Jenzack Partners, LLC v. Stoneridge Associates, LLC ( 2018 )

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JENZACK PARTNERS, LLC v. STONERIDGE
ASSOCIATES, LLC, ET AL.
(AC 39880)
DiPentima, C. J., and Lavine and Eveleigh, Js.
Syllabus
The plaintiff brought this action seeking to foreclose on a certain mortgage
of the defendant J. The named defendant had obtained a construction
loan from the original lender, S Co., which assigned the mortgage and
note to the plaintiff. The note was secured by various personal guaran-
tees that were executed in favor of S Co., including a nonrecourse
guarantee executed by J that was limited solely to her interest in certain
real property in Cromwell. J executed two subsequent reaffirmations
of her guarantee in connection with certain modifications of the note,
and she executed a mortgage in favor of S Co. on the Cromwell property.
After the named defendant defaulted on the underlying note, the plaintiff
commenced this action, seeking, inter alia, to foreclose on J’s mortgage.
At trial, the plaintiff argued that the assignment of the note necessarily
carried with it an assignment of all the underlying guarantees, including
J’s limited guarantee. The plaintiff introduced into evidence, inter alia,
an exhibit purporting to demonstrate the current amount due on the
note. The trial court rendered a judgment of strict foreclosure in favor
of the plaintiff and, subsequently, awarded the plaintiff attorney’s fees,
and J appealed to this court. Held:
1. J could not prevail on her claim that because her limited guarantee was
not specifically assigned from S Co. to the plaintiff, the plaintiff lacked
standing to foreclose on the mortgage; although the allonge that assigned
the note to the plaintiff did not explicitly incorporate or mention J’s
limited guarantee, an examination of the surrounding circumstances
demonstrated that S Co. intended to equitably assign the underlying
guarantees as part of its assignment of the underlying note, as J’s intent
in executing her limited guarantee was to collateralize the named defen-
dant’s note with her interest in the Cromwell property, the underlying
guarantees, which had no independent value other than to secure the
note, were the only documents that gave the note any value, and, thus,
it could be reasonably assumed that the intention of S Co. in assigning
the note to the plaintiff was to assign its rights under the note and the
secondary obligations that gave the note its value.
2. The trial court erred in holding that the plaintiff had established the
amount of debt due on the note: at trial, the plaintiff had introduced a
certain exhibit, which was admitted under the business record exception
to the hearsay rule, that computed the amount due on the note through
the testimony of a witness, B, who admitted that his knowledge of the
starting balance due on the note, as reflected on the computation in
the exhibit, came from data submitted by S Co. when the plaintiff pur-
chased the loan, and although B testified that S Co. had attested to how
much was due on the note as of the date of the plaintiff’s purchase, B
had no personal knowledge concerning the starting balance because he
was not involved in the negotiation or acquisition of the note from S
Co., and, thus, the starting balance used in the computation of debt in
the exhibit was inadmissible hearsay; moreover, although B testified
that the computation of debt was made and kept by the plaintiff in the
ordinary course of its business, there was no evidence in the record
regarding S Co.’s business records or its duty to report an accurate
starting balance to the plaintiff, the starting balance was not calculated
by the plaintiff and was received, rather than made, in the ordinary
course of its business, which failed to satisfy the first requirement for
admissibility under the applicable statute (§ 52-180), and the erroneous
evidentiary ruling was necessarily harmful to J because it directly impli-
cated the amount she owed under the note.
3. J could not prevail on her claim that the trial court improperly admitted
into evidence, in support of the plaintiff’s claim for attorney’s fees,
certain unauthenticated documents that listed R Co., a nonparty, as the
party entitled to fees; on the basis of the language of the guarantee, the
trial court properly determined that the plaintiff was entitled to recover
attorney’s fees and expenses pending an appropriate evidentiary show-
ing, as the bills appended to the plaintiff’s exhibit in support of the
amount of its attorney’s fees identified the plaintiff as the client by its
unique client number and each entry listed the bill as pertaining to the
present matter, and although those bills also included a reference to R
Co., the plaintiff’s attorney testified that the reference was included for
mailing purposes only because there had been a prior issue with the
plaintiff receiving its bills at its listed business address, and the trial
judge, as the sole arbiter of the credibility of the witnesses and the
weight to be given specific testimony, was free to accept that testimony
and did not abuse its discretion by admitting the challenged exhibit
into evidence.
