Hartford v. McKeever

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 HARTFORD v. McKEEVER—DISSENT

PALMER, J., with whom McDONALD, J., joins, dis-
senting. I agree with the majority that, as a general
matter, an innocent assignee of a note and mortgage
does not assume the original responsibilities of the
assignor and, therefore, is not liable for affirmative
claims against the assignor by the obligor. I disagree,
however, with the majority’s determination that the
Appellate Court was not required to address the claim
of the named defendant, Brian McKeever (defendant),
that it should recognize and apply an equitable excep-
tion to this rule. The majority concludes that the Appel-
late Court was not required to address this claim
because the trial court did not address it, and, therefore,
the record is inadequate for review. Contrary to the
majority’s assertion, and as I explain more fully herein-
after, it is clear that the trial court did address the
defendant’s claim. But even if it had not, the plaintiff,
the city of Hartford (city), has never denied the funda-
mental facts underlying it—namely, that the city always
was the real party in interest to the notes and mortgages
and, additionally, that all of the defendant’s overpay-
ments were collected by the city’s trustee1 on behalf of
the city. Indeed, not only did the city admit these facts
in its pleadings—admissions that are binding on it2—
counsel for the city expressly stated at oral argument
before this court that the city never has claimed other-
wise. In light of these admissions, the majority’s conclu-
sion that the record is inadequate for review of the
defendant’s equitable claim is unsustainable.
In reaching its contrary determination, the majority
rejects the defendant’s contention that the record is
sufficient for appellate review because the trial court
expressly found that the city was not an innocent
assignee but, rather, was ‘‘involved [in the transactions]
from the [very] beginning,’’ that ‘‘it would be highly
inequitable for the city . . . to be unjustly enriched by
[money] paid by [the defendant] that [was] not in fact
due,’’ and that the city ‘‘had an interest from the very
beginning and over the years in the execution and
administration of the mortgages.’’ Rather than defer to
these findings, the majority dismisses them as mere
‘‘dicta.’’ Footnote 12 of the majority opinion. The major-
ity also rejects the defendant’s contention that the
record is adequate for review because the city never
disputed that it was involved in the execution and
administration of the notes and mortgages from the
beginning, and even admitted in its pleadings that it
was a party to those transactions.3 Instead, the majority
dismisses the city’s admissions as ‘‘inexplicable’’ and
posits that ‘‘[p]erhaps the [city] intended to admit that
it now had the rights of a payee on the subject notes
pursuant to the assignment.’’ Footnote 14 of the major-
ity opinion. Contrary to the majority’s assertion, the
city’s admissions are not inexplicable. Indeed, the city
explained them to this court at length at oral argument.
When a panel member asked the city’s appellate counsel
during argument whether the city ever has claimed that
the notes and mortgages were not executed and admin-
istered by the Community Development Corporation
(CDC) solely on behalf of the city, counsel stated: ‘‘I
don’t think the city could ever make that argument.’’
She then explained that the city was required by law
to have a third party execute and administer the loans
and mortgages. She stated: ‘‘[The] CDC was the mort-
gage holder [at] the beginning [because] you have to
have [a separate] entity handle these transactions. . . .
[You] have to have a trustee . . . collect the money
. . . . Whoever was administering the [mortgage, how-
ever] was doing so for the benefit of the city . . . . I
have no reason to contest that statement. . . . Every-
thing that I reviewed [makes that] pretty clear. . . .
