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LENNART MENGWALL v. GREZGORZ

RUTKOWSKI ET AL.

(AC 36108)

Keller, Mullins and Schaller, Js.

Argued May 21—officially released August 26, 2014

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Mintz, J. [motion for summary

judgment, strict foreclosure judgment]; Hon. Alfred J.

Jennings, Jr., judge trial referee [motion to dismiss,

motion to reargue].)

Brian E. Lambeck, forthe appellant(defendant Cecylia Rutkowska).

Matthew B. Woods, for the appellee (plaintiff).
Opinion

SCHALLER, J. The defendant Cecylia Rutkowska

appeals from the trial court’s judgment of strict foreclosure rendered in favor of the plaintiff, Lennart Mengwall.1 On appeal, the defendant claims that the trial

court erred by: (1) failing to complete an evidentiary

hearing prior to denying her motion to dismiss, and (2)

denying her motion to reargue.2 We affirm the judgment

of the trial court.

The following facts and procedural history are set

forth in the trial court’s memorandum of decision. On

February 28, 2012, the plaintiff commenced this strict

foreclosure action to foreclose on a second mortgage

encumbering real property at 203 South Water Street

in Greenwich. On August 31, 2012, a default judgment

was entered against the defendant for failure to appear.

On September 13, 2012, a default judgment was entered

against Grezgorz Rutkowski for failure to plead. Thereafter, the plaintiff filed a motion for a judgment of strict

foreclosure. On October 11, 2012, the defendant made

an appearance before the court, thereby vacating the

default judgment entered against her. On October 19,

2012, the defendant and Grezgorz Rutkowski filed a

joint answer and special defenses to the complaint,

which vacated the default judgment entered against

Grezgorz Rutkowski. The plaintiff filed a motion to

strike the special defenses, which the court granted on

January 8, 2013. Thereafter, on March 18, 2013, the court

granted the plaintiff’s motion for summary judgment as

to liability. On April 9, 2013, the plaintiff filed another

motion for strict foreclosure, which was continued to

May 13, 2013.

On May 9, 2013, the defendant filed a motion to dismiss for lack of subject matter jurisdiction, claiming

that ‘‘the current plaintiff lack[ed] standing to foreclose

the subject mortgage.’’ A hearing on the motion to dismiss was held on July 11, 2013, at which the plaintiff

testified and introduced as a full exhibit a copy of the

original note. The defendant made a proffer of evidence

that she and Grezgorz Rutkowski would testify that

they did not sign the promissory note that is the subject

of this strict foreclosure action. The court denied the

motion to dismiss because, inter alia, the ‘‘plaintiff has

proved that the claim [that he is neither the owner or

holder of the note] is factually untrue, and the court

has found the plaintiff to be the owner and the holder

of the note.’’ The plaintiff, therefore, had standing to

bring this strict foreclosure action. On August 13, 2013,

the defendant filed a motion to reargue the motion to

dismiss, which the court denied on August 26, 2013.

This appeal followed.

I

The defendant first claims that the court erred by

failing to complete an evidentiary hearing prior to deny-
ing her motion to dismiss, thereby failing to provide

her with a meaningful opportunity to address the jurisdictional issues raised, namely, the plaintiff’s standing

to bring this strict foreclosure action. We are not persuaded.

We begin our analysis by setting forth the applicable

standard of review. ‘‘If a party is found to lack standing,

the court is without subject matter jurisdiction to determine the cause. . . . A determination regarding a trial

court’s subject matter jurisdiction is a question of law

[over which] . . . our review is plenary . . . .

‘‘Subject matter jurisdiction involves the authority of

the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is

without jurisdiction . . . .’’ (Internal quotation marks

omitted.) Burton v. Commissioner of Environmental

Protection, 291 Conn. 789, 801–802, 970 A.2d 640 (2009).

Our Supreme Court has held that ‘‘a holder of a note

is presumed to be the owner of the debt, and unless the

presumption is rebutted, may foreclose the mortgage

under [General Statutes] § 49–17. . . . The production

of the note establishes his case prima facie against the

makers and he may rest there. . . . It [is] for the defendant to set up and prove the facts which limit or change

the plaintiff’s rights.’’ (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303

Conn. 224, 231-–32, 32 A.3d 307 (2011). Put differently,

the holder of a note has standing to bring an action for

strict foreclosure pursuant to § 49-17.

In Equity One, Inc. v. Shivers, 310 Conn. 119, 135,

74 A.3d 1225 (2013), our Supreme Court reiterated its

holding in RMS Residential Properties, LLC, and

rejected the argument of the defendant in that case that

‘‘he [was] entitled to an evidentiary hearing on the issue

of the plaintiff’s standing because a party seeking to

foreclose a mortgage necessarily must do more to prove

standing than simply present a note endorsed in blank.’’

(Internal quotation marks omitted.) That court noted,

however, that ‘‘when there is a genuine dispute as to

jurisdictional facts and an evidentiary hearing is necessary to resolve that dispute, such a hearing ordinarily

will be required.’’ Id., 136 n.12.

Applying these legal principles to the facts of this

case, we conclude, first, that the plaintiff has met his

burden, pursuant to RMS Residential Properties, LLC,

of establishing his standing to bring this strict foreclosure action. Second, we conclude that the defendant

has failed to meet her burden, pursuant to Equity One,

Inc., of establishing that a full evidentiary hearing was

necessary in this case.

