LLC v. Liliana Calpitano, Trustee of the Calpitano Family Living Trust et al. (2011)

MEMORANDUM OF DECISION

This action concerns the validity of certain mortgages that the Calpitano Family Living Trust has placed on certain property in which the plaintiff, Fountain Pointe, LLC, claims an interest.   The plaintiff has brought this action in four counts;  the first count seeks to quiet title to the property by determining the rights of the parties to the land;  the second count seeks a discharge of the mortgage pursuant to General Statutes § 49–13(a)(1)(E);  the third count is a slander of title action brought pursuant to General Statutes § 47–33j;  and the fourth count is for a violation of the Connecticut Unfair Trade Practices Act (CUTPA).

The plaintiff is seeking a decree quieting title to the property in favor of the plaintiff by declaring the disputed mortgages invalid, by way of damages, attorneys fees pursuant to General Statutes § 47–33(j) and § 42–110(d), and punitive damages pursuant to General Statutes § 42–110g(a).¹  The matter was tried to the court, which heard testimony from five witnesses, and received into evidence numerous exhibits.   Each party submitted a post-trial memorandum in answer to five questions by the court.²  After having reviewed and examined the evidence, and considered the legal and factual arguments of the parties, the court issues this memorandum of decision.

I

FACTS

Fountain Pointe, LLC (Fountain Pointe) was formed in March 2006 by two then long-time friends, Richard Rotundo and Rick P. Calpitano, each holding a fifty 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”).³  This lawsuit only concerns Lot 11A, which is made up of two parcels, Unit A and Unit D. See Complaint dated May 7, 2010.   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.   Plaintiff's Exh. 21.   Attorney Glen 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 10.1.   Plaintiff's Exh. 2. 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.” Plaintiff Exhs. 3–11.   The tax return for the year 2008 listed Richard Rotundo and Liliana Calpitano as 50 percent owners of Fountain Pointe.   Plaintiff's Exh. 12.

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.⁴  Plaintiff's Exh. 17.   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 phone 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.⁵

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 that 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 you [sic] true colors have come out.   Get your affairs in order.”   Plaintiff's Exh. 19.

Four days after Calpitano sent the e-mail to Rotundo, the first of the disputed mortgages was recorded on the Newington Land Records.   Plaintiff's Exh. 13.   The mortgage is from Fountain Pointe, LLC to Calpitano Family Living Trust (the “Trust”), in the amount of $600,000, dated January 11, 2007, and recorded February 1, 2010.   It is secured by Lots 11 and 11A.⁶ It is signed by Rick P. Calpitano as Member.   The deed states that it is securing a promissory note dated January 11, 2007, with a maturity date of January 11, 2009.   Plaintiff's Exh. 14.   The note is executed by Rick P. Calpitano as Member/Manager, and also by Rick P. Calpitano individually.  Id. Three days after that mortgage was recorded, a second mortgage from Fountain Pointe, LLC, to Calpitano Family Living Trust was recorded, under the same terms and conditions, but was signed by Liliana Calpitano as Member.⁷  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.⁸ ,⁹

Suffice it to say, 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.   Although the Articles of Organization of Fountain Pointe state that the statutory agent for service of process is Richard Rotundo with an address of 838 Brook Street, Unit E, Rocky Hill, Connecticut (Plaintiff's Exh. 1), service of process was attempted on “Rick P. Calpitano, not Registered Agent for Service, but Manager/Member duly authorized to accept service on behalf of” Fountain Pointe, LLC. (Emphasis added.)   Plaintiff's Exh. 20.   Although Calpitano was and still is a Florida resident, the address used was 41 Windmill Lane, Newington, CT, as his “usual place of abode.”  Id. Due to the obvious defects in service of process, the initial foreclosure action was dismissed.

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, 2010.¹⁰  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.   Plaintiff's Exh. 31.   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.¹¹  Further facts will be supplied as needed.

II

DISCUSSIONA. Count One—Quiet Title

This quiet title action is a statutory action, pursuant to General Statutes § 47–31, which provides:  “An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, ․ or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property.”

“The procedure in an action to settle the title to land under [§ 47–31] has been long and clearly established ․ The essentials of the complaint [are] statements of the plaintiff's ownership in the land described and of its title thereto ․ The action could be maintained against one in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest ․ The claim for relief [calls] for a full determination of the rights of the parties in the land ․ The plaintiff [is] required not only to allege but to prove that its title was so affected by the claims of the defendants as to justify the litigation ․ Finally, the plaintiff [is] required to prevail on the strength of its own title and not on the weakness of its adversary's.”  (Citations omitted;  internal quotation marks omitted.)  Lake Garda Improvement Ass'n. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967).

“Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action.”  Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010).   The burden of demonstrating that a party has standing to bring an action is on the plaintiff.   See Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).

“Standing is not a technical rule intended to keep aggrieved parties out of court;  nor is it a test of substantive rights.   Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interest and that judicial decision which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.”  (Internal quotation marks omitted.)   Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ․ The fundamental test for determining aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] ․ Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged] action ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Citation omitted;  internal quotation marks omitted.)  AvalonBay Communities, Inc., v. Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001).