Argued February 14—officially released July 3, 2018
Procedural History
Action seeking, inter alia, to foreclose a mortgage on
certain real property owned by the defendant Jennifer
Tine et al., and for other relief, brought to the Superior
Court in the judicial district of Middlesex, where the
named defendant et al. were defaulted for failure to
appear; thereafter, the action was withdrawn as to the
defendant Joseph Tine; subsequently, the matter was
tried to the court, Domnarski, J.; judgment for the
plaintiff and of strict foreclosure, from which the defen-
dant Jennifer Tine appealed to this court; thereafter,
the court, Domnarski, J., granted the plaintiff’s motion
for attorney’s fees, and the defendant Jennifer Tine filed
an amended appeal. Reversed in part; new trial.
Richard P. Weinstein, with whom, on the brief, was
Sarah Black Lingenheld, for the appellant (defendant
Jennifer Tine).
Houston P. Lowry, with whom, on the brief, was
Dale M. Clayton, for the appellee (plaintiff).
Opinion
EVELEIGH, J. The defendant Jennifer Tine1 appeals
from the judgment of strict foreclosure rendered by the
trial court in favor of the plaintiff, Jenzack Partners,
LLC. On appeal, the defendant claims that the trial court
improperly: (1) held that Sovereign Bank had assigned
the defendant’s guarantee to the plaintiff and the plain-
tiff had standing to foreclose on the mortgage; (2) deter-
mined that the plaintiff had established the amount of
debt due on the subject note; and (3) granted attorney’s
fees and costs to the plaintiff. We agree with the defen-
dant’s second claim and, accordingly, we reverse the
judgment of the trial court only as to Jennifer Tine.
The following facts and procedural history are rele-
vant to our resolution of the issues on appeal. On July
13, 2006, the named defendant, Stoneridge Associates,
LLC (Stoneridge), obtained a construction loan in the
amount of $1,650,000 from a nonparty, Sovereign Bank
(Sovereign). At that time, Stoneridge executed a promis-
sory note (Stoneridge note) evidencing its promise to
repay the loan. The note was secured by various per-
sonal guarantees; Premier, Gattinella, Snow and Joseph
Tine each executed guarantees in favor of Sovereign
guaranteeing repayment of the sums due under the note.
See footnote 1 of this opinion. On December 23, 2008,
the Stoneridge note was modified via a modification
agreement. On the same date, the defendant executed
a limited guarantee in favor of Sovereign guaranteeing
repayment of the sum due under the Stoneridge note as
modified. In order to secure their respective guarantees,
the defendant and Joseph Tine executed a mortgage
(Tine mortgage) in favor of Sovereign on their residen-
tial property located at 8 Black Birch Drive in Crom-
well.2 The defendant’s nonrecourse guarantee limited
her liability solely to her interest in the Cromwell prop-
erty. On August 27, 2009, and May 6, 2010, the defendant
executed reaffirmations of her guarantee in connection
with subsequent modifications of the Stoneridge note.
On March 22, 2012, Sovereign assigned its mortgage
and interests in the Stoneridge note to the plaintiff.3
In August, 2012, the plaintiff commenced this action,
seeking, inter alia, to foreclose on the Tine mortgage.
In the operative revised complaint dated April 2, 2013,
the plaintiff alleged that, because Stoneridge had
defaulted on the underlying Stoneridge note, the plain-
tiff was entitled to declare the entire balance of the
note due and payable. The plaintiff alleged that Sover-
eign had assigned all of its interests in the Stoneridge
note, including continuing guarantees executed by Pre-
mier, Gattinella, Snow and Joseph Tine, the limited
guarantee executed by the defendant, and the Tine
mortgage.4 Because the plaintiff was the current holder
of the Stoneridge note, the plaintiff claimed it was enti-
tled collect on all underlying guarantees and foreclose
on the mortgage.
