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*********************************************** 
JPMORGAN CHASE BANK, NATIONAL

ASSOCIATION ET AL. v. ROBERT

J. VIRGULAK ET AL.

(AC 40479)

Sheldon, Keller and Bear, Js.*

Syllabus

The plaintiff bank, J Co., sought to foreclose a mortgage on certain real

property owned by the defendant T. T’s husband, R, had executed and

delivered to J Co. a note for a loan on December 11, 2006. The note

was not signed by T. On the same date, T signed a mortgage for property

she owned, which did not reference R, and recited that it was given to

secure a note dated December 11, 2006, and that the note was signed

by T as the borrower. After the note subsequently went into default,

this action followed. Thereafter, M Co. was sustituted as the plaintiff.

The trial court rendered judgment in part in favor of T on the counts

seeking foreclosure and reformation of the mortgage deed to reflect

that the obligation being secured by the mortgage was R’s debt and not

that of T. With respect to the unjust enrichment count, the court found

that T had benefited in several respects as a result of R’s loan but that

certain responses by M Co. to requests for admissions precluded any

recovery on its unjust enrichment claim, except for certain property tax

payments that T conceded that she owed to M Co. On M Co.’s appeal

to this court, held:

1. M Co. could not prevail in its claim that the trial court improperly failed

to consider the foreclosure count as a stand-alone claim that was independent of the reformation count: that court concluded that M Co.’s

claim was inadequately briefed and unsupported by any authority, and

that M Co.’s claim that the mortgage could be foreclosed without first

reforming the mortgage was without merit, as it was undisputed that T

did not sign the note executed by R and the mortgage signed by T did

not purport to secure a note executed by R but, rather, identified T as

the borrower on the note, and the mortgage did not expressly refer to

any obligation for which T was legally responsible; moreover, M Co.’s

claim that the mortgage T signed was intended to secure the note executed by R and, thus, that foreclosure was warranted was unavailing,

as the court determined that the mortgage, as executed, was a nullity

because it secured a nonexistent debt, and although M Co. claimed that

the discrepancy in the mortgage was a scrivener’s error or inadvertent

technical error and that the equitable remedy of foreclosure was warranted even without reformation to ensure justice, the well established

jurisprudence on reformation, also an equitable remedy, was the proper

prerequisite in order for M Co. to correct the purported mistake in the

mortgage document, and because reformation of the mortgage was not

warranted under the circumstances of this case, the court’s decision

denying forelcosure was appropriate.

(One judge dissenting)

2. The trial court did not abuse its discretion in declining to reform the

mortgage: although M Co. introduced evidence suggesting that the mortgage signed by T was intended to secure R’s note, in light of the conflicting evidence before the trial court and the gaps left in the factual record,

M Co. did not provide sufficient evidence to demonstrate that a mutual

mistake had been made, as T testified that her signatures were on some

of the mortgage closing documents but questions remained with respect

to what she intended by signing them, T testified that she signed the

documents at R’s request and had not read them before doing so, and

that she was aware of R’s intent to borrow money but that R never told

her how much money he was borrowing, T signed the documents in

the presence of R only and was not present at the closing that took

place at an attorney’s office, there was no explanation of how the

mortgage came to bear the signatures of two witnesses, including an

attorney’s, nor was there any indication in the record that an attorney

or representative from J Co. explained to T her role in the process and

that her property would be used as collateral to secure R’s loan, and
the vast majority of the documents relating to the closing were given

to R and all communications regarding the mortgage were sent to him;

moreover, M Co. offered little evidence, if any, to demonstrate that the

mortgage was integral to the decision to provide R with the loan, and

the records authenticated by a representative of J Co. at trial were silent

as to the understanding that J Co. may have had with T regarding her

responsibility for R’s loan.

3. The trial court properly denied M Co.’s motion to amend its responses

to T’s requests for admission: M Co. did not cite any case law holding

that a court’s denial of a motion to withdraw and amend responses to

requests for admissions after the conclusion of trial constitutes an abuse

of discretion, and the court correctly relied on the applicable rule of

practice (§ 13-24 [a]) and noted that T likely would have been prejudiced

by allowing M Co. to amend its responses two weeks after trial concluded

because T had every reason to believe that M Co.’s admissions were

operative and binding, and it was likely that M Co.’s admissions affected

how T presented her defense; moreover, if the court had granted M

Co.’s motion two weeks after the close of evidence, it likely would have

been necessary to give T an opportunity to conduct discovery on the

facts established by M Co.’s admissions, which would have caused an

unreasonable delay, and M Co. could have filed a timely motion pursuant

to § 13-24 (a) to withdraw or amend its admissions before trial but failed

to do so.

4. The trial court properly concluded that M Co.’s admissions limited its

recovery under its unjust enrichment claim, as it was undisputed that

M Co.’s response to request number five of T’s requests for admission

stated that T did not owe it any money, and, thus, it was appropriate

for the court to conclude that M Co. was bound by its admission and

to limit M Co.’s recovery to property taxes that T conceded she owed

to it.

5. The trial court did not abuse its discretion in denying M Co.’s motion for

reargument; although M Co. claimed that its motion for reargument set

forth legal principles that were not expressly considered by the court

in its memorandum of decision, the record showed that M Co.’s twentytwo page motion was largely a request for the court to reevaluate the

facts before it and, thus, sought an improper second bite at the apple.

Argued January 14—officially released September 17, 2019

Procedural History

Action to foreclose a mortgage on certain real property of the defendant Theresa Virgulak, and for other

relief, brought to the Superior Court in the judicial district of Stamford-Norwalk; thereafter, the plaintiff withdrew the action as to the named defendant; subsequently, the court, Heller, J., granted the motion to

substitute Manufacturers and Traders Trust Company

as the plaintiff; thereafter, the case was tried to the

court, Hon. David R. Tobin, judge trial referee; judgment in part in favor of the defendant Theresa Virgulak;

subsequently, court, Hon. David R. Tobin, judge trial

referee, denied the motion for regargument filed by the

substitute plaintiff, and the substitute plaintiff appealed

to this court. Affirmed.

Brian D. Rich, with whom, on the brief, were Laura

Pascale Zaino and Peter R. Meggers, for the appellant

(substitute plaintiff).

Alexander H. Schwartz, for the appellee (defendant

Theresa Virgulak).
Opinion

KELLER, J. In this foreclosure action, the plaintiff,

Manufacturers and Traders Trust Company, also known

as M&T Bank (M&T Bank),1 appeals from the judgment

of the trial court in favor of the defendant Theresa

Virgulak.2 The plaintiff claims that the trial court

improperly (1) failed to exercise its discretion in considering the plaintiff’s foreclosure claim as a stand-alone

claim independent from its other causes of action and

failed to grant the plaintiff the equitable remedy of

foreclosure, (2) declined to reform the mortgage deed,

(3) denied its motion to amend its responses to the

defendant’s requests for admission, (4) concluded that

its admissions limited its recovery under its unjust

enrichment count, and (5) denied its motion for reargument. We disagree and affirm the judgment of the

trial court.

