author:
BEAR, J.
      ESPINOSA, J.,

text:
    RALPH OLSZEWSKI v. JAMES F. JORDAN III ET AL.
    (AC 34584)
    Beach, Bear and Espinosa, Js.

      Argued January 3
    officially released July 16, 2013

      Eric H. Rothauser, with whom, on the brief, was John L. Bonee III, for the appellants (defendant Carlo Forzani et al.).

      Stephen F. McEleney, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

BEAR, J.

The important question raised by this appeal is whether an attorney charging lien can arise by operation of law to be applied to assets or an interest in assets assigned to a party in a dissolution of marriage action. The trial court answered that question in the negative. We disagree and, accordingly, reverse the judgment of the trial court.

In August, 2009, the court rendered a judgment dissolving the marriage of James F. Jordan III and Diana M. Jordan. James Jordan had been represented by the defendant Carlo Forzani, an attorney of the defendant law firm, Carlo Forzani, LLC, in that proceeding. At the time of the dissolution of marriage judgment, James Jordan and Diana Jordan jointly owned, among other assets, an account at Northwestern Mutual (account), from which the dissolution court ordered that 50 percent of the attorney’s fees (fees) of the defendants be paid and, after payment of certain other obligations, that the balance remaining in that account be divided equally between James Jordan and Diana Jordan.

While an appeal to this court from the judgment of dissolution was pending, in October, 2009, Ralph Ols-zewski, the plaintiff in the present case, who is the father of Diana Jordan, brought this action against James Jordan to collect the outstanding balance on James Jordan’s promissory note to him. In November, 2009, the plaintiff obtained a prejudgment remedy, which authorized the attachment of the proceeds of the account. In April, 2011, the court rendered judgment in favor of the plaintiff in the amount of $128,135.04. The plaintiff, thereafter, applied for a property execution. Subsequently, pursuant to General Statutes § 52-356c, James Jordan filed a claim for a determination of interests in the account. He asserted that by virtue of the 2009 dissolution judgment, he had a claim to proceeds in that account that was prior in right to that of the plaintiff. The defendants filed a separate claim for determination of interests in the account, alleging that “Carlo Forzani, LLC has a claim prior in right” to the plaintiffs claim by virtue of the dissolution judgment and the “charging hen arising by operation of law” in the dissolution of marriage action.

The court held a hearing to determine the competing claims in the account and, subsequently, concluded that the defendants had no superior interest in the account by virtue of either an attorney charging hen or the dissolution judgment. Specifically, the court held, inter aha, that a charging hen in connection with a dissolution action would be prohibited by rule 1.5 (d) (1) of the Rules of Professional Conduct, that an attorney must create a new asset for the client before a charging hen can be recognized and that the recognition of a charging hen in a dissolution action would violate public pohcy. The defendants then filed this appeal.

On appeal, the defendants claim that the trial court improperly held that “an attorney’s charging hen is [not] applicable to a marriage dissolution action.” The defendants argue that Forzani “acquired a perfected charging hen for the full amount of his fees . . . when he successfully obtained a judgment for his chent that included a property distribution award.”

Whether an attorney has a common-law charging hen is a question of law. See D’Urso v. Lyons, 97 Conn. App. 253, 255, 903 A.2d 697, cert. denied, 280 Conn. 928, 909 A.2d 523 (2006). “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Id., 255-56.

“Although not often htigated in the courts of Connecticut, the common-law charging lien has been recognized since 1836 . . . .’’Id., 256. Our common-law charging hen is an equitable hen. “If an attorney has rendered services and expended money in instituting and conducting a suit and the plaintiff orally agrees that he may retain so much of the avails thereof as will pay him for his services and expenses therein and for previous services in other matters, and he thereafter conducts the suit to a favorable conclusion, he has, as against such plaintiff, an equitable hen upon the avails for the services and expenses in the suit, and for the previous services embraced in the agreement . . . Cooke v. Thresher, 51 Conn. 105, 107 (1883).

“ ‘An attorney, as against his chent, has a hen upon ah papers in his possession, for his fees and services performed in his professional capacity, as well as upon judgments received by him.’ This quoted passage obviously refers to both retaining hens on papers and charging hens on judgments.” Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 644, 529 A.2d 702 (1987). “An attorney’s retaining hen is a possessory hen on a chent’s papers and files that the attorney holds until his fee has been paid. ... A retaining hen differs from a charging hen, which is a hen placed upon any money recovery or fund due the chent at the conclusion of suit.” (Citations omitted.) Id., 643. “[I]t has long been held that an attorney has an equitable hen upon the avails [of his actions for a chent] for the services and expenses in the suit.” (Internal quotation marks omitted.) D’Urso v. Lyons, supra, 97 Conn. App. 257.

Although a charging hen has not been recorded or otherwise been made known to third parties, in some circumstances, such charging hen can have priority over a prejudgment remedy or property execution. “Conflicts between an attorney claiming a charging hen for his fees on a judgment recovered through his efforts and a third-party creditor seeking to satisfy a debt owed by the attorney’s chent by impressing a hen on the same judgment have usually been resolved by determining which hen first attached to the judgment or its proceeds. . . . Since an attorney’s lien generally attaches to a judgment as of the date the attorney commenced to represent the client in the action which terminates in the judgment, the courts have generally recognized the priority of the attorney’s lien over competing liens which were perfected after he commenced his services . . . while upholding the priority of the competing hen which was perfected before the commencement of the attorney’s services.” (Citations omitted.) Annot., Priority Between Attorney’s Lien for Fees Against a Judgment and Lien of Creditor Against Same Judgment, 34 A.L.R.4& 665, § 2 (1984).

In the present case, although recognizing that an attorney in Connecticut may have a right to a charging lien in a civil action, the trial court concluded that such a right could not exist, as a matter of law, in a marital dissolution action. The court specifically determined that such a hen would violate rule 1.5 (d) (1) of the Rules of Professional Conduct and that it would violate the pubhc pohcy of Connecticut. The court further determined that before a charging lien can be recognized, the attorney must create anew asset, a previously not existing pool of funds for the chent, such as occurs, for example, when the chent is successful in a personal injury case, but which it determined does not occur when dividing existing marital property pursuant to General Statutes § 46b-81.

Neither of the parties to this case, nor the trial court, has cited any state statute or a case based on the Connecticut common law that holds that a charging hen may not be acquired by an attorney in a dissolution action as a matter of law. On the basis of the record before us and our independent research, we disagree with the court’s analysis and can discern no viable reason why a charging lien should be absolutely prohibited as a matter of law in a marital dissolution action.

