaintiffs] and the [defendants] negotiated the price for the property. 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' contract, 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 provision of the contract, however, provided that the defendants' 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 [plaintiffs'] 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 accumulation of water on the property. ‘‘Members of the [defendants'] family visited the property for a walkthrough 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 property 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 rainstorm . . . .''

         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 property ‘‘as is'' for the agreed upon purchase price memorialized 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 mitigate 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 defendants] to be recorded in the Berlin land records . . . . When the new buyers' counsel performed a title search on the property . . . counsel discovered the [defendants'] 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 purchasing the property. Among other things, the new buyers' title insurance company refused to insure the property because of the [defendants'] land records filing. . . .

         ‘‘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 communications to the [defendants'] counsel and offering additional 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 [defendants'] execution that would release the [defendants'] land record filing from the Berlin land records.''

         The plaintiffs further alleged that the defendants consistently 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 plaintiffs 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 declaration that her ownership interest in the property is unaffected by the [defendants'] land records filing and that the [defendants'] land records filing fails to establish 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 declaration that the [defendants'] land records [filing] is invalid, plus an award of ...

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