The following procedural history and facts, which

either are undisputed in the record or were found by

the trial court in its memorandum of decision, are relevant to our resolution of this appeal. On or about

December 11, 2006, Robert J. Virgulak (Robert), the

defendant’s husband, executed and delivered to JPMorgan Chase Bank, National Association (JPMorgan

Chase) a note for a loan in the principal amount of

$533,000 (note). The defendant was not a signatory on

the note. On the same date, the defendant signed a

document titled ‘‘Open-End Mortgage Deed’’ (mortgage) for residential property she owns at 14 Bayne

Court in Norwalk (property). The mortgage recited that

it was given to secure a note dated December 11, 2006,

and recited that the note was signed by the defendant

as ‘‘Borrower’’ in the amount of $533,000. The term

‘‘Borrower’’ is defined in the mortgage deed as ‘‘THERESA VIRGULAK, MARRIED.’’ The mortgage did not

reference Robert. The defendant did not sign any

guarantee.

On or about February 1, 2010, after JPMorgan Chase

failed to receive payments in accordance with the terms

of the note, the note went into default and JPMorgan

Chase elected to accelerate the balance due. On January

3, 2011, notices of default were sent to both the defendant and Robert and, in February, 2013, JPMorgan

Chase commenced this foreclosure action against the

couple. The action sought to foreclose the mortgage

that JPMorgan Chase claimed to have on the property.

In September, 2014, JPMorgan Chase withdrew the foreclosure action against Robert, as he had filed for bankruptcy and been granted an unconditional discharge of

the debt.

Thereafter, JPMorgan Chase filed a motion to substitute party plaintiff, stating that it had assigned the subject mortgage deed and note to Hudson City Savings

Bank (Hudson). This motion was granted by the court
on August 18, 2015.

On September 25, 2015, the defendant filed a motion

for summary judgment arguing that Hudson was precluded from foreclosing the mortgage. In particular, she

argued that she had not defaulted under the terms of

the note because she was never a party to a promissory

note with the plaintiff or any of its predecessors-ininterest. The motion was denied by the court on January

14, 2016, on the basis of the court’s determination that

an issue of material fact remained with respect to

whether the mortgage deed provided reasonable notice

to third parties that the defendant was securing

Robert’s obligation.

On March 18, 2016, the defendant served Hudson

with requests for admission. On May 6, 2016, Hudson

filed notice with the court that it had responded to the

defendant’s requests.

On August 9, 2016, the plaintiff, M&T Bank, into which

Hudson had merged, filed a motion to substitute itself

as the party plaintiff and requested leave to amend the

complaint in order to add two additional causes of

action. The court granted the motion on August 15,

2016. In the first count of the plaintiff’s three count

amended complaint, the plaintiff sought a judgment of

foreclosure against the defendants. In the second count,

it sought equitable reformation of the note in order to

include the defendant as a borrower on the note.3

In

the third count, the plaintiff pleaded that the defendant

had been unjustly enriched because (1) the proceeds

of the note were used to pay off loans which she was

obligated to pay and (2) she had free use of the subject

property without satisfying the terms of the mortgage,

which she had executed.

On December 1, 2016, the defendant filed an amended

answer denying the essential allegations of the amended

complaint regarding her liability for the debt and the

claim of unjust enrichment. She also set forth eight

special defenses.

On December 5, 2016, the defendant filed a motion

in limine seeking to have the trial court order that all

of the plaintiff’s earlier admissions in response to her

March 18, 2016 requests for admissions ‘‘be conclusively

established at trial.’’ The trial court indicated subsequently that it would rule on the motion in limine during

the course of trial ‘‘when a context develop[ed] that

require[d] [its] ruling.’’

The parties tried the case before the court on December 6, 2016. The plaintiff presented three witnesses,

including Wilkin Rodriguez, a mortgage banking

research officer at JPMorgan Chase, the defendant, and

Robert. After the plaintiff rested, the defendant did not

present additional evidence; she relied instead on the

testimony and exhibits introduced during cross-examination of the witnesses called by the plaintiff. The next
day, the court met with the parties to discuss the issues

it believed to be germane to its decision and set a

briefing schedule. As noted in the court’s memorandum

of decision, the court requested that the parties address

the following issues in their briefs: (1) ‘‘Is the plaintiff

entitled to foreclose the mortgage against [the defendant’s] property without first reforming the mortgage

note to make her a maker or guarantor of the note and/

or reforming the mortgage deed to alter the description

of the debt secured by the mortgage?’’; (2) ‘‘If the answer

to #1 is negative, is there sufficient evidence to support

equitable reformation of the mortgage note and/or

deed?’’; (3) ‘‘If the answer[s] to both #1 and #2 are

negative, is the plaintiff entitled to recover, by way of

a claim of unjust enrichment, any of the following: [use

and occupancy of the property, property taxes paid by

the plaintiff for the property, or property insurance

premiums paid by the plaintiff for coverage of the property?]’’; (4) ‘‘If the plaintiff is otherwise entitled to

recover under #1, #2, or #3, is such recovery precluded

by [the] plaintiff’s responses to the requests for admissions . . . which included the admission that the

defendant did not owe any money to the plaintiff?’’; (5)

‘‘If [the] plaintiff is otherwise entitled to recover under

#1, #2, or #3, is there adequate evidence to support any

of the defendant’s special defenses?’’

On December 21, 2016, approximately two weeks

after the conclusion of the trial, the plaintiff filed a

motion seeking to withdraw and amend its responses

to the requests for admissions that it had previously

provided to the defendant. On December 27, 2016, the

court entered orders stating that it would not entertain

arguments on the plaintiff’s motion until all of the posttrial briefs it had ordered had been filed by the parties.

On April 12, 2017, the court issued its memorandum

of decision. The court found in favor of the defendant

on the foreclosure and reformation counts of the complaint. In particular, the court stated, among other

things, that ‘‘[t]he court finds that the plaintiff has not

sustained its burden of proving, by clear and convincing

evidence, that it [was] entitled to the equitable remedy

of reformation of the mortgage deed . . . . Accordingly, the court finds the issues on the second count

for [the defendant] and against the plaintiff. Since the

plaintiff failed to present any authority to the court

which would allow the plaintiff to prevail on the first

count [foreclosure claim] in the absence of reformation

of the mortgage deed, the court [also] finds the issues

on the first count for [the defendant] and against the

plaintiff.’’

The court then proceeded to address the plaintiff’s

unjust enrichment claim, noting that the defendant had

been benefitted in several respects as a result of the

loan that Robert had obtained, but determining that,

prior to ruling on the unjust enrichment claim, it needed
to determine whether the plaintiff was entitled to withdraw and amend its responses to the defendant’s

requests for admissions. The court ultimately found

that, pursuant to Practice Book § 13-24 (a), a motion

to withdraw and amend responses to requests for

admissions could not be filed following trial, as was

done here, because § 13-24 (a) required the court to

find (1) that ‘‘the presentation of the merits of the action

will be subserved thereby’’ and (2) the party who

obtained the admission will not be prejudiced ‘‘in maintaining his or her action or defense on the merits.’’ The

court concluded that it was unable to find ‘‘that ‘the

presentation of the merits of the action will be subserved’ by the granting of the plaintiff’s motion’’ after

trial. It further found that it would be ‘‘hard to imagine

how the defendant would not be prejudiced at the time

the case was tried because defense counsel had every

reason to believe that the plaintiff’s admissions were

both operative and binding.’’ The court, therefore,

denied the plaintiff’s motion to withdraw and amend,

which it had filed on December 21, 2016.4 The court

ultimately determined that the plaintiff’s responses to

the requests for admissions precluded any recovery on

its unjust enrichment claim, except for the property tax

payments that the defendant conceded that she owed

to the plaintiff.