As previously set forth in this opinion, the court held that to recognize a charging hen in a dissolution of marriage action would violate rule 1.5 (d) of the Rules of Professional Conduct, which provides: “A lawyer shall not enter into an arrangement for, charge, or collect: (1) Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a dissolution of marriage or civil union or upon the amount of alimony or support, or property settlement in lieu thereof . . . .” (Emphasis added.) We conclude that recognizing a charging hen in a dissolution of marriage action would not implicate rule 1.5 (d) (1) because a charging hen would not render the attorney’s fee “contingent upon the securing of a dissolution of marriage ... or upon the amount of alimony or support, or property settlement in heu thereof . . . .” Rules of Professional Conduct 1.5 (d) (1). Clearly, this rule prohibits an attorney from making his or her fee contingent upon specific outcomes in a dissolution of marriage action. As explained in the official commentary to rule 1.5: “Subsection (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the seeming of a divorce or upon the amount of alimony or support or property settlement to be obtained.” W. Horton & K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules (2012-2013 Ed.) Rule 1.5, official comments, p. 23. The recognition of a charging hen, which is a type of security interest, however, would not tie the attorney’s fees in a dissolution of marriage action billed at hourly rates or agreed to be a specific amount to the outcome of the case; it merely would allow the attorney to secure payment for services rendered in connection with the dissolution litigation and for the expenses of such dissolution htigation, as in other htigation. See D’Urso v. Lyons, supra, 97 Conn. App. 257.

After considering rule 1.5 and other rules of professional conduct, we conclude that rule 1.8 (i) (1) permits a charging hen in connection with a dissolution action. Rule 1.8 (i) provides: “A lawyer shah not acquire a proprietary interest in the cause of action or subject matter of htigation the lawyer is conducting for a chent, except that the lawyer may: (1) Acquire a hen granted by law to secure the lawyer’s fee or expenses . . . .” This rule thus specifically recognizes that an attorney may acquire a charging hen, a hen granted by our common law, in connection with htigation, and it contains no specific prohibition against such a hen in connection with dissolution of marriage htigation.

We also disagree with the court’s conclusions that to recognize a charging lien in a dissolution of marriage action would violate pubhc pohcy and that such a hen could not be recognized because the attorney must create a “new” asset before a charging hen can be acquired. That is not the statutory or common law recognized in a majority of the states. In approximately thirty-two states, as of 1982, attorney’s hens were a creature of statute. W. Hairston III, “The Ranking of Attorney’s Liens Against Other Liens in the United States,” 7 J. Legal Prof. 193 (1982). In New York, attorney’s hens are governed by N.Y. Judiciary Law § 475 (McKinney 2013), which provides: “From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing a counterclaim, or the initiation of any means of alternative dispute resolution including, but not limited to, mediation or arbitration, or the provision of services in a settlement negotiation at any stage of the dispute, the attorney who appears for a party has a lien upon his or her Ghent’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come; and the hen cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the hen.”

A charging hen in New York “attaches at the commencement of an action or proceeding. . . . There is no requirement of docketing or filing in order to perfect a charging hen. Nor is it necessary for the attorney to give notice of his claim to the adverse party to protect his hen. An attorney can, however, be held to have waived the hen by his failure to assert it within a reasonable period of time.” D. Freed et ai., “Attorney’s Liens,” N.Y.L.J., Vol. 205, Issue 121, June 25, 1991, p. 8. With respect to a hen against the proceeds of a property distribution, “[a]lthough an attorney’s charging hen does not attach to an award of alimony or maintenance, nothing in the Judiciary Law precludes enforcement of a charging hen upon a distributive award . . . .” Id.

In many, if not ah, of the remaining states, charging hens are recognized under the common law, but some states also protect alimony and support awards from such hens; see W. Hairston, supra, 195-96; but not “funds which counsel has obtained for the chent through litigation.” Annot., Alimony or Child-Support Awards as Subject to Attorneys’ Liens, 49 A.L.R.5th 595, 595 (1997). “Most jurisdictions provide attorneys with either common-law or statutory liens for fees against various interests of clients they have previously represented. These liens can attach as an encumbrance to materials left in the attorney’s possession or against funds which counsel has obtained for the client through litigation. Policy considerations and, to a lesser extent, statutory construction have led many jurisdictions to exempt awards of alimony or child support from the operation of such liens. However, some jurisdictions, as in the case of Jasper v. Smith [540 N.W.2d 399 (S.D. 1995)], 49 A.L.R. 5th 833, have permitted these types of liens to attach to judgments of support.” Annot., 49 A.L.R.5th, supra, p. 595.

An attorney usually is entitled to the assistance of the court to enforce a common-law charging lien. “A special, or charging, lien may ... be available to an attorney who has obtained a judgment, decree, or award for his or her clients. This lien generally gives an attorney the right to recover his taxable costs, fees, and money expended on behalf of the client from a fund recovered by his aid, and the right to have the court interfere to prevent payment by the judgment debtor to the creditor in fraud of the attorney’s right to it. The lien is not dependent on possession as in the case of a retaining lien. Counsel must, instead, take affirmative action to enforce it.” Id., § 2 [a], p. 603.

There is no statutory basis for an attorney’s lien in Connecticut, and the defendants do not claim that an express agreement is the basis for the alleged charging lien; they claim, instead, that the lien arises by “operation of law.” Therefore, it is instructive to look to this state’s equitable lien jurisprudence to determine under what circumstances such a lien will arise by operation of law. An equitable hen “is a right over the thing with which the contract deals, by means of which the obligee is enabled to follow the identical thing to which the hen attaches and enforce the obligation by a remedy which operates directly upon that thing. Therefore, in order that it may arise, the agreement must deal with some specific property, such as a tract of land or particular chattels or securities, and identify it or so describe it that it can be identified.” (Internal quotation marks omitted.) Bassett v. City Bank & Trust Co., 116 Conn. 617, 631, 165 A. 557 (1933). In Bassett, the City Bank & Trust Company acquired the distressed Mutual Bank & Trust Company, assuming its assets and liabihties. Id., 620-21. The president of the City Bank & Trust Company promised a creditor of the Mutual Bank & Trust Company that any judgment recovered in the creditor’s action to collect missed rent payments would be paid “ ‘out of assets’ of Mutual in City’s hands.” Id., 631. The court held that this promise by the bank was not sufficiently precise to establish an equitable lien; “[s]ince payment [to the creditor] might be made out of any of the assets of Mutual, the res to which an equitable lien might attach [was] wanting . . . .” (Internal quotation marks omitted.) Id.

Thus, according to Bassett, for an equitable lien to arise there must be an intention by the parties that specific property will secure the obligations in the contract. See id.; see also Connecticut Co. v. New York, New Haven & Hartford Railroad Co., 94 Conn. 19, 33-34, 107 A. 646 (1919) (“[i]n order . . . that [an equitable] hen may arise . . . the agreement must . . . indicate with sufficient clearness an intent that the property so described or rendered capable of identification is to be held, given or transferred as security for the obligation” [internal quotation marks omitted]). The requisite intent does not depend on the express assertion of a security interest. “It may arise from circumstances of such nature as to require the presumption, upon general considerations of justice as between those conducting commercial transactions according to a reasonable standard of integrity, that an equitable lien was meant. ... If the arrangement between the parties, interpreted in the light of the conditions in which they were placed, indicates a contemporaneous intention to adjust their rights upon a basis which can be established only by resort to the equitable principle of hen or pledge, then, in the absence of an intervening adversary interest, such an intent will be [enforced by the court].” (Internal quotation marks omitted.) Id., 34.