The trust was set up as required by law to act as [a]
fiduciary to make sure payments are being applied to
satisfy bonds that were issued [by the city].’’ (Emphasis
added.) In light of these concessions, which mirror the
admissions contained in the city’s pleadings, the majori-
ty’s repeated assertion that the record is inadequate to
review the defendant’s claim that the CDC and the
trustee were acting at all times on behalf of the city
and for the benefit of the city is itself inexplicable.4
Furthermore, as Judge Gruendel observed in his dis-
senting opinion in the Appellate Court, even if the city’s
admissions were insufficient to establish the essential
facts underlying the defendant’s equitable claim, there
is other evidence in the record that clearly establishes
the relationship between the city and the CDC. See
Hartford v. McKeever, 139 Conn. App. 277, 291, 55 A.3d
787 (2012) (Gruendel, J., dissenting). For example, ‘‘the
‘Deed of Restrictive Covenants’ . . . signed by the
defendant as part of the loan transactions . . . was
admitted into evidence at trial as part of [the city’s]
exhibit 1. The deed provides that it is granted by the
defendant to and for the benefit of . . . the [city] and
the [CDC, as program administrator]. The deed [fur-
ther] state[d] that, in 1982, the [city] sold bonds to raise
approximately $10 million for the purpose of providing
loans to facilitate the rehabilitation of certain residen-
tial properties in Hartford.’’ (Emphasis added; footnotes
omitted.) Id., 289–90 (Gruendel, J., dissenting). More-
over, ‘‘the [city] in its [A]ppellate [Court] brief sets forth
a narrative largely consistent with the court’s findings
that it was involved in the transactions with the defen-
dant from the beginning. Its [Appellate Court] brief [pro-
vides] in relevant part: ‘The two loans were originally
part of a redevelopment program [by the city] involving
$10 million in tax exempt revenue bonds. The proceeds
from the bonds were paid into an account at [the trustee
bank] which in turn used a portion of the money to fund
the [defendant’s] loans. On the date [that the defendant]
entered into the two loan transactions, checks were
tendered to [the defendant] who executed the two sub-
ject promissory notes in favor of [the CDC]. The two
notes were immediately assigned to [the trustee bank]
. . . .’’ (Emphasis added.) Id., 290 n.7 (Gruendel, J.,
dissenting). Thus, as the city explained to this court,
although the original notes and mortgages were exe-
cuted in favor of the CDC, the CDC’s role was strictly
that of loan facilitator and administrator, which is why
it immediately assigned the notes and mortgages to the
city’s trustee.
The majority also incorrectly asserts that there is no
evidence that ‘‘the [city] was unjustly enriched by the
[defendant’s] overpayments’’; text accompanying foot-
note 13 of the majority opinion; and, therefore, that
there was no basis to conclude that the equities favor
the defendant. Once again, the majority refuses to
acknowledge that the city never has denied that the
overpayments were collected by the trustee on its
behalf, as required by law, and that the money went
directly to the city to pay its bondholders. Indeed, dur-
ing oral argument, counsel for the city stated that it
would have been ‘‘fatal’’ to the city’s tax exempt bond
program if the money had been used for any other
purpose. Thus, contrary to the majority’s suggestion,
to the extent that the record lacks direct evidence that
the city benefited from the defendant’s overpayments,
it is only because the city never has claimed otherwise.
At trial, and on appeal to the Appellate Court, the city
disputed only the amount of the overpayments and
whether it was legally responsible for overpayments
that occurred prior to the assignment.5 Consistent with
the city’s concession in this court, the brief that the
city filed in the present appeal does not contain the
slightest suggestion that the city did not benefit from
the payments made to its bondholders on its behalf.
The majority alone makes an unsupported contention
to the contrary.