On May 1, 2017, the plaintiff filed a motion for reargument. The court summarily denied the motion for reargument on May 4, 2017. This appeal followed.5 Additional facts will be set forth as necessary.

I

The plaintiff first argues that the court committed

reversible error by refusing to exercise its discretion in

considering the plaintiff’s foreclosure claim as a standalone claim independent from its other causes of action.

The plaintiff also argues that ‘‘[a]side from the trial

court’s failure to properly consider the plaintiff’s argument that foreclosure is warranted, even without reformation, extant legal authority . . . dictates that

result.’’ We disagree.

A

Our Supreme Court has made clear that when a ‘‘trial

court is properly called upon to exercise its discretion,

its failure to do so is error.’’ State v. Martin, 201 Conn.

74, 88, 513 A.2d 116 (1986); see also Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586, 609, 181 A.3d

550, 565 (2018) (remand for hearing was appropriate

because trial court failed to exercise its discretion);

Costello v. Goldstein & Peck, P.C., 321 Conn. 244, 256,

137 A.3d 748 (2016) (‘‘the court’s failure to recognize

its authority to act constituted an abuse of discretion’’).

In a foreclosure proceeding, ‘‘the determination of what

equity requires is a matter for the discretion of the trial

court. . . . In determining whether the trial court has
abused its discretion, we must make every reasonable

presumption in favor of the correctness of its action.

. . . Our review of a trial court’s exercise of the legal

discretion vested in it is limited to the questions of

whether the trial court correctly applied the law and

could reasonably have reached the conclusion that it

did.’’ (Internal quotation marks omitted.) AJJ Enterprises, LLP v. Jean-Charles, 160 Conn. App. 375, 394–

95, 125 A.3d 618 (2015). We thus address the plaintiff’s

claim that the court committed reversible error by refusing to exercise its discretion in considering its foreclosure claim as a stand-alone claim.

In support of its argument, the plaintiff directs us to

the trial court’s memorandum of decision, which states

in relevant part: ‘‘In its January 27, 2017 posttrial brief

. . . the plaintiff does not argue that the law would

permit the plaintiff to foreclose a mortgage on 14 Bayne

Court without first obtaining equitable reformation of

the mortgage note and/or deed. Accordingly, the court

will first address the plaintiff’s second count which

requests reformation.’’ The plaintiff argues that the

court’s statement is ‘‘simply wrong,’’ and that the plaintiff properly requested that the court consider the foreclosure count as an independent claim irrespective of

the other two causes of action it advanced.

The plaintiff further contends that it gave the court

multiple opportunities to correct this purported error

by way of motions for reargument, articulation, and

rectification, but it failed to do so. Specifically, it contends that the court improperly ignored its claim for

foreclosure. Our review of the record, however, suggests otherwise. After the court issued its memorandum

of decision, the plaintiff filed numerous motions with

the court to which the court responded. In particular,

the plaintiff filed with the court a motion for articulation

and a motion for rectification raising this same argument that it presses on appeal. With respect to the

motion for articulation, the court addressed the plaintiff’s arguments in a four page response. In relevant

part, the court stated: ‘‘In its first posttrial brief dated

January 27, 2017 . . . the plaintiff addressed the merits

of the first two counts of its August 9, 2016, amended

complaint . . . under one heading [titled] ‘Plaintiff has

Met its Burden to Recover under its Claim of Foreclosure and Reformation.’ In that section of its brief, the

plaintiff provided no authority whatsoever supporting

the plaintiff’s right to foreclose its mortgage without

reforming either the mortgage deed (to state that it was

Robert’s debt under a promissory note that was secured

by the mortgage) or the mortgage note (to state that

[the defendant] was a maker or guarantor of the note.)

The court recognizes that the plaintiff recited some

general propositions of law in that brief and in its posttrial reply brief . . . to the effect that mortgage foreclosures are equitable proceedings. . . .
‘‘On page 5 of its May 1, 2017 motion for reargument/

reconsideration . . . the plaintiff cited no less than

nine cases in support of its claim that the court had

the power, in equity, ‘to fashion any order aimed at

achieving the interest of justice.’ None of those cases

addressed the question of whether a mortgage deed

which purportedly secured a nonexistent debt could

be foreclosed without reforming at least one of the

mortgage documents. . . .

‘‘If, in its memorandum of decision, the court failed

to address the first count independently of the remedy

of reformation claimed in the second count, it was

because the plaintiff did not (and probably could not)

present the court with any authority supporting the first

count as an independent cause of action.’’

The court further addressed the claim in the court’s

five page response to the plaintiff’s motion for rectification. In a section titled ‘‘Plaintiff’s ‘Stand-Alone’ Foreclosure Claim,’’ the court stated: ‘‘Following extensive

oral argument and review of the plaintiff’s brief, the

court concluded that the plaintiff had offered no authority for the proposition that the plaintiff was entitled to

foreclose its mortgage, which, on its face, purported to

secure an obligation that did not exist, without first

reforming either the mortgage note or the mortgage

deed. The plaintiff correctly points out that foreclosure

actions invoke the court’s equitable powers. In its memorandum of decision at pages 11 through 18, the court

addressed the plaintiff’s equitable claim that the mortgage deed should be reformed to reflect that the obligation being secured by the mortgage was not [the defendant’s] debt, but rather her husband Robert’s debt. The

court concluded that the plaintiff did not meet the standards required by case law for the reformation of the

mortgage deed.

‘‘The plaintiff offered no legal authority to support

the notion that a court, in the exercise of its equitable

powers, can change the obligations of a party to a written instrument without meeting the standards for reformation of the instrument. If the court ignored the plaintiff’s ‘stand-alone’ claim it was because it was

inadequately briefed and, in the absence of reformation,

without merit.’’ (Emphasis added.).

With this as our backdrop, we reject the plaintiff’s

claim that the court ‘‘ignore[d] the plaintiff’s claim for

foreclosure’’ and conclude that the court did in fact

exercise its discretion. With respect to that claim, the

court explained that it believed that the plaintiff’s claim

was inadequately briefed and was unsupported by any

citation of authority to support its contention. It made

clear that the plaintiff’s claim that the mortgage could

be foreclosed without first reforming the mortgage was

‘‘without merit.’’ As such, we reject the plaintiff’s claim

and conclude that the court did not ignore the plaintiff’s
claim for foreclosure, as it clearly exercised its discretion in declining to grant foreclosure of the defendant’s property.

B

The plaintiff also argues that ‘‘[a]side from the trial

court’s failure to properly consider the plaintiff’s argument that foreclosure is warranted, even without reformation, extant legal authority . . . dictates that

result.’’ The plaintiff contends that the record in the

present case required the court to grant foreclosure

because the evidence demonstrates that the mortgage

signed by the defendant was intended to secure the

note that was executed solely by Robert.