On April 26, 2013, the defendant filed an answer that
denied the substance of the complaint and asserted as
special defenses lack of consideration, unclean hands,
and equitable estoppel. A bench trial was held on August
16, 2016. At trial, the plaintiff claimed that the assign-
ment of the Stoneridge note necessarily carried with it
an assignment of all underlying guarantees, including
the defendant’s limited guarantee secured by the Tine
mortgage. The plaintiff also introduced into evidence
exhibit 22, a computation of the current amount due
on the note. In response, the defendant claimed that
the court lacked subject matter jurisdiction to render
a judgment of foreclosure against her because her guar-
antee was not specifically assigned to the plaintiff in
the allonge. The defendant also claimed that the plaintiff
failed to establish the amount of debt due on the note
because evidence of the computation of debt, which
included a starting balance provided to the plaintiff
by Sovereign, was inadmissible hearsay. Following the
trial, both parties filed posttrial briefs. On December
1, 2016, the trial court issued a memorandum of decision
entering an order of strict foreclosure on the Tine mort-
gage. The court held that the plaintiff had standing to
foreclose the mortgage that secured the defendant’s
guarantee and that the plaintiff had established the
amount of debt due on the note through the testimony
of William Buland, the plaintiff’s authorized representa-
tive, and the computation of debt in exhibit 22. This
appeal followed. Additional facts will be set forth as
necessary.
On appeal, the defendant argues that the trial court
improperly (1) held that the plaintiff had standing to
foreclose on the Tine mortgage; (2) determined that
the plaintiff’s exhibit 22 was sufficient to establish the
amount due on the subject note; and (3) awarded the
plaintiff attorney’s fees and expenses. Although we
agree with the defendant’s second claim and, accord-
ingly, reverse the trial court’s judgment and remand the
case for a new trial, we address both the defendant’s
first claim, which pertains to subject matter jurisdiction,
and her third claim as an issue likely to arise on remand.
I
The defendant’s first claim is that the court improp-
erly found that the plaintiff had standing to bring an
action to foreclose on the Tine mortgage. She argues
that the plaintiff lacked standing because her limited
guarantee was not specifically assigned from Sovereign
to the plaintiff in the allonge. In response, the plaintiff
argues that the court properly found that it had standing
to foreclose the Tine mortgage because the assignment
of the Stoneridge note operated as an assignment of
the underlying guarantees securing it. We agree that
the plaintiff has standing.
We set forth our standard of review and applicable
legal principles. ‘‘The issue of standing implicates the
trial court’s subject matter jurisdiction and therefore
presents a threshold issue for our determination.’’
(Internal quotation marks omitted.) D’Amato Invest-
ments, LLC v. Sutton, 117 Conn. App. 418, 421, 978
A.2d 1135 (2009). ‘‘Standing is the legal right to set
judicial machinery in motion. One cannot rightfully
invoke the jurisdiction of the court unless he [or she]
has, in an individual or representative capacity, some
real interest in the cause of action, or a legal or equitable
right, title or interest in the subject matter of the contro-
versy. . . . When standing is put in issue, the question
is whether the person whose standing is challenged is
a proper party to request an adjudication of the issue
. . . . Because standing implicates the court’s subject
matter jurisdiction, the plaintiff ultimately bears the
burden of establishing standing. . . . Because a deter-
mination regarding the trial court’s subject matter juris-
diction raises a question of law, [the standard of] review
is plenary.’’ (Internal quotation marks omitted.) Valley
National Bank v. Marcano, 174 Conn. App. 206, 210–11,
166 A.3d 80 (2017).
‘‘A guarantee, similar to a suretyship, is a contract,
in which a party, sometimes referred to as a secondary
obligor, contracts to fulfill an obligation upon the
default of the principal obligor.’’ (Internal quotation
marks omitted.) One Country, LLC v. Johnson, 137
Conn. App. 810, 816, 49 A.3d 1030 (2012), aff’d, 314
Conn. 288, 101 A.3d 933 (2014). Our Supreme Court
has recognized the general principle that ‘‘a guarantee
agreement is a separate and distinct obligation from
that of the note or other obligation.’’ JP Morgan Chase
Bank, N.A. v. Winthrop Properties, LLC, 312 Conn. 662,
675, 94 A.3d 622 (2014). As our Supreme Court stated,
‘‘a guarantor’s liability does not arise from the debt or
other obligation secured by the mortgage; rather, it
flows from the separate and distinct obligation incurred
under the guarantee contract. . . . [The] guarantor [is
not] liable for the debt secured by the mortgage; rather,
the guarantor is liable for what he or she agreed to in
the [guarantee].’’ (Citations omitted; internal quotation
marks omitted.) Id., 676.
