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*********************************************** 
IP MEDIA PRODUCTS, LLC v.

SUCCESS, INC., ET AL.

(AC 41242)

DiPentima, C. J., and Prescott and Elgo, Js.

Syllabus

The plaintiff brought an action against the defendant I Co. seeking to foreclose a mortgage on certain real property. Although service was made

on I Co., the allegations in the plaintiff’s complaint were asserted against

a different entity, L Co., and not I Co. The note and mortgage had been

signed by C, as the president of L Co. The trial court rendered judgment

in favor of I Co. on the grounds that there were no allegations in the

complaint against I Co., and that the mortgage and note were unenforceable against I Co. because it was not the entity that conveyed the

mortgage and signed the note, and because C did not have the authority

to execute those documents on behalf of I Co. On appeal to this court,

the plaintiff claimed that it was a holder in due course entitled to enforce

the mortgage and note, irrespective of whether those documents were

executed with the requisite corporate authority. Held that the plaintiff

having failed to raise its holder in due course claim in the trial court,

the claim was not properly preserved for appellate review; the plaintiff

did not challenge the trial court’s factual finding that C did not have

the authority to act on behalf of I Co. when he executed the mortgage

and note and, instead, rested its entire argument on the position that

it was a holder in due course, but its complaint made no allegation that

it was seeking to foreclose the mortgage as a holder in due course, nor

did it plead such a claim as a matter in avoidance of the defendant’s

special defense that the mortgage and note were executed without

corporate authority, and the plaintiff failed to introduce any evidence

at trial seeking to establish the elements required by the statute (§ 42a3-302) that defines a holder in due course, and did not claim in either

its posttrial brief or motion to reargue that it was a holder in due course

entitled to enforce the mortgage and note despite the court’s finding

that C lacked the corporate authority to encumber the property on

behalf of I Co.

Argued February 8—officially released July 30, 2019

Procedural History

Action to foreclose a mortgage on certain real property owned by the named defendant et al., and for other

relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Hon. Michael Hartmere, judge trial referee, rendered judgment in favor

of the defendant JD’s Cafe ́ I, Inc.; thereafter, the court

denied the plaintiff’s motion to reargue, and the plaintiff

appealed to this court. Affirmed.

Stephen R. Bellis, for the appellant (plaintiff).

Barbara M. Schellenberg, with whom, on the brief,

was Vincent M. Marino, for the appellee (defendant

JD’s Cafe ́ I, Inc.).
Opinion

DiPENTIMA, C. J. In this appeal, the plaintiff, IP

Media Products, LLC, brought a foreclosure action

against the defendant, JD’s Cafe ́ I, Inc.,1seeking to

enforce a mortgage and note that were conveyed and

signed, respectively, by a purportedly different entity,

namely, JD’s Cafe ́ I, LLC. On appeal, the plaintiff claims

that the trial court improperly concluded that it could

not recover against the defendant because (1) the complaint contained no allegations against the defendant;

(2) the entity that conveyed the mortgage and signed

the note was not the named defendant; and (3) the

mortgage and note were executed without the requisite

corporate authority. As to the third claim, the plaintiff

does not challenge the court’s finding of lack of corporate authority, but argues for the first time on appeal

that, because it is a holder in due course, this defense

does not apply to it. We conclude that because this

argument was not preserved, the plaintiff’s third claim

fails. Moreover, because we affirm the judgment of the

trial court on this basis, we need not address the remainder of the plaintiff’s claims.2

The following undisputed facts and procedural history are relevant to this appeal. On August 25, 2004,

Gus Curcio, Jr., acquired all of the corporate stock in

the defendant and, at a shareholder meeting on November 11, 2005, became the defendant’s president and

director. On July 19, 2007, the defendant acquired 3010

Huntington Road, in Stratford (Stratford property),

from Curcio Jr.’s mother. The next day, July 20, 2007,

Curcio, Jr., as president of Curcio Carting, Inc., executed a promissory note with Dade Realty Company I,

LLC (Dade Realty), in the amount of $110,000. The note

indicated that it was secured by a lien on trucks owned

by Curcio Carting, Inc., and a mortgage on the Stratford

property. The note and mortgage were signed by Curcio,

Jr., as president of Curcio Carting, Inc., and Robin Cummings as the president of JD’s Cafe ́ I, LLC.