The plaintiff has identified the property which it is seeking to quiet title on as Lot 11A, Willard Avenue, Newington, Connecticut, which is comprised of two separate parcels, Unit A of Building 2 at 445 Willard Avenue (“Unit A”) and Unit D of Building 1 at 435 Willard Avenue (“Unit D”).  Unit A represents the parcel that was to be conveyed by Fountain Pointe to Rotundo Developers, pursuant to a Real Estate Agreement dated December 15, 2009, and was later conveyed by quitclaim by Fountain Pointe to Rotundo Developers.   Unit D represents the parcel that was transferred by Calpitano, allegedly on behalf of Fountain Pointe, to Fountain Pointe Holdings, LLC, which transfer occurred on June 9, 2010.   The challenged mortgages at issue are blanket mortgages which apply to both Unit A and Unit D.¹²

The plaintiff has alleged that it is the “absolute owner in possession or has an interest in” Lot 11A.¹³ As it relates to Unit A, the plaintiff argues that although the title is presently in Rotundo Developers, it has retained an interest in the property because there exists a quitclaim deed back to Fountain Pointe which is being held in escrow pending the outcome of this case, and because it is contractually obligated to sell Unit A to Rotundo Developers by warranty deed which Fountain Pointe warranted it could deliver.   It is unable to do so because the parcel is encumbered by the challenged mortgages.   Moreover, Rotundo Developers cannot obtain the needed financing in order to fund the project and compensate Fountain Pointe with net proceeds of approximately $1.3 million unless Fountain Pointe is able to convey clear title.   Due to the cloud on the title from the challenged mortgages, Rotundo Developers has withheld payment, and if the title is not cleared, then the property reverts back to Fountain Pointe, and it never receives the sale proceeds.   Although Fountain Pointe did not hold record title to Unit A at the time of the filing of the lawsuit, it has an interest in the title itself.   See Hartford v. Chipman, 21 Conn. 488 (1852).

The other parcel, Unit D, was purportedly quitclaimed from Fountain Pointe to an LLC controlled by the defendant, Rick Calpitano, which was done after the commencement of this action.   At the time of the filing of the lawsuit, the plaintiff's representation that it was the owner of Unit D is accurate.   The fact that Calpitano then deeded the property to a company controlled by himself, not to mention the fact that he signed the deed as a member of Fountain Pointe while the claim is that he transferred his interest to his sister, does in no way remove the plaintiff from having in the very least an interest in the property sufficient to give it standing to bring this suit.¹⁴

Fountain Pointe has presented sufficient evidence that it has a specific, personal and legal interest in the subject property to meet the first test for determining aggrievement and therefore standing.   First, there is no dispute that at the time of the filing of the lawsuit it owned Unit D. As to Unit A, there exists a sufficient interest in the property based upon the contract to sell to Rotundo Developers, and the deeds to and from Rotundo Developers which, if both are recorded, would leave Fountain Pointe as the record owner.   Furthermore, Fountain Pointe has established that this specific, personal and legal interest has been specially and injuriously affected by the challenged action.   Because of the challenged mortgages, title has been clouded so that Fountain Pointe has been unable to complete the sale and be compensated for Unit A as per the Real Estate Contract with Rotundo Developers.   Although the defendants argue that if the mortgages are discharged, Unit A is never transferred back to Fountain Pointe, Rotundo Builders would proceed with the terms of their agreement, and Fountain Pointe would deliver a warranty deed, and Rotundo Developers would pay Fountain Pointe the contract price.   This is a circular argument;  to say that Fountain Pointe has no interest in the property because if the plaintiff prevails in this lawsuit, Fountain Pointe will never have an interest demonstrates the significant interest in the property which Fountain Pointe has.¹⁵

The manner of pleading in this action is prescribed by General Statutes § 47–31(b) and (d).  Those subsections provide:  “The complaint [under this statute] shall describe the property in question and state the plaintiff's claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest.”  General Statutes § 47–31(b).  “Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claim, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived.”  General Statutes § 47–31(d).  Therefore, “[t]he party bringing the action is required to allege the manner in which he acquired his claim, interest or title, while, on the other hand, a party defendant must, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property in question ․” Fanfesti v. Englehardt, 27 Conn.Sup. 349, 352, 238 A.2d 429 (1967).

Count one, paragraph 1 states that “Fountain Pointe is the absolute owner in possession, or has an interest in” Lot 11A as described on a map recorded in the Newington Land Records.   Paragraph 2 states that “the defendant, Liliana Calpitano, as Trustee for the Calpitano Family Living Trust (the “Trust”), claims that the plaintiff executed two Statutory Form Mortgage Deeds ․ dated January 11, 2007, in favor of the Trust,” and “[s]aid Mortgages are adverse to the title or interest of the plaintiff.” ¹⁶

Paragraph three sets forth the ways in which the plaintiff alleges the mortgages to be invalid, and paragraph four claims “judgment determining the rights of the parties in or to the land and settlement of the title thereto.”   Complaint, count one.

In the answer to the complaint, the defendant denies the allegations in paragraph 1, 3, and 4, and as to the allegations of paragraph 2, pleads “insufficient knowledge or information from which to form a belief” and “leaves the plaintiff to its proof.”   Answer of the defendant Calpitano Family Living Trust.

Both parties have failed to comply with the statutory requirements as set forth in § 47–31, because neither party pleaded the manner in which each acquired or derived the interest in the property each claims to have.

