The opinion
***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
KIMBERLY CHAMERDA ET AL. v. JOHN OPIE ET AL.
(AC 40573)
DiPentima, C. J., and Elgo and Pellegrino, Js.
Syllabus
The plaintiff C sought to recover damages from the defendants, O and N,
for slander of title in connection with certain property that she had
inherited from E. In 1984, O purchased lot 15 from H and W, who had
inherited the land from the estate of their father, K. K also had owned
two adjacent parcels to the east of lot 15, lots 19 and 23, however, he
sold lot 23 to E and her husband, and he divided lot 19, which was
located in between lots 15 and 23, along the ridgeline of a building on
the property and quitclaimed the eastern part to E. A partnership that
K and E had formed operated a business out of the building on lot 19.
When K divided lot 19, he also executed a will by which he left his
interests in the partnership to E and lot 15, as well as the residue and
remainder of his estate, to H and W. Following K’s death, his will was
admitted to probate and an executor was appointed, who initially issued
two certificates of title for lot 19, stating his opinion that E had owned
both lot 19 west and lot 19 east, but later included lot 19 west as part
of K’s estate. The executor never closed the estate. From the time he
purchased lot 15 until some point in 2003, O believed that E owned all
of lot 19. In 2003, however, a surveyor advised him that nothing existed
in the town’s land records to prove E’s ownership of lot 19 west, and
O hired N to investigate. N discovered that lot 19 west remained in K’s
open estate, opined that it should have been devised to H and W as part
of the residue of K’s estate, and drafted a quitclaim deed for W to sign
that conveyed to O whatever interests she had in lot 19 west. The signed
deed was recorded in the land records on April 28, 2005, along with a
survey. Thereafter, E died testate, leaving lot 23 and her interests in the
partnership to C. In 2008, N filed a motion for a hearing in the Probate
Court on behalf of O to determine who was entitled to lot 19 west. The
Probate Court denied the motion, and N filed an appeal on behalf of O
and W with the trial court, which remanded the matter to the Probate
Court for a hearing. Concomitant with the appeal, N recorded a notice
of lis pendens on the land records. Following a hearing held in 2011,
the Probate Court issued a decision, concluding that lot 19 west belonged
to the partnership and that K intended to transfer his interests therein
to E as a partnership asset. N then filed an appeal with the trial court
on behalf of O, W and the successors in interest to H and her estate,
and recorded a second notice of lis pendens. Thereafter, the appeal was
withdrawn and releases of the notices of lis pendens were recorded
pursuant to an agreement reached by the parties, and, in 2013, C com-
menced the present action against the defendants for slander of title.
Subsequently, the defendants filed separate motions for summary judg-
ment, arguing that the statute of limitations had passed and that the
alleged wrongful conduct was absolutely privileged. The trial court
denied the motions, and the defendants thereafter filed a joint motion
to dismiss for lack of subject matter jurisdiction, which the trial court
granted. From the judgment rendered thereon, C appealed to this
court. Held:
1. The trial court had subject matter jurisdiction over C’s slander of title
claims, as C had standing to bring those claims and the defendants’
actions and statements in preparing and recording the quitclaim deed
and survey were not absolutely privileged: C, as a specific devisee of
E, had a salable interest in lot 19 west that was adversely affected by
the defendants’ preparation and recording of the deed and survey, as
the law giving rise to the tort of slander of title clearly contemplates a
wider range of interests sufficiently cognizable to confer standing, E
took title, albeit contested, in lot 19 west immediately upon K’s demise
and C produced evidence of a potential sale and the difficulty she had
in effecting that sale because of the challenged actions; moreover, the
preparation and recording of the deed and survey were too remote in
time from the probate action to be related thereto and too dissimilar
in nature to the kinds of statements the doctrine of absolute immunity
was meant to protect as privileged, as the evidence indicated that the
defendants failed to obtain a deed from both H and W, which suggested
that they were less concerned about actually obtaining title to lot 19
west than with challenging C’s title, that the defendants’ actions were
undertaken approximately five years prior to the bringing of the probate
action and that the deed and survey were recorded for the purpose of
obtaining O’s standing for some nebulous action that had yet to coalesce
until E had died, and although our state statutes expressly permit the
use of notices of lis pendens in the manner they were used in this case,
our statutes specifically discourage the abuse of the land records for
purposes of slandering title, and given the defendants’ admissions that
the purpose of the deed and survey was to confer on O the ability to
call into legal question the validity of E’s title after she died, these
actions were distinct from the preparation and recording of the notices
of lis pendens related to a specific judicial proceeding.
2. The trial court should have granted the defendants’ motions for summary
judgment because C’s slander of title claims were time barred under
the applicable three year statute of limitations (§ 52-577): pursuant to
§ 52-577, the limitations period began to run, as a matter of law, upon
the recording of the quitclaim deed and survey on April 28, 2005, which,
under the statute, was the occurrence of the act complained of, and,
therefore, because C challenged the dismissal of her claims only on the
basis of the preparation and recording of the deed and survey, and
because the recording thereof was a single occurrence completed some
eight years before the commencement of the present action, C’s claims
were untimely; moreover, there was no merit to C’s claim that equity
demanded that this court recognize the defendants’ actions to be a
continuing course of conduct such that the limitations period was tolled
until the release of the notices of lis pendens, as O’s failure to withdraw
the deed and survey was not a continuing breach of a continuing duty
because there clearly was no special relationship between the parties
and there was no later wrongful conduct related to the alleged prior
wrongful acts.