An equitable charging hen will arise when the arrangement between the attorney and chent intends that a hen exist on the proceeds of the action. In DeWandelaer v. Sawdey, 78 Conn. 654, 658, 63 A. 446 (1906), for example, our Supreme Court held that an equitable hen arises when an attorney “ ‘[takes] up a case’ with the understanding that he must look to the judgment to be obtained for compensation for his services and disbursements.” Indeed, the court in DeWandelaer observed that such a practice is “not uncommon.” Id. Under these circumstances, the arrangement between the attorney and the chent, “interpreted in the hght of the conditions in which they were placed,” contains an implicit intention that the proceeds of the judgment will secure the attorney’s payment. Connecticut Co. v. New York, New Haven & Hartford Railroad Co., supra, 94 Conn. 34; see also Wolf v. Sherman, 682 A.2d 194, 200 (D.C. 1996) (whether equitable attorney’s hen arises depends on “whether the agreement and surrounding circumstances sufficiently indicated that the parties looked to a particular source for payment of the [attorney’s] fee”).

Cases from other jurisdictions similarly recognize that a charging hen arises by operation of law when the parties have agreed, explicitly or implicitly, that the attorney’s fee will be secured by proceeds of the litigation. See, e.g., Recht v. Urban Redevelopment Authority, 402 Pa. 599, 608, 168 A.2d 134, 139 (1961) (charging lien will arise only when “it was agreed that counsel look to the fund rather than the client for his compensation”); Linder v. Lewis, Roca, Scoville & Beauchamp, 85 Ariz. 118, 123, 333 P.2d 286 (1958) (“it must appear that the parties looked to the fund itself for the payment of the attorney”); In re Heinsheimer, 214 N.Y. 361, 368, 108 N.E. 636 (1915) (Cardozo, J.) (“[a] charging lien cannot exist unless it is an element, express or implied, of the agreement that the lawyer is to be paid out of the fruits of the judgment”); cf. 7 Am. Jur. 2d 354, Attorneys at Law § 319 (2007) (“[w]here the parties contract that the attorney will receive his or her fee from the amount recovered, the agreement creates an equitable lien”).

The circumstances of each dissolution action, then, must be considered by the court in whether to find the existence of an equitable charging hen. At the outset of a marital dissolution action, it may be difficult to predict exactly how all of the parties’ property will be divided between them. See Casey v. Casey, 82 Conn. App. 378, 386-87, 844 A.2d 250 (2004) (“[i]t is . . . well settled . . . that there is no set formula the court is obligated to apply when dividing the parties’ assets and that the court is vested with broad discretion in fashioning financial orders”). Under these circumstances, an agreement between an attorney and client may not specifically “deal with some specific property,” to which the attorney can look to secure his or her payment. See Bassett v. City Bank & Trust Co., supra, 116 Conn. 631. Typically, at the initiation of the representation, a party in a matrimonial action can promise, at most, to pay his or her attorney out of any assets he or she retains, but such a promise may not in all circumstances be able to include an identification of property sufficient to be the basis of an equitable hen. Cf. id. (requiring agreement to deal with specific, identified property). A matrimonial action is different in this regard from, for example, a personal injury action with a contingent fee arrangement, where the identification of the asset, e.g., the proceeds of any recovery, is clear both to the attorney and to the chent. These foregoing issues and determinations, however, are factual rather than legal, and can be decided by the court when the claim of a charging hen is advanced.

Other state law is instructive. In Florida, hke Connecticut, for example, common-law charging hens have been recognized for more than 150 years. See D’Urso v. Lyons, supra, 97 Conn. App. 256, citing, e.g., Gager v. Watson, 11 Conn. 168, 173 (1836); Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1384 (Fla. 1983), citing, e.g., Carter v. Davis, 8 Fla. 183 (1858), and Carter v. Bennett, 6 Fla. 214 (1855); Randall v. Archer, 5 Fla. 438 (1854). To impose a charging hen in Florida, the attorney must demonstrate that she had an express or implied contract with the chent, that she had an express or implied understanding for payment of fees out of the recovery secured in the action, that the chent either disputed or avoided payment of the fee and that there was timely notice of the charging hen by either filing a notice of hen or by otherwise pursuing the hen in the original action. Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986). In a Florida dissolution of marriage action, property awarded to a chent as an equitable distribution of property is considered a proceed to which a charging lien can attach. Rudd v. Rudd, 960 So. 2d 885, 887 (Fla. App. 2007). For policy reasons, however, alimony and child support awards are not considered proceeds against which a charging hen can be enforced. Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88, 92 (Fla. App. 1987).

As previously set forth, in Connecticut, attorney charging hens have been recognized at least since 1836, in the case of Gager v. Watson, supra, 11 Conn. 168. Although our courts have not developed a considerable body of law on this issue, they consistently have held that an attorney has a charging hen on any money recovered or fund due the chent at the conclusion of suit, provided the recovery was secured through the attorney’s efforts. See Cooke v. Thresher, supra, 51 Conn. 107; Marsh, Day & Calhoun v. Solomon, supra, 204 Conn. 644; D’Urso v. Lyons, supra, 97 Conn. App. 257. Flrrther, although the issue of a charging hen in a dissolution of marriage action does not appear to have been addressed directly by an appehate court in Connecticut, we are aware of one Superior Court case in which a charging hen was recognized in a such an action. See Hill v. Hill, Superior Court, judicial district of Fairfield, Docket No. FA-91-0374254-S, 2001WL179781, *5 (January 8, 2001), aff'd, 75 Conn. App. 902, 818 A.2d 901 (per curiam), cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003).

With respect to the defendants’ assertion of a charging lien, the trial court is in the best position to “take into account the whole contract and the manifest intention of the parties . . . Connecticut Co. v. New York, New Haven & Hartford Railroad Co., supra, 94 Conn. 32. In doing so, on remand, the court should consider, inter alia, whether there is a written or oral agreement for the charging hen, the timing thereof with respect to any third party claim to the same proceeds, and any relevant history of the relationship between the relevant parties, in this case, the defendants and James Jordan. Additionally, the court should consider all other pertinent facts and appropriate equitable considerations in determining whether the arrangement between the defendants and James Jordan establishes the defendants’ intention to look specifically to the account, and not to James Jordan personally, for some or all of the payment of James Jordan’s obligation to them. The foregoing considerations will enable the court to determine whether the claimed charging lien should be enforced, in whole or in part, against specific assets.

On the basis of the foregoing, we conclude that under some circumstances an attorney may acquire a charging lien in a dissolution of marriage action and that the trial court erred in holding otherwise as a matter of law.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion BEACH, J., concurred.

ESPINOSA, J.,

dissenting. In this case of first impression, the defendants Carlo Forzani and Carlo Forzani, LLC, claim that they were entitled to an equitable charging lien for their attorney’s fees that arose by operation of law when they obtained a judgment for their client in the underlying marital dissolution action. The majority concludes that the defendants may be able to acquire an equitable charging lien if, on remand, the trial court makes certain findings that demonstrate that the parties had intended for the attorney’s fees of the defendants to be paid from particular assets divided as part of the judgment. Respectfully, I disagree with the majority’s conclusion and, in light of prevailing principles of public policy, conclude that the defendants should be precluded from asserting such a lien on a judgment in a marital dissolution action. I agree with the conclusion of the trial court that the defendants are not entitled to an equitable charging lien, however, I disagree with its reasoning in reaching its conclusion. I, therefore, respectfully dissent from the majority and would affirm the judgment of the trial court on the following alternate grounds.