The defendant argues that the plaintiff lacks standing
to enforce her limited guarantee because, although the
Stoneridge note was assigned from Sovereign to the
plaintiff, her limited guarantee itself never was assigned
to the plaintiff. The defendant correctly points out that
the allonge did not explicitly incorporate or mention
the limited guarantee signed by the defendant. The lan-
guage of the allonge, however, does not by itself control
our resolution of the issue; we also may examine the
language of the guarantee. See D’Amato Investments,
LLC v. Sutton, supra, 117 Conn. App. 422. The defen-
dant’s guarantee states the following in relevant part:
‘‘Guarantor does hereby fully guarantee that Borrower
shall duly and punctually perform all of its other obliga-
tions, covenants and conditions contained in the Note
and Loan Documents.’’ Because the language of the
guarantee itself does not shed light on the effect of a
subsequent assignment, our resolution of the issue of
standing depends on whether the assignment of the
Stoneridge note from Sovereign to the plaintiff also
operated as an assignment of the defendant’s underlying
limited guarantee such that the plaintiff can foreclose
on the Tine mortgage securing the guarantee.
Neither party has identified a Connecticut case that
is factually on point with the present one, and our courts
have considered this issue infrequently. See JP Morgan
Chase Bank, N.A. v. Winthrop Properties, supra, 312
Conn. 675. We therefore turn to the Restatement (Third)
of Suretyship and Guaranty § 13 (1996), which is persua-
sive authority and in accord with related Connecticut
case law.5
The Restatement (Third) of Suretyship and Guaranty
§ 13 sets forth the rule that when an obligee assigns its
rights under an obligation, that assignment operates as
an assignment of any secondary obligations attached
to the primary obligation. In discussing the assignment
of an obligee’s rights, subsection (5) provides: ‘‘Except
as otherwise agreed or as provided in subsection (1),6
an assignment by the obligee of its rights against the
principal obligor arising out of the underlying obligation
operates as an assignment of the obligee’s rights against
the secondary obligor arising out of the secondary obli-
gation.’’ (Footnote added.) Restatement (Third), supra,
§ 13 (5). Additionally, comment (f), explains: ‘‘A second-
ary obligation, like a security interest, has value only
as an adjunct to an underlying obligation. It can usually
be assumed that a person assigning an underlying obli-
gation intends to assign along with it any secondary
obligation supporting it. Thus, unless there is an
agreement to the contrary or assignment is prohibited
pursuant to subsection (1), assignment of the underly-
ing obligation also assigns the secondary obligation.’’
Restatement (Third), supra, § 13, comment (f). Under
the rule expressed in § 13 (5) of the Restatement, there-
fore, the assignment of the Stoneridge note operates
as an assignment of the secondary obligations underly-
ing it, namely, the defendant’s limited guarantee.
The defendant claims, however, that because there
was no specific mention of her limited guarantee in the
allonge assigning the Stoneridge note to the plaintiff,
her guarantee was not assigned to the plaintiff. Our
Supreme Court addressed an analogous issue in Lem-
mon v. Strong, 59 Conn. 448, 22 A. 293 (1890), namely,
whether an assignment of a note to a subsequent holder
carried with it a related guarantee where the guarantee
was not formally assigned. In concluding that no spe-
cific assignment was necessary to enforce the related
guarantee, the court focused on the surrounding cir-
cumstances and intentions of the parties executing the
assignment. ‘‘The contract and acts of [the assignor]
. . . should be construed with reference to all the sur-
rounding circumstances, the controlling consideration
being to discover and give effect to the mutual intention
of the parties.’’ Id., 454. In holding that the guarantee
had been equitably assigned, the court reasoned, ‘‘[s]ep-
arated from the guaranty, the note had little pecuniary
value; and apart from the ownership of the note the
guaranty had but little meaning or value. They belonged
together, on the same paper, and were treated by all
concerned as forming one instrument for the recovery
of the amount due on the note.’’ Id., 452. Accordingly,
we examine the surrounding circumstances and inten-
tions of the plaintiff and Sovereign in assigning the
Stoneridge note to determine if Sovereign intended to
equitably assign the underlying guarantees as part of
its assignment of the Stoneridge note.
