KIMBERLY CHAMERDA ET AL.
v.
JOHN OPIE ET AL.
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that action eventually was withdrawn, the plaintiff brought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 ...