I also disagree with the majority’s assertion that the
trial court never addressed the defendant’s equitable
claims, and, as a consequence, the Appellate Court also
was not required to address them. At trial and in his
posttrial briefs, the defendant maintained that the city,
rather than the trustee or the CDC, was always the real
party in interest, as evidenced by the loan and mortgage
documents and the fact that, ‘‘when the bonds were
paid, [the trustee] assigned its rights with respect to
the [remaining] note and mortgage to the city for [only
$1]. . . . If money was still due under the note and
mortgage, why else would the city obtain the right to
collect money under the note and mortgage unless it
was a real party to the total transaction from the begin-
ning?’’ Indeed, as I previously discussed, the defendant
alleged in his counterclaim that the city was a party to
the notes and mortgages, which the city admitted.6 The
trial court’s finding that the city was involved in the
transactions from the beginning is obviously responsive
to this contention. In his posttrial briefs, the defendant
also argued that, because this was a foreclosure action,
equitable principles applied and this constituted a sepa-
rate basis for the trial court to find in favor of the
defendant. In his reply brief, the defendant argued: ‘‘It
is incomprehensible, and certainly not equitable, for
the city to now say that the manner in which the loan
was serviced, for its benefit, is not the city’s ultimate
responsibility. Colonial Bank and its successors were
the city’s trustees. The servicer of the loan was servicing
the loan for the city’s trustee. Certainly, equity should
not allow the actual party in interest to hide behind
such an inequitable cloak.’’ (Emphasis omitted.) The
city, of course, never disputed any of the facts underly-
ing this argument. To the contrary, the city’s position
was and remains a strictly legal one, namely, that this
court should adopt a bright line rule that an assignee
is never liable for claims against the assignor unless
the assignee contractually assumes such liability. As
Judge Gruendel explained in his dissenting opinion in
the Appellate Court, however, the general rule that an
assignee takes a note and mortgage free of any affirma-
tive claims against the assignor should apply only when
the assignment constituted an arm’s-length transaction
between unrelated parties, not when, as in the present
case, the assignee was the real party in interest all
along. See Hartford v. McKeever, supra, 139 Conn. App.
301–303 (Gruendel, J., dissenting) (citing and dis-
cussing applicable cases and authorities); see also Mas-
sey-Ferguson Credit Corp. v. Brown, 173 Mont. 253,
260–61, 567 P.2d 440 (1977) (assignee liable for overpay-
ments made to assignor in light of ‘‘close relationship
and participation between the assignor and assignee’’).
Furthermore, although the trial court never specified
the count or counts of the counterclaim on which the
defendant had prevailed, it expressly noted in its memo-
randum of decision that the defendant was seeking an
accounting from the city. It is well established that ‘‘[a]n
action for an accounting calls for the application of
equitable principles.’’7 Travis v. St. John, 176 Conn. 69,
74, 404 A.2d 885 (1978). The trial court also addressed
the equitable nature of the defendant’s claim when it
found that ‘‘this is a foreclosure action with a counter-
claim and, therefore, [is] subject to equitable considera-
tions.’’ After addressing the parties’ legal arguments,
the trial court further stated: ‘‘Additionally, it would be
highly inequitable for the city, [the] CDC and/or [the
trustee] to be unjustly enriched by [money] paid by
[the defendant] that [was] not in fact due. Accordingly,
judgment is entered for the defendant . . . in the total
amount of $195,909.’’ This finding, as well as the court’s
finding that the city was involved in the transactions
from the beginning, is directly responsive to the defen-
dant’s claim that ‘‘[i]t is incomprehensible, and certainly
not equitable, for the city to now say that the manner
in which the loan was serviced, for its benefit, is not
the city’s ultimate responsibility.’’ (Emphasis omitted.)
Nevertheless, as I have explained, even if the trial
court had not addressed the defendant’s equitable
claims, there is nothing to prevent this court from doing
so on the basis of the pleadings and the undisputed
evidence in the record clearly establishing that the CDC
was simply a proxy or agent for the city with respect
to the execution and administration of the notes and
mortgages. Moreover, even if the record required fur-
ther fact-finding in order to resolve this claim, the
proper disposition would be to remand the case to the
trial court for additional findings on that issue; the trial
court did not address the claim only because it improp-
erly had found in favor of the defendant on another
claim, a determination that was based on an incorrect
interpretation of the law.8 I therefore respectfully
dissent.
1
The city’s trustee initially was Colonial Bank. State Street Bank and
Trust Company of Connecticut subsequently became the city’s trustee.