Argued May 24—officially released October 23, 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 judg-
ment; 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.).
Opinion
DiPENTIMA, C. J. The plaintiff Kimberly Chamerda1
inherited certain real property from her aunt, Elsie
Nemeth. The defendant John Opie, who owned an adja-
cent 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 sub-
ject matter jurisdiction, claiming that the trial court
erred by (1) concluding that the defendants were enti-
tled 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 fol-
lows. 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 pen-
dens were recorded. On April 1, 2013, the plaintiff com-
menced 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 limi-
tations 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 defen-
dants raised substantively the same immunity argument
set forth in their motions for summary judgment, but
this time couched in terms of subject matter jurisdic-
tion. 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, prop-
erly stated, are that the trial court erred by (1) improp-
erly 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
privileged8 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 con-
sider the merits of a case over which it is without
jurisdiction.’’ (Internal quotation marks omitted.) Foun-
tain 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 ‘‘communica-
tions uttered or published in the course of judicial pro-
ceedings’’ 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 stand-
ing 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 Pro-
bate Court dated July 20, 2011, and the issuance of the
only valid [c]ertificate of [d]evise from the [e]state of
Howard Kelsey to Elsie Nemeth on July 17, 2012.’’
We disagree.
It is well established that ‘‘[a] party must have stand-
ing to assert a claim in order for the court to have
subject matter jurisdiction over the claim. . . . Stand-
ing is the legal right to set judicial machinery in motion.
One cannot rightfully invoke the jurisdiction of the
court unless he has, in an individual or representative
capacity, some real interest in the cause of action, or
a legal or equitable right, title or interest in the subject
matter of the controversy. . . . [T]he court has a duty
to dismiss, even on its own initiative, any appeal that
it lacks jurisdiction to hear. . . . Where a party is found
to lack standing, the court is consequently without sub-
ject matter jurisdiction to determine the cause. . . .
Our review of the question of [a] plaintiff’s standing is
plenary.’’ (Citation omitted; internal quotation marks
omitted.) Fountain Pointe, LLC v. Calpitano, supra,
144 Conn. App. 644.
The defendants’ standing argument misconstrues the
law. First, ‘‘[a]ny kind of legally protected interest in
land . . . may be disparaged if the interest is transfer-
able and therefore salable or otherwise capable of prof-
itable disposal. It may be real or personal, corporal
or incorporeal, in possession or reversion. It may be
protected either by legal or equitable proceedings and
may be vested or inchoate. It may be a mortgage, lease,
easement, reversion or remainder, whether vested or
contingent, in land or chattels, a trust or other equitable
interest. . . . This does not purport to be a complete
catalogue of legally protected interests in land . . .
capable of disparagement. There may be other interests
recognized by the law of property that are salable or
otherwise capable of profitable disposal and to which
the rule stated in this Section is therefore applicable.’’
Restatement (Second) of Property, § 624, comment (d),
p. 344 (1977); see also W. Keeton et al., Prosser and
Keeton on the Law of Torts (5th Ed. 1984) §128, pp.
965–66.
Thus, although ‘‘[n]othing vests by reason of [a will]
during the life of the testator’’; (emphasis omitted; inter-
nal quotation marks omitted) Zanoni v. Hudon, 42
Conn. App. 70, 75, 678 A.2d 12 (1996), citing 79 Am.
Jur. 2d, Wills, § 7 (1975); the law giving rise to the tort
of slander of title clearly contemplates a wider range
of ‘‘interests’’ sufficiently cognizable to confer standing.
Moreover, although it is true that a certificate of devise
merely perfects an extant title, Nemeth took title, albeit
contested, imperfect and not absolute, in lot 19 west
immediately upon Kelsey’s demise. See Cardillo v.
Cardillo, 27 Conn. App. 208, 212, 605 A.2d 576 (1992)
(‘‘It is fundamental jurisprudence that title to real estate
vests immediately at death in a deceased’s heirs, or in
devisees upon the admission of the will to probate. . . .
The recording of a probate certificate of devise or
descent is necessary only to perfect marketable title.
That certificate furnishes evidence that the heir’s or
devisee’s title is no longer in danger of being cut off
by a probate sale to pay debts of the estate and also
because it furnishes a record of who received the title.
Such a probate certificate is not a muniment of title,
however, but merely a guide or pointer for clarification
of the record.’’ [Citations omitted.]). The plaintiff also
produced evidence of a potential sale and the trouble
she had in effecting the same. Thus, construing the
evidence in the light most favorable to the plaintiff, as
we must; see generally Padawer v. Yur, 142 Conn. App.
812, 818, 66 A.3d 931, cert. denied, 310 Conn. 927, 78
A.3d 145 (2013); Nemeth had a salable interest in lot
19 west that was adversely affected by the preparation
and recording of the deed and survey, as did her specific
devisee, the plaintiff.
B
Having concluded that the plaintiff had standing to
bring the slander of title claims, we must determine
whether the preparation and recording of the deed and
survey, the only activities challenged here, were abso-
lutely privileged9 such that the court lacked subject
matter jurisdiction. See Bruno v. Travelers Cos., 172
Conn. App. 717, 723, 161 A.3d 630 (2017) (‘‘absolute
immunity implicates the trial court’s subject matter
jurisdiction’’). We conclude that the defendants’ actions
were not absolutely privileged.