Neither this court nor our Supreme Court has squarely addressed the issue of whether an attorney may acquire an equitable charging lien in a dissolution action. As a result, in concluding that such a charging lien is permissible under certain circumstances, the majority relies heavily on the law of other states, secondary sources and an analogy that it draws between dissolution actions and other general civil actions in Connecticut. Preliminarily, most of the cases from jurisdictions other than Connecticut cited by the majority have dealt with charging liens only in the context of general civil actions and, therefore, fail to consider the unique policy concerns raised by the payment of an attorney’s fee in a dissolution action. Moreover, the cases cited that have addressed charging liens in dissolution actions are distinguishable from the present case. See, e.g., Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1384 (Fla. 1983) (evaluating validity of attorney charging lien asserted against settlement proceeds'). Accordingly, I find the majority’s reference to the law of other states to be unpersuasive.

Similarly, the majority has cited no Connecticut case with precedential value in which an equitable charging hen in a dissolution action has been upheld and, instead, analogizes to general civil actions that have recognized the validity of such liens. See, e.g., D’Urso v. Lyons, 97 Conn. App. 253, 903 A.2d 697, cert. denied, 280 Conn. 928, 909 A.2d 523 (2006); Perlmutter v. Johnson, 6 Conn. App. 292, 298, 505 A.2d 13, cert. denied, 200 Conn. 801, 509 A.2d 517 (1986), cert. denied, 479 U.S. 1035, 107 S. Ct. 886, 93 L. Ed. 2d 839 (1987). I am not persuaded by the majority’s analogy because frequently, as in this case, the issues and policy concerns raised in dissolution actions are inherently different from other civil actions. In particular, because of the unique issues presented in domestic relations matters, there is a heightened aversion to arrangements in which an attorney gains any pecuniary interest by virtue of the judgment rendered in a dissolution action.

Rule 1.5 (d) of the Rules, of Professional Conduct provides in relevant part: “A lawyer shall not enter into an arrangement for, charge, or collect: (1) Any fee in a domestic relations matter, the payment or amount of which is contingent upon the seeming of a dissolution of marriage or civil union or upon the amount of alimony or support, or property settlement in lieu thereof . . . .” The plain language and official commentary to the rule indicate that rule 1.5 specifically prohibits contingency fee arrangements in dissolution actions; the rule and its commentary, however, are silent regarding the permissibility of charging hens. Accordingly, unlike the trial court, I do not read the express language of rule 1.5 (d) (1) as prohibiting an attorney from asserting a charging hen in a dissolution action. I do, however, beheve that the defendant should be precluded from asserting an equitable charging hen on the judgment in a dissolution action in hght of the pubhc pohey underlying rule 1.5 (d) (1). This court previously has explained that “[t]he main pohey concern behind rule 1.5 (d) is that contingency agreements for a dissolution action would discourage lawyers from advocating for an amicable settlement because the lawyers would have a pecuniary interest in the outcome of the dissolution action.” (Emphasis added.) Gil v. Gil, 110 Conn. App. 798, 804-805, 956 A.2d 593 (2008).

In rejecting the trial court’s conclusion that the recognition of a charging hen in a dissolution action would violate rule 1.5 (d) (1), the majority states that “[t]he recognition of a charging hen . . . would not tie the attorney’s fees in a dissolution of marriage action . . . to the outcome of the case . . . .” While I agree that such a hen does not violate the express terms of the rule, I respectfully disagree with the majority’s assertion as it apphes to this case because the charging hen sought by the defendants, by necessity, tied the defendants’ ability to obtain their fee to the outcome of the case. This court previously has described a charging hen as “a hen placed upon any money recovery or fund due the chent at the conclusion of suit." (Emphasis added.) Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 643, 529 A.2d 702 (1987). The defendants claim that they obtained a perfected charging hen by operation of law when they “successfully obtained a judgment for [their] chent that included a property distribution award.” On the basis of their own argument, the defendants’ ability to assert a charging hen was predicated on the court first rendering a judgment of dissolution accompanied by certain financial orders. Therefore, even in the absence of a contingency fee arrangement, the defendants still had a pecuniary interest in the outcome of the dissolution action. As a result, I beheve that allowing the defendants to assert an equitable charging hen against the judgment in a marital dissolution action would undermine the pubhc policy concern underlying rule 1.5 (d).

Because the defendants’ ability to obtain their fee by way of the equitable charging hen they assert would be dependent on the court first rendering a judgment of dissolution, this type of lien poses the same risk presented by a contingency fee arrangement. Although the interest does not directly relate to the amount of a fee, it nonetheless is significant in that it directly relates to an attorney’s ability to recover his fee. Allowing attorneys to assert an equitable charging lien against judgments in marital dissolution actions presents an inherent danger of discouraging them from advocating for amicable settlements for their clients as they could not assert such a hen if the parties determined that settlement, rather than a judgment of dissolution with corresponding financial orders, was in their best interest. Accordingly, I would conclude that the same policy concern underlying the prohibition against attorneys entering into contingency fee arrangements in dissolution actions likewise should counsel against recognizing such a hen in the present type of case and thus prohibit the defendants from asserting an equitable charging hen against the dissolution judgment in this case.

For the foregoing reasons, I would affirm the judgment of the trial court.

       James F. Jordan III and Diana M. Jordan were defendants in the underlying action. They are not parties to this appeal, however. We therefore refer in this opinion to the defendants Carlo Forzani and Carlo Forzani, LLC, collectively as the defendants.

       The dissolution of marriage judgment was affirmed on appeal on November 23, 2010. See Jordan v. Jordan, 125 Conn. App. 207, 6 A.3d 1206 (2010), cert. denied, 300 Conn. 919, 14 A.3d 333 (2011).

       On November 24, 2010, the court granted the motion of James Jordan, as a third party plaintiff, to implead Diana Jordan as third party defendant in this action.

       James Jordan did not pursue his claim, however, and the court dismissed it.

       We agree that the orders set forth in the dissolution judgment did not give the defendants a perfected security interest in the account prior in right and time to the plaintiffs court-ordered attachment.

       We conclude that the defendants have appealed from a final judgment. See General Statutes § 52-400d (a) (“[a]ny court decision on a determination of interest in property under section 52-356c . . . shall be a final decision for the purpose of appeal”).

       It is undisputed that the defendants’ services for James Jordan commenced before the plaintiffs prejudgment remedy was granted.

       A more modem approach may be that what occurs, however, in a successful personal injury case, is the monetization of previously existing “assets,” e.g., the plaintiffs injuries and the subsequent personal injury claim against a negligent party.

       The plaintiff also argues, as he did before the trial court, that a charging hen can be effective only in a case where there is a contingent fee agreement. We note that this contention was addressed and rejected inD ’Urso v. Lyons, supra, 97 Conn. App. 257 (holding that “[t]he plaintiffs claim that an hourly fee agreement may not be the basis for a charging hen is without merit”).

       See our previous discussion of this issue in this opinion.

       We do note that an express agreement between the defendants and James Jordan, dated October 28, 2009, after the judgment of dissolution was rendered and before judgment was rendered in the present case, was submitted to the trial court. No argument is made on appeal that this document has any relevance. Accordingly, we do not consider it.

       In some cases, however, because of a limited number of liquid assets, or assets easily converted to liquid assets, it may be easier to identify likely assets to which a charging lien may attach.