2
As Judge Gruendel explained in his dissenting opinion in the Appellate
Court: ‘‘[T]he [city] admitted that all overpayments giving rise to the defen-
dant’s counterclaim were collected on its behalf, and thus inured to its
benefit. It is bedrock law that an admission in an answer to an allegation
in a complaint is binding as a judicial admission. Franchi v. Farmholme,
Inc., 191 Conn. 201, 214, 464 A.2d 35 (1983); Lutkus v. Kelly, 170 Conn. 252,
257, 365 A.2d 816 (1976); Bridgeport v. Stratford, 142 Conn. 634, 646, 116
A.2d 508 (1955); [see also] 71 C.J.S. 228, Pleading § 195 (2011) (admission
in answer binding on party making it and ‘supports a presumption or infer-
ence of such other facts as normally follow from the establishment of such
fact’). As [the Appellate Court] has explained, ‘[p]leadings are intended to
limit the issues to be decided at the trial of a case and [are] calculated to
prevent surprise. . . . [The] purpose of pleadings is to frame, present,
define, and narrow the issues, and to form the foundation of, and to limit,
the proof to be submitted on the trial . . . . Accordingly, [t]he admission
of the truth of an allegation in a pleading is a judicial admission conclusive
on the pleader. . . . A judicial admission dispenses with the production of
evidence by the opposing party as to the fact admitted, and is conclusive
[as to] the party making it. . . . [The] admission in a plea or answer is
binding on the party making it, and may be viewed as a conclusive or judicial
admission . . . . It is axiomatic that the parties are bound by their plead-
ings.’ . . . Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759,
768–69, 890 A.2d 645 (2006).’’ Hartford v. McKeever, 139 Conn. App. 277,
304, 55 A.3d 787 (2012) (Gruendel, J., dissenting).
3
‘‘Paragraph six of the defendant’s counterclaim alleged that, pursuant
to the assignment of rents agreement, ‘the [city] on or after May 5, 1983,
collect[ed] rents from the tenants of [the property] in lieu of [the defendant]
making payments on the notes to [the city].’ In answering that allegation,
the [city] admitted that ‘the rentals were being collected pursuant to a
collateral assignment of leases and rentals. . . . [A] third party was collect-
ing the rent on behalf of [the city].’ ’’ (Emphasis omitted.) Hartford v.
McKeever, 139 Conn. App. 277, 304–305, 55 A.3d 787 (2012) (Gruendel,
J., dissenting).
4
For example, the majority concludes ‘‘that the Appellate Court properly
determined that the trial court had made no factual findings as to the
significance of the relationship between the [city], on the one hand, and
the [CDC and the trustees], on the other hand, and that the judgment of
the trial court was not based on this relationship or any equitable considera-
tions that flowed from it.’’ Only by ignoring the record and the city’s conces-
sions at oral argument before this court can the majority reach such a
conclusion. The majority also takes issue ‘‘with [my] statement that [the
majority has] repeatedly asserted that the record is inadequate to review
the defendant’s claim that the [CDC and the trustees] were acting at all
times on behalf of the [city] and for the benefit of the [city].’’ Footnote 14
of the majority opinion. The majority argues that it has ‘‘concluded only
fact that . . . [the] trustees . . . were obligated to act on the [city’s] behalf,
and (2) whether the [city] actually benefited from the overpayments.’’
(Emphasis omitted.) Id. The majority further asserts that the city’s admission
that the overpayments were collected on its behalf ‘‘does not necessarily
mean . . . that the [city] actually . . . benefited from [those payments],’’
or that the money ‘‘actually ended up in the [city’s] coffers . . . .’’ Footnote
15 of the majority opinion. As I previously indicated, however, at oral argu-
ment before this court, counsel for the city expressly acknowledged that
the city did benefit from the overpayments, which the city also conceded
were required to be used to pay the city’s creditors in accordance with the
program that the city had established to facilitate the rehabilitation of its
residential housing stock. This concession is hardly surprising because, as
I discuss in this opinion, and as Judge Gruendel observed in his dissenting
opinion in the Appellate Court, the evidence adduced at trial establishes
that the city benefited from its loan program and that it was equitably liable
for the defendant’s losses with respect thereto. See Hartford v. McKeever,
139 Conn. App. 277, 297, 304–305, 55 A.3d 787 (2012) (Gruendel, J., dis-
senting).
