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CHFA–SMALL PROPERTIES, INC. v.
HUSSEIN ELAZAZY ET AL.
(AC 36409)
Gruendel, Beach and Bear, Js.
Argued January 7—officially released May 5, 2015
(Appeal from Superior Court, judicial district of
Hartford, Sheridan, J.)
John L. Giulietti, with whom was Corey A. Heiks,
for the appellants-appellees (defendants).
Joshua A. Hawks-Ladds, with whom were Jonathan
A. Kaplan and, on the brief, Zachary D. Schurin, for
the appellee-appeallant (plaintiff).
Opinion
GRUENDEL, J. The defendants, Hussein Elazazy,
Fathia Rassyoun, Rafi Khan (also known as M. Rafi
Khan), Farhana Khan, Melissa Torriero, Janusz Stolarc-
zyk, Razin Syed (also known as Razin Syad), Rizuana
Afag, and Eno Farm Tenant Association, Inc., appeal
from the judgment of the trial court in favor of the
plaintiff, CHFA–Small Properties, Inc., in its action to
quiet title and for injunctive relief. The defendants claim
that the court (1) improperly rejected their claim of
ownership in real property known as Eno Farms and
located at 1602 Hopmeadow Street in Simsbury (prop-
erty), (2) lacked subject matter jurisdiction over the
plaintiff’s request to quiet title, and (3) improperly failed
to conclude that certain attorneys violated rule 3.3 of
the Rules of Professional Conduct. The plaintiff cross
appeals, claiming that the court improperly determined
that it had failed to establish its claims for slander of
title. We affirm the judgment of the trial court.
The facts underlying this litigation largely are undis-
puted. In its comprehensive memorandum of decision,
the court found: ‘‘[T]he property [at issue] has been
the subject of much litigation. . . . In 1883, Amos Eno
conveyed to the town of Simsbury [town] a 140 acre
parcel of undeveloped land, with the requirement that
the parcel be ‘used for the occupation, maintenance
and support of the town poor . . . and for no other
purpose whatsoever.’ In June, 1991, the [town] set aside
approximately ten acres of the land donated by Eno to
be used for low and moderate income housing. On June
28, 1991, the town leased that 10 acre parcel to CIL
Housing, Incorporated (CIL Housing) for a term of
ninety-nine years pursuant to a written ‘Ground Lease.’
The ground lease provided that the land would be used
only for ‘residential purposes and only for occupancy
by low and moderate income residents,’ pursuant to a
plan of development . . . [to construct] approximately
fifty housing units. The ground lease also provided that
any and all improvements constructed, placed or main-
tained by CIL Housing on any part of the leased parcel
during the term of the lease would be and would remain
the property of CIL Housing.
‘‘CIL Housing created the Eno Farms Limited Partner-
ship [partnership] and assigned its interest in the ninety-
nine year ground lease [thereto]. [The partnership]
financed construction of what came to be known as
‘Eno Farms’ through the [Connecticut Housing Finance
Authority (CHFA)] and the state of Connecticut. [The
partnership] granted a first leasehold mortgage to CHFA
to secure a loan in the amount of $1,495,000. [The part-
nership] also granted a second leasehold mortgage to
the state of Connecticut to secure a loan in the amount
of $2,782,000. The second leasehold mortgage was ulti-
mately assigned by the state of Connecticut to CHFA.
[The partnership] also qualified the project as a low
income housing project pursuant to the Internal Reve-
nue Service code in order to obtain low income housing
tax credits. [The partnership] thereafter sold those tax
credits to outside investors.
‘‘On December 28, 1993, the [partnership] executed
a declaration of cooperative (declaration) making the
project a limited equity leasehold cooperative pursuant
to General Statutes § 47-242 (a) . . . . The [declara-
tion] restricts the occupancy of the rental units to low
and moderate income tenants, specifies income qualifi-
cations for those tenants, and sets forth restrictions on
alienation of those units.
‘‘Pursuant to the [declaration], the plaintiff created
the Eno Farms Cooperative Association, Inc. (associa-
tion). The association was comprised of members who
occupied their respective units pursuant to continually
renewing lease agreements for one year terms. Article
IX of the [declaration] provides that the ‘interests allo-
cated to each unit’ include a ‘percentage interest in the
association,’ a ‘percentage of liability for the common
expenses,’ and ‘one vote in association matters.’ Section
10.4 of the [declaration] provides that each member
of the association is ‘entitled to a proprietary lease
representing such member’s right to occupy a unit.’ If
a member of the association decides to vacate their
rental unit while in good standing (a ‘departing mem-
ber’), section 10.2 of the [declaration] assigns a mone-
tary value to the departing member’s ‘interest in the
association and his or her right to occupy the unit during
the year of membership.’