       Because the judgment of the trial court in Hill summarily was affirmed on appeal, there was no written decision by this court. A review of the issues raised on appeal in that case reveals that the plaintiffs first issue was whether “the trial court err[ed] in finding that the attorney charging lien [was] valid.” Hill v. Hill, Conn. Appellate Court Records & Briefs, March Term, 2001, Plaintiffs Brief, Statement of the Issues, p. 4. Our summary affirmance of the court’s judgment has no precedential effect.
      We also are aware of another Superior Court case where the court upheld an attorney’s right to place a mortgage on the marital home of his client as security for the attorney’s legal fees in a dissolution of marriage action. See Kelly v. Kelly, Superior Court, judicial district of Hartford, Docket No. FA-084040118-S (August 12,2009) (48 Conn. L. Rptr. 333). A mortgage, however, is not a type of charging lien.

       The “whole contract and the manifest intention of the parties”; Connecticut Co. v. New York, New Haven & Hartford Railroad Co., supra, 94 Conn. 32; could include the terms both of the retention agreement and any charging lien, even if such lien was not contemporaneously entered into with such retention agreement.

       James F. Jordan HI and Diana M. Jordan were also defendants in the underlying action. Because they are not parties to this appeal, for convenience, we refer to Carlo Forzani and Carlo Forzani, LLC, as the defendants.

       Because I agree with the majority’s recitation of the facts, they need not be reiterated here.

       The majority also has concluded that rule 1.8 (i) (1) of the Buies of Professional Conduct permits an attorney to assert a charging lien in a dissolution action. Rule 1.8 (i) provides in relevant part: “A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) Acquire a lien granted by law to secure the lawyer’s fee or expenses . . . .” Effectively, the majority concludes that the absence of an express prohibition in the rule against an equitable charging lien in a dissolution of marriage action indicates that such Mens are permissible. I respectfully disagree in light of the language of the official commentary for rule 1.8. The official commentary for rule 1.8 (i) provides in relevant part: “Subsection (i) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in Mtigation. ... In addition, subsection (i) sets forth exceptions for Mens authorized by law to secure the lawyer’s fees or expenses and contracts for reasonable contingent fees. The law of each jurisdiction determines which liens are authorized by law. These may include Mens granted by statute, Mens originating in common law and Hens acquired by contract with the cHent.” (Emphasis added.) As I noted previously, there does not appear to be any Connecticut precedent that directly has addressed whether an attorney may assert an equitable charging Men in a marital dissolution action; nor is there any state statute governing this issue. For the reasons set forth in this dissent, I beheve that the pubMc poMcy underlying rule 1.5 (d) (1) as previously expressed by this court in Gil v. Gil, 110 Conn. App. 798, 804-805, 956 A.2d 593 (2008), should preclude the defendants from asserting such a Men. Under this analysis, an equitable charging Men in a marital dissolution action would not be authorized by Connecticut law and, therefore, would not be the type of permissible Men contemplated by rule 1.8 (i) (1).

       My conclusion in this dissent is confined to equitable charging liens asserted against judgments in marital dissolution actions in light of the unique policy concerns raised by dissolution actions. I do not question the legitimacy of an otherwise valid equitable charging lien in the context of other types of civil actions.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    GMAC MORTGAGE, LLC v. ERIC M. FORD ET AL.
    (AC 34764)
    DiPentima, C. J., and Robinson and Sheldon, Js.

      Submitted on briefs March 22
    officially released July 16, 2013

      Eric Ford, self-represented, the appellant (named defendant), filed a brief.

      Richard E. Briansky, pro hac vice, and Jennifer Gagosz Farrell, filed a brief for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The self-represented defendant in this residential mortgage foreclosure action, Eric M. Ford, appeals following the judgment of strict foreclosure rendered against him in favor of the plaintiff, GMAC Mortgage, LLC. The defendant claims on appeal that the trial court improperly (1) denied his motion to dismiss the foreclosure complaint, (2) granted the plaintiffs motion for summary judgment as to liability on the foreclosure complaint, (3) denied his request to amend his answer, special defense and counterclaim and his motion to reargue that ruling and (4) rendered a judgment of strict foreclosure based on material misrepresentations by the plaintiff and without holding an evidentiary hearing as to the amount of the debt owed. We disagree and, accordingly, affirm the judgment of the court.

The record reveals the following relevant facts and procedural histoiy. In July, 2006, the defendant executed a note in the amount of $177,000 along with a mortgage on property located at 123 Roosevelt Street in Bridgeport (subject property) as security for the note. On March 15, 2010, the plaintiff commenced this action, alleging that the defendant had defaulted on his payment obligations under the note and had failed to cure the default after being notified, and that the plaintiff had exercised its right to accelerate the balance due, to declare the note due in full and to foreclose the mortgage securing the note. The defendant filed an appearance in this matter on August 19, 2010.

On December 29, 2010, the defendant filed a motion to dismiss the foreclosure action, asserting as grounds for dismissal lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient process, insufficient service of process and improper venue. The motion was accompanied by a single page supporting memorandum. The plaintiff filed an objection to the motion to dismiss and a memorandum in opposition to the motion, in which it argued that the court should deny the motion because it lacked any factual or legal basis for the grounds therein alleged. The plaintiff also argued that any claim of lack of personal jurisdiction, insufficient process, insufficient service of process or improper venue was untimely raised and thus waived pursuant to Practice Book § 10-32. Finally, it argued that, although the motion did not state any factual or legal underpinning for the defendant’s claim of lack of subject matter jurisdiction, the plaintiff believed that the defendant intended to argue that the plaintiff lacked standing to bring the foreclosure action. The plaintiff stated in response that it was in possession of the original note, that it had been in possession of the note before the commencement of the action and thus that it had standing to foreclose the mortgage securing the note. Attached as an exhibit to the opposition was a copy of the note endorsed by the defendant. The court issued a decision denying the motion to dismiss on January 21, 2011, for the reasons stated in the opposition.

On February 24, 2011, the defendant filed an answer that included a special defense and a counterclaim. The special defense provided in its entirety: “Title in a [tjhird [p]ersonto [w]hatthe [pjlaintiff [s]ues upon or [a]lleges to [b]e [h]is [own].” The counterclaim, at its heart, reasserted the issue of standing, stating in relevant part that the plaintiff lacked documentation to support its allegation that it is a holder of the note and the accompanying mortgage.

On April 18, 2011, the plaintiff filed a motion for summary judgment. The plaintiff asserted that there were no genuine issues of material fact in dispute and that it was entitled to judgment as a matter of law as to liability on its foreclosure complaint and as to all issues on the defendant’s counterclaim. In its memorandum in support of the motion for summary judgment, the plaintiff argued, inter alia, that the defendant’s special defense raised no genuine issue of material fact relative to his liability on the note and that it “failfed] to meet a threshold of legal sufficiency in every respect.” As to the defendant’s counterclaim, the plaintiff argued that no genuine issue of material fact was raised by the counterclaim and that it was entitled to judgment as a matter of law because the counterclaim did not “meet a minimal standard of sufficiency in that it is not a cognizable cause of action and ... if severed, would not be able to viably stand upon its own as required by our rules of practice and appellate authorities.” Submitted with the motion for summary judgment were copies of the defendant’s answer, special defense and counterclaim; a sworn affidavit by an officer of the plaintiff, in which it was averred that the note was in default and that the plaintiff held both the note and the mortgage; the note and mortgage endorsed by the defendant; an assignment of the mortgage to the plaintiff from its successor in interest executed on June 7,2010; and the notice of default issued to the defendant dated September 1, 2009.