On August 26, 2014, Dade Realty assigned the note

to the plaintiff and shortly thereafter, on October 14,

2014, the plaintiff commenced a foreclosure action

against the defendant and several other parties.

Although service was made on the defendant, the allegations in the complaint are asserted against JD’s Cafe ́ I,

LLC, and not the defendant. Nonetheless, in its answer,

the defendant admitted the plaintiff’s allegation that

JD’s Cafe ́ I, LLC, was the record owner of the Stratford

property at the time the mortgage was conveyed. The

defendant denied that it had conveyed a mortgage to

Dade Realty, or that it was indebted to the plaintiff.

In the same responsive pleading, the defendant also

asserted several special defenses, alleging, inter alia,

that the mortgage and note were unenforceable because

they were conveyed and signed, respectively, without

the requisite corporate authority and, alternatively, that
JD’s Cafe ́ I, LLC, could not convey a mortgage because

it was not the record owner of the Stratford property.3

At trial, the parties stipulated that the note and mortgage were assigned to the plaintiff and that the debt

remained unpaid. Additionally, the parties agreed that

Curcio, Jr., was the defendant’s sole shareholder on

the date the note and mortgage were executed.4 The

plaintiff called Curcio, Jr., and Attorney Donal Collimore to testify. Through the testimony of Curcio, Jr.,

the plaintiff introduced into evidence several exhibits,

including copies of the mortgage and note. Curcio, Jr.,

testified that he signed both of these documents on

behalf of Curcio Carting, Inc., and was under the belief

that the loan security was limited to three vehicles

owned by Curcio Carting, Inc. It was his recollection

that when he signed both documents, neither contained

any indication that JD’s Cafe ́ I, LLC, was involved in

the transaction.5 Further, Curcio, Jr., testified that he

was unfamiliar with an entity known as JD’s Cafe ́ I, LLC,

but assuming that the mortgage and note contained a

misnomer, he was familiar with the defendant. Curcio,

Jr., stated that, at the time of the transaction, he was

the sole shareholder and president of the defendant,

and would not have consented to a mortgage being

placed on the Stratford property. When asked whether

Cummings had any authority to convey a mortgage on

the Stratford property, or affiliation with the defendant

corporation, Curcio, Jr., responded that Cummings had

no authority and any affiliation he purportedly had was

the result of ‘‘shenanigans’’ involving Gus Curcio, Sr.6

Following the testimony of Curcio, Jr., the plaintiff

called Collimore, who had represented both Curcio

Carting, Inc., and the defendant with respect to the

transaction with Dade Realty. Collimore testified that

the note and mortgage documents were prepared by

the lender and that he did not notice the misnomer with

respect to the defendant’s corporate designation on

both documents. Through Collimore’s testimony, the

plaintiff introduced the title insurance policy that was

procured for the benefit of Dade Realty. The policy

provides that title to the Stratford property is held by

the defendant, and not JD’s Cafe ́ I, LLC. With respect

to the logistics of the loan transaction, Collimore testified that he obtained signatures from Curcio, Jr., and

Cummings separately. He first met with Curcio, Jr., and

then met with Cummings on his boat to have him sign

on behalf of the defendant. He also testified that Curcio,

Jr., was aware that the defendant, through Cummings,

was involved in the transaction.

At the close of evidence, the defendant moved for

dismissal pursuant to Practice Book § 15-8.7 The defendant’s counsel argued that the evidence revealed that

the mortgage and note had been executed without the

requisite corporate authority and, therefore, were unenforceable. Counsel also contended that, in the absence
of reformation, the mortgage and note could not be

enforced against the defendant because they were

signed in the name of JD’s Cafe ́ I, LLC. The court

reserved judgment on both issues and requested that

the parties file posttrial briefs.