‘‘In 2006, CHFA declared [the partnership] in default
under the terms of the first and second leasehold mort-
gages. Thereafter, CHFA commenced a foreclosure
action in the Superior Court, judicial district of Hartford
. . . . The association appeared in that action, was rep-
resented by counsel, and, on behalf of its member ten-
ants, opposed the foreclosure. Among other claims, the
association argued that its members held an ownership
interest in the property to be foreclosed.
‘‘After a trial in which the parties fully, fairly and
comprehensively litigated the question of ownership
rights in [the property], the court, [Hon. Robert Satter,
judge trial referee], issued its memorandum of decision
on June 12, 2009. The court rejected all the special
defenses asserted by the association, including its claim
that ‘the residents and the association are the owners of
the project,’ stating that the ‘CHFA itself never promised
home ownership to the association or residents [of the
property], nor was there evidence of reliance upon a
nonexistent promise. Finally, the evidence is that no
conveyance by deed or otherwise conferred ownership
of [the property] upon the association. . . . As a conse-
quence, the court concludes that the association’s spe-
cial defense to the foreclosure counts has not been
factually proven and is legally invalid.’ The court
entered a judgment of strict foreclosure in favor of
CHFA.’’1 (Footnote omitted.) The court further ordered
that the association be terminated. See Connecticut
Housing Finance Authority v. ENO Farms Ltd. Part-
nership, Superior Court, judicial district of Hartford,
Docket No. CV-07-5008995 (June 12, 2009) (48 Conn. L.
Rptr. 66, 70) (foreclosure action).
The court further found that ‘‘CHFA acquired title to
the property subject to the ground lease on August 12,
2009. On August 14, 2009, CHFA recorded a certificate
of foreclosure in volume 780 at page 506 of the Simsbury
land records. On October 26, 2009, CHFA assigned its
interest in [the property] to [the plaintiff]. From that
date forward, [the plaintiff] has been the owner of the
[property], subject to the terms of the ground lease with
the town . . . .
‘‘In May of 2011, the plaintiff, acting through its prop-
erty management agent, Konover Residential Corpora-
tion, commenced summary process actions against
[inter alia] the defendant lessees Hussein Elazazy, [M.
Rafi Khan], Melissa Torreiro, Janusz Stolarczyk, and
Razin Syed in Superior Court, Housing Session, for the
judicial district of Hartford. The defendant lessees
appeared in each of those actions, were represented by
counsel, and strongly contested the summary process
actions. The defendant lessees renewed their claims of
ownership of the [property] and title superior to that
of the plaintiff. In two separate decisions, the court,
Oliver, J., rejected the defendant lessees’ ownership
claims. The court held that ‘the issue of whether the
defendants own the subject dwellings at [the property]
was fully, fairly and apparently exhaustively litigated
in a prior proceeding’ and [was] necessarily determined
in the court’s judgment in [the foreclosure action]. Thus,
the court held that the defendants were collaterally
estopped from contesting ownership. But, even if collat-
eral estoppel did not apply, the court, based on its
own assessment of the evidence, held that the plaintiff
‘established, by a fair preponderance of the evidence
. . . ownership of the [property], including each of the
subject dwellings, based on the evidence adduced at
trial’ and that the defendants ‘failed to prove, by a fair
preponderance of the evidence, a superior title to any
of the subject premises.’ ’’ (Footnotes omitted.) See
Konover Residential Corp. v. Elazazy, Superior Court,
judicial district of Hartford, Housing Session, Docket
No. HDSP-161528 (August 29, 2012) (summary process
action). From that judgment, the defendant lessees
appealed to this court, which affirmed the judgments
of the trial court. Konover Residential Corp. v. Elazazy,
148 Conn. App. 470, 472, 87 A.3d 1114, cert. denied, 312
Conn. 908, 93 A.3d 592 (2014).
On June 6, 2012, the plaintiff entered into an
agreement (agreement) with Equity Management Cor-
poration (corporation) to sell its interest in the property
for $3,010,000. The agreement required the plaintiff to
provide ‘‘good and marketable title’’ to the corporation.
Soon after learning of that pending sale, the defendants,
on June 27, 2012, filed a document titled ‘‘Verified Claim
of an Interest of Any Kind of Land Preserving and Keep-
ing Effective That Interest per [General Statutes] § 47-
33f’’ (verified claim) on the Simsbury land records. Once
alerted to that filing, the corporation refused to close
on the property due to a lack of good and marketable
title. The corporation further alleged that the plaintiff
breached the agreement and therefore demanded a mas-
sive reduction in the purchase price and compensation
for other damages.