The defendant filed a two page objection to the motion for summary judgment on May 31, 2011. On June 9, 2011, the defendant filed a request for leave to amend his answer, special defense and counterclaim to which he attached a copy of the proposed amended pleading. The proposed amended answer contained eighteen new special defenses and three new counterclaims. The defendant also filed an amended opposition to the motion for summary judgment, in which he argued that, because the motion for summary judgment challenged the legal sufficiency of the defendant’s special defense and counterclaim, the court should treat the motion as a motion to strike in order to provide the defendant with an opportunity to replead should the court decide to grant the motion. The defendant did not submit any opposing affidavits or other documentary proof in support of his original or amended oppositions.

The plaintiff objected to the defendant’s request to amend, arguing that the defendant had failed to show good cause to allow an amendment at that stage of the proceedings, that he had engaged in dilatory behavior throughout the proceedings and that granting his request would unfairly prejudice the plaintiff. As to whether the court should treat the plaintiffs motion for summary judgment as a motion to strike, the plaintiff argued that the cases relied on by the defendant were distinguishable in that the defendant would not benefit from repleading as evidenced by the proposed amendments.

The court heard argument on the request to amend on July 5, 2011. The next day it issued orders denying the defendant’s request to amend and sustaining the objections raised by the plaintiff. On July 20, 2011, the defendant filed a motion seeking to reargue the request to amend and asking the court to clarify its reasons for denying the request. On July 28, 2011, the parties appeared before the court to argue the plaintiffs motion for summary judgment, and, following a brief hearing, the court orally granted the motion. The court later denied the defendant’s motion to reargue the request to amend, finding that the defendant had failed to demonstrate that the court had overlooked any principle of law or that there had been a misapprehension of the facts, and noting that a motion to reargue was “not to be used as an opportunity to have a second bite at the apple.”

On May 7, 2012, the plaintiff filed a motion for a judgment of strict foreclosure. The motion was heard by the court on May 29, 2012. After brief arguments by the parties, the court granted the motion orally, making all the necessary factual findings and setting law days to commence on August 28, 2012. This appeal followed.

I

The defendant first claims that the court erred by denying his motion to dismiss the foreclosure complaint. According to the defendant, the court failed to address fully the issue of standing and should have conducted an evidentiary hearing as to that issue. We disagree.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. . . . The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. . . . [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citation omitted; internal quotation marks omitted.) Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570, 574-75, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . .

“In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint. ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings. ... If, however, the defendant submits either no proof to rebut the plaintiffs jurisdictional allegations ... or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffi-davits or other evidence to support the complaint . . . but may rest on the jurisdictional allegations therein.” (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 422 n.17, 35 A.3d 188 (2012).

It is well settled that the holder of a note secured by a mortgage has standing to commence a foreclosure action, regardless of whether it also holds the mortgage. See General Statutes § 49-17; RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 229, 32 A.3d 307 (2011). The plaintiff alleged in its complaint that it “is the holder of [the] note.” Because the complaint is part of the mesne process served to commence an action, it is implicit in that factual allegation that the plaintiff also held the note at the time the action was commenced. The court, in denying the motion to dismiss in the present case, found that the defendant had failed to proffer any factual basis or legal theory in support of his motion, and that “there is no issue as to whether the plaintiff was the owner and holder of the note at the time of the commencement of the instant foreclosure action.”

Our plenary review of the record confirms that the defendant failed to submit any affidavit or other evidence in support of his motion to dismiss that called into question the plaintiffs status as the holder of the note as alleged in the complaint. The defendant never asserted in his motion to dismiss that the plaintiff was not the holder of the note or that it did not hold the note at the time that the action was commenced. Under those circumstances, it was entirely proper for the court to have relied on the uncontested factual assertion in the complaint as the basis for denying the motion to dismiss to the extent that it alleged lack of standing. Further, because the court was able to resolve the standing issue on the basis of the uncontested factual allegations in the complaint, there was no need for the court to hold an evidentiary hearing. See Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 695-96, 600 A.2d 1019 (1991) (evidentiary hearing necessary to determine court’s jurisdiction only when there is disputed fact on which such determination turns); Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn. App. 791, 799, 3 A.3d 183 (2010) (same). In sum, we conclude that the court properly denied the defendant’s motion to dismiss.

II

The defendant next claims that the court erred in granting the plaintiffs motion for summary judgment as to liability on the complaint. There are several aspects of this claim. In addition to arguing that the court improperly determined that there were no genuine issues of material fact and that the plaintiff was entitled to judgment as a matter of law as to Lability, the defendant also argues that because the motion for summary judgment challenged the legal sufficiency of the defendant’s special defense, the court should have treated the motion for summary judgment as a motion to strike to permit the defendant an opportunity to replead. Additionally, he argues that the court should not have granted summary judgment prior to resolving fully the request to amend the answer, special defense and counterclaim that he filed after receiving the motion for summary judgment. We address each of the defendant’s arguments in turn, concluding that the court properly granted the motion for summary judgment.

As a preliminary matter, we set forth our standard of review and other relevant legal principles. “[I]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Misiti, LLC v. Travelers Property Casualty Co. of America, 132 Conn. App. 629, 637-38, 33 A.3d 783 (2011), aff'd, 308 Conn. 146, 61 A.3d 485 (2013).

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. See 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); Bank of America, FSB v. Hanlon, 65 Conn. App. 577, 581, 783 A.2d 88 (2001). Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense. See LaSalle National Bank v. Shook, 67 Conn. App. 93, 96-97, 787 A.2d 32 (2001); Union Trust Co. v. Jackson, 42 Conn. App. 413, 417, 679 A.2d 421 (1996).

A

The defendant argues that the court improperly determined that there were no genuine issues of material fact and that the plaintiff was entitled to judgment as a matter of law as to liability on the foreclosure complaint. In support of that argument, the defendant first contends that the plaintiff failed to meet its initial evi-dentiary burden because the plaintiff did not produce the original note in support of its motion for summary judgment. He next contends that he raised a genuine issue of material fact at oral argument on the motion by alleging that he had rescinded the note and mortgage at issue by a notice of right to cancel pursuant to the Truth in Lending Act (act), 15 U.S.C. § 1601 et seq. We are not persuaded.

A mortgagee that seeks summary judgment in a foreclosure action has the evidentiary burden of showing that there is no genuine issue of material fact as to any of the prima facie elements, including that it is the owner of the debt. Appellate courts in this state have held that that burden is satisfied when the mortgagee includes in its submissions to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question at the time it commenced the action. See RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 234; HSBC Bank, N.A. v. Navin, 129 Conn. App. 707, 713, 22 A.3d 647, cert. denied, 303 Conn. 948, 31 A.3d 384 (2011). The evidentiary burden of showing the existence of a disputed material fact then shifts to the defendant. “It is for the maker of the note to rebut the presumption that a holder of the note is also the owner of it.” RMS Residential Properties, LLC v. Miller, supra, 234. The defendant failed to provide any evidentiary proof of his own that was sufficient to raise a genuine issue of material fact as to whether the plaintiff is the owner of the debt. The defendant has provided us with no authority, nor are we aware of any, that supports his suggestion that a mortgagee is obligated to produce the original note in order to meet the mortgagee’s burden at summary judgment.