In the present case, the court held a hearing on the

plaintiff’s motion to dismiss, at which the plaintiff introduced the original note, signed by the defendant and
initialed by Grezgorz Rutkowski, into evidence; the

court admitted the note as a full exhibit. In prior proceedings, the plaintiff had produced only a copy of

the original note, along with a lost note affidavit. The

plaintiff explained that the original note had been

thought to be lost, but that it was found approximately

one month before the hearing on the defendant’s motion

to dismiss. The defendant, through her attorney,

asserted that she and Grezgorz Rutkowski would testify

that they had not signed the note produced by the plaintiff. The plaintiff argued that liability already had been

established, that the defendant never had raised this

issue as a defense or argued it previously, and that it

was an eleventh hour delay tactic.

The court held that such testimony would not prove

that the plaintiff lacked standing to bring this foreclosure action, that all issues regarding the defendant’s

liability had been decided in the summary judgment

that was rendered as to liability, that such a claim had

not been previously asserted, and that the defendant

had not contested the authenticity of the note in an

opposition to the motion for summary judgment as to

liability. The court also found that the plaintiff had filed

a request for admission and that the first requested

admission was as follows: ‘‘On November 21, 2007 . . .

Grezgorz Rutkowski and [the defendant], signed the

commercial construction fixed rate mortgage note in

favor of the plaintiff . . . a copy of which note is

attached as Exhibit A.’’ (Internal quotation marks omitted.) The court then found that neither the defendant

nor Grezgorz Rutkowski responded to the request, and

that, under our rules of practice, the failure to respond

is deemed an admission. See Practice Book § 13-23 (a).

On appeal, the defendant claims that she is entitled

to a full evidentiary hearing to contest the plaintiff’s

standing because there is a discrepancy between the

original note, admitted into evidence by the court during

the motion to dismiss proceeding, and a copy of the

note admitted into evidence with a lost note affidavit

during the summary judgment proceeding. She argues

that the plaintiff has not explained adequately the discrepancy between the two notes. The discrepancy

between the notes is that the copy of the note contains

an additional, illegible, handwritten signature or initial

in the right margin of the document; this marking is

not found on the original note admitted into evidence

during the motion to dismiss proceeding.

We are not persuaded that this single discrepancy is

sufficient to establish a genuine factual dispute that

would entitle the defendant to a full evidentiary hearing.

The additional signature on the copy of the note admitted into evidence during the summary judgment proceeding does nothing to vitiate the authenticity of the

original note admitted into evidence during the motion

to dismiss proceeding. Additionally, as found by the
court, the defendant admitted that she had signed the

note by failing to respond to the plaintiff’s request for

admissions. She also failed to oppose the motion for

summary judgment as to liability, which was granted

by the court on March 18, 2013. The defendant thus

failed to establish that a genuine dispute as to jurisdictional facts exists. We reject her claim that she was

entitled to a full evidentiary hearing to contest the plaintiff’s standing to bring this strict foreclosure action.

II

The defendant next claims that the court abused its

discretion by denying its motion to reargue the motion

to dismiss. Specifically, the defendant argues that the

court abused its discretion by ‘‘overlook[ing] . . . discrepancies between the documents, evidence and the

trial court’s conclusion of duplicate and counterpart

originals,’’ and overlooking the legal requirement of a

full evidentiary hearing. We disagree.

‘‘The standard of review for a court’s denial of a

motion to reargue is abuse of discretion. . . . When

reviewing a decision for an abuse of discretion, every

reasonable presumption should be given in favor of its

correctness. . . . As with any discretionary action of

the trial court . . . the ultimate [question for appellate

review] is whether the trial court could have reasonably

concluded as it did. . . .

‘‘[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 . . . .’’ (Citations

omitted; internal quotation marks omitted.) Liberti v.

Liberti, 132 Conn. App. 869, 874, 37 A.3d 166 (2012).

We conclude that the defendant has failed to demonstrate that the court abused its discretion by denying

her motion to reargue. The defendant presented no

controlling authority or set of facts overlooked or misconstrued by the court in denying the motion to reargue.

Instead she offered only arguments available to her at

the time of the original argument on the motion to

dismiss. The defendant appears to be seeking a proverbial ‘‘second bite at the apple’’ in order relitigate her

case. We reject the defendant’s claim that the trial court

abused its discretion in denying her motion to reargue.

The judgment is affirmed and the case is remanded

for the purpose of setting new law days.

In this opinion the other judges concurred.

1 Grezgorz Rutkowski, Zofia Nowicka-Varga, Urszula Redzio, and

Boguslaw Rutkowski were also named as defendants. Grezgorz Rutkowski

was a signer of the subject note. Nowicka-Varga, Redzio, and Boguslaw
Rutkowski are subsequent encumbrancers of the property that is the subject

of this strict foreclosure action. None of these defendants joined the motion

to dismiss and none are parties to this appeal. We therefore refer in this

opinion to Cecylia Rutkowska as the defendant.

2 The defendant also raised in her preliminary statement of issues a claim

that the court erred in denying her motion to dismiss, but failed to brief

the issue. The issue therefore is abandoned. ‘‘We are not required to review

issues that have been improperly presented to this court through an inadequate brief. . . . Where a claim is asserted in the statement of issues but

thereafter receives only cursory attention in the brief without substantive

discussion or citation of authorities, it is deemed to be abandoned.’’(Citation

omitted; internal quotation marks omitted.) Lareau v. Burrows, 90 Conn.

App. 779, 780, 881 A.2d 411 (2005).