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Seaport Capital Partners, LLC v. Speer

Court of Appeals of Connecticut

October 10, 2017

SEAPORT CAPITAL PARTNERS, LLC
v.
SHERI SPEER SEAPORT CAPITAL PARTNERS, LLC
v.
SHERI SPEAR SEAPORT CAPITAL PARTNERS, LLC
v.
SHERI SPEER ET AL. SEAPORT CAPITAL PARTNERS, LLC
v.
76-78TRUMAN STREET, LLC, ET AL.

          Argued April 17, 2017

          Edward Bona, self-represented, the plaintiff in error.

          Lloyd L. Langhammer, with whom was Donna R. Skaats, for the defendant in error (Seaport Capital Partners, LLC).

          DiPentima, C. J., and Lavine and Flynn, Js.

         Syllabus

         The plaintiff in error, B, who had been appointed the receiver of rents in nine foreclosure actions brought by the defendant in error, S Co., against the defendant in error property owner, S, filed a writ of error, claiming, inter alia, that the trial court lacked subject matter jurisdiction over the foreclosure actions, and that the trial court had improperly granted S Co.'s motions for order to have B pay into court the income that he had documented in his receiver reports. After the trial court had denied B's motion to approve the receiver reports that he had filed, the court provided B with an opportunity to file new reports for purposes of a hearing, at which the court would determine the sufficiency of those reports and reconsider the order of payment. The court denied B's motions to reargue the order for payment to the court and found that the receiver reports B subsequently filed were not satisfactory. B then filed the writ of error in the Supreme Court, which transferred the matter to this court. Held:

         1. B could not prevail on his claim that because S Co. did not fully fund the loans on eight of the nine properties, S Co. lacked standing to commence the foreclosure actions, which thereby deprived the trial court of subject matter jurisdiction and rendered the receivership void; S Co., which presented the note for each of the nine mortgages, was entitled to a rebuttable presumption that it had standing as the holder of the notes to bring the underlying foreclosure actions, and B did not present any evidence to rebut that presumption, as B's conclusory statement that the loans were not fully funded was insufficient to rebut that presumption.

         2. The trial court properly granted S Co.'s motions for order of payment: that court's findings that B, as receiver, was required to pay income that he had collected on the nine properties, that certain capital contributions made by S that supplemented the rental incomes should be included in the determination of the amount of income collected, and concerning the total rent collected with respect to each property were supported by the evidence in the record and were not clearly erroneous, and despite B's claim that the amount of money he collected was significantly less than what he was ordered to pay, the trial court's orders were based on the receiver reports B filed, and it was his burden either to submit accurate reports or subsequently to correct them; moreover, even if, as B claimed, S was collecting rents and documenting the amounts received, that did not absolve B of his obligation as receiver to collect and account for the rents for the properties, and B's claim that the doctrine of judicial estoppel barred S Co. from claiming that B owed the funds that allegedly were collected by S was unavailing, as S Co. never took a clearly inconsistent position in an earlier proceeding, which never took place, and, therefore, the doctrine of judicial estoppel did not apply.

         3. The trial court did not abuse its discretion in denying B's motions to reargue, as he failed to demonstrate that the court misapprehended the facts when granting S Co.'s motions for order of payment; the funds B was ordered to pay were admitted by him in the receiver reports, which B had multiple opportunities to correct, and the court stated that it would reconsider the order for payment if satisfactory reports were submitted by B, who failed to file adequate receiver reports.

         Procedural History

         Writ of error from the orders of the Superior Court in the judicial district of New London, Hon. Joseph Q. Koletsky, judge trial referee, granting the motions filed by the defendant in error Seaport Capital Partners, LLC, for order of payment of certain rents and denying the plaintiff in error's motions to reargue, brought to the Supreme Court, which transferred the matter to this court; thereafter, the court, Hon. Joseph Q. Koletsky, judge trial referee, issued an articulation of its decision. Writ of error dismissed.

          OPINION

          FLYNN, J.

         The plaintiff in error, Edward Bona, [1] brings this writ of error to challenge the decisions of the trial court granting the motions of the defendant in error, Seaport Capital Partners, LLC (Seaport), for order of payment, and denying Bona's motions to reargue the order of payment. Bona claims that the court (1) lacked subject matter jurisdiction, (2) improperly granted Seaport's motions for order of payment, and (3) improperly denied Bona's motions to reargue. We disagree with Bona and, accordingly, dismiss the writ of error.