Thereafter, on June 14, 2017, the trial court rendered

judgment in favor of the defendant on the basis, inter

alia, that there were no allegations in the complaint

against the defendant; rather the allegations were

asserted against JD’s Cafe ́ I, LLC. Additionally, the court

concluded that the mortgage and note were unenforceable against the defendant because it was not the entity

that conveyed the mortgage and signed the note, and

the plaintiff had failed to plead reformation to correct

this discrepancy. Finally, the court determined that the

mortgage and note were void and unenforceable against

the defendant because Cummings did not have the

authority to execute those documents on behalf of the

defendant. The court made no determinations of credibility with respect to either the testimony of Curcio,

Jr., or Collimore. After the court’s decision, the plaintiff

filed a motion to reargue that was summarily denied

on December 26, 2017. This appeal followed.

In its challenge to the court’s conclusion that Cummings was not authorized to convey the mortgage or

sign the note on behalf of the defendant, the plaintiff

argues only that it is a holder in due course entitled to

enforce the mortgage and note irrespective of whether

those documents were executed with the requisite corporate authority. Our review of the record reveals that

this argument was not raised before the trial court and,

therefore, is not properly preserved for appellate

review.8

Although we do not address the merits of the plaintiff’s claim, we briefly set forth the legal principles that

support the trial court’s conclusion that the mortgage

and note were unenforceable against the defendant due

to a lack of corporate authorization. It is a well-established principle of our law that a ‘‘corporation is only

liable for the acts of its president if it is shown that his

acts are so related to his duties as president that they

may reasonably be held to have been done in the prosecution of the business of the corporation and while

he was acting within the scope of his employment.’’

(Internal quotation marks omitted.) Cohen v. Holloways’, Inc., 158 Conn. 395, 406–407, 260 A.2d 573

(1969). Where the action is outside the scope of the

president’s employment, the plaintiff must ‘‘demonstrate that (1) [the] action was expressly authorized by

resolution of the board of directors; or (2) [the] action

was impliedly authorized by the board of directors; or

(3) [the] action, although not authorized, was subsequently ratified by the board of directors. . . . Whether

a corporate officer is authorized to act on behalf of a

corporation is a question of fact to be resolved by the
trier.’’ (Citations omitted.) Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 268, 425 A.2d 1289 (1979).

Here, the trial court found that Cummings did not

have the authority to act on behalf of the corporation

when he executed the mortgage and note. The plaintiff

makes no challenge to this factual finding and instead

rests its entire argument on the position that it is a

holder in due course. The plaintiff’s complaint makes

no allegation, however, that it is seeking to foreclose

the mortgage as a holder in due course, nor did the

plaintiff plead such a claim as a matter in avoidance of

the defendant’s special defense that the mortgage and

note were executed without corporate authority. Further, the plaintiff failed to introduce any evidence at trial

seeking to establish the elements required by General

Statutes § 42a-3-302,9 and did not claim in either its

posttrial brief or motion to reargue that it is a holder

in due course entitled to enforce the mortgage and note

despite the court’s finding that Cummings lacked the

corporate authority to encumber the Stratford property

on behalf of the defendant. See footnote 2 of this opinion. ‘‘[T]he party claiming the rights of a holder in due

course bears the burden of proving all elements of that

classification.’’ Connecticut National Bank v. Giacomi,

242 Conn. 17, 73, 699 A.2d 101 (1997).

‘‘Our appellate courts, as a general practice, will not

review claims made for the first time on appeal. We

repeatedly have held that [a] party cannot present a

case to the trial court on one theory and then seek

appellate relief on a different one. . . . [A]n appellate

court is under no obligation to consider a claim that is

not distinctly raised at the trial level. . . . [B]ecause

our review is limited to matters in the record, we [also]

will not address issues not decided by the trial court.