As a result, the plaintiff demanded that the defen-
dants withdraw or release the verified claim from the
Simsbury land records. When the defendants refused,
the plaintiff commenced the present action. Its com-
plaint consisted of four counts. In the first count, the
plaintiff sought to quiet title to the property pursuant
to General Statutes § 47-31. The second and third counts
set forth claims for slander of title on the part of the
defendants due to their allegedly malicious filing of the
verified claim on the Simsbury land records.2 In the
fourth and final count, the plaintiff sought an injunction
ordering the defendants to (1) release the verified claim
from the Simsbury land records and (2) not file ‘‘any
new documents on the Simsbury land records that may
cloud the plaintiff’s title.’’
Following a trial, the court ruled in favor of the plain-
tiff on the quiet title and injunction counts. At the same
time, the court ruled in favor of the defendants on the
slander of title counts, concluding that the defendants
did not act with the requisite malice. The court thus
rendered judgment declaring ‘‘that the plaintiff . . . is
the sole, absolute record owner of [the property], sub-
ject to a ground lease in favor of the [town], free of
any claims of title by the [defendants]. Judgment will
enter for the defendants on the second and third counts
of the complaint. The court grants the plaintiff’s request
for a permanent injunction . . . . A permanent injunc-
tion shall and hereby does enter against [the defen-
dants], enjoining and prohibiting them from recording
any document or instrument on the Simsbury land
records which asserts an interest in, makes a claim
regarding, or purports to give notice concerning [the
property]. In the event of any such filing, upon applica-
tion by the plaintiff, the court may order a fine assessed
against the defendants, jointly and severally, in an
amount not to exceed $100 per day per violation. This
order shall be effective against and bind all parties to
this action, as well as their officers, agents, servants,
employees, and attorneys.’’ From that judgment, the
defendants now appeal and the plaintiff cross appeals.
I
The defendants first claim that the court improperly
rejected their claim of ownership in the property. In
response, the plaintiff submits that the court correctly
determined that any claims regarding the defendants’
ownership interest in, or equitable title to, that property
are barred by the doctrine of collateral estoppel. We
agree with the plaintiff.
The applicability of the doctrine of collateral estoppel
presents a question of law, over which our review is
plenary. Testa v. Geressy, 286 Conn. 291, 306, 943 A.2d
1075 (2008). That doctrine ‘‘expresses the fundamental
principle that once a matter has been fully and fairly
litigated, and finally decided, it comes to rest.’’ (Internal
quotation marks omitted.) Megin v. New Milford, 125
Conn. App. 35, 38, 6 A.3d 1176 (2010). ‘‘[C]ollateral
estoppel precludes a party from relitigating issues and
facts actually and necessarily determined in an earlier
proceeding between the same parties or those in privity
with them upon a different claim. . . . An issue is actu-
ally litigated if it is properly raised in the pleadings
or otherwise, submitted for determination, and in fact
determined. . . . To assert successfully the doctrine
of issue preclusion, therefore, a party must establish
that the issue sought to be foreclosed actually was
litigated and determined in the prior action between
the parties or their privies, and that the determination
was essential to the decision in the prior case.’’ (Internal
quotation marks omitted.) Rocco v. Garrison, 268 Conn.
541, 555, 848 A.2d 352 (2004).
It is undisputed that, in the foreclosure action, the
association raised and submitted for determination the
question of whether residents at Eno Farms possessed
an ownership interest in the property. In its memoran-
dum of decision, the court stated that the association
claimed that ‘‘the residents and the association are the
owners of the project . . . .’’ The court also cited to an
exchange with its counsel, Attorney John L. Giulietti,3 at
oral argument, in which the court sought to ‘‘understand
the association’s defense.’’ In that colloquy, the court
asked, ‘‘Now, if I understand what your defense is, as
you just attempted to tell me, [the plaintiff] conspired
. . . to deprive your clients of home ownership—is
that,’’ at which point Giulietti answered, ‘‘That’s a cor-
rect statement, yes.’’ After recounting this colloquy, the
court then considered ‘‘the association’s claims of own-
ership of Eno Farms’’ and ultimately rejected those
claims, concluding that the association did not possess
‘‘a right to ownership’’ of the property. For that reason,
the court concluded that the ‘‘association’s special
defense to the foreclosure counts has not been factually
proven and is legally invalid.’’ That determination
plainly was essential to the court’s decision to render
a judgment of strict foreclosure on the property.