The defendant contends that the plaintiff did not provide either the trial court or this court with any authority

to support a claim that a court can foreclose a mortgage

that secures a nonexistent debt. Furthermore, the

defendant argues that there is no authority in Connecticut to support the proposition that a court can, sua

sponte, or at the request of one party to a commercial

transaction, rewrite a promissory note or mortgage to

materially change the terms of the transaction they

describe without first reforming the document. The

defendant contends that the proper vehicle by which

the plaintiff could obtain relief is by seeking reformation

of the mortgage, which the plaintiff did in count two

of its complaint. The defendant ultimately argues that

the trial court correctly exercised its discretion in refusing to foreclose a mortgage that secured a nonexistent

debt. We agree with the defendant.

It is well established that a mortgagee in a foreclosure

action is entitled ‘‘to pursue its remedy at law on the

notes, or to pursue its remedy in equity upon the mortgage, or to pursue both. A note and a mortgage given

to secure it are separate instruments, executed for different purposes and, in this State, action for foreclosure

of the mortgage and upon the note are regarded and

treated, in practice, as separate and distinct causes of

action, although both may be pursued in a foreclosure

suit.’’ (Internal quotation marks omitted.) New Milford

Savings Bank v. Jajer, 244 Conn. 251, 266–67, 708 A.2d

1378 (1998). ‘‘In order to establish a prima facie case

in a mortgage foreclosure action, the plaintiff must

prove by a preponderance of the evidence that it is the

owner of the note and mortgage, that the defendant

mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the

note and mortgage, have been satisfied.’’ (Internal quotation marks omitted.) Bank of America, N.A. v. Gonzalez, 187 Conn. App. 511, 514, 202 A.3d 1092 (2019).

‘‘Mortgage foreclosure appeals are reviewed under

an abuse of discretion standard.’’ (Internal quotation

marks omitted.) Cliffside Condominium Assn., Inc. v.

Cushman, 100 Conn. App. 803, 804, 921 A.2d 609 (2007).
‘‘A foreclosure action is an equitable proceeding. . . .

The determination of what equity requires is a matter

for the discretion of the trial court. . . . In determining

whether the trial court has abused its discretion, we

must make every reasonable presumption in favor of

the correctness of its action. . . . Our review of a trial

court’s exercise of the legal discretion vested in it is

limited to the questions of whether the trial court correctly applied the law and could reasonably have

reached the conclusion that it did.’’ (Internal quotation

marks omitted.) Franklin Credit Management Corp. v.

Nicholas, 73 Conn. App. 830, 838, 812 A.2d 51 (2002),

cert. denied, 262 Conn. 937, 815 A.2d 136 (2003).

In the present case, it is undisputed that the defendant

did not sign the promissory note executed by Robert

on which he defaulted, prompting this foreclosure proceeding. It is also undisputed that the subject mortgage

signed by the defendant does not purport to secure a

note executed by her husband, but rather identifies her

as the borrower on the note. The subject mortgage

does not expressly refer to any obligation for which

the defendant is legally responsible. In reviewing the

court’s memorandum of decision and subsequent rulings on the plaintiff’s motions, it is clear that it declined

to grant foreclosure of the mortgage without reformation because it determined that the mortgage, as executed, was a nullity because it secured a nonexistent

debt.6

In arguing that the court should have foreclosed the

mortgage despite this discrepancy and without reformation because foreclosure is an equitable remedy in and

of itself, the plaintiff cites to numerous cases largely for

the axiom that ‘‘[f]oreclosure is peculiarly an equitable

action, and the court may entertain such questions as

are necessary to be determined in order that complete

justice may be done.’’ See, e.g., Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217

A.2d 694 (1966); Federal Deposit Ins. Corp. v. Hillcrest

Associates, 233 Conn. 153, 170–71, 659 A.2d 138 (1995).

The factual underpinnings of the cases relied upon by

the plaintiff, however, are markedly different from the

facts of the present case and, thus, we do not interpret

them to suggest that a court can foreclose a mortgage

that contains a material mistake without first concluding that the requirements for reformation of the mortgage have been satisfied. Although the plaintiff argues

that the discrepancy at issue in the mortgage can best

be described as a ‘‘scrivener’s error’’ or ‘‘an inadvertent

technical error’’ and that the equitable remedy of foreclosure is warranted even without reformation in order

to ensure complete justice, our well established jurisprudence on reformation, also an equitable remedy,

was the proper prerequisite in order for the plaintiff to

correct the purported mistake in the mortgage

document.
The dissent ultimately agrees with the plaintiff and

concludes that the trial court erred in declining to grant

foreclosure of the mortgage. In the dissent’s view, the

trial court was required to foreclose the subject mortgage, without first reforming it, despite the fact that

the mortgage did not purport to secure her husband’s

debt. The dissent cites to no case law in this state,

or elsewhere, that holds that a court can foreclose a

mortgage containing this type of material flaw without

first satisfying the requirements to reform the document. Like the plaintiff, the dissent cites generally to

case law for the proposition that ‘‘[f]oreclosure is peculiarly an equitable action . . . .’’ See, e.g., Federal

Deposit Ins. Corp. v. Hillcrest Associates, supra, 233

Conn. 170–71. On the basis of the equitable nature of

foreclosure, the dissent concludes that ‘‘[w]hen the

essence of a transaction is clear, as it is in this case, a

court must look to its substance, instead of relying upon

errors of form, to determine its enforceability against

a party to it.’’ We respectfully disagree with the dissent

that such a conclusion is tenable in light of our Supreme

Court’s well established jurisprudence on reformation.

The dissent’s conclusion essentially would permit a

court to disregard the requirements for reformation and

choose to foreclose a mortgage that contains a material

flaw in the mortgage document if it believed the essence

of the transaction was clear. Although the dissent

argues that the transaction in this case was clear, there

is little support in the record before us to suggest that

a contract was ever formed between JPMorgan Chase

and the defendant in the first place. Courts do not have

the power to make a contract where none exists. Where

a contract does exist but does not conform to the real

contract agreed upon and does not express the intention

of the parties, our Supreme Court has said that our

courts can reform the contract if it was executed as

the result of mutual mistake, fraud, or other inequitable

conduct on the part of the other. See Lopinto v. Haines,

185 Conn. 527, 531, 441 A.2d 151 (1981) (‘‘reformation

of a contract rests on the equitable theory that the

instrument sought to be reformed does not conform to

the real contract agreed upon and does not express the

intention of the parties and that it was executed as

the result of mutual mistake, or mistake of one party

coupled with actual or constructive fraud, or inequitable conduct on the part of the other’’ [internal quotation

marks omitted]). Because the dissent’s newly proposed

‘‘essence of a transaction’’ test would fly in the face of

our Supreme Court’s jurisprudence on reformation and

would render it obsolete, we decline to sanction such

a test.

Following reformation of the mortgage, if appropriate, it would have then been proper for the plaintiff

in the present case to seek foreclosure. As we discuss

in part II of this opinion, the plaintiff did in fact bring
a cause of action for reformation in count two of its

complaint, which the court properly denied. Because

reformation of the mortgage was not warranted in the

present case, we conclude that the court’s decision

denying foreclosure was appropriate. The subject mortgage, as executed, was a nullity because it purported

to secure a nonexistent debt.7 The plaintiff has cited

no authority, and we have found none, that stands for

the proposition that, absent reformation, a court can

foreclose a mortgage that purports to secure a nonexistent debt. This is for good reason. To hold otherwise

would be counter to the basic concept of mortgages.