The present case presents an unusual set of circum-
stances. The Stoneridge note was not secured by a
mortgage on a piece of property; instead, the various
personal guarantees executed by Premier, Gattinella,
Snow, Joseph Tine and the defendant provided the col-
lateral for the loan. The defendant executed a limited
guarantee in which she personally guaranteed Stoner-
idge’s obligations under the note. That guarantee lim-
ited her liability to her interest in the Cromwell property
and was secured by the Tine mortgage. The defendant
also executed two reaffirmations of her guarantee in
2009 and 2010. It is clear, therefore, that the defendant’s
intent in executing her limited guarantee was to collat-
eralize the Stoneridge note with her interest in the
Cromwell property.
At the time of the execution of the Stoneridge note,
the underlying guarantees were the only documents that
gave the note any value. Conversely, the defendant’s
limited guarantee had no independent value other than
to secure the Stoneridge note. It can be reasonably
assumed, therefore, that the intention of Sovereign in
assigning the Stoneridge note to the plaintiff was to
assign its rights under the note and the secondary obli-
gations that gave the note its value. An assignment of
the Stoneridge note without the guarantees would be
valueless to the plaintiff, and the plaintiff certainly
assumed that it was getting all of the rights Sovereign
had under the Stoneridge note. If Sovereign intended
to limit the operation of the transaction to the assign-
ment of the note only and not the underlying guarantees,
it easily could have done so by reserving such rights
in the allonge. Read in light of all of the surrounding
circumstances and the rule expressed in § 13 of the
Restatement (Third) of Suretyship and Guaranty, we
conclude that the parties intended the assignment of
the defendant’s limited guarantee as part of the assign-
ment of the Stoneridge note. Thus, the plaintiff has
standing to foreclose on the Tine mortgage.
II
The defendant next claims that the court erred in
holding that the plaintiff had established the amount
of debt due on the subject note. The defendant argues
that the total amount due, as shown on exhibit 22,
was based on a starting balance that was improperly
admitted into evidence under the business records
exception because it was provided by Sovereign at the
time the note was acquired by the plaintiff and, there-
fore, Buland’s testimony is inadmissible hearsay.7 In
response, the plaintiff argues that exhibit 22 was prop-
erly admitted into evidence under the business records
exception to establish the starting balance on the note.
We agree with the defendant.
The following additional facts are necessary for our
resolution of this claim. At trial, the plaintiff called
Buland to establish the amount of debt due on the note.
The plaintiff introduced a prepared computation of the
amount due on the Stoneridge note to establish the
current debt on the note. The record indicates that
the defendant vigorously contested the admissibility
of exhibit 22 on the grounds that it was not properly
authenticated and was inadmissible hearsay. In
response, the plaintiff argued that the document was
admissible under the business records exception to the
hearsay rule. The court overruled the defendant’s objec-
tion and allowed exhibit 22 to be admitted into evidence
as a full exhibit.
We set forth our standard of review and applicable
legal principles on this issue. ‘‘When presented with an
evidentiary issue . . . our standard of review depends
on the specific nature of the claim presented. . . .
Thus, [t]o the extent a trial court’s admission of evi-
dence is based on an interpretation of [law], our stan-
dard of review is plenary. For example, whether a
challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. . . .
‘‘A trial court’s decision to admit evidence, if prem-
ised on a correct view of the law, however, calls for
the abuse of discretion standard of review. . . . In
other words, only after a trial court has made the legal
determination that a particular statement is or is not
hearsay, or is subject to a hearsay exception, is it vested
with the discretion to admit or to bar the evidence based
upon relevancy, prejudice, or other legally appropriate
grounds related to the rule of evidence under which
admission is being sought.’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.) Mid-
land Funding, LLC v. Mitchell-James, 163 Conn. App.
648, 653, 137 A.3d 1 (2016).
In determining the amount of the defendant’s debt
on the note, the court relied on the prepared computa-
tion of the amount due on the Stoneridge note, admitted
as exhibit 22 under the business records exception to
the hearsay rule. Because this claim turns on whether
the trial court properly classified exhibit 22 as a busi-
ness record, our review is plenary. See id., 654.