‘‘As the doctrine of absolute immunity concerns a
court’s subject matter jurisdiction . . . we are mindful
of the well established notion that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.
. . . The question before us is whether the facts as
alleged in the pleadings, viewed in the light most favor-
able to the plaintiff, are sufficient to survive dismissal
on the grounds of absolute immunity. . . .
‘‘Connecticut has long recognized the litigation privi-
lege . . . [and has extended it] to judges, counsel and
witnesses participating in judicial proceedings. . . . In
Simms [v. Seaman, 308 Conn. 523, 531, 69 A.3d 880
(2013), our Supreme Court] noted that the doctrine of
absolute immunity originated in response to the need
to bar persons accused of crimes from suing their accus-
ers for defamation. . . . The doctrine then developed
to encompass and bar defamation claims against all
participants in judicial proceedings, including judges,
attorneys, parties, and witnesses. . . . [Our Supreme
Court] further noted that, [l]ike other jurisdictions, Con-
necticut has long recognized the litigation privilege, and
that [t]he general rule is that defamatory words spoken
upon an occasion absolutely privileged, though spoken
falsely, knowingly, and with express malice, impose
no liability for damages recoverable in an action in
slander . . . .
‘‘Furthermore, in Rioux v. Barry, [283 Conn. 338,
343–44, 927 A.2d 304 (2007), our Supreme Court]
explained that [t]he purpose of affording absolute
immunity to those who provide information in connec-
tion with judicial and quasi-judicial proceedings is that
in certain situations the public interest in having people
speak freely outweighs the risk that individuals will
occasionally abuse the privilege by making false and
malicious statements. . . . [T]he possibility of incur-
ring the costs and inconvenience associated with
defending a [retaliatory] suit might well deter a citizen
with a legitimate grievance from filing a complaint. . . .
Put simply, absolute immunity furthers the public policy
of encouraging participation and candor in judicial and
quasi-judicial proceedings. This objective would be
thwarted if those persons whom the common-law doc-
trine [of absolute immunity] was intended to protect
nevertheless faced the threat of suit. . . .
‘‘In Simms v. Seaman, supra, 308 Conn. 540–45, [our
Supreme Court] further discussed the expansion of
absolute immunity to bar retaliatory civil actions
beyond claims of defamation. For example, we have
concluded that absolute immunity bars claims of inten-
tional interference with contractual or beneficial rela-
tions arising from statements made during a civil action.
See Rioux v. Barry, supra, 283 Conn. 350–51 (absolute
immunity applies to intentional interference with con-
tractual relations because that tort comparatively is
more like defamation than vexatious litigation). We
have also precluded claims of intentional infliction of
emotional distress arising from statements made during
judicial proceedings on the basis of absolute immunity.
See DeLaurentis v. New Haven, 220 Conn. 225, 263–64,
597 A.2d 807 (1991). Finally, we have most recently
applied absolute immunity to bar retaliatory claims of
fraud against attorneys for their actions during litiga-
tion. See Simms v. Seaman, supra, 545–46. In reviewing
these cases, it becomes clear that, in expanding the
doctrine of absolute immunity to bar claims beyond
defamation, this court has sought to ensure that the
conduct that absolute immunity is intended to protect,
namely, participation and candor in judicial proceed-
ings, remains protected regardless of the particular tort
alleged in response to the words used during participa-
tion in the judicial process. Indeed, we recently noted
that [c]ommentators have observed that, because the
privilege protects the communication, the nature of the
theory [on which the challenge is based] is irrele-
vant. . . .
‘‘It is well settled that communications uttered or
published in the course of judicial proceedings are abso-
lutely privileged [as] long as they are in some way perti-
nent to the subject of the controversy. . . . As to the
relevance of the statements or documents produced
. . . we note that our law provides for a very generous
test for relevance.’’ (Citations omitted; internal quota-
tion marks omitted.) Bruno v. Travelers Cos., supra,
172 Conn. App. 724–27.
In this case, the defendants contend that the prepara-
tion and recording of the deed and survey are privileged
because the deed was prepared and recorded for the
express purpose of conferring standing on Opie to bring
his claim in the Probate Court, and the survey was
prepared and recorded because it was referenced in
the deed. The plaintiff, conversely, argues that the prep-
aration and recording of the deed and survey are (1)
too remote in time from the probate action to be related
thereto and (2) too dissimilar in nature to the kinds of
statements the doctrine of absolute immunity was
meant to protect to be privileged. We agree with the
plaintiff.
The actions the court specifically addressed in grant-
ing the defendants’ motion to dismiss were the prepara-
tion and recording of the two notices of lis pendens.
These actions are immune in part due to statutory impri-
matur. See General Statutes § 52-325. Moreover, they
necessarily are relevant to specific litigation because
they must give notice of ‘‘actions intended to affect real
property.’’ See General Statutes § 52-325 (b). Addition-
ally, the notices of lis pendens necessarily identified
in their text the specific legal actions to which they
were related.