“Pleadings have an essential purpose in the judicial process ․ The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried ․ For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings.   However, it is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects ․ It is our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.”  (Citations omitted;  internal quotation marks omitted.)  Thurlow v. Hulten, 130 Conn.App. 1, 7–8, 21 A.3d 535 (2011).

“This court repeatedly has eschewed applying the law in such a hypertechnical manner so as to elevate form over substance.   See, e.g., Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 422, 797 A.2d 494 (2002) (“[t]o conclude ․ that the fact that the plaintiff invoked [a statute] instead of bringing a common-law action in equity deprived the trial court of jurisdiction would be to exalt form over substance”);  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 729–30, 780 A.2d 1 (2001) (requiring planning and zoning commission to state expressly that its reason for rejecting applications clearly outweighed need for affordable housing in order to satisfy public interests standards ․ would have elevated form over substance) ․ Moreover, the modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.”  (Citations omitted;  internal quotations marks omitted.)  Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004).

Richard Rotundo and the defendant, Rick Calpitano, were the only members of Fountain Pointe at the formation of the LLC, and were the only members at the time the plaintiff acquired the land identified in the complaint.   Although the plaintiff did not specifically identify the manner in which it acquired the title or interest in the property, and the defendant did not plead where its claimed interest derived in this case, such facts are unnecessary to be plead because Rotundo and Calpitano both were fully aware of when and how Fountain Pointe acquired title to Lot 11A. Moreover, the manner of the acquisition of property by Fountain Pointe is not an issue in this case.   The plaintiff did plead all of the conveyances at issue in its complaint.   To bar the plaintiff because it did not slavishly follow the statutory formula is a hypertechnical interpretation of the statutes.   The court rejects this argument.  “Whether or not [the party] claims any estate or interest in” the property, or the nature and extent of that interest, the pleadings adequately raise the issues of law determinative of any conflicting claims which the parties had respecting title to the property.   See, Bond v. Benning, 175 Conn. 308, 314, 398 A.2d 1158 (1978).   The pleadings as a whole advised the defendants of the claims being made by the plaintiff.¹⁷

The plaintiff is seeking a judgment determining the rights of the parties by declaring the challenged mortgages invalid “(a) in that the individuals that executed the two mortgages purportedly on behalf of the plaintiff had no authority to do so;  and/or (b) in that there was no consideration for said mortgages because the plaintiff did not receive any of the proceeds called for therein.”   Complaint, count one, ¶ 3.

There are two mortgages, one signed by Rick Calpitano, as member, and the second signed by Liliana Calpitano, as member.   Both of the mortgages purportedly were signed on January 11, 2007.   At that time, Calpitano was the member of Fountain Pointe.   Either he or his sister possessed prescient powers in 2007 when the mortgages were purportedly executed and Calpitano did not recall when and if he actually transferred his membership to Liliana, or he had forgotten the actual date the mortgage was signed.   If the claim was made that Calpitano had transferred his interest to his sister, then she could argue that she had the power to grant the mortgage to the Trust.   If the claim was made that the membership transfer never took place, then Calpitano could argue that he had the power to create the indebtedness.¹⁸

Rotundo's sister, Mary Putnam, performed the bookkeeping functions for Fountain Pointe.   When it was formed, the checking account was with Bank of America, with four boxes of checks, three were kept by her, and one was kept by Calpitano in Florida where he resided.   Both of them wrote checks on the account, and Calpitano wrote checks to his other company, known as Oasis Builders.   At some point Putnam took over all the functions of the account, and she would fax information to Calpitano, so that he could provide the information as to what checks he wrote and to whom.   Periodically he would send her an accounting report.   The reports indicated that Calpitano had invested $177,000 in capital contributions, and had been reimbursed approximately $251,021.05.   Part of the $177,000 paid to Fountain Pointe on behalf of Calpitano was a check drawn on an account entitled:  MARIA CALPITANO, LILIANA M. CALPITANO, in the amount of $100,000, dated May 29, 2008.¹⁹  Plaintiff's Exh. 29.   A deposit in the same amount on the same day was made, with the notation under “Account” as “Rick Calpitano—Draw.”   Plaintiff's Exh. 27.   From May 2007, to May 29, 2008, Calpitano wrote checks payable to Oasis Builders totaling $170,629.66.   Plaintiff's Exh. 26.   All other checks from the account of Marie Calpitano and Liliana M. Calpitano were made payable to Oasis Builders, which Calpitano contends were funds to reimburse Oasis Builders for Fountain Pointe expenses.   There was no evidence produced on behalf of the Trust that this was the case, and no evidence whatsoever as to what the Fountain Pointe expenses consisted of.   Furthermore, there was no evidence to indicate that this checking account in the name of Marie Calpitano and Liliana Calpitano was even part of the Calpitano Living Trust.²⁰

The court finds that there was no consideration given for either of the mortgages or promissory notes, and finds them to be invalid.   The exchanges of checks between Marie Calpitano, Rick Calpitano, Oasis Builders, and Fountain Pointe does not appear to be anything more than attempts to move money around so that its source and application could not be traced.