‘‘[H]earsay is an out-of-court statement offered into
evidence to establish the truth of the matters contained
therein. . . . In the absence of personal knowledge
about the contents of a document, a witness’ statements
about the document are hearsay.’’ (Citation omitted;
internal quotation marks omitted.) New England Sav-
ings Bank v. Bedford Realty Corp., 238 Conn. 745, 757,
680 A.2d 301 (1996).
Buland, the plaintiff’s authorized representative,
admitted during voir dire that his knowledge of the
starting balance due on the note, as reflected on the
computation in exhibit 22, came from data submitted
by Sovereign when the plaintiff purchased the loan from
Sovereign. Buland testified that the bank attested to
how much was due on the note as of the date of pur-
chase; however, Buland had no personal knowledge
concerning the starting balance because he was not
involved in the negotiation or acquisition of the note
from Sovereign. Furthermore, at trial, the plaintiff did
not tender any explanation for why it did not produce
the original computation of the starting balance upon
which Buland subsequently relied in computing the
amount of debt. Because Buland did not have personal
knowledge of the starting balance of debt due on the
Stoneridge note, the starting balance used in the compu-
tation of debt in exhibit 22 was inadmissible hearsay.
The plaintiff argues that because Buland created the
computation on the basis of the starting balance
received by the plaintiff in the regular course of busi-
ness, the starting balance listed in exhibit 22 was admis-
sible under the business records exception to the
hearsay rule. ‘‘In order to establish that a document
falls within the business records exception to the rule
against hearsay, codified at [General Statutes] § 52-180,
three requirements must be met. . . . The proponent
need not produce as a witness the person who made
the record or show that such person is unavailable but
must establish that [1] the record was made in the
regular course of any business, and [2] that it was the
regular course of such business to make such a writing
or record [3] at the time of such act, transaction, occur-
rence or event or within a reasonable time thereafter.’’
(Citation omitted; footnote omitted; internal quotation
marks omitted.) LM Ins. Corp. v. Connecticut Disman-
teling, LLC, 172 Conn. App. 622, 628–29, 161 A.3d
562 (2017).
Our Supreme Court has noted, however, that when a
document is received, rather than made, in the ordinary
course of business, it ordinarily will not satisfy the
requirements of § 52-180. In River Dock & Pile, Inc. v.
O & G Industries, Inc., 219 Conn. 787, 801, 595 A.2d
839 (1991), the court stated, ‘‘[the authorized represen-
tative] testified that the document would have been
received in the ordinary course of business, not that it
would have been made in the ordinary course of busi-
ness. The presumption that a business record is reliable
is based in large part on the entrant having a business
duty to report. . . . The mere fact that the [party]
received this letter in the ordinary course of business
and included the document in its files tells us nothing
about the motivation of the maker of record, and there-
fore would not ordinarily satisfy the requirements of
§ 52-180.’’ (Citations omitted; emphasis in original.) Id.
Additionally, the court stated: ‘‘We emphasize . . . that
the mere receipt of documents in the ordinary course
of business, in the absence of any duty owed by the
entrant to the business to prepare the record, would
not ordinarily establish such documents as business
records.’’ Id., 801 n.14.
In the present case, Buland testified that the computa-
tion of debt was made and kept by the plaintiff in the
ordinary course of business. There is no evidence in
the record, however, regarding Sovereign’s business
records or its duty to report an accurate starting balance
to the plaintiff. The starting balance was not calculated
by the plaintiff, and therefore, it was received, rather
than made, in the ordinary course of business. Accord-
ingly, because the first requirement of § 52-180 is not
satisfied, we conclude that the starting balance as
shown on exhibit 22 was not admissible under the busi-
ness records exception.
The plaintiff does not dispute that, in the absence of
either exhibit 22 or Buland’s testimony concerning the
starting balance, there was insufficient competent evi-
dence from which the trial court properly could deter-
mine the amount of debt. The challenged evidentiary
ruling was necessarily harmful to the defendant because
it directly implicated the amount she owed under the
Stoneridge note. Where hearsay is improperly admitted
into evidence to establish the amount of debt on a
loan, the proper remedy is to reverse the trial court’s
judgment of strict foreclosure.8 See New England Sav-
ings Bank v. Bedford Realty Corp., supra, 238 Conn.
758. Because we determine that the starting balance of
the amount due on the Stoneridge note as listed on
exhibit 22 was inadmissible hearsay, we reverse the
trial court’s judgment of strict foreclosure as to the
defendant.