The actions challenged in this appeal, however, are
entirely different and do not square with the purpose
for the privilege. First, the defendants failed to obtain
a deed from both of Kelsey’s daughters, suggesting that
they were less concerned about actually obtaining title
than with challenging the plaintiff’s title. Second, the
defendants’ actions were undertaken some five years
prior to the bringing of the probate action. Although
this does not, in and of itself, exclude the preparation
and recording of the deed and survey from the purview
of the privilege, the remoteness in time does bear on
the legitimacy of the connection between the actions
and the judicial proceedings. The defendants’ failure
within several years to initiate any legal action once
they had obtained what they concluded was sufficient
standing undermines their arguments. More problem-
atic is the notion that the deed and survey were
recorded for the purpose of obtaining standing for some
nebulous action that had yet to coalesce until the appar-
ent owner had died.10
Second, the actions at issue are different in nature
because although our statutes expressly permit the use
of notices of lis pendens in the manner they were used
here, our statutes specifically discourage the abuse of
the land records for purposes of slandering title. See
General Statutes § 47-33j.11 Given the defendants’ admis-
sions that the purpose of the deed and survey was to
confer on Opie the ability to call into legal question the
validity of Nemeth’s title whenever he so chose to do
so, i.e., after she died, these actions are distinct from the
preparation and recording of the notices of lis pendens
related to a specific judicial proceeding. Although the
test for relevance is very generous, we must balance it
against the requirement to construe the evidence in the
light most favorable to jurisdiction. When we do so,
this case falls outside the limits of legal generosity, and
the plaintiff has colorable claims for slander of title.
Therefore, weighing the evidence in the light most
favorable to jurisdiction, we conclude that the defen-
dants’ actions and statements in preparing and
recording the deed and survey were not absolutely privi-
leged. Therefore, the trial court had subject matter juris-
diction over this case.
II
Next, we turn to the defendants’ alternative ground
to affirm that, even if their actions were not absolutely
privileged, the court should have granted their motions
for summary judgment because the plaintiff’s claims
were time barred. We conclude that this alternative
ground is properly before this court and agree with the
defendants that they were entitled to summary
judgment.
A
First, we must consider whether we may properly
address the alternative ground at all. Practice Book
§ 63-4 (a) (1) provides in relevant part: ‘‘If any appellee
wishes to . . . (A) present for review alternative
grounds upon which the judgment may be affirmed
. . . that appellee shall file a preliminary statement of
issues within twenty days from the filing of the appel-
lant’s preliminary statement of the issues. Whenever
the failure to identify an issue in a preliminary statement
of issues prejudices an opposing party, the court may
refuse to consider such issue.’’ Nevertheless, even
where an alternative ground on which to affirm has
been identified in a § 63-4 (a) (1) statement, in most
cases,12 ‘‘[t]he appellee’s right to file [such] statement
has not eliminated the duty to have raised the issue in
the trial court . . . .’’ (Internal quotation marks omit-
ted.) Thomas v. West Haven, 249 Conn. 385, 390 n.11,
734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.
Ct. 1239, 146 L. Ed. 2d 99 (2000).
In this case, the defendants properly filed § 63-4 (a)
(1) statements identifying the alternative ground at
issue. Counsel for Opie conceded at oral argument
before this court, however, that the defendants did not
file a cross appeal to challenge the trial court’s denial
of their motions for summary judgment.13 Nevertheless,
all parties had ample opportunity to address the under-
lying legal issues because they were raised repeatedly
in briefing and argument before the trial court and this
court. See DeBeradinis v. Zoning Commission, 228
Conn. 187, 198, n.7, 635 A.2d 1220 (1994). Accordingly,
we conclude that we may address the alternative ground
on which to affirm without prejudice to the plaintiff.
B
We turn therefore to the legal principles governing
the defendants’ claim. ‘‘Practice Book § 17-49 provides
that summary 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. In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party moving for summary judgment has the burden of
showing the absence of any genuine issue of material
fact and that the party is, therefore, entitled to judgment
as a matter of law. . . . On appeal, we must determine
whether the legal conclusions reached by the trial court
are legally and logically correct and whether they find
support in the facts set out in the memorandum of
decision of the trial court. . . . Our review of the trial
court’s decision to [deny] the defendant’s motion for
summary judgment is plenary. . . .
‘‘Public policy generally supports the limitation of a
cause of action in order to grant some degree of cer-
tainty to litigants. . . . The purpose of [a] statute of
limitation . . . is . . . to (1) prevent the unexpected
enforcement of stale and fraudulent claims by allowing
persons after the lapse of a reasonable time, to plan
their affairs with a reasonable degree of certainty, free
from the disruptive burden of protracted and unknown
potential liability, and (2) to aid in the search for truth
that may be impaired by the loss of evidence, whether
by death or disappearance of witnesses, fading memo-
ries, disappearance of documents or otherwise. . . .
Therefore, when a statute includes no express statute
of limitations, we should not simply assume that there
is no limitation period. Instead, we borrow the most
suitable statute of limitations on the basis of the nature
of the cause of action or of the right sued upon.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193,
198–99, 931 A.2d 916 (2007).
1
The issue of which limitations period applies to a
slander of title claim is an issue of first impression and
a question of law over which our review is plenary. See
Vaccaro v. Shell Beach Condominium, Inc., 169 Conn.