         The following facts and procedural history are relevant to our review. On January 25, 2012, Seaport filed nine foreclosure actions against the defendant in error, Sheri Speer, [2] as to rental properties that she owned in Norwich and New London. In all nine actions, Seaport filed motions for the appointment of a receiver of rents, to which Speer objected. On February 21, 2012, the court, Devine, J., granted Seaport's motions and appointed Bona[3] as receiver of rents by agreement, [4]with no bond to be posted.[5] On June 7, 2012, Seaport filed motions for order requiring Bona to file receiver reports and to account for and turn over all rents collected on the nine properties. Judge Devine granted the motions and instructed ‘‘Speer and/or her agents . . . to turn over any money collected since the date of the order for receiver was granted to today's date . . . . Attorney Bona . . . is to submit quarterly reports for each property accounting for money received and expenditures. Income received from each property is to be used for the debts of that property only.''

         On December 21, 2012, Bona filed his first receiver report in all nine actions.[6] Shortly thereafter, in March, 2013, Bona's duties as to two of the Norwich properties terminated because the properties were purchased in tax lien foreclosure actions. After Bona indicated that he did not wish to continue as the receiver on the remaining properties, Seaport filed motions to substitute Robert K. Jones as the receiver of rents, and the court, Cosgrove, J., granted the motions on May 6, 2013. In its order, the court ordered Bona to file a final receiver report for each property, including the two Norwich properties that had been sold, by May 13, 2013. On May 13, 2013, Bona filed a final receiver report in all nine actions. In June, 2013, he filed additional receiver reports that accounted for February, 2012 to April, 2013.

         In May, 2014, Bona filed motions asking the court to accept his receiver reports, to which Seaport objected. Subsequently, on December 8, 2015, Seaport filed motions in each of the nine actions for orders of payment, requesting the court to compel Bona to pay into court the amount of income he claimed in his receiver reports had been received for each property. In total, Seaport requested $180, 044.32. Bona objected to these motions.

         The court, Hon. Joseph Q. Koletsky, judge trial referee, held a hearing on December 16, 2015, regarding Bona's motions to accept his receiver reports and Seaport's motions for order of payment. At the hearing, Bona argued that the court should not grant the motions for order of payment because he did not have the money requested. Bona claimed that anything he had collected, he deposited and handed over to Jones. Moreover, Bona admitted that Speer also was collecting rent from the properties, [7] but he claimed that Speer gave him any payments that she had collected. The court informed Bona that the motions for order of payment were for funds that had not been accounted for, to which Bona responded that he did not have the funds.

         Judge Koletsky granted Seaport's motions for order of payment and set a due date of April 15, 2016. The amount due was $180, 094.32, [8] plus any rents that Bona collected from May, 2013, and June, 2013, but had not previously turned over to Jones. The amount due included both rent received and capital contributions made by Speer, which, according to the receiver reports, supplemented the rental income.[9]

         Moreover, the court denied Bona's motions to approve his receiver reports. According to the court, although Bona admitted in the receiver reports to receiving money, the reports did not give a satisfactory explanation as to where the money went. The court further stated that, should Bona file a complete and accurate accounting by February 11, 2016, it would hold a hearing to determine the sufficiency of the receiver report and, upon request, reconsider the order for payment into court.

         On December 31, 2015, Bona filed motions in all nine actions to reargue the December 16, 2015 orders. On January 19, 2016, Judge Koletsky denied the motions to reargue, stating that ‘‘[u]nless and until the court has received from Attorney Bona the detailed account of all the monies received by him as receiver and where that money went (with copies of checks and any other documentation justifying all expenditures) the court does not intend to modify the potentially ruinous order to reimburse the court. The apparent failure of Attorney Bona to comprehend the serious difficulty he is facing is puzzling, and there is little more the court can do but to emphasize that there is no more basic duty for a receiver than to completely and honestly account for the funds which the receiver obtained as an officer of the Superior Court.''

         In February, 2016, Bona filed receiver reports accounting for the nine properties from February, 2012 to May, 2013, the duration of his receivership. In these reports, Bona conceded that he did not begin to collect rents until September, 2012, and that prior to that date, Speer was collecting rents and documenting any expenditures. Moreover, Bona conceded that Speer continued to do so after September, 2012.

         Judge Koletsky held a hearing on February 16, 2016, at which he determined that Bona still had not filed satisfactory receiver reports.[10] Judge Koletsky thus ordered Bona to file new reports in three weeks and reiterated its prior orders for Bona to pay the funds to the court. Bona did not file additional receiver reports.

         On March 16, 2016, Bona filed this writ of error in the Supreme Court concerning his appointment as receiver of rents and the orders requiring him to pay into court $180, 094.32. Pursuant to Practice Book § 65-1, our Supreme Court transferred this writ of error ...


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