We further must reject the defendant’s argument that he raised a genuine issue of material fact by his allegations at oral argument before the trial court that he had rescinded the note and mortgage at issue by timely acting on his right to cancel pursuant to the act. It is axiomatic that in order to successfully oppose a motion for summary judgment by raising a genuine issue of material fact, the opposing party cannot rely solely on allegations that contradict those offered by the moving party, whether raised at oral argument or in written pleadings; such allegations must be supported by count-eraffidavits or other documentary submissions that controvert the evidence offered in support of summary judgment. See Citizens National Bank v. Hubney, 182 Conn. 310, 312-13, 438 A.2d 430 (1980); see also Tuccio Development, Inc. v. Neumann, 111 Conn. App. 588, 594, 960 A.2d 1071 (2008) (“To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.” [Internal quotation marks omitted.]).

The defendant did not raise his act rescission argument in either his opposition or amended opposition to the motion for summary judgment, but raised it for the first time at oral argument on the motion. The defendant presented no documentary evidence or other proof to support his allegations that the note and mortgage properly were rescinded in accordance with the act. In sum, on the basis of our plenary review of the pleadings and documentary submissions, we conclude that the court properly determined that there were no genuine issues of material fact and that the plaintiff was entitled to judgment as to liability on the foreclosure complaint.

B

The defendant next argues that because the plaintiffs motion for summary judgment challenged the legal sufficiency of the defendant’s special defense and counterclaim, the court should have treated the motion for summary judgment as a motion to strike in order to permit the defendant an opportunity to replead. We are not persuaded that the court was required to do so.

In support of his argument, the defendant cites our Supreme Court’s decision in American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 971 A.2d 17 (2009), which in turn relied on the court’s decision in Larobina v. McDonald, 274 Conn. 394, 876 A.2d 522 (2005). In Larobina, our Supreme Court held that “the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.” Id., 401. In American Progressive Life & Health Ins. Co. of New York, supra, 111, our Supreme Court expanded on the Larobina holding; id., 122; and reversed the trial court’s decision to grant the plaintiffs motion for summary judgment challenging the sufficiency of the defendants’ counterclaim, holding that the defendants were entitled to have the motion for summary judgment treated as a motion to strike where the defendants had offered to amend their counterclaim to correct certain factual insufficiencies raised by the plaintiff, and those insufficiencies reasonably were amenable to correction by repleading.

In addition to challenging the legal sufficiency of a complaint or counterclaim, our rules of practice provide that a party may challenge by way of a motion to strike the legal sufficiency of an answer, “including any special defenses contained therein . . . Practice Book § 10-39; see also Practice Book § 10-6. Although no appellate court has addressed whether the Larobina and American Progressive Life & Health Insurance Co. of New York holdings are applicable when the motion for summary judgment challenges the sufficiency of a special defense, our Superior Courts have answered that inquiry in the affirmative. See WM Specialty Mortgage, LLC v. Brandt, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5001157S (February 10, 2009), citing Bank of New York Trust Co. v. Gbeh, Superior Court, judicial district of Litchfield, Docket No. CV-07-5002495-S (February 26, 2008) (“the rationale set forth in Larobina applies in circumstances where the defendants’ special defenses would survive, given an opportunity to amend”). We agree that such an extension is both legally and logically sound. We find no error, however, in the court’s refusal to treat the motion for summary judgment in the present case as a motion to strike.

Our review of the proposed amendments reveals that rather than acknowledging and seeking to correct those insufficiencies asserted by the plaintiff in the motion for summary judgment as occurred in American Progressive Life & Health Insurance Co. of New York, the defendant sought to substitute wholly new special defenses and counterclaims. The right afforded by Practice Book § 10-44 to file a new pleading following the granting of a motion to strike, however, is limited to making those corrections needed to render the claims set forth in the original pleading legally sufficient. It is not an opportunity to file wholly amended pleadings that assert new legal claims or rely on a wholly unrelated set of facts, permission for which ordinarily could be obtained only in accordance with the provisions of Practice Book § 10-60. Further, even if the defendant was provided with an opportunity to replead, he would be unable to remedy the legal insufficiency of the special defense asserted in his original answer. See Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 832, 14 A.3d 982 (2011) (not necessary for court to treat motion for summary judgment as motion to strike when “repleading would have been ‘fruitless’ ”); Carrasquillo v. Carlson, 90 Conn. App. 705, 714, 880 A.2d 904 (2005) (trial court properly granted motion for summary judgment because plaintiff would be unable to cure legal defects even if permitted to replead).

“Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ... or, if there had never been a valid hen. . . . The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. ... A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both. . . . Where the plaintiffs conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles. . . . [0]ur courts have permitted several equitable defenses to a foreclosure action. [I]f the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had .... Other equitable defenses that our Supreme Court has recognized in foreclosure actions include unconsciona-bility . . . abandonment of security . . . and usury.” Fidelity Bank v. Krenisky, 72 Conn. App. 700, 705-706, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).

The “special defense” asserted by the defendant in his original answer amounted to an acknowledgement that he had quitclaimed his interest in the subject property to a third party prior to the commencement of the action. As a mortgagor, the defendant held only equitable title to the property, sometimes referred to as the equity of redemption. See Ocwen Federal Bank, FSB v. Charles, 95 Conn. App. 315, 323, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006). His act of quitclaiming that interest to a third party did not implicate the making, validity or enforcement of the note or mortgage, nor establish one of the aforementioned equitable defenses. The defendant remained ha-ble for repayment of the note despite the quitclaim deed to a third party, who took title subject to the mortgage and any potential foreclosure. The asserted special defense failed as a matter of law, and no amount of repleading would have remedied that legal defect. Accordingly, we conclude that the court acted properly in granting the motion for summary judgment, and that it was under no obligation to treat the motion for summary judgment insofar as it addressed the special defense as a motion to strike that special defense.

C

The defendant’s final argument relating to summary judgment is that the court erred in ruling on the motion for summary judgment prior to fully resolving his request to amend the answer, special defense and counterclaim. We are not persuaded.

“[MJatters involving judicial economy, docket management [and control of] courtroom proceedings . . . are particularly within the province of a trial court.” (Internal quotation marks omitted.) Marshall v. Marshall, 71 Conn. App. 565, 574, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). A reviewing court is bound by the principle that “[e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980). In LaFlamme v. Dallessio, 65 Conn. App. 1, 6-7, 781 A.2d 482 (2001), rev’d on other grounds, 261 Conn. 247, 802 A.2d 63 (2002), the plaintiff claimed that the court had abused its discretion by failing to rule on her pending request for leave to amend the complaint before ruling on the defendant’s motion for summary judgment. The court rejected that claim, holding that, because the motion for summary judgment had been filed for a significant time before the request for leave to amend, it was well within the court’s discretion to act on the earlier filed motion.