The court will address one further issue that it raised with the parties, and that is, whether General Statutes § 47–31(b) required Rotundo Developers to be joined to the action as a necessary party.   Subsection (b) states in pertinent part:  “The complaint in such action ․ shall name the person or persons who may claim the adverse estate or interest.”  (Emphasis added.)   Since this action is being brought to quiet title on the property by declaring the mortgages invalid, it would appear the only party that has an adverse interest would be The Calpitano Family Living Trust.   Rotundo Developers has no adverse interest in declaring these mortgages invalid, nor would CBT and/or Fountain Pointe Holdings, LLC.²¹ CBT, as the first mortgage holder, has no interest that is adverse to the plaintiff, because the absence or presence of the purported mortgages does not effect CBT's position as first mortgage holder.²²  As to Fountain Pointe Holdings, at the time of the filing of the complaint, it did not hold title to the property.   The complaint made no allegations as to any adverse interest as to any other party other than the Calpitano Family Living Trust.

Both parties cite Lake Garda Improvement Association v. Harry J. Battistoni et al., 155 Conn. 287, 231 A.2d 276 (1967), in which the Supreme Court found error and ordered a new trial where the plaintiff in that action failed to name the Lake Garda Water Company as a party, citing § 47–31(b).  In Lake Garda, however, the Lake Garda Water Company was, according to the land records, in a position of one who might claim an interest adverse to the plaintiff by virtue of a quitclaim deed to it from one of the defendants, Lake Garda Company, Inc. Id., p. 294.

Fountain Pointe, LLC, has standing to maintain this action, and all necessary parties are before the court.   The court declares the two mortgages at issue to be without consideration and validity, and to be null and void.

B. Count Two—General Statutes § 49–13(a)(1)(E)

General Statutes § 49–13 provides in pertinent part:  “(a) When the record title to real property is encumbered (1) by any undischarged mortgage, and ․ (E) the mortgage has become invalid, and in any of such cases no release of the encumbrance to secure such note or evidence of indebtedness has been given ․ the person owning the property, or the equity in the property, may bring a petition to the superior court ․ setting forth the facts and claiming a judgment as provided in this section.”

“The purpose of a statute of this type is to provide a simple method whereby a mortgage, the invalidity of which is undisputed, may be declared invalid by the court and removed as a cloud on the title to the property.   The statute gives the court no jurisdiction to determine the validity or invalidity of a disputed mortgage of long standing.”  (Emphasis in original;  citations omitted;  internal quotation marks omitted.)  Gordon v. Tufano, 188 Conn. 477, 483, 450 A.2d 852 (1982).

Based upon the evidence presented, the validity of the mortgages is in dispute.   The court is without jurisdiction to render judgment declaring the mortgages invalid pursuant to General Statutes § 49–31.

C. Count three—Slander of Title pursuant to General Statutes § 47–33j 23

Count three is brought against the Calpitano Family Trust, Rick P. Calpitano, and Liliana Calpitano.   The plaintiff alleges in this count that the Rick Calpitano and Liliana Calpitano executed the challenged mortgages with no authority to execute said mortgages on behalf of Fountain Pointe, and they knew or should have known that the creation of these mortgages was false because the Trust never provided $600,000 or any part of it to the plaintiff.   Further, the defendant Trust filed a Notice of Lis Pendens on the plaintiff's property, commencing an action to foreclose these mortgages, knowing that the publication of the mortgages and notice of lis pendens were false, which resulted in a slander of title to the plaintiff's property.  “The defendants created the aforesaid fraudulent mortgages and the notice of lis pendens in an effort to maliciously gain title to the plaintiff's property through the concealment of the creation of said documents, as well as the institution of the foreclosure action.”   Complaint, count three, ¶ 12.

General Statutes § 47–33j provides that:  “No person may use the privilege or recording notices ․ 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 a result of such notice of claim having been so recorded.”

“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.”  (Emphasis in original;  internal quotations marks omitted.)  Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 202, 931 A.2d 916 (2007).  “A cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiff's title, with malice, causing special damages as a result of the 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.”  Gilbert v. Beaver Dam Ass'n. of Stratford, Inc., 85 Conn.App. 663, 672–73, 585 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

The plaintiff must prove first, that the defendants' action of filing the invalid mortgages and Notice of Lis Pendens on the property, as a notice of the commencement of a civil action to foreclose the fraudulent mortgages was for a malicious purpose, and second, that the plaintiffs suffered a pecuniary loss.

“To satisfy the element of malice, the plaintiff must allege that the defendant made the statement with knowledge that [it was] false or with a reckless disregard of the truth or falsity of the facts stated.”  (Internal quotation marks omitted.)   Marks v. Matulevich, Superior Court, judicial district of Middlesex, Docket No. CV 02 0099337 (January 31, 2005) [38 Conn. L. Rptr. 724], quoting Moriarty v. Lippe, 162 Conn. 371, 387, 294 A.2d 326 (1972).   Evidence was submitted by Rotundo of an e-mail sent by Calpitano, wherein he stated:  “I will ․ 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.”   Plaintiff's Exh. 19.   Calpitano and his sister concocted some scheme to create these false mortgages, and this e-mail evidences his reckless disregard as to the truth.   What Calpitano accomplished by the filing of these bogus mortgages, was to injure Fountain Pointe which would have realized approximately $1.8 million from the sale of Unit A to Rotundo Developers.   The court finds that the filing of the lis pendens was done with a reckless disregard as to the truth.

