Procedural
History
Action
to foreclose a mortgage on certain real property owned by the
named defendant et al., and for other relief, brought to the
Superior Court in the judicial district of Fairfield, where
the court, Hon. Michael Hart-mere, judge trial
referee, rendered judgment in favor of the defendant JD's
Cafe´ I, Inc.; thereafter, the court denied the
plaintiff's motion to reargue, and the plaintiff appealed
to this court. Affirmed.
Argued
February 8
Stephen R. Bellis, for the appellant (plaintiff).
Barbara M. Schellenberg, with whom, on the brief, was Vincent
M. Marino, for the appellee (defendant JD's Cafe´
I, Inc.).
DiPentima, C. J., and Prescott and Elgo, Js.
OPINION
DiPENTIMA, C. J.
In this
appeal, the plaintiff, IP Media Products, LLC, brought a
foreclosure action against the defendant, JD's
Cafe´ I, Inc., [1] seeking to enforce a mortgage and note
that were conveyed and signed, respectively, by a purportedly
different entity, namely, JD's Cafe´ I, LLC. On
appeal, the plaintiff claims that the trial court improperly
concluded that it could not recover against the defendant
because (1) the complaint contained no allegations against
the defendant; (2) the entity that conveyed the mortgage and
signed the note was not the named defendant; and (3) the
mortgage and note were executed without the requisite
corporate authority. As to the third claim, the plaintiff
does not challenge the court's finding of lack of
corporate authority, but argues for the first time on appeal
that, because it is a holder in due course, this defense does
not apply to it. We conclude that because this argument was
not preserved, the plaintiff's third claim fails.
Moreover, because we affirm the judgment of the trial court
on this basis, we need not address the remainder of the
plaintiff's claims.[2]
The
following undisputed facts and procedural history are
relevant to this appeal. On August 25, 2004, Gus Curcio, Jr.,
acquired all of the corporate stock in the defendant and, at
a shareholder meeting on November 11, 2005, became the
defendant's president and director. On July 19, 2007, the
defendant acquired 3010 Huntington Road, in Stratford
(Stratford property), from Curcio Jr.'s mother. The next
day, July 20, 2007, Curcio, Jr., as president of Curcio
Carting, Inc., executed a promissory note with Dade Realty
Company I, LLC (Dade Realty), in the amount of $110, 000. The
note indicated that it was secured by a lien on trucks owned
by Curcio Carting, Inc., and a mortgage on the Stratford
property. The note and mortgage were signed by Curcio, Jr.,
as president of Curcio Carting, Inc., and Robin Cummings as
the president of JD's Cafe´ I, LLC.
On
August 26, 2014, Dade Realty assigned the note to the
plaintiff and shortly thereafter, on October 14, 2014, the
plaintiff commenced a foreclosure action against the
defendant and several other parties. Although service was
made on the defendant, the allegations in the complaint are
asserted against JD's Cafe´ I, LLC, and not the
defendant. Nonetheless, in its answer, the defendant admitted
the plaintiff's allegation that JD's Cafe´ I,
LLC, was the record owner of the Stratford property at the
time the mortgage was conveyed. The defendant denied that it
had conveyed a mortgage to Dade Realty, or that it was
indebted to the plaintiff. In the same responsive pleading,
the defendant also asserted several special defenses,
alleging, inter alia, that the mortgage and note were
unenforceable because they were conveyed and signed,
respectively, without the requisite corporate authority and,
alternatively, that JD's Cafe´ I, LLC, could not
convey a mortgage because it was not the record owner of the
Stratford property.[3]
At
trial, the parties stipulated that the note and mortgage were
assigned to the plaintiff and that the debt remained unpaid.
Additionally, the parties agreed that Curcio, Jr., was the
defendant's sole shareholder on the date the note and
mortgage were executed.[4] The plaintiff called Curcio, Jr., and
Attorney Donal Colli-more to testify. Through the testimony
of Curcio, Jr., the plaintiff introduced into evidence
several exhibits, including copies of the mortgage and note.
Curcio, Jr., testified that he signed both of these documents
on behalf of Curcio Carting, Inc., and was under the belief
that the loan security was limited to three vehicles owned by
Curcio Carting, Inc. It was his recollection that when he
signed both documents, neither contained any indication that
JD's Cafe´ I, LLC, was involved in the
transaction.[5] Further, Curcio, Jr., testified that he
was unfamiliar with an entity known as JD's Cafe´
I, LLC, but assuming that the mortgage and note contained a
misnomer, he was familiar with the defendant. Curcio, Jr.,
stated that, at the time of the transaction, he was the sole
shareholder and president of the defendant, and would not
have consented to a mortgage being placed on the Stratford
property. When asked whether Cummings had any authority to
convey a mortgage on the Stratford property, or affiliation
with the defendant corporation, Curcio, Jr., responded that
Cummings had no authority and any affiliation he purportedly
had was the result of ‘‘shenanigans''
involving Gus Curcio, Sr.[6]
Following
the testimony of Curcio, Jr., the plaintiff called Collimore,
who had represented both Curcio Carting, Inc., and the
defendant with respect to the transaction with Dade Realty.
Collimore testified that the note and mortgage documents were
prepared by the lender and that he did not notice the
misnomer with respect to the defendant's corporate
designation on both documents. Through Collimore's
testimony, the plaintiff introduced the title insurance
policy that was procured for the benefit of Dade Realty. The
policy provides that title to the Stratford property is held
by the defendant, and not JD's Cafe´ I, LLC. With
respect to the logistics of the loan transaction, Collimore
testified that he obtained signatures from Curcio, Jr., and
Cummings separately. He first met with Curcio, Jr., and then
met with Cummings on his boat to have him sign on behalf of
the defendant. He also testified that Curcio, Jr., was aware
that the defendant, through Cummings, was involved in the
transaction.
At the
close of evidence, the defendant moved for dismissal pursuant
to Practice Book § 15-8.[7] The defendant's counsel
argued that the evidence revealed that the mortgage and note
had been executed without the requisite corporate authority
and, therefore, were unenforceable. Counsel also contended
that, in the absence of reformation, the mortgage and note
could not be enforced against the defendant because they were
signed in the name of JD's Cafe´ I, LLC. The court
reserved judgment on both issues and requested that the
parties file posttrial briefs.
Thereafter,
on June 14, 2017, the trial court rendered judgment in favor
of the defendant on the basis, inter alia, that there were no
allegations in the complaint against the defendant; rather
the allegations were asserted against JD's Cafe´ I,
LLC. Additionally, the court concluded that the mortgage and
note were unenforceable against the defendant because it was
not the entity that conveyed the mortgage and signed the
note, and the plaintiff had failed to plead reformation to
correct this discrepancy. Finally, the court determined that
the mortgage and note were void and unenforceable against the
defendant because Cummings did not have the authority to
execute those documents on behalf of the defendant. The court
made no determinations of credibility with ...