The majority also observes that the defendant and I have cited ‘‘[no]
authority for the proposition that a trust beneficiary [such as the city] is
deemed to have benefited from any action taken by the trustee in the name
of the beneficiary that benefited the trustee . . . .’’ Footnote 15 of the
majority opinion. In the city’s pretrial statement regarding liability, as well
as at oral argument before the trial court, the city argued that, as beneficiary
of the trust, it was not liable for the trustee’s mismanagement of the trust
prior to July 19, 2001. Although the trial court did not directly address this
claim in its memorandum of decision, it found ‘‘that the city as to its defenses
has not proven them by a preponderance of the evidence, whether [it is]
the Uniform Commercial Code or any other defenses.’’ (Emphasis added.)
In light of this clear and unambiguous finding, and without an articulation
by the trial court in this regard, we can presume only that the trial court
ultimately rejected the city’s claim that it was not liable for the overpayments
that the trustee collected, regardless of what the trial court may have said
in passing with respect to this issue while the trial was ongoing. Furthermore,
on appeal to the Appellate Court, the city did not claim that the trial court
incorrectly had concluded or had failed to address its claim that it was not
liable for overpayments collected by the trustee, nor does it raise such a
claim before this court as an alternative ground for affirming the judgment
of the Appellate Court. In light of this procedural history, it is apparent that
the city has abandoned any claim that it might otherwise have had with
respect to the legal ramifications of its relationship to the trustees.
5
With respect to its claim that it was not responsible for overpayments
that occurred prior to the assignment, the city relied on a line of cases
holding that an assignee is not responsible for the conduct of the assignor
unless it expressly assumes liability as part of the assignment. All of those
cases, however, involved an innocent assignee of a contract involved in an
arm’s-length transaction with the assignor, not an assignee who admitted
that it, rather than the assignor, was the real party in interest all along. The
city also argued that it could not be held liable because the CDC, rather
than the city, actually serviced the loans.
6
As I previously indicated, the majority states that it is ‘‘inexplicable’’
that the city would admit that it was a party to the original notes and
mortgages ‘‘in light of the uncontroverted evidence that the promissory
notes named the [CDC] as the payee.’’ Footnote 14 of the majority opinion. As
the city explained, however, when the defendant entered into the underlying
transactions with the city as part of the city’s redevelopment initiative, the
use of municipal revenue bonds to fund such projects was subject to certain
rules and restrictions, one of which was that the city must have a third
party execute and administer the loans.
7
‘‘Courts of equity have original jurisdiction to state and settle accounts,
or to compel an accounting, [when] a fiduciary relationship exists between
the parties and [one of the parties] has a duty to render an account. The
right to compel an account in equity exists not only in the case of those
relationships [that] are traditionally regarded as those of trust and confi-
dence, but also in those informal relations [that] exist whenever one person
trusts in, and relies [on], another. The relationship between . . . parties to
a business agreement . . . [has] . . . been deemed to involve such confi-
dence and trust so as to entitle one of the parties to an accounting in equity.’’
(Internal quotation marks omitted.) Mankert v. Elmatco Products, Inc., 84
Conn. App. 456, 460–61, 854 A.2d 766, cert. denied, 271 Conn. 925, 859 A.2d
580 (2004).
8
The majority cites Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 164, 84 A.3d 840 (2014) (Blumb-
erg), for the proposition that ‘‘[t]he Appellate Court was not required to
review an alternative ground for affirmance that the defendant had not
distinctly raised and the trial court had not directly addressed, especially
when the record was inadequate for review of the claim because the trial
court had not made the requisite factual findings.’’ Text accompanying foot-
note 17 of the majority opinion. Blumberg, however, involved an alternative
ground for affirmance that the appellees raised for the first time on appeal;
see Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., supra, 127; not, as in the present case, a claim that was raised in the
trial court but that the court did not reach because it already had decided
the case in favor of the prevailing party and there thus was no reason to
reach alternative grounds on which that party also could prevail. Under the
majority’s reasoning, a party that prevails in the trial court on one ground
would be required to seek to have the court rule in his or her favor on any
and all other grounds. Even if the prevailing party sought such a ruling,
however, there is no reason to think that a trial court would entertain such
a request.