Kazemi v. Allen

• Docket Number: AC 44377
• Decision Date: 26 July 2022
• Citation: 214 Conn.App. 86,279 A.3d 742
• Parties: Hossien KAZEMI et al. v. Laurence ALLEN et al.
• Court: Connecticut Court of Appeals

214 Conn.App. 86

279 A.3d 742

Hossien KAZEMI et al.

v.Laurence ALLEN et al.

AC 44377

Appellate Court of Connecticut.

Argued January 4, 2022

Officially released July 26, 2022

Thomas B. Noonan, Darien, with whom were Douglas S. Skalka, New Haven, and, on the brief, Dennis M. Carnelli, for the appellants (defendants).

Michael J. Leventhal, Westport, for the appellees (plaintiffs).

Prescott, Suarez and Palmer, Js.

SUAREZ, J.

In this vexatious litigation action, the defendants, Lawrence Allen (Allen) and Green Tree Estate Association, Inc. (Green Tree), appeal from the judgment of the trial court in favor of the plaintiffs, Hossien Kazemi and Mahvash Mirzai. On appeal, the defendants claim that the trial court improperly (1) determined that the plaintiffs established that the defendants lacked probable cause to bring the claims for adverse possession and trespass in their counterclaim, (2) denied the defendants’ motion for a directed judgement, (3) determined that the defendants failed to establish their advice of counsel defense, and (4) found that the defendants acted with malice. We affirm the judgment of the trial court.

The following facts, as found by the court or as undisputed in the record, and procedural history are relevant to our resolution of this appeal. The defendants are the owners of real property known as 43 Maple Avenue (43 Maple) in Greenwich. The property was first acquired by Allen on October 16, 1996, and was later converted into a four unit condominium on December 5, 1998. Allen owns the condominium units, and Green Tree owns the common areas. On March 10, 2014, the plaintiffs acquired real property known as 33 Maple Avenue (33 Maple), the adjoining property situated to the south of 43 Maple. On September 14, 2015, John Tesei, Allen's attorney, sent a letter to the plaintiffs, on behalf of the owners of 43 Maple, in which he notified the plaintiffs of the defendants’ claim to a strip of land along the northern boundary of 33 Maple. In the letter, Tesei indicated that the claim was based on the defendants’ adverse use of the disputed area for more than fifteen years by maintenance of shrubs, a curbed driveway, and a stone pillar. In response, on October 20, 2015, the plaintiffs served on the defendants, pursuant to General Statutes § 52-575,¹ a notice of intent to dispute and prevent the defendants from acquiring the right to possess the disputed area. The notice was recorded on the land records on October 22, 2015.

Immediately thereafter, the plaintiffs commenced an action to quiet title to 33 Maple pursuant to General Statutes § 47-31 and to obtain a declaration that the defendants did not have an interest in the disputed area (prior action). In response, the defendants asserted a statute of limitations special defense under § 52-575 (a) and a two count counterclaim sounding in adverse possession of the disputed area and trespass. The defendants alleged that they had been in possession of the disputed portion of 33 Maple for more than fifteen years prior to October 22, 2015, the date on which the notice had been recorded. In their answer, the defendants alleged that several acts gave rise to adverse possession of the disputed property, including the defendants’ maintenance of a driveway, a chain link fence, a stone pillar, certain shrubs, bushes and plants next to the stone pillar, and a mailbox. The defendants’ trespass counterclaim alleged that the plaintiffs’ workers had "destroyed the fence and mailbox ...." The defendants filed an amended counterclaim on May 2, 2017, which alleged the maintenance of a "brick pillar" along with the plants and mailbox. The amended counterclaim also alleged that the chain link fence was just a demarcation of the disputed area and it no longer alleged that the fence was maintained by the defendants. The amended trespass counterclaim alleged that the plaintiffs’ agents entered the disputed area to replace the fence and that they "removed, dismantled, and/or otherwise displaced the mailbox ...."

The prior action was tried before the court, Hon. David R. Tobin , judge trial referee, on April 18 and 20, 2018. The court issued a memorandum of decision dated June 13, 2018, in which it quieted title to 33 Maple in favor of the plaintiffs and rejected the defendants’ special defense and counterclaim of adverse possession. The court, after examining the evidence adduced at trial, concluded that the only evidence supporting the adverse possession counterclaim was Allen's uncorroborated testimony, which was insufficient to sustain the defendants’ burden of proof. The court did not address the defendants’ trespass counterclaim in its memorandum of decision because that claim was withdrawn by the defendants at trial in the prior action after they had rested their case.