App. 21, 29, 148 A.3d 1123 (2016), cert. denied, 324
Conn. 917, 154 A.3d 1008 (2017). Slander of title is
foremost a creature of the common law but also is
referenced in the Marketable Title Act, General Statutes
§ 47-33b et seq. See footnote 11 of this opinion. Section
47-33j, however, does not include a specific limitations
period, so we must ‘‘borrow the most suitable statute
of limitations on the basis of the nature of the cause
of action . . . .’’ Bellemare v. Wachovia Mortgage
Corp., supra, 284 Conn. 199. The defendants argue that
General Statutes § 52-59714 or, in the alternative, Gen-
eral Statutes § 52-57715 should apply to bar the plaintiff’s
action. Although the plaintiff disagrees, she does not
offer any alternative statute. We conclude that § 52-577
provides the appropriate limitations period.
The tort of slander of title is defined as ‘‘the uttering
or publication of a false statement derogatory to the
plaintiff’s title, with malice, causing special damages 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 Builders, Inc. v.
Enterprise Park Condominium Assn., Inc., 63 Conn.
App. 657, 669–70, 778 A.2d 237 (2001), quoting 50 Am.
Jur. 2d, Libel and Slander § 554 (1995); see also CHFA-
Small Properties, Inc. v. Hussein Elazazy, 157 Conn.
App. 1, 18, 116 A.3d 814 (2015); Fountain Pointe, LLC
v. Calpitano, supra, 144 Conn. App. 653–55; Gilbert v.
Beaver Dam Association of Stratford, Inc., 85 Conn.
App. 663, 672–73, 858 A.2d 860 (2004), cert. denied, 272
Conn. 912, 866 A.2d 1283 (2005).
In dicta16 in Bellemare, our Supreme Court analogized
the claim in that case, a violation of General Statutes
§ 49-8,17 to a slander of title claim in determining that the
three year limitation on tort claims applied. Specifically,
the court noted: ‘‘Slander of title is a tort whereby the
plaintiff’s claim of title [to] land or other property is
disparaged by a letter, caveat, mortgage, lien or some
other written instrument . . . . A cause of action for
slander of title consists of any false communication
which results in harm to interests of another having
pecuniary value . . . . Such an action lies in tort and
is akin to an action for damages pursuant to § 49-8.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Bellemare v. Wachovia Mortgage
Corp., supra, 284 Conn. 202.
Although dicta, this discussion of § 52-577 in connec-
tion with slander of title claims counsels in favor of
applying the three year limitations period. See W. Kee-
ton, supra, § 128, p. 963 (‘‘Because of the unfortunate
association with ‘slander,’ a supposed analogy to defa-
mation has hung over the tort like a fog, and has had
great influence upon its development. On the other
hand, the action seems to have been recognized from
the beginning as only loosely allied to defamation, and
to be rather an action on the case for the special damage
resulting from the defendant’s interference.’’ [Foot-
note omitted.])18
2
Having concluded that § 52-577 applies, we next must
determine the point at which the three year limitations
period began to run. The plaintiff argues, essentially,
that (1) as a matter of law, the statute of limitations
does not begin to run until the defendants ceased to
assert their claims against the plaintiff, and (2) in the
alternative, the ‘‘continuing course of conduct’’ doctrine
applies such that the limitations period does not begin
to run until the cessation of all the conduct complained
of, up to and including the second probate appeal and
associated lis pendens. We disagree.
The plaintiff first suggests that, as a matter of law, the
limitations period commences only after the defendants
ceased to assert their claims against her. In support of
her argument, the plaintiff cites to a single case from
the United States District Court for the Western District
of Virginia, Warren v. Bank of Marion, 618 F. Supp.
317, 322 (W.D. Va. 1985) (‘‘[u]nder the rule here adopted,
this cause of action did not fully accrue and the limita-
tions period did not begin to run until the defendants
released their claim against [the plaintiff’s] property’’).
She urges us to adopt its analysis. We decline to do so.
We note that other jurisdictions have considered this
question with differing conclusions. In some jurisdic-
tions, the statute of limitations begins to run from the
time of the act complained of. See, e.g., Hosey v. Central
Bank of Birmingham, Inc., 528 So. 2d 843, 844 (Ala.
1988); Old Plantation Corp. v. Maule Industries, Inc.,
68 So. 2d 180, 182–83 (Fla. 1953); Boaz v. Latson, 260
Ga. App. 752, 759, 580 S.E.2d 572 (2003), rev’d in part
on other grounds, 278 Ga. 113, 598 S.E.2d 485 (2004);
Walley v. Hunt, 212 Miss. 294, 309, 54 So. 2d 393 (1951);
Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co.,
570 Pa. 242, 247, 809 A.2d 243 (2002). In other jurisdic-
tions, the limitations period begins to run when the
plaintiff reasonably could be expected to discover the
existence of a claim. See, e.g., Stalberg v. Western Title
Ins. Co., 230 Cal. App. 3d 1223, 1230, 282 Cal. Rptr. 43
(1991); LaBarge v. Concordia, 23 Kan. App. 2d 8, 18,
927 P.2d 487 (1996). In still others, the limitations period
begins to run upon pecuniary loss. See, e.g., State v.
Mabery Ranch, Co., LLC, 216 Ariz. 233, 249, 165 P.3d
211 (Az. App. 2007); Rosenbaum v. New York, 8 N.Y.3d
1, 12, 861 N.E.2d 43, 828 N.Y.S.2d 228 (2006); Ellis v.