‘‘A mortgage is a conveyance or retention of an interest

in real property as security for performance of an obligation.’’ Restatement (Third), Property, Mortgages § 1.1,

p. 8–9 (1997). However, ‘‘[u]nless it secures an obligation, a mortgage is a nullity.’’ Restatement (Third),

supra, § 1.1, comment.

II

The plaintiff next claims that the court abused its

discretion by declining to reform the mortgage. In its

view, the evidence at trial and the facts found by the

court established that the mortgage signed by the defendant was intended to secure the note executed by

Robert and, thus, the mortgage should be reformed to

reflect that intention. The defendant argues, however,

that the court properly declined to reform the mortgage

because the plaintiff did not meet its burden of proving

by ‘‘clear, substantial and convincing evidence’’ that

there was a mutual mistake made by the parties to

warrant reformation. (Internal quotation marks omitted.) We agree with the defendant.

We begin by setting forth our standard of review and

the applicable legal principles with respect to this claim.

‘‘Reformation and foreclosure are both equitable proceedings.’’ Derby Savings Bank v. Oliwa, 49 Conn. App.

602, 604, 714 A.2d 1278 (1998). The ‘‘determination of

what equity requires in a particular case, the balancing

of the equities, is a matter for the discretion of the trial

court. . . . In determining whether the trial court has

abused its discretion, we must make every reasonable

presumption in favor of the correctness of its action.

. . . Our review of a trial court’s exercise of the legal

discretion vested in it is limited to the questions of

whether the trial court correctly applied the law and

could reasonably have reached the conclusion that it

did.’’ (Internal quotation marks omitted.) Deutsche

Bank National Trust Co. v. Perez, 146 Conn. App. 833,

838, 80 A.3d 910 (2013), appeal dismissed, 315 Conn.

542, 109 A.3d 452 (2015). ‘‘When a decision in an equitable matter lies within the trial court’s discretion, an

appellate court will reverse that decision only when an

abuse of discretion is manifest or where an injustice

appears to have been done . . . .’’ (Internal quotation

marks omitted.) Traggis v. Shawmut Bank Connecti-
cut, N.A., 72 Conn. App. 251, 264, 805 A.2d 105, cert.

denied, 262 Conn. 903, 810 A.2d 270 (2002).

‘‘A cause of action for reformation of a contract rests

on the equitable theory that the instrument sought to be

reformed does not conform to the real contract agreed

upon and does not express the intention of the parties

and that it was executed as the result of mutual mistake,

or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the

other.’’ (Internal quotation marks omitted.) Lopinto v.

Haines, supra, 185 Conn. 531. ‘‘Reformation is not

granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms

of an agreement when the writing that memorializes

that agreement is at variance with the intent of both

parties.’’ (Internal quotation marks omitted.) Kaplan v.

Scheer, 182 Conn. App. 488, 502, 190 A.3d 31, cert.

denied, 330 Conn. 913, 193 A.3d 49 (2018). ‘‘Reformation

is appropriate in cases of mutual mistake—that is

where, in reducing to writing an agreement made or

transaction entered into as intended by the parties

thereto, through mistake, common to both parties, the

written instrument fails to express the real agreement

or transaction.’’ Home Owners’ Loan Corp. v. Stevens,

120 Conn. 6, 9–10,179 A. 330 (1935). Simply put, ‘‘the

mistake, being common to both parties, effects a result

which neither intended.’’ (Internal quotation marks

omitted.) Czeczotka v. Roode, 130 Conn. App. 90, 99,

21 A.3d 958 (2011). ‘‘Therefore a definite agreement on

which the minds of the parties have met must have preexisted the instrument in question. The court cannot

supply an agreement which was never made, for it is

its province to enforce contracts, not to make or alter

them.’’ Hoffman v. Fidelity & Casualty Co., 125 Conn.

440, 443, 6 A.2d 357 (1939).

‘‘A court in the exercise of its power to reform a

contract must act with the utmost caution . . . . In

the absence of fraud, it must be established that both

parties agreed to something different from what is

expressed in writing, and the proof on this point should

be clear so as to leave no room for doubt. . . . If the

right to reformation is grounded solely on mistake, it

is required that the mistake be mutual, and to prevail

in such a case, it must appear that the writing, as

reformed, will express what was understood and agreed

to by both parties.’’ (Citations omitted.) Greenwich

Contracting Co. v. Bonwit Construction Co., 156 Conn.

123, 126–27, 239 A.2d 519 (1968). The party insisting on

reformation must show proof justifying reformation by

‘‘clear, substantial and convincing evidence,’’ meaning

evidence that ‘‘induces in the mind of the trier a reasonable belief that the facts asserted are highly probably

true, that the probability that they are true or exist is

substantially greater than the probability that they are

false or do not exist.’’ (Internal quotation marks omitted.) Lopinto v. Haines, supra, 185 Conn. 534, 534 n.9.
The following additional facts are pertinent to our

discussion. During trial, the plaintiff called Rodriguez,

a mortgage banking research officer employed by

JPMorgan Chase, to testify regarding the files and

records maintained by his employer. He testified that

his employer maintains files for each mortgage it holds

or services, including the original collateral file that

typically contains, among other things, the original

mortgage note and deed, title insurance policies, and

records regarding loan origination. Through his testimony, the plaintiff introduced into evidence numerous

documents relating to the subject mortgage, including

the note and deed.

With respect to the note, page one of the note recites

the obligations of the ‘‘Borrower,’’ but the note does

not further define that term. Page three of the note,

however, bears the signature of ‘‘Robert J. Virgulak—

Borrower.’’ The note does not contain any reference to

the defendant nor does her signature appear on the

document. The only person obligated under the terms

of the note is Robert.

With respect to the subject mortgage, it recited that

it was given to secure a note dated December 11, 2006,

signed by the defendant as ‘‘Borrower’’ in the amount

of $533,000. The term ‘‘Borrower’’ is defined in the mortgage deed as ‘‘THERESA VIRGULAK, MARRIED.’’

There was no reference to Robert.

Rodriguez authenticated numerous documents relating to the approval and closing of the mortgage documents that were addressed to or signed solely by

Robert. He also authenticated numerous documents

relating to the mortgage that show that the defendant

signed a United States Department of Housing and

Urban Development settlement statement (commonly

referred to as a HUD-1), a Transfer of Servicing Disclosure Statement, a Federal Truth in Lending Statement,

and a Notice of Right to Cancel.

The defendant was also called as a witness at trial.

During her testimony, she testified that she did not

recognize the subject mortgage document but acknowledged that her signature was on it and that it was signed

at her husband’s request. She knew at the time she

signed the mortgage there was an existing mortgage on

the residence, but she did not recall the mortgage lender

or the balance of the mortgage loan. The defendant

testified that she believed that the old mortgage was

paid off with the proceeds of the loan Robert received

from JPMorgan Chase. She also acknowledged her signature on the HUD-1, Transfer of Servicing Disclosure

Statement, Federal Truth in Lending Statement, and

Notice of Right to Cancel documents. She testified that

she had not read those documents before signing them.

The defendant testified that even though she signed the

HUD-1 form as ‘‘Borrower,’’ she did not receive any
portion of the $155,236.22 shown as paid to ‘‘Borrower’’

at closing. She testified that perhaps Robert had been

paid that sum. On being confronted by her deposition

testimony, the defendant acknowledged that the proceeds of the 2006 note had been used to pay off a prior

mortgage on the property to People’s Bank for which

she may have been responsible.