Thereafter, on September 12, 2018, the plaintiffs filed the action underlying the present appeal. The complaint alleged causes of action against the defendants sounding in slander of title,² vexatious litigation, vexatious litigation with malicious intent, and trespass. The vexatious litigation claims³ against the defendants related to their counterclaim alleging adverse possession and trespass that they had raised in the prior action. In their defense against the vexatious litigation claims, the defendants attempted to demonstrate that they had brought their counterclaim in good faith and on the advice of counsel.

Following a trial to the court, Hon. Edward T. Krumeich II , judge trial referee, the court found that the plaintiffs successfully had demonstrated that the defendants lacked probable cause to bring the counterclaim alleging adverse possession and trespass and that the defendants had failed to prove their advice of counsel defense. In its memorandum of decision, the court found the following facts: "[The] defendants have demonstrated that they consulted with impartial counsel who advised them they had viable claims.... The credible evidence established there was not full and fair disclosure of material facts to counsel. Allen withheld and misrepresented material facts to counsel, limited counsel's preparation and acted to prevent counsel from learning adverse material facts by preventing counsel from independently investigating the defense and claims to corroborate his version of events. Allen did not rely on counsel's advice but, rather, manipulated counsel to accept his false version of events and acted in bad faith in prosecuting the limitations defense and [both counts of] the [counterclaim].

"The court finds Allen's testimony lacked credibility in many respects. Allen testified that the alleged encroachments existed when he purchased 43 Maple ... in 1996. The 1998 survey belies that claim because it shows no encroachments and, indeed, shows neither the pillar and wall nor the mailbox shed. The 2006 survey also omits the mail shed but does show a new encroaching stone wall without a pillar where the 1998 survey showed a nonencroaching u-shaped structure. Allen was disingenuous when he testified in this case he was not familiar with surveys yet claimed the 1998 survey was inaccurate, as he did in the trial before Judge Tobin. The court rejects Allen's interpretation of the 1998 survey that the u-shaped structure shown is the encroaching wall depicted on the 2006 survey. The absence of a pillar is also striking because the 1998 survey calls out a pillar at another location. Allen's assertion that the surveys are not accurate rings hollow and is contradicted by other evidence that corroborates the wall and pillar and the mail shed were constructed after the 1998 survey.

"The amended counterclaim's change of allegations from a stone to a brick pillar was significant. Allen testified that the pillar was brick when he purchased the property in 1996 and was subsequently clad in fieldstone as part of the condominium renovations. No brick was shown in the video of the pillar's demolition and the demolition contractor testified the workers found no brick when the fieldstone pillar was demolished in 2019, along with the encroaching fieldstone, rubble, and mortar wall to which it was attached. The court finds that the encroaching wall and pillar were constructed sometime after 1996 and that Allen's testimony to the contrary in both trials was false. The court also finds that the stone pillar was added later and the testimony by Allen that there was originally a brick pillar in 1996 was fabricated to explain evidence that the pillar was formed of stone when the wall was extended and became an encroachment sometime after the 1998 survey.

"Hedges are shown on both the 1998 and 2006 surveys on 43 Maple ... at the location Allen testified there were shrubs and other plantings in 1996 that encroached on 33 Maple ... which were maintained by [the] defendants’ landscapers. The only photograph of the hedges shows tall landscaped hedges that appear to be on [the] defendants’ side of the property line with low ground cover beneath, possibly pachysandra or ivy also depicted nearby. No shrubs or other plantings are shown in the photograph. Although the court credits that [the] defendants’ landscapers maintained the hedge and ground cover beneath, there is no proof of any encroachment by the hedge and ground cover on 33 Maple ... that existed in 1996, as Allen testified.⁴

"The mailbox shed was added sometime after the condominium conversion in December, 1998, presumably as part of the condominium construction project. The credible evidence is that the shed was originally placed on a concrete pad located on 43 Maple ... and moved to a new location for the convenience of the postal service. The photograph of the mail shed and the concrete pad appear to show both to be on 43 Maple. [In the prior action] Judge Tobin could not find the shed encroached on 33 Maple for the requisite period.

"Allen went to great lengths to keep his counsel in the dark about material facts and surveys that contradicted his version of events...