Waldrop, 656 S.W.2d 902, 904–905 (Tex. 1983); Valley
Colour v. Beuchert Builders, Inc., 944 P.2d 361, 364
(Utah 1997). Finally, in some jurisdictions, the limita-
tions period begins to run only after the defendant
ceases to maintain the adverse claim. See, e.g., Green
v. Chamberlain, 60 So. 2d 120, 124 (La. App. 1952);
New England Oil & Pipe Line Co. v. Rogers, 154 Okla.
285, 7 P.2d 638 (Okla. 1931); Chesboro v. Powers, 78
Mich. 472, 479, 44 N.W. 290 (1889); Nolan v. Kolar, 629
S.W.2d 661, 663 (Mo. App. 1982).
The jurisprudence of this state’s appellate courts,
however, consistently has endorsed the theory that the
relevant limitations period begins to run at the occur-
rence of the act complained of. ‘‘This court has deter-
mined that [§] 52-577 is an occurrence statute, meaning
that the time period within which a plaintiff must com-
mence an action begins to run at the moment the act
or omission complained of occurs. . . . Moreover, our
Supreme Court has stated that [i]n construing our gen-
eral tort statute of limitations . . . § 52-577, which
allows an action to be brought within three years from
the date of the act or omission complained of, we have
concluded that the history of that legislative choice of
language precludes any construction thereof delaying
the start of the limitation period until the cause of action
has accrued or the injury has occurred. . . . The three
year limitation period of § 52-577, therefore, begins with
the date of the act or omission complained of, not the
date when the plaintiff first discovers an injury.’’ (Cita-
tion omitted; internal quotation marks omitted.) Valen-
tine v. LaBow, 95 Conn. App. 436, 444, 897 A.2d 624,
cert. denied, 280 Conn. 933, 909 A.2d 963 (2006); PMG
Land Associates, L.P. v. Harbour Landing Condomin-
ium Assn., Inc., 135 Conn. App. 710, 717–18, 42 A.3d
508 (2012). Indeed, ‘‘[§] 52-577 is a statute of repose in
that it sets a fixed limit after which the tortfeasor will
not be held liable and in some cases will serve to bar an
action before it accrues.’’19 (Emphasis added; internal
quotation marks omitted.) Targonski v. Clebowicz, 142
Conn. App. 97, 108, 63 A.3d 1001 (2013).
Closer to the specific legal questions at issue in this
case, this court previously has determined that, in the
context of an ineffective lis pendens, the § 52-577 limita-
tions period begins to run when the lis pendens is ren-
dered ineffective, not when it is released. See PMG Land
Associates, L.P. v. Harbour Landing Condominium
Assn., Inc., 172 Conn. App. 688, 694–95, 161 A.3d 596,
cert. denied, 326 Conn. 911, 165 A.3d 1252 (2017).
Although the deed and survey were never rendered
‘‘slanderous,’’ that case applies with equal force to the
legal instruments at issue in this case. Inasmuch as the
plaintiff has alleged that the preparation and recording
of the deed and survey were inherently ‘‘slanderous,’’
the statute of limitations began to run, as a matter of
law, upon the recording thereof on April 28, 2005.
The plaintiff, however, also implies that the equities
demand that we recognize the defendants’ actions to be
a continuing course of conduct such that the limitations
period was tolled until the release of the notices of lis
pendens. We disagree.
‘‘[I]n the context of a motion for summary judgment
based on a statute of limitations special defense, a
defendant typically meets its initial burden of showing
the absence of a genuine issue of material fact by dem-
onstrating that the action had commenced outside of
the statutory limitation period. . . . When the plaintiff
asserts that the limitations period has been tolled by
an equitable exception to the statute of limitations, the
burden normally shifts to the plaintiff to establish a
disputed issue of material fact in avoidance of the stat-
ute. . . .
‘‘In certain circumstances . . . we have recognized
the applicability of the continuing course of conduct
doctrine to toll a statute of limitations. Tolling does not
enlarge the period in which to sue that is imposed by
a statute of limitations, but it operates to suspend or
interrupt its running while certain activity takes place.
. . . Consistent with that notion, [w]hen the wrong
sued upon consists of a continuing course of conduct,
the statute does not begin to run until that course of
conduct is completed. . . .
‘‘[I]n order [t]o support a finding of a continuing
course of conduct that may toll the statute of limitations
there must be evidence of the breach of a duty that
remained in existence after commission of the original
wrong related thereto. That duty must not have termi-
nated prior to commencement of the period allowed
for bringing an action for such a wrong . . . . Where
we have upheld a finding that a duty continued to exist
after the cessation of the act or omission relied upon,
there has been evidence of either a special relationship
between the parties giving rise to such a continuing
duty or some later wrongful conduct of a defendant
related to the prior act. . . . Therefore, a precondition
for the operation of the continuing course of conduct
doctrine is that the defendant must have committed an
initial wrong upon the plaintiff. . . . A second require-
ment for the operation of the continuing course of con-
duct doctrine is that there must be evidence of the
breach of a duty that remained in existence after com-
mission of the original wrong related thereto. . . . The
doctrine of continuing course of conduct as used to
toll a statute of limitations is better suited to claims
where the situation keeps evolving after the act com-
plained of is complete . . . .