On cross-examination by her attorney, the defendant

stated that she did not consider the prior mortgages to

be her debts since they were taken out by Robert, who

managed all the family’s bills and paid all the property

taxes. She stated that she did not sign any of the documents relating to the mortgage in front of any witnesses

and that she believed that she signed the documents

at their home in her husband’s presence only. The defendant testified that she never filed joint tax returns with

Robert and they never had credit cards in both their

names. She denied that she had signed any guarantees

of her husband’s debts.

Robert also testified at the trial. He testified that on

the loan application submitted to JPMorgan Chase, he

included the value of the property even though he knew

that title to that property was solely in the defendant’s

name. He testified that he believed that he and the

defendant were jointly responsible for the prior mortgages on the property. Robert testified that he had

received all of the funds available to the borrower at

the closing of the mortgage and that the defendant did

not receive any portion of the $155,236.32 shown on

the HUD-1 form paid to ‘‘Borrower’’ at closing. Some

of the proceeds of the mortgage were used by Robert

to improve the kitchen and bathroom of the property,

and he testified that he made the required payments

on the mortgage, the real estate taxes and the property

insurance for the property until he filed for bankruptcy

in 2010. He never made any additional payments on the

mortgage or real estate taxes, but believed he may have

reinstated the property insurance after a couple of

years.

On cross-examination, Robert testified that the vast

majority of the documents relating to the closing of the

mortgage were given to him and not to the defendant

and all communications regarding the mortgage were

sent to him. He testified that the defendant was not

present at the closing. Robert testified that a portion

of the proceeds of the mortgage were used to pay off

credit cards that were Robert’s exclusive responsibility,

which totaled $109,070.48. Robert testified that he used

approximately $35,000 of the $155,236.22 paid to him

at closing to improve the kitchen and bathroom of the

property. On redirect examination, Robert testified that

JPMorgan Chase required that the prior mortgages be

paid off as a condition of granting the loan. Those mortgage balances totaled $255,882.56. After the plaintiff

rested, the defendant did not present additional evi-
dence; she relied on the testimony and exhibits introduced during cross-examination of the witnesses called

by the plaintiff.

In its posttrial brief, the plaintiff argued that to the

extent that the court found a technical deficiency with

the language of the loan documents, ‘‘the court should

use its equitable powers, in ensuring justice, to cure

the mutual mistake of the parties in not specifically

documenting within the mortgage that the note which

it secures was executed by Robert and not [the defendant].’’ It requested that the court ‘‘reform the mortgage

to reference the fact that the mortgage executed by

[the defendant] was to secure the note executed by

Robert.’’ On April 12, 2017, the court concluded in its

memorandum of decision ‘‘that the plaintiff [had] not

sustained its burden of proving, by clear and convincing

evidence, that it [was] entitled to the equitable remedy

of reformation of the mortgage deed . . . .’’

On appeal, the plaintiff argues that the only discrepancy, or true error, with the information reflected in

the mortgage is the fact that it references that the note

it was securing was executed by the defendant rather

than her husband. The plaintiff argues that the evidence

presented at trial and the facts found by the court established that the mortgage signed by the defendant was

intended to secure the note executed by Robert and,

thus, the mortgage should be reformed to reflect that

intention. In support of this contention, it argues, inter

alia, that it demonstrated that reformation was warranted because (1) the trial court found that the defendant’s debts were paid off at the time of the closing,

(2) it was established that the defendant signed at least

four of the closing documents, and (3) it was established

that the mortgage itself referred to a note identical to

both the date and exact amount of the only note executed in the present case.

The plaintiff argues that in the present case, as in

this court’s decision in Derby Savings Bank v. Oliwa,

supra, 49 Conn. App. 602, reformation is necessary to

ensure justice. In Derby Savings Bank, the defendant

appealed from the trial court’s judgment reforming his

mortgage deed and granting strict foreclosure. Id. In

that case, the defendant executed a mortgage deed and

note to the plaintiff. Id., 602–603. The trial court found

that both parties intended for the mortgage to cover

property other than that described in the mortgage

deed, and that the error resulted from a mistake by the

attorney who prepared the mortgage documents. Id.,

603. The court found it to be a mutual mistake. Id.

Specifically, the trial court found that the commitment

letter, which was signed by both parties, described what

was found to be the parcel of land actually covered by

the mortgage. Id. The mortgage note also contained a

notation in its lower left corner describing the correct

property. Id. This court affirmed the trial court’s deci-
sion. Id., 604.

Unlike in the present case, the plaintiff in Derby Savings Bank provided sufficient evidence to demonstrate

that a mutual mistake was in fact made. Both the commitment letter and the mortgage note, which were each

signed by the defendant, described the correct property

which the parties actually agreed was to secure the

note. Id., 603. The attorney preparing the mortgage document for the parties, however, failed to include the

proper description on the mortgage deed. Id. Under the

specific facts of that case, it is evident that the evidence

introduced was clear and convincing.

As our Supreme Court has noted, ‘‘evidence of a very

high order’’ is required in order to show that reformation

is justified. (Internal quotation marks omitted.) Lopinto

v. Haines, supra, 185 Conn. 534. Although the plaintiff

in the present case may have introduced some evidence

at trial that suggested that the mortgage signed by the

defendant was intended to secure her husband’s note,

in light of the conflicting evidence before the trial court,

we are not persuaded that it abused its discretion in

declining to reform the mortgage.

In the present case, it was necessary for the plaintiff

to demonstrate that JPMorgan Chase and the defendant

agreed that the subject mortgage signed by the defendant was effectuated in order to secure her husband’s

debt, that the subject mortgage did not express that

intent, and that the subject mortgage was executed as

the result of a mutual mistake. See Lopinto v. Haines,

supra, 185 Conn. 531; see also Hoffman v. Fidelity &

Casualty Co., 125 Conn. 440, 443, 6 A.2d 357 (1939) (‘‘a

definite agreement on which the minds of the parties

have met must have preexisted the instrument in question. The court cannot supply an agreement which was

never made, for it is its province to enforce contracts,

not to make or alter them.’’).

As the court correctly noted, even with the various

documents admitted into evidence at trial and the testimony of the witnesses, many gaps were left in the factual record. For instance, although the defendant testified that her signatures were on some of the mortgage

closing documents, there were still questions remaining

with respect to her state of mind and what she intended

by signing them. The defendant testified that she signed

the documents at Robert’s request and that she had not

read those documents before doing so. The defendant

testified that she was aware of Robert’s intent to borrow

money, but she indicated that he never told her how

much money he was borrowing. When asked at trial

whether she knew what institution Robert was seeking

the loan from, she responded: ‘‘No, because . . . I

wasn’t getting the loan, he was, so I didn’t question it.’’

Furthermore, the record discloses that the defendant

signed the aforementioned documents in the presence
of her husband only, and was not present at the closing

that took place in Attorney John A. Milici’s office. Additionally, as the court noted, there was no explanation

of how the mortgage came to bear the signatures of

two witnesses, including Attorney Milici’s. There is also

no indication in the record that any attorney for or a

representative from JPMorgan Chase explained to the

defendant her role in the process and that her property

would be used as collateral to secure Robert’s loan. The

testimony introduced disclosed that the vast majority

of the documents relating to the closing of the mortgage

were given to Robert and that all communications

regarding the mortgage were sent to him.