There must be evidence submitted that establishes that Fountain Pointe suffered pecuniary damages as a result of the filing of the mortgages and the lis pendens on the Newington Land Records.  “Our jurisprudence indicates that a clouded title, alone, does not constitute damages per se.   Rather, a plaintiff must present evidence of how the clouded title resulted in some pecuniary loss.”  Gilbert v. Beaver Dam Assn. of Stratford, Inc., supra, 85 Conn.App. 673–74.   The court heard evidence that because of the concealment of the creation of these mortgages, and their subsequent recording as well as the recording of the lis pendens, the sale from Fountain Pointe to Rotundo Builders, LLC was unable to take place.   Fountain Pointe suffered injury by not being able to provide a warranty deed to Rotundo Developers, and therefore was in default of its obligation under the contract and was required to prosecute this action to be able to deliver clear title and thereby collect the sales proceeds from the sale.   This resulted in an economic loss to the plaintiff of approximately $1.8 million.   In addition, Fountain Pointe incurred attorneys fees, not only in the prosecution of this case, but also in defending the foreclosure action brought by the defendant, Trust.²⁴

D. Count Four—Violation of CUTPA

The plaintiff next argues that the defendants violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–100a et seq., which prohibits unfair or deceptive acts in the conduct of trade or business.  “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  General Statutes § 42–100b(a).  “In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice ․” (Internal quotation marks omitted.)   Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997);  see also General Statutes § 42–110g(a).

“To state a claim under CUTPA, the plaintiff must allege that the actions of the defendant were performed in the conduct of trade or commerce ․ Moreover, a CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce.”  (Citations omitted;  internal quotation marks omitted.)  Sovereign Bank v. Licata, 116 Conn.App. 483, 493–94, 977 A.2d 228, cert. granted on other grounds, 293 Conn. 935, 981 A.2d 1080 (2009).

CUTPA does not apply to purely corporate acts or to acts which solely involve the internal workings of a partnership.  Ostrowski v. Avery, 243 Conn. 355, 379, 703 A.2d 117 (1997);  Lassen v. Ogren, Superior Court, judicial district of New Britain, Docket No. CV 07 5004349 (September 23, 2011);  See also, Fink v. Golenbock, 238 Conn. 183, 212, 680 A.2d 1243 (1996).   Nor do acts which solely involve the internal workings of a partnership fall within a CUTPA alleged violation.   Brunette v. Bristol Savings Bank, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 43957 (April 7, 1995).   However, internal corporate actions that also have the effect of “[usurping] the business and clientele of one corporation in favor of another fit within the provenance of CUTPA.”  Fink v. Golenbock, supra, 238 Conn. 212.

In the present case, the CUTPA count is nothing more than internal strife among the members of the LLC, and nothing more than grievances by the members of the LLC regarding the distribution of the profits of the LLC. Although the Trust is not part of Fountain Pointe, LLC, its two Trustees are Rick Calpitano and Liliana Calpitano, former and/or current members of the LLC.²⁵ The Trust participated in this scheme only due to Rick Calpitano's involvement with Fountain Pointe, and the court cannot find that these activities were undertaken in the conduct of the trade or commerce of any one of the defendants, and therefore not covered by CUTPA.²⁶  The acts complained of here do not fall within the purview of CUTPA.

III

CONCLUSION

As to count one, the court finds in favor of the plaintiff, Fountain Pointe, LLC, and against the defendant, Calpitano Family Living Trust, and declares the two mortgages from Fountain Pointe, LLC, to the Calpitano Family Living Trust, dated January 11, 2007, invalid and of no force and effect.

As to count two, the court finds in favor of the defendants.

As to count three, the court finds in favor of the plaintiff, Fountain Pointe, LLC, and against the defendants, Calpitano Family Living Trust, Rick P. Calpitano, and Liliana Calpitano.

As to count four, the court finds in favor of the defendants, Calpitano Family Living Trust, Rick P. Calpitano, and Liliana Calpitano.

The court orders the plaintiff to submit its claim for attorneys fees as well as for any costs within thirty days of this memorandum.   The court will schedule the matter for hearing as to the award of monetary damages by way of attorneys fees, and costs.

Swienton, J.

FOOTNOTES

FN1. The plaintiff is also seeking post-judgment interest pursuant to General Statutes § 37–3a..  FN1. The plaintiff is also seeking post-judgment interest pursuant to General Statutes § 37–3a.