The remaining question, therefore, is whether that
action was litigated between the parties or their privies.4
Rocco v. Garrison, supra, 268 Conn. 555. We conclude
that the foreclosure action was litigated between the
privies of the parties to this case. The plaintiff in the
foreclosure action was the predecessor in title to the
plaintiff in the present case. The association in the fore-
closure case was composed, like the defendants in the
present case, of members who occupied certain units
of the Eno Farms property. Indeed, the court’s memo-
randum of decision in the foreclosure action states that
the president of the association at that time was Rafi
Khan, one of the named defendants in this case. We
therefore conclude that the foreclosure action was fully
and fairly litigated between parties in privity with the
plaintiff and the defendants to this case.
As such, the court properly determined that ‘‘the
claims . . . questions and disputes regarding title to
the [property] have been previously adjudicated . . .
and their relitigation is barred by the application of
the doctrine of collateral estoppel.’’5 (Internal quotation
marks omitted.) The court, therefore, properly rendered
judgment in favor of the plaintiff on the quiet title and
injunction counts of its complaint.
II
The next claim raised by the defendants is difficult to
decipher. In its principal appellate brief, the defendants
state that the ‘‘[t]rial court lacked subject matter [juris-
diction] in a [General Statutes] § 47-33 quiet title action
(to real estate) in which the town of Simsbury (a non-
party to this action, but in which the town attorney
(Updike, Kelly & Spellacy, P.C.) filed an appearance on
behalf of nonparty witness first selectwoman . . . in
which the town as lessor was not only a ‘necessary
party’ but an ‘indispensable party,’ i.e., the [town],
which was the ‘owner’ of the underlying ‘leased fee’ in
a quiet title action.’’ After setting forth a standard of
review, the defendants then note that they moved to
dismiss the action on November 28, 2012, due to the
plaintiff’s alleged failure to comply with an ‘‘arbitration
clause’’ contained in the ground lease.6 The defendants’
briefing of this claim then concludes by directing us to
review the May 6, 2014 letter sent by Giulietti to the
plaintiff’s counsel and the law firm of Updike, Kelly &
Spellacy, P.C., on behalf of the town and various other
nonparties to this litigation.
Consisting of four sentences—including two dedi-
cated to the standard of review—the claim amounts to
little more than bald assertion. It is well established
that ‘‘[w]e are not required to review claims that are
inadequately briefed. . . . We consistently have held
that [a]nalysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . [F]or this court judi-
ciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set
forth their arguments in their briefs. We do not reverse
the judgment of a trial court on the basis of challenges
to its rulings that have not been adequately briefed.
. . . The parties may not merely cite a legal principle
without analyzing the relationship between the facts of
the case and the law cited. . . . [A]ssignments of error
which are merely mentioned but not briefed beyond a
statement of the claim will be deemed abandoned and
will not be reviewed by this court. . . . Where the par-
ties cite no law and provide no analysis of their claims,
we do not review such claims.’’ (Internal quotation
marks omitted.) Russell v. Russell, 91 Conn. App. 619,
634–35, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888
A.2d 92 (2005). The paucity of analysis is particularly
glaring in light of the fact that the defendants have
utilized less than ten and one-half pages of the thirty-
five permitted under our rules of practice. See Practice
Book § 67-3.
‘‘Subject matter jurisdiction involves the authority of
a court to adjudicate the type of controversy presented
by the action before it. . . . A court does not truly
lack subject matter jurisdiction if it has competence to
entertain the action before it. . . . Once it is deter-
mined that a tribunal has authority or competence to
decide the class of cases to which the action belongs,
the issue of subject matter jurisdiction is resolved in
favor of entertaining the action. . . . It is well estab-
lished that, in determining whether a court has subject
matter jurisdiction, every presumption favoring juris-
diction should be indulged.’’ (Citations omitted; internal
quotation marks omitted.) Amodio v. Amodio, 247
Conn. 724, 727–28, 724 A.2d 1084 (1999).
The defendants have furnished no basis to conclude
that the court lacked subject matter jurisdiction over
the plaintiff’s action to quiet title. The court specifically
found that the plaintiff at all relevant times was ‘‘the
sole, absolute record owner’’ of the property and that
the defendants’ filing of the verified claim on the Sims-
bury land records served to cloud title to that property.
The plaintiff thus brought its action to quiet title pursu-
ant to § 47-31,7 which ‘‘provides a judicial mechanism
for parties asserting competing interests in real or per-
sonal property to settle the issue of title.’’ Remington
Investments, Inc. v. National Properties, Inc., 49 Conn.
