Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

IP Media Products, LLC v. Success, Inc.

Court of Appeals of Connecticut

July 30, 2019

IP MEDIA PRODUCTS, LLC
v.
SUCCESS, INC., ET AL.

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.