FN2. The court ordered the parties to submit simultaneous briefs on the following issues:(1) Given that it is undisputed by the parties that Fountain Pointe, LLC, prior to the commencement of this action, conveyed the property subject to the disputed mortgages to Rotundo Developers, LLC, by quitclaim deed, and given that it is undisputed that there is, in escrow, an undelivered quit claim deed reconveying such property from Rotundo Developers, LLC, to the plaintiff under certain circumstances, does Fountain Pointe, LLC, have a sufficient interest in the property to give it standing (A) to bring a quiet title action pursuant to General Statutes § 47–31, or (B) to bring a claim for discharge of the mortgages pursuant to General Statues § 49–13?(2) If Fountain Pointe, LLC, claims it has such an interest, indicate the nature of the interest and whether the complaint as amended satisfies the requirements of General Statutes § 47–31(b)?(3) Does General Statutes § 47–31 require Rotundo Developers, LLC, to be joined to the action as a necessary party?(4) Can a slander of title action pursuant to General Statutes § 47–33j be brought independent of a valid quiet title action pursuant to § 47–31?(5) Given the undisputed facts stated in question (1), does Fountain Pointe LLC, have standing to bring a CUTPA claim for the allegedly fraudulent making and recording of mortgages on the property, and does the alleged conduct of the defendants fall within the parameter of a CUTPA violation?.  FN2. The court ordered the parties to submit simultaneous briefs on the following issues:(1) Given that it is undisputed by the parties that Fountain Pointe, LLC, prior to the commencement of this action, conveyed the property subject to the disputed mortgages to Rotundo Developers, LLC, by quitclaim deed, and given that it is undisputed that there is, in escrow, an undelivered quit claim deed reconveying such property from Rotundo Developers, LLC, to the plaintiff under certain circumstances, does Fountain Pointe, LLC, have a sufficient interest in the property to give it standing (A) to bring a quiet title action pursuant to General Statutes § 47–31, or (B) to bring a claim for discharge of the mortgages pursuant to General Statues § 49–13?(2) If Fountain Pointe, LLC, claims it has such an interest, indicate the nature of the interest and whether the complaint as amended satisfies the requirements of General Statutes § 47–31(b)?(3) Does General Statutes § 47–31 require Rotundo Developers, LLC, to be joined to the action as a necessary party?(4) Can a slander of title action pursuant to General Statutes § 47–33j be brought independent of a valid quiet title action pursuant to § 47–31?(5) Given the undisputed facts stated in question (1), does Fountain Pointe LLC, have standing to bring a CUTPA claim for the allegedly fraudulent making and recording of mortgages on the property, and does the alleged conduct of the defendants fall within the parameter of a CUTPA violation?

FN3. Lot 11, Willard Avenue, Newington, Counecticut was owned by Rotundo Developers, LLC, and Lot 11A was owned by Fountain Pointe, LLC. The mortgage title insurance policy provided at the closing (Plaintiff's Exh. 21, tab 31) incorrectly named Rotundo Developers, LLC, as the owner of Lot 11A, and incorrectly attaches a description of Lot 11A to the policy listing Rotundo Developers as the owner..  FN3. Lot 11, Willard Avenue, Newington, Counecticut was owned by Rotundo Developers, LLC, and Lot 11A was owned by Fountain Pointe, LLC. The mortgage title insurance policy provided at the closing (Plaintiff's Exh. 21, tab 31) incorrectly named Rotundo Developers, LLC, as the owner of Lot 11A, and incorrectly attaches a description of Lot 11A to the policy listing Rotundo Developers as the owner.

FN4. The property is identified as 445 Willard Avenue, Building 2, Unit A of Fountain Pointe Professional Park, and Unit A is exclusive of Lot 11A, Unit D..  FN4. The property is identified as 445 Willard Avenue, Building 2, Unit A of Fountain Pointe Professional Park, and Unit A is exclusive of Lot 11A, Unit D.

FN5. The e-mail from Terk to Calpitano stated:  “Agazzi (sic) will not give me copies of the documents.   He says that you are not a member and not the manager.   At the secretary of state it shows that Rotundo is the manager.   I need something to either show that you are a member or something from your sister telling him that I am representing her and that she wants him to provide me with copies of all the documents for Fountain Pointe in connection with this transaction.”   Plaintiff's Exh. 19..  FN5. The e-mail from Terk to Calpitano stated:  “Agazzi (sic) will not give me copies of the documents.   He says that you are not a member and not the manager.   At the secretary of state it shows that Rotundo is the manager.   I need something to either show that you are a member or something from your sister telling him that I am representing her and that she wants him to provide me with copies of all the documents for Fountain Pointe in connection with this transaction.”   Plaintiff's Exh. 19.

FN6. The court was provided with no evidence as to who owned Lot 11 as of January 11, 2007.   In September 2007, Lot 11 was owned by Rotundo Developers as evidenced by the documents provided in connection with the construction mortgage to CBT. Plaintiff's Exh. 21..  FN6. The court was provided with no evidence as to who owned Lot 11 as of January 11, 2007.   In September 2007, Lot 11 was owned by Rotundo Developers as evidenced by the documents provided in connection with the construction mortgage to CBT. Plaintiff's Exh. 21.

FN7. This mortgage is also secured by Lots 11 and 11A..  FN7. This mortgage is also secured by Lots 11 and 11A.

FN8. Since all the documents were executed on January 11, 2007, and one mortgage deed's acknowledgment indicated that Calpitano signed in Palm Beach, Florida, the other indicating Liliana signed in Hartford County, Connecticut, it is curious how Calpitano signed the note with his sister on January 11, 2007..  FN8. Since all the documents were executed on January 11, 2007, and one mortgage deed's acknowledgment indicated that Calpitano signed in Palm Beach, Florida, the other indicating Liliana signed in Hartford County, Connecticut, it is curious how Calpitano signed the note with his sister on January 11, 2007.