App. 789, 797, 716 A.2d 141 (1998). Furthermore, the
trial court in the present case, in denying the defen-
dants’ November 28, 2012 motion to dismiss for lack
of subject matter jurisdiction predicated on an alleged
failure to include an indispensable party or to comply
with an arbitration clause from the ground lease,
rejected those claims.8 We perceive no reason to depart
from that determination.
III
Even more inscrutable is the defendants’ third claim,
which appears to allege a violation of rule 3.3 of the
Rules of Professional Conduct9 on the part of the plain-
tiff’s counsel, as well as Attorney Robert DeCrescenzo
of the law firm of Updike, Kelly & Spellacy, P.C., who
filed an appearance in the trial court on appeal on behalf
of town First Selectman Mary A. Glassman, a nonparty
witness.10 For two reasons, we do not review the merits
of that allegation.
First, the defendants’ two sentence analysis of that
claim patently is deficient, as it merely directs this court
to review a transcript and Giulietti’s May 6, 2014 letter
to the plaintiff’s attorney and DeCrescenzo. Such does
not constitute adequate briefing, rendering the claim
abandoned. See Robert J. Barnabei Contracting, LLC
v. Greater Hartford Jewish Community Center, Inc.,
127 Conn. App. 507, 517, 14 A.3d 461 (analysis rather
than abstract assertion required to avoid abandoning
issue by failure to brief issue properly), cert. denied,
301 Conn. 914, 19 A.3d 1260 (2011); Krondes v. O’Boy,
37 Conn. App. 430, 436, 656 A.2d 692 (1995) (‘‘[w]e 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]).
Second, the defendants’ claim is largely identical to
one recently rejected by this court in Doctor’s Associ-
ates, Inc. v. Windham, 146 Conn. App. 768, 81 A.3d 230
(2013). As this court explained: ‘‘[I]t appears that [the
defendant and his counsel], essentially, are attempting
to fault [the plaintiff’s counsel] for not protecting [the
defendant’s] interests in the face of their nonfeasance,
by accusing [the plaintiff’s counsel] of violating rule 3.3
of the Rules of Professional Conduct by not telling the
arbitrator about [the defendant’s] alleged claims and
defenses. We note that the Rules of Professional Con-
duct are not to be used in the way that [the defendant
and his counsel] have used rule 3.3 in this appeal: As
we previously have recognized, however, the rules gov-
erning the professional conduct of attorneys, without
more, do not give rise to a cause of action. . . . [A]
violation of a Rule should not give rise to a cause of
action nor should it create any presumption that a legal
duty has been breached. The Rules are designed to
provide guidance to lawyers and to provide a structure
for regulating conduct through disciplinary agencies.
They are not designed to be a basis for civil liability.
Furthermore, the purpose of the Rules can be subverted
when they are invoked by opposing parties as proce-
dural weapons. The fact that a Rule is a just basis for
a lawyer’s self-assessment, or for sanctioning a lawyer
under the administration of a disciplinary authority,
does not imply that an antagonist in a collateral pro-
ceeding or transaction has standing to seek enforce-
ment of the Rule. . . . [N]othing in the Rules should
be deemed to augment any substantive legal duty of
lawyers or the extra-disciplinary consequences of vio-
lating such a duty.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 779–80. Accordingly, rule 3.3
furnishes no basis for the claim advanced by the defen-
dants in the case.
IV
In its cross appeal, the plaintiff maintains that the
trial court improperly concluded that it had failed to
establish its claims for slander of title. Specifically, the
plaintiff contends that the court improperly determined
that the defendants relied in good faith on the advice
of their counsel and, thus, lacked the element of malice
essential to those claims.11
‘‘A cause of action for slander of title consists of the
uttering or publication of a false statement derogatory
to the plaintiff’s title, with malice, causing special dam-
ages as a result of diminished value of the plaintiff’s
property in the eyes of third parties. The publication
must be false, and the plaintiff must have an estate or
interest in the property slandered. Pecuniary damages
must be shown in order to prevail on such a claim.’’
(Internal quotation marks omitted.) Elm Street Build-
ers, Inc. v. Enterprise Park Condominium Assn., Inc.,
63 Conn. App. 657, 669–70, 778 A.2d 237 (2001). The
court in the present case found the malice element of
that action lacking.
This court recently detailed the parameters of the
malice element of a slander of title action in Fountain
Pointe, LLC v. Calpitano, 144 Conn. App. 624, 76 A.3d
636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013).