. . . The requirement that [a] claim be raised distinctly

means that it must be so stated as to bring to the attention of the court the precise matter on which its decision

is being asked.’’ (Internal quotation marks omitted.)

Williams v. State, 189 Conn. App. 172, 185, 206 A.3d

779, cert. denied, 332 Conn. 902, 208 A.3d 281 (2019).

Accordingly, in light of the plaintiff’s failure to challenge

the court’s finding that the mortgage and note were

unenforceable because they were conveyed and executed, respectively, without the requisite corporate

authority, we affirm the judgment for the defendant on

this ground.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Success, Inc., Curcio Carting, Inc., Oronoque Road, LLC, Theresa Symers,

Gus Curcio, Jr., and the Department of the Treasury, Internal Revenue

Service, also were named as defendants in the underlying action. Success,

Inc., and Curcio, Jr., appeared and the claims against them subsequently

were withdrawn. Curcio Carting, Inc., Oronoque Road, LLC, Symers, and

the Department of the Treasury, Internal Revenue Service, did not appear

and have not participated in this appeal. Our references to the defendant

are to JD’s Cafe ́ I, Inc.

2 Although the plaintiff raises three claims, its failure to challenge properly
the court’s independent basis for rendering judgment in favor of the defendant is dispositive of this appeal. See Nationstar Mortgage, LLC v. Mollo,

180 Conn. App. 782, 784 n.1, 185 A.3d 643 (2018). We, therefore, do not

review the first and second claims as to the allegations in the complaint

and whether reformation was required to enforce the mortgage and note

against the defendant, respectively.

3 We note that this latter special defense is contrary to the defendant’s

admission that JD’s Cafe ́ I, LLC, was the record owner of the parcel at the

time the mortgage was conveyed.

4 With the consent of both parties, the court also took judicial notice of

a prior decision from this court, Success, Inc. v. Curcio, 160 Conn. App.

153, 124 A.3d 563, cert. denied, 319 Conn. 952, 125 A.3d 531 (2015), which

involved several of the same parties and events in this case.

5 Later in his testimony, Curcio, Jr., intimated that all references to JD’s

Cafe ́ I, LLC, and the mortgage on the Stratford property were added to the

documents after he had signed them.

6 An ‘‘Interim Notice of Change of Officer/Director’’ filed with the secretary

of state on July 20, 2007, the same day the loan and mortgage documents

were signed, indicated that Cummings had been appointed as president of

the defendant corporation. In Success, Inc. v. Curcio, 160 Conn. App. 153,

177, 124 A.3d 563, cert. denied, 319 Conn. 952, 125 A.3d 531 (2015), this

court found that the appointment was not valid, however, because the

evidence established that Cummings was appointed by Curcio, Sr., who

lacked the authority, or apparent authority, to make such an appointment. Id.

7 Practice Book § 15-8 provides: ‘‘If, on the trial of any issue of fact in a

civil matter tried to the court, the plaintiff has produced evidence and rested,

a defendant may move for judgment of dismissal, and the judicial authority

may grant such motion if the plaintiff has failed to make out a prima facie

case. The defendant may offer evidence in the event the motion is not

granted, without having reserved the right to do so and to the same extent

as if the motion had not been made.’’

8 See footnote 2 of this opinion.

9 General Statutes § 42a-3-302 provides in relevant part: ‘‘ ‘[H]older in due

course’ means the holder of an instrument if . . . (2) The holder took the

instrument (i) for value, (ii) in good faith, (iii) without notice that the

instrument is overdue or has been dishonored or that there is an uncured

default with respect to payment of another instrument issued as part of the

same series, (iv) without notice that the instrument contains an unauthorized

signature or has been altered, (v) without notice of any claim to the instrument described in section 42a-3-306, and (vi) without notice that any party

has a defense or claim in recoupment in section 42a-3-305 (a).’’