FN9. Although each note was in the amount of $600,000 and there are two separate notes, the defendants indicated that the total indebtedness is only $600,000 and not $1.2 million..  FN9. Although each note was in the amount of $600,000 and there are two separate notes, the defendants indicated that the total indebtedness is only $600,000 and not $1.2 million.

FN10. Rotundo Developers had entered a lease agreement with Total Renal Care, Inc., in which it agreed to a fifteen years lease which would have realized approximately $120,000 in lease income to Rotundo Developers..  FN10. Rotundo Developers had entered a lease agreement with Total Renal Care, Inc., in which it agreed to a fifteen years lease which would have realized approximately $120,000 in lease income to Rotundo Developers.

FN11. Although the Operating Agreement provides that a vote or written consent of members holding at least two-thirds of all company interest is required to sell the assets of Fountain Pointe, LLC, the court is not being asked by the plaintiff to invalidate this transaction.   See Plaintiff's Exh. 2, Article V, Section 5.3(F)..  FN11. Although the Operating Agreement provides that a vote or written consent of members holding at least two-thirds of all company interest is required to sell the assets of Fountain Pointe, LLC, the court is not being asked by the plaintiff to invalidate this transaction.   See Plaintiff's Exh. 2, Article V, Section 5.3(F).

FN12. The mortgages also secure Lot 11, which was not addressed in this action.   The only evidence that the court has regarding Lot 11 is that it was provided as security for the loan from Fountain Pointe to CBT in September 2007.   At the time of the transaction with CBT, Lot 11 was owned by Rotundo Developers..  FN12. The mortgages also secure Lot 11, which was not addressed in this action.   The only evidence that the court has regarding Lot 11 is that it was provided as security for the loan from Fountain Pointe to CBT in September 2007.   At the time of the transaction with CBT, Lot 11 was owned by Rotundo Developers.

FN13. The original complaint only alleged that Fountain Pointe was the absolute owner.   The complaint was amended during the trial to add the language, “or has an interest in.”.  FN13. The original complaint only alleged that Fountain Pointe was the absolute owner.   The complaint was amended during the trial to add the language, “or has an interest in.”

FN14. At trial, to further obfuscate the issues, Calpitano suggested that he had not transferred his interest in Fountain Pointe to Liliana.   It is not clear what the purpose of this claim is.   The court finds that this was not credible, and notes that Liliana executed documents on behalf of Fountain Pointe with her brother's knowledge and presumably with his consent.   If in fact Calpitano had not effectuated the transfer, the validity of the transfers in which Liliana acted as a member with authority would be in question..  FN14. At trial, to further obfuscate the issues, Calpitano suggested that he had not transferred his interest in Fountain Pointe to Liliana.   It is not clear what the purpose of this claim is.   The court finds that this was not credible, and notes that Liliana executed documents on behalf of Fountain Pointe with her brother's knowledge and presumably with his consent.   If in fact Calpitano had not effectuated the transfer, the validity of the transfers in which Liliana acted as a member with authority would be in question.

FN15. The plaintiff in this action is not seeking relief against the transfer of the Unit D property, but only against an invalid mortgage on Unit D. If the quit claim deed from the plaintiff to Fountain Pointe Holdings, LLC, was found to be invalid and unauthorized, that transfer itself could be the subject of a quiet title action by the plaintiff..  FN15. The plaintiff in this action is not seeking relief against the transfer of the Unit D property, but only against an invalid mortgage on Unit D. If the quit claim deed from the plaintiff to Fountain Pointe Holdings, LLC, was found to be invalid and unauthorized, that transfer itself could be the subject of a quiet title action by the plaintiff.

FN16. Attached to the complaint were both mortgages as recorded..  FN16. Attached to the complaint were both mortgages as recorded.

FN17. The defendants point to the case of Lowenberg v. Wallace, 147 Conn. 689, 692–93 166 A.2d 150 (1960), where the court stated:  “Section 47–31 provides that the action may be brought by anyone claiming title to, or any interest in, the property, and that the complaint must set forth this title or interest and the manner in which the plaintiff acquired it ․ One obvious purpose of the latter requirement is to make certain that a plaintiff has, within the purview of the allegations of his complaint, not a mere groundless claim but an actual interest in the property sufficient to justify his instituting an action concerning it and asking the court to adjudicate his rights and those of the parties defendant.   Unless a plaintiff has such an interest, he obviously has no right to maintain an action under the statute for the adjudication of any claims concerning the property.”  Lowenberg, however, distinguished the proof necessary to maintain the action from the proof necessary for an affirmative adjudication in the plaintiff's favor.   As pointed out in Thurlow v. Hulten, “the Lowenberg opinion did not rely on the pleadings but addressed the merits of the adverse possession claim that was in dispute.”  Thurlow v. Hulten, supra, 130 Conn.App. 9..  FN17. The defendants point to the case of Lowenberg v. Wallace, 147 Conn. 689, 692–93 166 A.2d 150 (1960), where the court stated:  “Section 47–31 provides that the action may be brought by anyone claiming title to, or any interest in, the property, and that the complaint must set forth this title or interest and the manner in which the plaintiff acquired it ․ One obvious purpose of the latter requirement is to make certain that a plaintiff has, within the purview of the allegations of his complaint, not a mere groundless claim but an actual interest in the property sufficient to justify his instituting an action concerning it and asking the court to adjudicate his rights and those of the parties defendant.   Unless a plaintiff has such an interest, he obviously has no right to maintain an action under the statute for the adjudication of any claims concerning the property.”  Lowenberg, however, distinguished the proof necessary to maintain the action from the proof necessary for an affirmative adjudication in the plaintiff's favor.   As pointed out in Thurlow v. Hulten, “the Lowenberg opinion did not rely on the pleadings but addressed the merits of the adverse possession claim that was in dispute.”  Thurlow v. Hulten, supra, 130 Conn.App. 9.