Further, the plaintiff offered little evidence, if any,

to demonstrate that the subject mortgage was integral

to its decision in providing Robert with the loan. As

the trial court aptly noted, the records authenticated

by Rodriguez at trial were silent as to the understanding

that JPMorgan Chase may have had with the defendant

regarding her responsibility for Robert’s loan. For

example, there was no mortgage commitment letter or

closing instructions introduced into evidence, which

typically would describe the transaction in detail and

set forth conditions that must be met in order for disbursement to be made. Additionally, the plaintiff could

have called the loan officer or another representative

to explain how the subject mortgage impacted its decision to offer the loan. Instead, the only JPMorgan Chase

representative introduced at trial was Rodriguez, an

employee whose employment began after the execution

of the note.

On the basis of the evidence before the trial court,

we discern no reason to disturb its decision. We conclude that court did not abuse its discretion in declining

to reform the mortgage.

III

The plaintiff next argues that the court improperly

denied its motion to amend its responses to the defendant’s requests for admission to conform to the evidence at trial. We disagree.

We briefly set forth additional facts necessary for

this claim. On December 21, 2016, approximately two

weeks after the trial ended and the court had set a

briefing schedule, the plaintiff filed a motion to withdraw and amend its responses to the defendant’s

requests for admission in order to conform to the evidence at trial. In particular, it requested that its

responses to requests four and five be withdrawn and

amended because there was no basis in fact adduced at

trial to support those responses. Request for admission

number four asked: ‘‘Do you admit that the defendant

did not borrow any money from the plaintiff?’’ The

response: ‘‘Admitted but this did not preclude the defendant from obtaining a benefit from the loan.’’ Request
for admission number five asked: ‘‘Do you admit that

the defendant does not owe any money to the plaintiff?’’

The response: ‘‘Admitted.’’ The plaintiff argued, inter

alia, that the defendant would not be prejudiced if the

court were to grant the motion.

On December 27, 2016, the court entered an order

stating that it would not entertain any arguments on

the plaintiff’s motion until all the posttrial briefs it had

ordered on December 7, 2016, had been filed by the

parties.

In the court’s memorandum of decision filed on April

12, 2017, the court addressed, inter alia, the plaintiff’s

unjust enrichment claim. In addressing its arguments,

the court noted certain instances in which the defendant

had been benefited by the note executed by Robert.

The court also acknowledged that the defendant conceded that she should reimburse the plaintiff for the

taxes it and JPMorgan Chase had paid on her behalf.

The court then addressed whether the plaintiff was

entitled to withdraw and/or amend its responses to the

requests for admission served on it by the defendant.

The court concluded that, pursuant to Practice Book

§ 13-24 (a), a motion to withdraw and amend responses

to requests for admissions could not be filed following

trial, as in the present case, because § 13-24 (a) required

the court to determine (1) that ‘‘the presentation of the

merits of the action will be subserved thereby,’’ and

(2) the party who obtained the admission will not be

prejudiced ‘‘in maintaining his or her action or defense

on the merits.’’ The court concluded that ‘‘it would be

impossible for [it] to find that ‘the presentation of the

merits of the action will be subserved’ by the granting

of the plaintiff’s motion’’ after trial. It further concluded

that it would be ‘‘hard to imagine how the defendant

would not be prejudiced at the time the case was tried

because defense counsel had every reason to believe

that the plaintiff’s admissions were both operative

and binding.’’

The court went on to state that ‘‘[i]f, after having

amended its complaint, the plaintiff had wished to be

relieved of the consequences of its admissions, it could

have filed a timely motion, pursuant to Practice Book

§ 13-24 (a), to withdraw or amend its admissions. As

noted . . . the court finds no authority permitting a

party to seek withdrawal or amendment of admissions

following the completion of trial.’’ The court concluded

that it did ‘‘not agree with the plaintiff that it can avoid

the consequences of its admission that [the defendant]

does not owe any money to the plaintiff simply because

the money judgment which the plaintiff seeks is sought

as damages on a claim based on equitable principles.

Under these circumstances, the court is compelled to

find that the plaintiff’s responses to the requests for

admissions preclude the plaintiff from any recovery on

count three of the plaintiff’s amended complaint, except
to the extent of the tax payments which the defendant

has conceded she owes.’’

We briefly set forth the relevant legal principles that

guide our discussion. Practice Book § 13-24 (a) provides: ‘‘Any matter admitted under this section is conclusively established unless the judicial authority on

motion permits withdrawal or amendment of the admission. The judicial authority may permit withdrawal or

amendment when the presentation of the merits of the

action will be sub-served thereby and the party who

obtained the admission fails to satisfy the judicial

authority that withdrawal or amendment will prejudice

such party in maintaining his or her action or defense

on the merits. Any admission made by a party under

this section is for the purpose of the pending action

only and is not an admission by him or her for any

other purpose nor may it be used against him or her

in any other proceeding.’’

‘‘A trial court has wide discretion in granting or denying amendments to the pleadings and only rarely will

this court overturn the decision of the trial court. . . .

To reverse a ruling of the trial court [denying] an amendment to the pleadings requires that the [plaintiff] make

a clear showing of abuse of discretion.’’ (Internal quotation marks omitted.) JPMorgan Chase Bank, N.A. v.

Eldon, 144 Conn. App. 260, 280, 73 A.3d 757, cert.

denied, 310 Conn. 935, 79 A.3d 889 (2013).

‘‘In determining whether there has been an abuse of

discretion, much depends on the circumstances of each

case. . . . In the final analysis, the court will allow an

amendment unless it will cause an unreasonable delay,

mislead the opposing party, take unfair advantage of

the opposing party or confuse the issues, or if there

has been negligence or laches attaching to the offering

party.’’ (Citations omitted; internal quotation marks

omitted.) Kelley v. Tomas, 66 Conn. App. 146, 178, 783

A.2d 1226 (2001).

Although the plaintiff attempts on appeal to distinguish the present case from certain cases cited in the

court’s memorandum of decision; see, e.g., JPMorgan

Chase Bank, N.A. v. Eldon, supra, 144 Conn. App. 260;

Montanaro v. Balcom, 132 Conn. App. 520, 521, 35 A.3d

280 (2011); it fails to cite to any case law that holds

that a court’s denial of a motion to withdraw and amend

a party’s responses to requests for admissions after the

conclusion of trial constitutes an abuse of discretion.

Despite the plaintiff’s contentions, the court correctly

relied on Practice Book § 13-24 (a), which governs when

a withdrawal or an amendment of an admission is

proper, and noted that the defendant likely would have

been prejudiced by allowing the plaintiff to amend its

responses two weeks after the conclusion of trial. As

the court made clear, the defendant had every reason

to believe that the plaintiff’s admissions were both oper-
ative and binding. See Practice Book § 13-24 (a) (‘‘[a]ny

matter admitted under this section is conclusively

established unless the judicial authority on motion permits withdrawal or amendment of the admission’’). As

such, it is likely that these binding admissions affected

how the defendant presented her defense.