‘‘In sum, [i]n deciding whether the trial court properly
granted the defendant’s motion for summary judgment,
we must determine if there is a genuine issue of material
fact with respect to whether the defendant: (1) commit-
ted an initial wrong upon the plaintiff; (2) owed a contin-
uing duty to the plaintiff that was related to the alleged
original wrong; and (3) continually breached that duty.
. . . [I]f there is no genuine issue of material fact with
respect to any one of the three prongs . . . summary
judgment is appropriate.’’ (Citations omitted; internal
quotation marks omitted.) Vaccaro v. Shell Beach Con-
dominium, Inc., supra, 169 Conn. App. 44–45; see also
Targonski v. Clebowicz, supra, 142 Conn. App. 108–109.
Opie’s failure to withdraw the deed and survey was
not a continuing breach of a continuing duty. First,
there clearly was no special relationship between the
parties in this case. Second, there was no ‘‘later wrong-
ful conduct . . . related to a prior act.’’ (Internal quota-
tion marks omitted.) Vaccaro v. Shell Beach
Condominium, Inc., supra, 169 Conn. App. 44. Under
similar circumstances, our appellate courts have con-
cluded that the failure to rectify the existence of an
injurious instrument on the land records is a single
occurrence. See Bellemare v. Wachovia Mortgage
Corp., supra, 284 Conn. 202–205 (failure to deliver
release of mortgage lien not continuing course of con-
duct); PMG Land Associates, L.P. v. Harbour Landing
Condominium Assn., Inc., supra, 172 Conn. App.
695–98 (failure to release lis pendens not continuing
course of conduct).
Accordingly, because the plaintiff does not challenge
the dismissal of her claims insofar as they are not prem-
ised on the preparation and recording of the deed and
survey, and because the recording thereof was a single
occurrence completed some eight years before the com-
mencement of the present action, her claims are
untimely, and the trial court should have granted the
defendants’ motions for summary judgment.
III
Finally, in light of our conclusions and under the
unusual circumstances of this case, we briefly must
determine what disposition is proper. In Bruno v. Trav-
elers Cos., supra, 172 Conn. App. 729, we held that
where a court concludes that certain conduct is abso-
lutely privileged, it should dismiss claims premised on
such conduct. Thus, the court here properly dismissed
the plaintiff’s claims with respect to the actions not
challenged in this appeal, namely the preparation and
recording of the two notices of lis pendens and the
prosecution of the probate appeals. Although the prepa-
ration and recording of the deed and survey were not
privileged and thus do not implicate subject matter
jurisdiction in the same way, the court should have
granted summary judgment as to those claims because
they were time barred.
The form of the judgment is improper, the judgment
dismissing the action is reversed and the case is
remanded with direction to render judgment for the
defendants.
In this opinion the other judges concurred.
1
Paul Gouin, the successor executor of the estate of Elsie Nemeth, was
also a plaintiff at the trial court. All of Gouin’s claims were dismissed,
stricken, or abandoned. See Chamerda v. Opie, Superior Court, judicial
district of New Haven, Docket No. CV-XX-XXXXXXX-S (August 28, 2014) (58
Conn. L. Rptr. 865). He is not a participant in this appeal, and, therefore,
we refer in this opinion to Chamerda as the plaintiff.
2
Specifically, the deed provided that (1) ‘‘Nemeth shall not disturb [the
company’s] operation, claim rent, lease, sell said property or in any other
way exercise ownership to the detriment of said [company]’’ and (2) in the
event of either party’s disposal of his or her interest in the company, ‘‘the
buildings housing said [company] shall be razed within twelve . . . months
of said happening at the expense of said [company] or sole ownership.’’
3
Specifically, Kelsey’s will provided: ‘‘I bequeath and devise all of my
right, title and interest in [the company] and in and to all of the assets, real
and personal, tangible and intangible owned by it, as shown by its books
of account, to my partner, Elsie V. Nemeth, in fee; provided however that
this gift shall be subject to all debts, obligations and claims of every sort
outstanding against said [company] at the time of my death.’’
4
Specifically, Kelsey’s will provided: ‘‘To my daughters, Beatrice K. Hull
and Ruth K. Warner, per stirpes, as tenants in common, I devise in fee my
residence located on the sought side of Buena Vista Road in Branford . . .
commonly known as 15 Buena Vista Road . . . . All the rest, residue and
remainder of the property which I may own . . . I bequeath and devise in
equal shares to my daughter, Beatrice K. Hull and my daughter, Ruth K.
Warner . . . .’’
5
Specifically, Nemeth’s will provided: ‘‘To my niece, Kimberly Chamerda
. . . I devise and bequeath the real property located at 19 Buena Vista Road,
Branford . . . if owned by me at the time of my death.’’
6
Specifically, in granting the motion to dismiss, the court stated in relevant
part: ‘‘The undersigned concludes that the law of the case doctrine does
not apply on th[ese] issues. Therefore, the prior ruling of the court, Agati,
J., that there were disputed issues of fact preventing the entry of judgment,
is inapplicable to the present issue, whether the action is barred by the
absolute immunity doctrine. Although there is no Connecticut Appellate
Court case directly on point, other jurisdictions have considered and decided
whether a notice of lis pendens is protected by the doctrine of absolute
immunity. At one point, a majority of jurisdictions concluded that absolute
immunity applies. . . . However, recently, the trend appears to be that
qualified immunity applies. Because none of the indicia that must be present
to preclude the application of the doctrine of qualified immunity and because
there is persuasive Superior Court authority which suggests that the filing of
a lis pendens is absolutely privileged, this court grants the motion to dismiss.’’
