Chamerda v. Opie

          Argued May 24, 2018

         Procedural History

         Action to recover damages for slander of title, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Agati, J., denied the defendants' motions for summary judgment; thereafter, the court, A. Robinson, J., granted the defendants' motion to dismiss and rendered judgment thereon, from which the named plaintiff appealed to this court. Improper form of judgment; judgment directed.

          David L. Weiss, for the appellant (named plaintiff).

          James E. O'Donnell, for the appellee (named defendant).

          Nadine M. Pare, for the appellee (defendant Norbert W. Church, Jr.).

          DiPentima, C. J., and Elgo and Pellegrino, Js.

          OPINION

          DiPENTIMA, C. J.

         The plaintiff Kimberly Chamerda^[1] inherited certain real property from her aunt, Elsie Nemeth. The defendant John Opie, who owned an adjacent parcel, hired the defendant Norbert W. Church, Jr., an attorney, to commence a legal challenge to the plaintiff's ownership of part of the property. After that action eventually was withdrawn, the plaintiff brought the present action in the Superior Court against Opie and Church for slander of title. The plaintiff now appeals from the judgment of dismissal for lack of subject matter jurisdiction, claiming that the trial court erred by (1) concluding that the defendants were entitled to absolute or qualified immunity, or both, and (2) failing to apply the law of the case doctrine to bar the defendants from raising the immunity defense in their joint motion to dismiss where they had made nearly identical arguments in earlier motions for summary judgment. In addition to responding to the plaintiff's claims on appeal, the defendants raise an alternative ground on which to affirm the judgment: They claim that the court erred by denying their motions for summary judgment where their actions were privileged or the statute of limitations had run, or both. Although we agree with the plaintiff that the trial court erred in concluding that the challenged actions were absolutely privileged and therefore that it lacked subject matter jurisdiction, we nevertheless agree with the defendants that they were entitled to summary judgment on the statute of limitations ground. Accordingly, the form of the judgment is improper; we reverse the judgment of dismissal and remand the case to the trial court with direction to render judgment in favor of the defendants.

         The relevant facts and procedural history are as follows. In 1984, Opie purchased 15 Buena Vista Road in Branford from Beatrice Hull and Ruth Warner, sisters who had inherited that land from the estate of their father, Howard Kelsey. In addition to lot 15, which had been his residence, Kelsey once owned the two adjacent parcels to the east, lots 19 and 23. In 1960, however, Kelsey sold lot 23 to Elsie Nemeth and her husband, which they then used as their residence. Between the two homes, on lot 19, was a building known as the Vernon Glove Factory (factory). Kelsey and Nemeth formed a partnership to operate a business called the Vernon Glove Company (company) out of the factory.

         On March 8, 1974, Kelsey divided lot 19 along the roof ridgeline of the factory. He quitclaimed the eastern part to Nemeth, with certain conditions.^[2] On the same day, March 8, 1974, Kelsey executed a will by which he left his partnership interests in the company to Nemeth, also with conditions.^[3] He left lot 15, as well as the residue and remainder of his estate, to Hull and Warner.^[4]

         Three years later, on March 14, 1977, Nemeth quit-claimed lot 19 east back to Kelsey so that they could remove the conditions on the original deed; Kelsey immediately quitclaimed lot 19 east back to Nemeth, without conditions. Shortly thereafter, on May 23, 1977, Kelsey died. On June 23, 1977, the Branford Probate Court admitted Kelsey's will and appointed Attorney Frank J. Dumark as executor. Dumark initially issued two certificates of title, stating an opinion that Nemeth had owned both lot 19 west and lot 19 east. Later, however, he included lot 19 west as part of Kelsey's estate.

         Years later, Dumark's administration account was filed; it did not propose distribution for any of the real property in Kelsey's estate. On February 11, 1981, the Branford Probate Court issued an order stating that there were other assets to be had that would be in the best interests of the beneficiaries of the estate and that the administration account would not be accepted as a final account but, instead, would remain an interim account. Dumark never closed the estate, and it remained open for twenty-five years.

         From the time Opie purchased lot 15 until some point in 2003, he believed that Nemeth owned all of lot 19. In 2003, however, Opie had his property surveyed in preparation for the construction of a deck. The surveyor advised him that nothing existed in the land records to prove Nemeth's ownership of lot 19 west. Opie then hired Church to investigate; Church discovered that lot 19 west remained in Kelsey's open estate and opined that it should have been devised to Hull and Warner as part of the residue of Kelsey's estate. Church drafted a quitclaim deed for Warner to sign that conveyed to Opie whatever interests she may have had in lot 19 west. The signed deed was recorded on April 28, 2005, along with the survey.

         On November 9, 2006, Nemeth died testate, leaving her home and interests in the company to the plaintiff.^[5] On December 27, 2007, the executrix of Nemeth's estate requested that the Branford Probate Court issue a revised certificate of devise transferring to Nemeth, and thus to her estate, lot 19 west. On March 5, 2008, however, Church filed a motion for a hearing in the Branford Probate Court on behalf of Opie to determine who was entitled to lot 19 west. The motion argued that the Probate Court had never issued a certificate of devise, that Kelsey's estate remained open, that Warner and Hull had an interest in lot 19 west as residue of Kelsey's estate, and that Opie was Warner's successor in title.