III
Although we are reversing the judgment of strict fore-
closure against the defendant on the second issue, we
briefly discuss, as a matter likely to arise on remand, the
defendant’s claim that the court improperly awarded
attorney’s fees to the plaintiff. Specifically, the defen-
dant claims that the court improperly admitted unau-
thenticated documents in support of the plaintiff’s claim
for attorney’s fees that listed a nonparty, ‘‘Rockstone
6 Capital, LLC,’’ as the party entitled to fees. The plaintiff
responds that the reference to ‘‘Rockstone 6 Capital,
LLC’’ was for mailing purposes only, and that the plain-
tiff’s attorney provided sufficient testimony for the
court to award reasonable attorney’s fees. We agree
with the plaintiff.
The following additional facts are relevant to our
resolution of this issue. On December 1, 2016, the court
issued its memorandum of decision entering an order
of strict foreclosure in favor of the plaintiff. Thereafter,
the plaintiff filed a motion for attorney’s fees and
expenses and, on January 11, 2017, the court held an
evidentiary hearing on the issue of attorney’s fees. In
support of its claim, the plaintiff submitted an affidavit
regarding its requests for attorney’s fees and contempo-
raneous billing records as exhibit 25. Houston Putnam
Lowry, the plaintiff’s attorney, also testified as to his
firm’s fees and expenses incurred in the course of the
litigation. Lowry testified that the billing records identi-
fied the plaintiff as the client by its unique client num-
ber, and each entry listed the matter as ‘‘Jenzack v.
Snow—Tine Foreclosure on Stoneridge.’’ Each entry
also had an additional notation, ‘‘Rockstone 6 Capital,
LLC.’’ When the defendant questioned what ‘‘Rockstone
6 Capital, LLC’’ referred to, Lowry testified that the
reference was included for mailing purposes only
because there had been a prior issue with the plaintiff
receiving its bills at its listed business address. On Janu-
ary 12, 2017, the court granted the plaintiff’s motion for
attorney’s fees totaling $121,439.41.
We set forth the standard of review and applicable
legal principles on this issue. ‘‘Attorney’s fees in foreclo-
sure actions may be awarded pursuant to General Stat-
utes § 52-249 (a) or . . . pursuant to contract.’’ N.E.
Leasing, LLC v. Paoletta, 89 Conn. App. 766, 774, 877
A.2d 840, cert. denied, 275 Conn. 921, 883 A.2d 1245
(2005). ‘‘Where a contract provides for the payment of
attorney’s fees by a defaulting party, those fees are
recoverable solely as a contract right. . . . Therefore,
the language of the note governs the award of fees,
and we need not consider General Statutes § 52-249
(allowance of reasonable attorney’s fees in a foreclo-
sure action). Such attorney’s fees incurred language has
been interpreted by our Supreme Court . . . as permit-
ting recovery upon the presentation of an attorney’s
bill, so long as that bill is not unreasonable upon its
face and has not been shown to be unreasonable by
countervailing evidence or by the exercise of the trier’s
own expert judgment.’’ (Citations omitted; internal quo-
tation marks omitted.) Id., 778.
Our standard of review on an award of attorney’s
fees is well settled. ‘‘Whether to allow [attorney’s] fees,
and if so in what amount, calls for the exercise of
judicial discretion by the trial court. . . . An abuse of
discretion in granting [attorney’s] fees will be found
only if [an appellate court] determines that the trial
court could not reasonably have concluded as it did.’’
(Citation omitted; internal quotation marks omitted.)
Hornung v. Hornung, 323 Conn. 144, 170, 146 A.3d
912 (2016). ‘‘[T]he trial judge is the sole arbiter of the
credibility of the witnesses and the weight to be given
specific testimony and, therefore, is free to accept or
reject, in whole or in part, the testimony offered by
either party.’’ (Internal quotation marks omitted.)
LaBossiere v. Jones, 117 Conn. App. 211, 224, 979 A.2d
522 (2009).