It is also hard to imagine how the presentation of the

merits of the action would be subserved by allowing a

post hoc withdrawal or amendment of the plaintiff’s

responses in the present case. If the court had granted

the plaintiff’s motion two weeks after the close of evidence, it likely would have been necessary, at a minimum, to give the defendant the opportunity to conduct

further discovery on the facts previously established

by the plaintiff’s admissions. This assuredly would have

caused an unreasonable delay and would not have subserved the presentation of the merits of the action.8

Although the plaintiff takes issue with the court’s denial

of its motion to withdraw and amend its responses,

as the court correctly noted, after having amended its

complaint to add the two additional counts, the plaintiff

could have easily filed a timely motion pursuant to

Practice Book § 13-24 (a) to withdraw or amend its

admissions before trial. It failed to do so. Under the

facts of this case, we conclude that the trial court did

not abuse its discretion in denying the plaintiff’s motion

to withdraw and amend its responses to the defendant’s

requests for admission.9

IV

The plaintiff next contends that the court erred in

concluding that the plaintiff’s responses to the defendant’s requests for admission precluded it from any

recovery under its unjust enrichment count aside from

the property tax payments that the defendant conceded

she owed to the plaintiff. We disagree.

‘‘Appellate appraisal of a trial court’s finding of unjust

enrichment is governed by the well established principle that the determinations of whether a particular failure to pay was unjust and whether the defendant was

benefited are essentially factual findings for the trial

court that are subject only to a limited scope of review

on appeal. . . . Those findings must stand, therefore,

unless they are clearly erroneous or involve an abuse

of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors

are committed to the sound discretion of the trial

court.’’ (Internal quotation marks omitted.) Laser Contracting, LLC v. Torrance Family Ltd. Partnership,

108 Conn. App. 222, 230–31, 947 A.2d 989 (2008).

As our case law makes clear, the only remedy a plaintiff can obtain with respect to an unjust enrichment

claim is ‘‘an award of money damages.’’ (Internal quotation marks omitted.) Id., 233. In the present case, how-
ever, it is undisputed that the plaintiff’s response to

request number five of the defendant’s requests for

admission stated that the defendant did not owe the

plaintiff any money. Practice Book § 13-24 (a) makes

clear that ‘‘[a]ny matter admitted under this section is

conclusively established . . . .’’ It was thus appropriate for the court to hold that the plaintiff was bound

by its admissions and to limit its recovery under the

unjust enrichment claim to property taxes that the

defendant conceded in her posttrial brief that she owed

to it.

We, therefore, conclude that the court did not abuse

its discretion in limiting the award under the unjust

enrichment count to the property taxes owed to the

plaintiff.

V

The plaintiff’s final argument is that the court abused

its discretion in denying its motion for reargument.

We disagree.

‘‘[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some

principle of law which would have a controlling effect,

and which has been overlooked, or that there has been

a misapprehension of facts. . . . It also may be used

to address . . . claims of law that the [movant] claimed

were not addressed by the court. . . . [A] motion to

reargue [however] is not to be used as an opportunity

to have a second bite of the apple . . . .’’ (Internal

quotation marks omitted.) Light v. Grimes, 156 Conn.

App. 53, 69, 111 A.3d 551 (2015). We thus review a trial

court’s denial of a motion to reargue for an abuse of

discretion. Id.

This claim requires little discussion. Although the

plaintiff contends that the court abused its discretion

in denying its motion for reargument where it set forth

legal principles that were not expressly considered by

the trial court in its memorandum of decision, our

review of the record discloses that the plaintiff’s twentytwo page motion filed on May 1, 2017, was largely a

request for the court to reevaluate the facts that it had

before it, thus seeking an improper second bite of the

apple. We, therefore, conclude that the court did not

abuse its discretion in denying the relief sought in the

motion for reargument.

The judgment is affirmed.

In this opinion, SHELDON, J., concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The named plaintiff, JPMorgan Chase Bank, National Association

(JPMorgan Chase), is no longer a party in this matter. On August 4, 2015,

JPMorgan Chase filed a motion to substitute Hudson City Savings Bank as

the plaintiff, which the court granted on August 18, 2015. On August 9, 2016,

M&T Bank filed a motion to substitute itself as the plaintiff noting that it

was the successor by merger to Hudson City Savings Bank. That motion

was granted on August 15, 2016. Accordingly, any reference in this opinion
to ‘‘the plaintiff’’ is to M&T Bank.

2 The original complaint filed in this matter also named as defendants

Robert J. Virgulak and the state of Connecticut, Department of Revenue

Services. During the pendency of the case, the then plaintiff, JPMorgan

Chase, withdrew the action against Robert J. Virgulak. Additionally, the

state of Connecticut, Department of Revenue Services, which filed an initial

appearance in the matter, was defaulted for failing to plead. Thus, any

reference in this opinion to ‘‘the defendant’’ is to Theresa Virgulak.

3 We note that the plaintiff’s complaint sought reformation of the note,

but not the deed. The trial court noted in its memorandum of decision,

however, that ‘‘on page [seven] of its posttrial brief . . . the plaintiff concedes: ‘Quite simply, there is . . . no support for any notion that the mortgage was ever intended to secure a note executed by [the defendant].’ ’’ The

court noted that the plaintiff changed its position in its posttrial brief arguing

‘‘that the mortgage deed should be reformed ‘to reference the fact that the

mortgage executed by [the defendant] was to secure the note executed by

Robert.’ ’’ This was not challenged by the defendant.

4 The court also rejected the plaintiff’s argument that the defendant had

waived her right to rely on its responses when she failed to object to Wilkin

Rodriguez’ testimony disagreeing with those responses.

5 After filing this appeal, the plaintiff filed a motion for articulation and

a motion for rectification with the trial court. The trial court largely denied

those motions, and the plaintiff filed two motions for review with this court

pursuant to Practice Book § 66-7. This court granted the motions for review,

but denied the relief requested therein on January 18, 2018.

6

Indeed, the plaintiff similarly describes the court’s decision in its appellate brief: ‘‘In other words . . . the trial court concluded that the mortgage

deed the defendant executed had no meaning and was a nullity.’’

7 Although the plaintiff argues that the subject mortgage was valid because

it gave ‘‘reasonable notice’’ to third parties of the nature and amount of

Robert’s obligation; see Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 579,

522 A.2d 763 (1987); we find its argument unpersuasive.

8 To the extent that the plaintiff is claiming that the defendant was not

permitted to rely on its responses to her requests because certain testimony

elicited at trial contradicted the responses to the questions it sought to

amend, we deem it inadequately briefed and, thus, abandoned. See Clelford

v. Bristol, 150 Conn. App. 229, 233, 90 A.3d 998 (2014).

9 To the extent that the plaintiff’s few passing references in its appellate

brief about the court’s decision not to hold a hearing on its motion to

withdraw and amend its responses can be read to challenge that decision,

we conclude that the plaintiff abandoned such argument as a result of an

inadequate brief. See Ocwen Federal Bank, FSB v. Charles, 95 Conn. App.

315, 329–30 n.14, 898 A.2d 197 (‘‘[T]he parties must clearly and fully set

forth their arguments in their briefs. . . . Analysis, rather mere abstract

assertion, is required in order to avoid abandoning an issue by failing to brief

the issue properly’’ [Citation omitted; emphasis omitted; internal quotation

marks omitted.]), cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006).