We stated: ‘‘Whether a defendant has knowledge of the
falsity of a defamatory statement is a question within
the province of the trier of fact. . . . The proper inquiry
is whether a defendant believes, honestly and in good
faith, in the truth of his statements and whether he has
grounds for such belief. . . . Notably, however, a trial
court is not required merely to accept a defendant’s
self-serving assertion that he published a defamatory
statement without knowing that it was false. . . .
[A]ctual malice requires a showing that a statement was
made with knowledge that it was false or with reckless
disregard for its truth. . . . A negligent misstatement
of fact will not suffice; the evidence must demonstrate
a purposeful avoidance of the truth. . . . Further,
proof that a defamatory falsehood has been uttered
with bad or corrupt motive or with an intent to inflict
harm will not be sufficient to support a finding of actual
malice . . . although such evidence may assist in
drawing an inference of knowledge or reckless disre-
gard of falsity.’’ (Citation omitted; internal quotation
marks omitted.) Id., 655–56.
In its memorandum of decision, the court credited
the testimony of the defendants in reaching its determi-
nation that they had not acted with malice in filing the
verified claim on the Simsbury land records. The court
stated in relevant part: ‘‘In response [to the slander of
title counts], the defendants have asserted the special
defense of ‘advice of counsel,’ namely, that as regards
the content and the timing of the verified claim, they
relied upon the advice provided to them by [Giulietti],
an attorney ‘duly licensed in Connecticut for forty
years.’ . . . The testimony of several defendants
makes it clear that they were fully aware of their factual
circumstances in the wake of the dissolution of the
cooperative and the summary process actions and had
discussed them at length with [Giulietti]. They contin-
ued to believe they had legal rights based on the propri-
etary leases. . . . The court carefully assessed the
testimony of the defendants at trial. All of the defen-
dants credibly testified that they relied upon the advice
of [Giulietti] in deciding to authorize the filing of the
verified claim . . . . One defendant stated, ‘we filed
it . . . because we believed in our attorney.’ Another
specifically testified that the verified claim was ‘filed
under the advisement of [Giulietti] . . . [we] . . . fol-
lowed what the attorney recommended.’ Another defen-
dant conceded that the verified claim was filed in her
name, but maintained that ‘my lawyer did it, I didn’t.’
Another defendant agreed with the plaintiff that ‘we
can’t go against the law . . . but you need to ask our
attorney why we [filed the verified claim].’ The court
views these defendants as common citizens who are
unschooled in the law. They relied on the advice of
their attorney as to the existence of a legal right and
the best means to legally protect that right. Although
that attorney’s advice—objectively viewed by persons
with legal training—was in many ways erroneous, mis-
guided, and imprudent, the court does not believe that
the lay defendants’ reliance upon that advice was unrea-
sonable or unwarranted. The defendants did not act
with a bad or corrupt motive, they did not act with
reckless disregard of the falsity of their statement, and
they did not set out to inflict harm on the plaintiff.’’
In its appellate brief, the plaintiff repeatedly asserts
that ‘‘the defendants’ testimony as to the purpose for
recording the verified claim and the basis for their own-
ership assertions was self-serving, not credible and
should be disregarded.’’ It thus argues that the court
‘‘erroneously credited the defendants’ self-serving testi-
mony and ignored the plaintiff’s controlling evidence
to the contrary.’’ In so doing, the plaintiff misunder-
stands the applicable standard. Although the court is
‘‘not required merely to accept a defendant’s self-serv-
ing assertion that he published a defamatory statement
without knowing that it was false’’; Gambardella v.
Apple Health Care, Inc., 291 Conn. 620, 638, 969 A.2d
736 (2009); our law does not prohibit a court from doing
so. Indeed, the court, as trier of fact, was ‘‘free to accept
or reject, in whole or in part, the testimony offered by
either party.’’ (Internal quotation marks omitted.) Jay
v. A & A Ventures, LLC, 118 Conn. App. 506, 514, 984
A.2d 784 (2009).
The determination of whether a defendant possesses
knowledge of the falsity of a defamatory statement and
believes, honestly and in good faith, in the truth of his
statements and the determination of whether he has
grounds for such belief are factual questions to be
resolved by the trier of fact. Fountain Pointe, LLC v.
Calpitano, supra, 144 Conn. App. 655. ‘‘Questions of
fact are subject to 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 conviction that a mistake has been
committed. . . . Because it is the trial court’s function
to weigh the evidence and determine credibility, we
give great deference to its findings. . . . 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 reasonable presumption . . . in favor
of the trial court’s ruling.’’ (Internal quotation marks
omitted.) Murtha v. Hartford, 303 Conn. 1, 12–13, 35
A.3d 177 (2011).