         The Branford Probate Court reviewed the archived record and discovered a certificate of devise for lot 19 west in favor of Nemeth. The court noted, however, that this certificate was not part of the official records and was not recorded on the Branford Land Records. Nevertheless, the court denied the request for a hearing on the ground that the certificate demonstrated that the original Probate Court determined that Kelsey devised the property to Nemeth.

         On July 23, 2008, Church appealed the denial of the hearing request to the Superior Court on behalf of both Opie and Warner. Concomitant with that appeal, Church filed a notice of lis pendens on July 25, 2008. On July 2, 2010, the trial court, Hon. William L. Hadden, Jr., judge trial referee, remanded the case to the Branford Probate Court for ‘‘an evidentiary hearing . . . to determine who is entitled to a certificate of devise as to [lot 19 west].''

         That hearing was held in the spring of 2011; the Bran-ford Probate Court issued its decision on July 20, 2011. The court, having heard the evidence and reviewed the arguments de novo, concluded that lot 19 west belonged to the company and therefore that Kelsey intended to transfer his interests therein to Nemeth as a company asset. See footnote 3 of this opinion.

         On August 17, 2011, Church appealed the July 20, 2011 decision to the Superior Court on behalf of Opie, Warner, and the successors in interest to Hull and her estate. Accordingly, a second notice of lis pendens was recorded on August 26, 2011. Pursuant to an agreement reached by the parties, on June 28, 2012, the appeal was withdrawn and releases of the notices of lis pendens were recorded. On April 1, 2013, the plaintiff commenced this action against the defendants for slander of title.

         On June 3, 2015, Church filed a motion for summary judgment, as did Opie on August 6, 2015. In both motions, the defendants argued that the statute of limitations had passed and that the alleged conduct was absolutely privileged. The plaintiff objected to those motions on December 4, 2015; the court denied them in a written decision dated April 25, 2016. In its decision, the court recited the applicable law and stated that ‘‘[t]he court concludes that [there] are issues of fact which deny the granting of summary judgment.''

         On January 27, 2017, the defendants filed a joint motion to dismiss for lack of subject matter jurisdiction, to which the plaintiff objected. In that motion, the defendants raised substantively the same immunity argument set forth in their motions for summary judgment, but this time couched in terms of subject matter jurisdiction. On June 5, 2017, the court granted the motion to dismiss.^[6] On June 23, 2017, the plaintiff appealed.

         As a preliminary matter, we must clarify what is and what is not being challenged in this appeal. The original bases for the plaintiff's claims for slander of title as alleged in the operative complaint, the third amended complaint, dated February 11, 2015, are as follows: (1) the drafting of the June, 2003 survey, which was revised on December 6, 2004, and recorded on April 28, 2005; (2) the drafting of the quitclaim deed, dated May 26, 2004, and the recording thereof on April 28, 2005; (3) the drafting of the first notice of lis pendens, dated July 23, 2008, and the recording thereof on July 25, 2008; (4) the drafting of the second notice of lis pendens, dated August 17, 2011, and the recording thereof on August 26, 2011; and (5) the prosecution of the Probate Court appeal proceedings, namely, the motion for a hearing, dated March 5, 2008, the first appeal, dated July 23, 2008, and the second appeal, dated August 17, 2011. On appeal, the plaintiff asserts that her slander of title claims are founded only on the drafting and recording of the deed and survey, and that she briefed her appeal accordingly.^[7]

         Consequently, the plaintiff's claims on appeal, properly stated, are that the trial court erred by (1) improperly granting the motion to dismiss for lack of subject matter jurisdiction on the ground that the preparation and recording of the deed and survey were absolutely privileged^[8] and (2) failing to apply the law of the case doctrine to bar the defendants from arguing anew that the preparation and recording of the deed and survey were absolutely privileged in their motion to dismiss. The defendants challenge these arguments; further, as an alternative ground on which to affirm the judgment, the defendants contend that the statute of limitations bars the plaintiff's claim. Because we agree with the defendants that the statute of limitations applies to bar the plaintiff's claims for slander of title insofar as they were founded upon the deed and survey, and because the plaintiff challenges only those actions on appeal, we conclude that the defendants were entitled to summary judgment and, accordingly, do not reach the other claims.

         I

         First, we must determine whether the trial court had subject matter jurisdiction over the plaintiff's claims with respect to the deed and survey. We do so even though the motion to dismiss was filed subsequent to the motion for summary judgment because ‘‘[s]ubject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.'' (Internal quotation marks omitted.) Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 648, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013). Specifically, in this case, we must determine whether (1) the plaintiff has standing and (2) the recording of the deed and survey were ‘‘communications uttered or published in the course of judicial proceedings'' such that they ‘‘are absolutely privileged so long as they are in some way pertinent to the subject of the controversy.'' (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986).

         ‘‘In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court's review is plenary. A determination regarding a trial court's subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.'' (Internal quotation marks omitted.) Stones Trail, LLC v. Weston, 174 Conn.App. 715, 735, 166 A.3d 832, cert. denied, 327 Conn. 926, 171 A.3d 59 (2017).

         A

         The defendants contend that the plaintiff lacks standing because she ‘‘did not have any interest in or title to [lot 19 west] until after title was determined at the conclusion of the appeal from the decision of the Probate Court dated July 20, 2011, and the issuance of the only valid [c]ertificate of ...