Fountain Pointe, LLC v. Calpitano

• Decision Date: 06 August 2013
• Docket Number: No. 34199.,34199.
• Citation: 76 A.3d 636,144 Conn.App. 624
• Court: Connecticut Court of Appeals
• Parties: FOUNTAIN POINTE, LLC v. Liliana CALPITANO, Trustee of the Calpitano Family Trust et al.

144 Conn.App. 624

76 A.3d 636

FOUNTAIN POINTE, LLC

v.Liliana CALPITANO, Trustee of the Calpitano Family Trust et al.

No. 34199.

Appellate Court of Connecticut.

Argued April 8, 2013.

Decided Aug. 6, 2013.

P. Jo Anne Burgh, Glastonbury, with whom was Salvatore Bonanno, Hartford, for the appellants (defendants).

Kerry M. Wisser, West Hartford, with whom was Nathan A. Schatz, for the appellee (plaintiff).

ALVORD, SHELDON and BORDEN, Js.

BORDEN, J.

The defendants, Liliana Calpitano, individually and as trustee of the Calpitano Family Living Trust (Trust), and Rick P. Calpitano, appeal from the judgment of the trial court in favor of the plaintiff, FountainPointe, LLC, that declared invalid the defendants' mortgages on a certain piece of real property and found that they had committed slander of title in violation of General Statutes § 47–33j.¹ The defendants claim that the trial court improperly: (1) found that the mortgages lacked consideration; (2) declared the promissory notes invalid; (3) rendered judgment even though the plaintiff failed to file an amended complaint; (4) denied the defendants' motion to dismiss; (5) proceeded without an indispensable party; and (6) found in the plaintiff's favor on its slander of title claim. We affirm the judgment of the trial court.

The plaintiff brought this action in four counts: (1) quiet title pursuant to General Statutes § 47–31; (2) discharge of the mortgages pursuant to General Statutes § 49–13(a)(1)(E); (3) slander of title pursuant to § 47–33j; and (4) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq. The trial court rendered judgment declaring the two mortgages held by the defendants to be invalid, and that the defendants had committed slander of title. This appeal followed.

The following findings set forth in the court's memorandum of decision find support in the record. “Fountain Pointe, LLC ... was formed in March, 2006, by two then longtime friends, Richard Rotundo and Rick P. Calpitano, each holding a 50 percent ownership. Fountain Pointe was formed to purchase and develop properties for commercial use and eventual sale. Rotundo handled the every day operations as a general contractor and developer of buildings, which included selling the units, hiring workers, ordering material, making sales, site work, etc. Calpitano, who resides in Florida, handled most of the financial aspects of Fountain Pointe.

“In September, 2007, Fountain Pointe obtained a construction mortgage from Connecticut Bank and Trust (CBT) in the amount of $2.5 million, and the mortgage was secured by two properties, one owned by Fountain Pointe and the other owned by Rotundo Developers, LLC (Rotundo Developers). This lawsuit only concerns lot 11A, which is made up of two parcels, unit A and unit D.... The property was raw land, and the plan was to develop lot 11A into thirteen office condominiums, which Fountain Pointe would then sell. Rotundo Developers, Rotundo and Calpitano were the guarantors of the loan.... Attorney Glenn Terk represented Fountain Pointe as well as the guarantors at the closing, and Terk provided an opinion letter to CBT as well as a mortgage title insurance policy, which indicated that lot 11A was encumbered by only a mortgage to CBT in the amount of $2.5 million.

“Sometime in 2008, Calpitano advised Rotundo that he wanted to transfer his interest in Fountain Pointe to his sister, Liliana Calpitano (Liliana). Rotundo had no objection to the transfer, as it would make no difference as to how the everyday operations would continue to take place. No resolutions or documents were executed authorizing the transfer as set forth in the operating agreement, article 101.... However, from that time forward, Liliana executed all company resolutions for the sales of the units, the conveyance tax forms listed Liliana and Rotundo as the members of Fountain Pointe, and both Liliana and Rotundo signed an affidavit stating they were ‘the only members of Fountain Pointe, LLC.’ ... The tax return for the year 2008 listed Richard Rotundo and Liliana as 50 percent owners of Fountain Pointe....