The essence of the plaintiff’s claim is that the court
improperly credited the testimony of the defendants.
‘‘[I]t is well established that the evaluation of a witness’
testimony and credibility are wholly within the province
of the trier of fact. . . . Credibility must be assessed
. . . not by reading the cold printed record, but by
observing firsthand the witness’ conduct, demeanor and
attitude. . . . An appellate court must defer to the trier
of fact’s assessment of credibility because [i]t is the
[fact finder] . . . [who has] an opportunity to observe
the demeanor of the witnesses and the parties; thus
[the fact finder] is best able to judge the credibility of the
witnesses and to draw necessary inferences therefrom.’’
(Citation omitted; internal quotation marks omitted.)
Schoenborn v. Schoenborn, 144 Conn. App. 846, 851, 74
A.3d 482 (2013).
It is axiomatic that ‘‘this court cannot retry the facts
or pass on issues of credibility.’’ CitiMortgage, Inc. v.
Gaudiano, 142 Conn. App. 440, 449, 68 A.3d 101, cert.
denied, 310 Conn. 902, 75 A.3d 29 (2013); see also Mont-
ville v. Antonino, 77 Conn. App. 862, 871, 825 A.2d 230
(2003) (‘‘[c]ourts of appeal do not pass on the credibility
of witnesses’’). We therefore refuse to disturb the credi-
bility determinations reached by the court in the present
case. Under the applicable standard of review, this court
inquires as to whether there is evidence in the record
to substantiate the court’s factual finding that the defen-
dants lacked malice in filing the verified claim. In light
of the aforementioned testimony, which expressly was
credited by the court, we answer that query in the affir-
mative. The testimony of the defendants furnished an
evidentiary basis for the court to conclude that the
defendants relied in good faith on the advice of their
counsel.12 As such, the court properly concluded that,
without the requisite showing of malice, the plaintiff
could not establish its claims for slander of title.
The judgment is affirmed.
In this opinion the other judges concurred.
1
No appeal was taken from the court’s June 12, 2009 judgment.
2
The distinction between those similar counts is that the third count
incorporates the allegations of the common-law slander of title action set
forth in the second count and then further alleges a violation under General
Statutes § 47-33j of the Marketable Title Act. That statute provides: ‘‘No
person may use the privilege of recording notices under sections 47-33f and
47-33g for the purpose of slandering the title to land. In any action brought
for the purpose of quieting title to land, if the court finds that any person
has recorded a claim for that purpose only, the court shall award the plaintiff
all the costs of the action, including such attorneys’ fees as the court may
allow to the plaintiff, and in addition, shall decree that the defendant
asserting the claim shall pay to the plaintiff all damages the plaintiff may
have sustained as the result of such notice of claim having been so recorded.’’
Common to both causes of action for slander of title is the element of
malice. See Fountain Pointe, LLC v. Calpitano, 144 Conn. App. 624, 652,
76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013); Elm Street
Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn. App.
657, 669, 778 A.2d 237 (2001).
3
Giulietti served as counsel to the association in the foreclosure action,
as counsel to the defendants in the summary process action, and he appears
on behalf of the defendants in the present action. Giulietti signed the verified
claim that precipitated this latest round of litigation as both the attorney
for the defendant lessees and as ‘‘Corporate Counsel’’ for the defendant
Eno Farm Tenant Association, Inc.
4
It is undisputed that the foreclosure action was litigated by different
parties.
5
We note that the court in the summary process action likewise rejected
the defendants’ claims of ownership in the Eno Farms property. Those
defendants unsuccessfully challenged the propriety of that determination
before this court. Konover Residential Corp. v. Elazazy, supra, 148 Conn.
App. 478–79. The majority of the defendants in that summary process
action—Hussein Elazazy, Fathia Rassyoun, Rafi Khan, Farhana Khan,
Melissa Torriero, Janusz Stolarczyk, Razin Syed, and Rizuana Afag—all are
parties to the present action.
6
At no time before the trial court or this court have the defendants offered
any explanation as to how they possess standing to compel an arbitration
pursuant to a ground lease between the town and the plaintiff’s predecessor
in interest.
7
General Statutes § 47-31 (a) provides in relevant part: ‘‘An action may
be brought by any person claiming title to, or any interest in, real or personal
property, or both, against any person who may claim to own the property,
or any part of it, or to have any estate in it, either in fee, for years, for life
or in reversion or remainder, or to have any interest in the property, or any
lien or encumbrance on it, adverse to the plaintiff, or against any person
in whom the land records disclose any interest, lien, claim or title conflicting
with the plaintiff’s claim, title or interest, for the purpose of determining
such adverse estate, interest or claim, and to clear up all doubts and disputes
and to quiet and settle the title to the property. . . .’’