The defendants filed a subsequent motion for articulation to clarify
whether the court dismissed the case in full. The court granted that motion,
noting that ‘‘[i]t was the intention of the [court] to dismiss the entire case.
The coding, as judgment in part, was erroneous.’’ Although it is unclear
from this record, the granting in full of the motion to dismiss suggests that
the court agreed that the defendants’ actions with respect to the deed and
survey were privileged.
7
Indeed, the plaintiff states in her appellate brief that ‘‘[w]hether or not
the certificates of lis pendens are barred by the doctrine of absolute immunity
has no bearing whatsoever as to whether there is subject matter jurisdiction
for the [p]laintiff’s slander of title claims arising from the wrongful prepara-
tion and recording of the [d]eed and [s]urvey as alleged by the [p]laintiff in
the [t]hird [a]mended [c]omplaint.’’ Later, she states that ‘‘the preparation
and recording of the [d]eed and [s]urvey . . . are the factual basis of the
[p]laintiff’s slander of title claims.’’ This mirrors her apparent concessions
before the trial court that the notices of lis pendens are absolutely privileged.
8
At common law, ‘‘communications uttered or published in the course
of judicial proceedings 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); see
also Bruno v. Travelers Cos., 172 Conn. App. 717, 719 n.2, 161 A.3d 630
(2017) (discussing distinctions between terms ‘‘absolute immunity,’’ ‘‘abso-
lute privilege,’’ and ‘‘litigation privilege’’).
9
We note that the court concluded that the preparation and recording of
the notices of lis pendens were entitled to qualified immunity. We read
Simms v. Seaman, 308 Conn. 523, 569 n.30, 69 A.3d 880 (2013), as a rejection
of the doctrine of qualified immunity. Accordingly, we analyze the defen-
dants’ claims in terms of absolute immunity.
10
Arguably, with the evidence at his disposal, Opie already may have had
sufficient standing to bring a quiet title action. See, e.g., Fountain Pointe,
LLC v. Calpitano, supra, 144 Conn. App. 644–45 (‘‘An action to quiet title
‘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 . . . 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. . . .’ General Statutes § 47-31 (a). Furthermore, § 47-
31 (a) provides: ‘Such action may be brought whether or not the plaintiff
is entitled to the immediate or exclusive possession of the property.’ Thus,
under § 47-31, any person having any interest in real property that is affected
by a mortgage, the validity of which is being challenged, may bring an action
to quiet title and seek to have the court declare the mortgage invalid.’’
[Emphasis in original.]).
11
General Statutes § 47-33j 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.’’
12
But see Blumberg Associates. Worldwide, Inc. v. Brown & Brown of
Connecticut, Inc., 311 Conn. 123, 164, 84 A.3d 840 (2014) (‘‘[t]reatment of
[unpreserved, alternative grounds for affirmance] claims depends on three
variables: (1) whether the claim was raised in the trial court; (2) whether
the claim was raised on appeal; and (3) whether the appellant would be
entitled to a directed judgment if it prevailed on the claim that it raised on
appeal, or whether, instead, there would be further proceedings in the
trial court’’).
13
See Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865
A.2d 1163 (2005) (‘‘the trial court’s partial denial of the defendants’ motion
for summary judgment, which had been filed on the basis of [a] colorable
claim of absolute immunity, constitutes an appealable final judgment’’).
14
General Statutes § 52-597 provides: ‘‘No action for libel or slander shall
be brought but within two years from the date of the act complained of.’’
15
General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall
be brought but within three years from the date of the act or omission
complained of.’’
16
This court explicitly has held that our Supreme Court’s discussion of
slander of title in Bellemare was dicta insofar as it purportedly created a
new element of the tort. See Fountain Point, LLC v. Calpitano, supra, 144
Conn. App. 654–55 (‘‘The court’s discussion of slander of title analogized
the similarities between an action for damages under § 49-8 with the com-
mon-law tort of slander of title in order to bolster its holding that the three
year tort statute of limitations was applicable. . . . We do not consider our
Supreme Court’s discussion of slander of title in Bellemare to have intended
to lay down in positive form an additional element to a statutory slander of
title cause of action.’’ [Citation omitted; internal quotation marks omitted.]).
17
General Statutes § 49-8 governs the release of satisfied or partially satis-
fied mortgages, ineffective attachments, lis pendens or liens.
18
But see 50 Am. Jur. 2d, Libel and Slander § 529 (‘‘In the absence of a
statute expressly referring to actions for slander of title, the statute of
limitations applicable to actions for libel and slander often applies to actions
for slander of title. Slander of title claims, however, may be governed by
the limitation period for an action for an injury to the rights of the plaintiff,
not arising on contract and not otherwise enumerated, or by a general
statute of limitations for actions with no prescribed limitations.’’ [Foot-
notes omitted.]).
19
For this reason, we also reject the plaintiff’s argument that the limitations
period should not have begun until she had actual notice of the filing of
the deed and survey. Also, as discussed previously, our appellate courts
have rejected the ‘‘discovery’’ theory for accrual adopted by other jurisdic-
tions. See part II B 1 of this opinion.