“On December 15, 2009, Fountain Pointe entered into a Real Estate Agreement to sell unit A of Fountain Pointe Professional Park, to Rotundo Developers, for $1.8 million.... In order for Rotundo Developers to purchase the property, it sought and obtained a mortgage commitment in the amount of $1.35 million. Rotundo signed the agreement on behalf of Fountain Pointe as well as on behalf of Rotundo Developers. Rotundo and Calpitano negotiated this purchase and sale, and engaged in a string of e-mails regarding the profit that Fountain Pointe would make on this transaction. This began the dispute between Rotundo and Calpitano. Calpitano indicated that he was entitled to a certain amount of money from the sale, and Rotundo disagreed. Eventually the parties involved attorneys in the dispute, and Terk, representing Calpitano, and Paul Argazzi, on behalf of Rotundo, had telephone conversations attempting to resolve the dispute. Terk made a demand to obtain certain documents relating to Fountain Pointe, and Argazzi refused to provide the copies, stating that Calpitano was no longer a member of Fountain Pointe since he had transferred his interest to his sister, Liliana.

“On January 28, 2010, after [being] notified that Argazzi would not provide the documents to Terk, Calpitano sent the following e-mail to Rotundo: ‘Richie, I'm putting you on notice right now that this property will not close, now or ever until my demands are met. It's clear that you don't have the respect to give Argazzi permission, not that I need it, to give me copies of all the documents. So what you won't give me is rightfully mine I will take and make sure that this deal doesn't close until hell freezes over, unlike you I can weather the financial shit storm caused by you, and I'll make it my personal mission to fucking legally bury you for years to come. You've become a real fucking snake and [your] true colors have come out. Get your affairs in order.’ ...

“Four days after Calpitano sent the e-mail to Rotundo, the first of the disputed mortgages was recorded on the Newington land records.... The mortgage is from Fountain Pointe, LLC, to [the] Calpitano Family Living Trust (Trust), in the amount of $600,000, dated January 11, 2007, and recorded February 1, 2010. It is secured by lots 11 and 11A. It is signed by Calpitano as Member. The deed states that it is securing a promissory note dated January 11, 2007, with a maturity date of January [144 Conn.App. 631]11, 2009.... The note is executed by Calpitano as Member/Manager, and also by Calpitano, individually.... Three days after that mortgage was recorded, a second mortgage from Fountain Pointe, LLC, to [the] Calpitano Family Living Trust was recorded, under the same terms and conditions, but was signed by Liliana Calpitano as Member. The note which this mortgage secured was in the amount of $600,000 and was signed by Liliana Calpitano as Member/Manager, and signed by Rick P. Calpitano individually....

“Rotundo, as a member of Fountain Pointe, had no knowledge of either of these mortgage deeds or notes when they were purportedly executed or recorded, nor did he have any knowledge that Fountain Pointe borrowed any sums of money from the Trust. There was never any formal notice given to Fountain Pointe of these alleged notes and mortgages. Rotundo Developers was still trying to close on the property, and was attempting to borrow $1.35 million for the purchase of unit A from Fountain Pointe. Rotundo discovered the existence of the mortgages when his attorney was performing a title search on the property. Because the mortgages were encumbering the property, Rotundo Developers was unable to obtain the funding needed for the purchase, and the real estate transaction could not be consummated.

“Not only did Calpitano fail to inform his fellow member, Rotundo, of the existence of these two mortgages, he also failed to inform him that the Trust had proceeded with a foreclosure action on the mortgages.... ²

“Unable to consummate the transaction of unit A between Fountain Pointe and Rotundo Developers as planned, Rotundo, acting on behalf of Fountain Pointe as a member/manager, instead executed a quitclaim deed of the property to Rotundo Developers on March 31, 2010. The deed was conveyed for no consideration. In addition, a second quitclaim deed was executed from Rotundo Developers to Fountain Pointe, which deed is being held in escrow. The intent is that if Fountain Pointe is unsuccessful in discharging the two mortgages in question in this matter, and therefore unsuccessful in this lawsuit, the deed would be recorded, undoing the transaction between Fountain Pointe and Rotundo Developers because Rotundo Developers would not be able to get clear title in light of the Trust's mortgages.... Thus, as of the date of the filing of the present suit, title to unit A was in the name of Rotundo Developers, LLC.

“On June 9, 2010, Calpitano, purportedly on behalf of Fountain Pointe, transferred unit D to Fountain Pointe Holdings, LLC, a limited liability company that Calpitano had created and of which he is a sole member.” (Citations omitted; internal quotation marks omitted.)

On May 10, 2010, the plaintiff brought this four count complaint against the defendants. The first count sought to quiet title to lot 11A, consisting of units A and D, by determining the rights of the parties to the property pursuant to § 47–31.³ The second count sought a discharge of the defendants' mortgages pursuant to § 49–13(a)(1)(E).⁴ The third and fourth counts asserted claims of slander of title pursuant to § 47–33j and a violation of CUTPA, respectively.

After a trial to the court and the filing of posttrial briefs, the court found that the plaintiff held record title to the property, and that the two mortgages recorded by the defendants lacked consideration...