Peterson v. Conn. Attorneys Title Ins. Co.

142 Conn.App. 34

64 A.3d 122

Alyssa PETERSON

v.CONNECTICUT ATTORNEYS TITLE INSURANCE COMPANY et al.

No. 34207.

Appellate Court of Connecticut.

Argued Jan. 17, 2013.

Decided April 16, 2013.

Alyssa Peterson, pro se, the appellant (plaintiff).

Michael D. O'Connell, with whom, on the brief, was Erin Arcesi Mutty, Hartford, for the appellee (named defendant).

GRUENDEL, ALVORD and BEAR, Js.

GRUENDEL, J.

The self-represented plaintiff, Alyssa Peterson, appeals from the summary judgment rendered by the trial court in favor of the defendant Connecticut Attorneys Title Insurance Company.¹ She claims that the court improperly (1) relied upon a prior judgment discharging a lis pendens placed on real property by the plaintiff and (2) determined that no genuine issue of material fact existed as to whether the defendant committed negligence, aided and abetted fraud, and violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., in issuing certain title insurance policies. We affirm the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiff; see Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009); reveals the following facts. In February, 2004, the plaintiff and Hannah Woldeyohannes entered into an oral agreement to form a partnership for the purpose of purchasing six condominium units in Hartford. They engaged the services of an attorney to negotiate the purchase and to draw up a purchase agreement for the units. Before the partnership had the opportunity to enter into an agreement with the sellers, the units were conveyed to A to Zee, LLC, of which Woldeyohannes was the sole owner. See Peterson v. Woldeyohannes, 111 Conn.App. 784, 785, 961 A.2d 475 (2008).

The plaintiff thereafter commenced an action in the Superior Court and filed a ten count complaint that named both Woldeyohannes and A to Zee, LLC, as defendants (first action). On July 12, 2005, the plaintiff filed a notice of lis pendens on the Hartford land records. The lis pendens stated that the first action was “brought seeking the imposition of a constructive trust and other remedies in connection with certain real property known as the Laurelhart Condominiums, 230–232 Farmington Avenue, [unit numbers] B–2, E–3, G–4, C–9, D–6 and E–7, Hartford, Connecticut.” The lis pendens further stated that “the defendant A to Zee, LLC is the record owner of [those units]” and that each of the units was affected by the first action. On September 21, 2005, the plaintiff withdrew her claim against A to Zee, LLC, leaving Woldeyohannes as the sole defendant in the first action. Woldeyohannes subsequently filed an affidavit of facts on the Hartford land records that averred in relevant part that “A to Zee, LLC was a party to [the first] action” and that “[t]he action has been withdrawn as to A to Zee, LLC and it has been removed from the action, as evidenced by a Withdrawal signed by Alena C. Gfeller, Attorney for the Plaintiff, dated September 21, 2005, and filed with the Clerk's Office on September 21, 2005, at 1:58 p.m.”

In separate transactions that transpired on December 28, 2006, and January 18, 2007, Julian M. Allen and Nydia Allen (Allens) purchased unit G–4 from A to Zee, LLC, and Lorraine Caldwell purchased unit C–9 from A to Zee, LLC. Although the defendant was aware of the notice of lis pendens filed by the plaintiff in July, 2005, it nevertheless issued title insurance policies for those units to Caldwell and the Allens in January of 2007.

In December, 2009, Caldwell and the Allens filed applications in the Superior Court to discharge the lis pendens (lis pendens action).² Following a hearing, the court concluded that the lis pendens was invalid because (1) the plaintiff's claims in the first action did not affect real property within the meaning of General Statutes § 52–325,³ and (2) her withdrawal of the first action against A to Zee, LLC, on September 21, 2005, “effectively released and eliminated the lis pendens.” Allen v. Peterson, Superior Court, judicial district of Hartford, Docket No. 09–6006561–S, 2010 WL 3447868 (August 6, 2010) (50 Conn. L. Rptr. 383, 386). Accordingly, the court ordered the plaintiff's notice of lis pendens to be discharged of record pursuant to General Statutes § 52–325b (b)(2)(A). Id.