In the present case, the defendant’s limited guarantee
contains an indemnity provision applicable to the issue
of attorney’s fees, which provides in relevant part:
‘‘Indemnification. Guarantor shall . . . fully indem-
nify, save and hold harmless Lender from all cost and
damage which Lender may suffer by reason of any fail-
ure by Borrower to perform any of the obligations of
Borrower under the Note or Loan Documents and fully
reimburse and repay to Lender any and all costs and
expenses which Lender may incur arising from any such
failure, and from any and all loss, liability, expense,
including legal fees and cost of litigation, and damage
suffered or incurred by Lender in enforcing and procur-
ing the performance of this Guaranty and the obliga-
tions of Borrower guaranteed hereby.’’ (Emphasis
added.)
On the basis of the language in the guarantee, the
court properly concluded that the plaintiff was entitled
to recover attorney’s fees and expenses pending an
appropriate evidentiary showing. The defendant does
not challenge the reasonableness of the fees awarded;
instead, she challenges only the reference to ‘‘Rock-
stone 6 Capital, LLC’’ and claims that the billing records
identified someone other than the plaintiff as the client
entitled to attorney’s fees. We are not persuaded. The
court was free to weigh the exhibit containing refer-
ences to ‘‘Rockstone 6 Capital, LLC’’ as well as Lowry’s
testimony in determining whether the plaintiff had
established that it was entitled to the attorney’s fees
requested in exhibit 25. Accordingly, we conclude that
the court did not abuse its discretion regarding the
admission of exhibit 25.
The judgment is reversed only as to Jennifer Tine
and the case is remanded for a new trial; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
Stoneridge Associates, LLC (Stoneridge), Premier Building & Develop-
ment, Inc. (Premier), Ronald Gattinella, Joseph Tine also known as Giuseppe
Tine (Joseph Tine), Patrick Snow, and Webster Bank are also named as
defendants in this action. With the exception of Jennifer Tine and Joseph
Tine, all defendants were defaulted for failure to appear or plead. During
the pendency of the foreclosure action, Joseph Tine, the defendant’s former
husband and a member of Stoneridge, filed a petition in bankruptcy and
the claims against him were subsequently discharged. For the purposes of
this opinion, any reference to the defendant is to Jennifer Tine only.
2
The Tine mortgage was recorded in the Cromwell land records on January
7, 2009. When the defendant executed her limited guarantee, she and Joseph
Tine were joint owners of the Cromwell property. Joseph Tine subsequently
transferred his interest in the property to the defendant in connection with
his bankruptcy proceedings. At the time of the foreclosure judgment, the
defendant was the sole owner of the Cromwell property.
3
Specifically, Sovereign and the plaintiff executed an allonge endorsing
the Stoneridge note to the plaintiff as the obligee of the note. The Tine
mortgage was assigned to the plaintiff though an ‘‘Assignment of Open-End
Mortgage Deed.’’
4
See footnote 1 of this opinion.
5
Our Supreme Court previously has relied on the Restatement (Third) of
Suretyship and Guaranty to fill gaps in and support our common law. See
Lestorti v. DeLeo, 298 Conn. 466, 475 n.8, 4 A.3d 269 (2010).
6
Subsection (1) of § 13 of the Restatement (Third) of Suretyship and
Guaranty provides the exceptions for when the assignment of a secondary
obligation is prohibited: ‘‘The rights of the obligee against the secondary
obligor arising out of the secondary obligation can be assigned unless:
‘‘(a) the substitution of a right of the assignee for the right of the obligee
would materially change the duty of the second obligor or materially increase
the burden or risk imposed on by its contract; or
‘‘(b) the assignment is forbidden by statute or is otherwise ineffective as
a matter of public policy; or
‘‘(c) the assignment is validly precluded by contract.’’ The defendant does
not claim that any of these exceptions are applicable in the present case.
7
We note that the defendant concedes that the portion of exhibit 22
reflecting interest accrual, payments, or other transactions that occurred
after the plaintiff acquired the note were properly admitted under the busi-
ness records exception.
8
The defendant contends that the proper remedy in this case would be
a directed judgment instructing the trial court to render judgment in favor
of the defendant. Specifically, the defendant argues that, even on remand,
the plaintiff would be unable to introduce exhibit 22 into evidence under
the business records exception because the plaintiff did not offer any evi-
dence from Sovereign that it could verify the starting balance. We decline
the defendant’s invitation to speculate that the plaintiff will not be able to
produce either any representative from Sovereign or testimony to establish
the validity of the starting balance on the note.