FN18. Liliana's testimony shed no light on the situation.   Although she indicated on more than forty occasions during her testimony to questions that she didn't recall, or she didn't know, or she had no idea, she stated unequivocally when asked when she thought her family trust had a mortgage on the property, answered “when [Rick and Rich] went into business together.   We gave money to Fountain Pointe.”.  FN18. Liliana's testimony shed no light on the situation.   Although she indicated on more than forty occasions during her testimony to questions that she didn't recall, or she didn't know, or she had no idea, she stated unequivocally when asked when she thought her family trust had a mortgage on the property, answered “when [Rick and Rich] went into business together.   We gave money to Fountain Pointe.”

FN19. There was no evidence produced to indicate that this checking account was in fact part of the Trust, other than the testimony of Liliana and Calpitano, which the court does not credit..  FN19. There was no evidence produced to indicate that this checking account was in fact part of the Trust, other than the testimony of Liliana and Calpitano, which the court does not credit.

FN20. Schedule A to the Trust indicates the corpus consisted of “Any and all savings accounts or bank accounts,” however none were designated by bank account number or indicated on the checks in evidence that the checks were drawn on an account in the name of the Trust.   Defendants' Exh. G..  FN20. Schedule A to the Trust indicates the corpus consisted of “Any and all savings accounts or bank accounts,” however none were designated by bank account number or indicated on the checks in evidence that the checks were drawn on an account in the name of the Trust.   Defendants' Exh. G.

FN21. Although the court did not include CBT, the first mortgage holder on the property, or Fountain Pointe Holdings, LLC, in its question, the defendant in his brief argues that they also should have been named in the action..  FN21. Although the court did not include CBT, the first mortgage holder on the property, or Fountain Pointe Holdings, LLC, in its question, the defendant in his brief argues that they also should have been named in the action.

FN22. Calpitano, as a named trustee under the Trust, never informed CBT, Attorney Glen Terk, or Fountain Pointe during the mortgage transaction that an indebtedness was in place to the Trust from Fountain Pointe for $1.2 million or $600,000, a fact that the parties may have been interested in..  FN22. Calpitano, as a named trustee under the Trust, never informed CBT, Attorney Glen Terk, or Fountain Pointe during the mortgage transaction that an indebtedness was in place to the Trust from Fountain Pointe for $1.2 million or $600,000, a fact that the parties may have been interested in.

FN23. The court questioned the parties as to whether the plaintiff could bring a slander of title action pursuant to General Statutes § 47–33j independent of a valid quiet title action pursuant to § 47–31.   See n.2 of this opinion.   Since the court has found the plaintiff has standing to maintain a quiet title action, the plaintiff may pursue a count under § 47–33j.   However, even if the court did not allow the quiet title action, the plaintiff's inability to seek relief under § 47–33j would not necessarily preclude its ability to recover damages for common-law slander of title.   See, Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 202, 931 A.2d 916 (2007);  Tassmer v. McManus, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 09 5028470 (January 15, 2010)..  FN23. The court questioned the parties as to whether the plaintiff could bring a slander of title action pursuant to General Statutes § 47–33j independent of a valid quiet title action pursuant to § 47–31.   See n.2 of this opinion.   Since the court has found the plaintiff has standing to maintain a quiet title action, the plaintiff may pursue a count under § 47–33j.   However, even if the court did not allow the quiet title action, the plaintiff's inability to seek relief under § 47–33j would not necessarily preclude its ability to recover damages for common-law slander of title.   See, Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 202, 931 A.2d 916 (2007);  Tassmer v. McManus, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 09 5028470 (January 15, 2010).

FN24. The court agreed that the issue of attorneys fees would be bifurcated in the event the court ruled in favor of Fountain Pointe.   The plaintiff also indicated that the only damages it would be claiming would be costs and attorneys fees..  FN24. The court agreed that the issue of attorneys fees would be bifurcated in the event the court ruled in favor of Fountain Pointe.   The plaintiff also indicated that the only damages it would be claiming would be costs and attorneys fees.

FN25. The beneficiaries of the Trust are Calpitano and Liliana.   Defendant's Exh. G..  FN25. The beneficiaries of the Trust are Calpitano and Liliana.   Defendant's Exh. G.

FN26. To paraphrase the Appellate Court, CUTPA violations have become the civil equivalent of prosecutorial misconduct claims.   See State v. Jarrett, 82 Conn.App. 489, 501, 845 A.2d 476 (2004)..  FN26. To paraphrase the Appellate Court, CUTPA violations have become the civil equivalent of prosecutorial misconduct claims.   See State v. Jarrett, 82 Conn.App. 489, 501, 845 A.2d 476 (2004).

Swienton, Cynthia K., J.