8
We note that this court, in Fountain Pointe, LLC v. Calpitano, 144 Conn.
App. 624, 651, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013),
held that the failure to join a party with an adverse interest in the property
to a quiet title action ‘‘does not require reversal,’’ as ‘‘[o]nly the parties to
an action to quiet title are bound by the judgment.’’ (Internal quotation
marks omitted.)
9
The defendants’ claim refers to subsections (a) (3) and (c) of that rule.
Rule 3.3 (a) (3) of the Rules of Professional Conduct provides that ‘‘[a]
lawyer shall not knowingly . . . [o]ffer evidence that the lawyer knows to
be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer,
has offered material evidence and the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.’’ Rule 3.3 (c) provides: ‘‘The duties stated in
subsections (a) and (b) continue at least to the conclusion of the proceeding,
and apply even if compliance requires disclosure of information otherwise
protected by Rule 1.6.’’
10
The third claim is set forth in the defendants’ principal appellate brief
as follows: ‘‘[Rules of Professional Conduct] Rule 3.3 requires counsel of
record, including Pullman & Comley, LLC, attorneys and the undersigned
attorney (as well as the appearing town attorney Robert DeCrescenzo of
Updike, Kelly & Spellacy, P.C.) to take ‘reasonable remedial measures’ per
subsections (a) (3) and (c) of . . . rule 3.3, especially after the issue was
raised before [the court] on August 29, 2013, and a request for [Practice
Book] § 2-32 (a) (2) (F) ruling resulted in both an oral ruling . . . and written
ruling . . . by [the court] when the undersigned defendants’ attorney ‘knew’
(had actual knowledge per [Rules of Professional Conduct] Rule 1.0 [g])
that the ‘property,’ i.e., CHFA Development #91-021P (commonly called ‘Eno
Farms’) is ‘probably stolen’ within the meaning of subsection (8) of [General
Statutes] § 53a-119, since the fifty households (including the five defendant
households) comprising the Eno Farms property (CHFA Development #91-
021P) have been ‘deprived’ within the meaning of [General Statutes] § 53a-
118 (a) (3) in the said ‘property,’ i.e., Development #91-021P, was ‘withheld’
within the meaning of [General Statutes] § 53a-118 (a) (3) (A) over the past
fifteen to twenty years due to the failure to establish a properly formed
‘limited equity cooperative’ per subsection (a) of [General Statutes] § 47-
242 effectuating the ‘homeownership opportunities’ set out in the ground
lease and the obligation of good faith set out in [General Statutes] § 47-211
with [General Statutes] § 47-212 ‘Liberally Administered Remedies’ and the
‘reasonable remedial measures’ provision of [Rules of Professional Conduct]
rule 3.3, require Pullman & Comley, LLC, attorneys as well as the town
attorney . . . to acknowledge and counsel their respective clients that the
property, i.e., CHFA Development #91-021P, ‘is received, retained or dis-
posed of with purpose to restore it to the [rightful] owners’ per [General
Statutes] § 47-53a-119 (8), namely, the fifty households residing within CHFA
Project #91-021P, in the form of a new and properly formed ‘Limited Equity
Cooperative’ which fulfill the ‘home ownership’ promised in the ground
lease, especially after they received the undersigned’s letter of May 6, 2014.’’
11
In its appellate brief, the plaintiff argues that, although the defendants
‘‘presented their advice of counsel defense as a special defense, it appears
that the trial court elected to consider the defense as probative evidence
of the existence or absence of malice rather than as a free standing special
defense.’’ On our review of the record, we agree with the plaintiff that the
court did not recognize a new special defense to a slander of title action, but
instead simply evaluated the evidence submitted therewith in determining
whether the defendants possessed the requisite malice.
12
The plaintiff also argues that ‘‘public policy should prevent the defen-
dants from asserting the advice of counsel defense,’’ cautioning that ‘‘permit-
ting the defendants to transfer blame for their conduct onto their attorney—
who aided and abetted the defendants in their quest to disrupt the sale [of
the property to the corporation]—would lead to absurd results if any time
that a person wished to disrupt a property transaction it could simply state
that it was relying on advice of counsel and therefore . . . is immune from
damages.’’ Although we appreciate that concern, we are confident that the
trial judges of this state are up to the task of properly assessing and, as
appropriate, rejecting self-serving and unfounded claims of reliance on the
advice of counsel.