The plaintiff obtained a default judgment against Woldeyohannes in the first action and, following a hearing in damages, was awarded $195,482.96 in damages by the court, which the court described as “the share of the profits that she would have been entitled to receive under the partnership agreement.” Id., at 386 n. 1. The plaintiff thereafter commenced the present action. The operative complaint—the plaintiff's fourth amended complaint dated November 29, 2010—contains sixteen counts, three of which pertain to the defendant. In those counts, the plaintiff alleged that the defendant committed negligence, aided and abetted fraud, and violated CUTPA in issuing the aforementioned title insurance policies.

On December 20, 2010, the defendant filed a motion for summary judgment. Appended to that pleading was the affidavit of Guy R. DeFrances, Jr., the defendant's associate general counsel. In that affidavit, DeFrances averred, inter alia, that “[p]rior to the issuance of the ... title insurance policies [to Caldwell and the Allens, the defendant's] agents ... caused to be conducted an examination of the title of each unit, which examinations revealed the existence of a Notice of Lis Pendens filed against each unit.... Both title searches revealed that on or about July 12, 2005, the [p]laintiff ... filed a Notice of Lis Pendens against each unit in connection with [the first action], in which she named ... Woldeyohannes and A to Zee, LLC as defendants.... An examination of the court file [in the first action] revealed that on September 21, 2005, the [p]laintiff ... filed a withdrawal of action as to ... A to Zee, LLC, the record owner of each unit. A copy of the withdrawal is attached [to the affidavit as an exhibit].... Based on the status of record title and the withdrawal contained in the court file, [the defendant] determined that there were no defects in the title to either unit and that there were no issues of title that would have rendered the title unmarketable, and authorized its agents to issue the title insurance policies without taking an exception for the Notice of Lis Pendens.... At no point in time has [the defendant] ever had a contract of title insurance with the [p]laintiff ... regarding either unit.” ⁴

The court heard argument on the defendant's motion on September 19, 2011.⁵ By memorandum of decision dated November 7, 2011, the court granted the motion for summary judgment in favor of the defendant. The plaintiff then filed a motion for reconsideration and reargument, which the court denied, and this appeal followed.

Before considering the precise claims presented on appeal, we note the well established standard of review. “Practice Book § [17–49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings.... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17–44 and 17–45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts.... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.... Our review of the trial court's decision to grant a motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn.App. 379, 382–83, 942 A.2d 469 (2008).

I

We first address the plaintiff's contention that the court, in considering the motion for summary judgment, improperly relied upon its prior judgment discharging the lis pendens. In deciding the lis pendens action, the court concluded that the plaintiff's notice of lis pendens was invalid and, thus, ordered its discharge. When the plaintiff did not timely appeal from that judgment, this court dismissed her belated appeal therefrom. As a result, the court's judgment discharging the lis pendens is a valid and final judgment by which the plaintiff and the trial court alike were bound. Accordingly, we cannot say that it was improper for the trial court to rely on that final judgment in considering the defendant's motion for summary judgment, which centered on the defendant's conduct with respect to that notice of lis pendens.

On appeal, the plaintiff assails the judgment of the trial court in the lis pendens action, describing it as “flawed” and plagued by “incorrect factual statements and legal interpretations.” She thus asks this court to revisit its merits and apply de novo review thereto. We decline to do so. Well-established principles of res judicata preclude this court in the present appeal from passing on the merits of that prior judgment. See, e.g., TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn.App. 492, 501 n. 9, 808 A.2d 726, cert. denied, 262 Conn. 925, 814 A.2d 379 (2002); Daw v. Zoning Board of Appeals, 63 Conn.App. 176, 183, 772 A.2d 755, cert. denied, 256 Conn. 931, 776 A.2d 1145 (2001...