In the present case, the defendant filed his request for leave to amend on June 9, 2011, nearly two months after the motion for summary judgment was filed. Unlike in LaFlamme, the court heard argument on the request to amend and denied it several weeks before it heard argument on the motion for summary judgment. The defendant filed his motion to reargue the court’s decision on July 20, 2011, which was eight days before the parties were scheduled for argument on the plaintiffs motion for summary judgment. The defendant never requested a continuance of the hearing on the motion for summary judgment, nor did he raise any objection to the court at the hearing based on his pending motion to reargue. Even assuming that the court was aware of the pending motion to reargue, the court already had rescheduled the hearing on the motion for summary judgment earlier at the request of the defendant, who claimed he needed time to obtain an attorney. Under the circumstances, we are not persuaded that the court abused its discretion by considering the earlier filed motion for summary judgment before addressing the motion to reargue.

Ill

The defendant next claims that the court improperly denied his request for leave to amend his answer, special defense and counterclaim and his motion to reargue that ruling. We disagree.

Practice Book § 10-60 (a) provides that a party may amend his or her pleadings in three ways: by order of the judicial authority, by written consent of the adverse party, or by filing a request for leave to file such amendment, with the amendment appended. If no party files an objection, the amendment is deemed to have been filed by consent, but if an objection is filed, the matter is placed upon the next short calendar for consideration of the court. Practice Book § 10-60 (a) (3). “The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial.” Practice Book § 10-60 (b). “Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An appellate] court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [amending party’s] burden ... to demonstrate that the trial court clearly abused its discretion.” (Internal quotation marks omitted.) Beckenstein v. Reid & Riege, P.C., 113 Conn. App. 428, 435, 967 A.2d 513 (2009).

Similarly, the standard of review for a court’s denial of a motion to reargue is abuse of discretion. See Valentine v. LaBow, 95 Conn. App. 436, 451, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). “[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 alleged inconsistencies in the trial court’s memorandum of decision as well as 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 or to present additional cases or briefs which could have been presented at the time of the original argument.” (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001).

The court in the present case denied the request for leave to amend after reviewing the request, the opposition to it and the proposed amendments. It found that “it would be unfair to allow amendments and that the amendments were proffered for purpose of delay.” Those findings are supported by the record. The foreclosure action had already been pending before the court for well over two years. The defendant’s request for leave to amend the answer, special defense and counterclaim allegedly was made in response to the filing of the plaintiffs motion for summary judgment, but was not filed until nearly two months later and only shortly before the motion was to be heard and adjudicated by the court. The amendments sought to add eighteen new special defenses and three new counterclaims, none of which was based on facts or legal principles unavailable to the defendant at the time he submitted his original pleading.

Turning to the court's denial of the motion to reargue the request to amend, we note that in denying the defendant’s motion to reargue, the court found that rather than articulating any principle of law that he believed the court had overlooked in ruling on the request to amend or pointing out a misapprehension of the facts, the defendant was attempting “to have a second bite at the apple.” Those findings comport with our own review of the pleadings and therefore are not clearly erroneous. In sum, on the basis of our review of the pleadings and of the particular circumstance of this case, we conclude that the defendant has failed to meet his burden of demonstrating that the court abused its discretion by denying the request for leave to amend or the subsequent motion to reargue.

IV

Finally, the defendant claims that the court improperly rendered a judgment of strict foreclosure because it relied on “material misrepresentations by the plaintiff’ and ruled without holding an evidentiary hearing as to the amount of the debt owed. The plaintiff responds that the judgment of strict foreclosure was properly supported by the original note, mortgage and affidavit of debt. We agree with the plaintiff.

“The standard of review of a judgment of foreclosure by sale or by strict foreclosure is whether the trial court abused its discretion. ... 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.) Webster Trust v. Mardie Lane Homes, LLC, 93 Conn. App. 401, 405-406, 891 A.2d 6 (2006). Where a foreclosure defendant’s liability has been established by summary judgment, all that remains for the court to determine at the judgment hearing is the amount of the debt and the terms of the judgment. Bank of America, FSB v. Franco, 57 Conn. App. 688, 694, 751 A.2d 394 (2000). Practice Book § 23-18 (a) provides: “In any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the judicial authority the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness, stating what amount, including interest to the date of the hearing, is due, and that there is no setoff or counterclaim thereto.”

In this case, the court properly had rendered summary judgment as to liability against the defendant. The plaintiff then filed a motion for judgment of strict foreclosure. It also filed several appraisals of the subject property, a completed foreclosure worksheet and duly sworn affidavits that averred as to the amount of the debt and the attorney’s fees that it had incurred in pursuing the foreclosure. The defendant filed an objection to the motion for judgment of strict foreclosure, raising many of the same arguments he already had argued unsuccessfully in opposition to summary judgment. He did not raise any challenge to the amount of the debt, as evidenced by the affidavits, stating only that he needed “to interrogate the person whose name appears on the plaintiff’s affidavits.”

At the hearing on the motion for strict foreclosure, the plaintiff presented the court with the original note, the mortgage deed and the assignment of the mortgage to the plaintiff. The defendant again raised a number of arguments unrelated to the issue currently before the court, particularly as to the amount of the debt. The court, after reviewing the documents provided by the plaintiff, made a finding, over the objection of the defendant, that the papers were all in order, that the note was the original signed by the defendant and that the mortgage deed and assignment had been properly filed with the Bridgeport town clerk. The court next made findings based on the affidavits as to the amount of the debt owed and of the reasonable attorney’s fees incurred. Our review of the pleadings and transcripts leads us to conclude that the trial court reasonably could have reached the conclusions that it did and that it correctly applied the law in rendering the judgment of strict foreclosure.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       Additional defandants named in the action by virtue of an interest in the subject property are Ali Shah Bey, who allegedly took title andpossession of the subject property via a quitclaim deed from Ford in February, 2010, and the city of Bridgeport, by virtue of inchoate real estate tax liens. Because neither Bey nor the city of Bridgeport is a participant in this appeal, we will refer to Ford as the defendant throughout this opinion.

       The special defense appears to refer to the defendant’s transfer of the subject property by quitclaim deed to Ali Shah Bey. See footnote 1 of this opinion.

       In response to a notice filed by the defendant pursuant to Practice Book § 64-1 (b), the court later issued a memorandum of decision stating that it had denied the request to amend on the basis of its review of the request and the proposed amendments submitted with it, and on its finding that “it would be unfair to allow amendments and that the amendments were proffered for purpose of delay.”

       In response to a notice filed by the defendant pursuant to Practice Book § 64-1 (b), the court later issued a memorandum of decision stating that its decision on the motion was made on the basis of its review of all the relevant pleadings, memoranda and evidence submitted and that it was on the basis of that review that it determined that there was no genuine issues of material fact and that the plaintiff was entitled to judgment as a matter of law.

       The court found, inter alia, that the outstanding debt was $221,839.56 and that the fair market value of the subject property was $73,000.

       The defendant has not challenged the court’s ruling with regard to the claimed lack of personal jurisdiction, insufficiency of process, insufficiency of service of process and improper venue, which claims the court determined were waived because the motion to dismiss was not filed within thirty days of the defendant filing his appearance.

       “The federal [act], as amended in particular by the Trath-in-Lending Simplification Reform Act of 1980, was enacted as part of the Consumer Credit Protection Act of 1968, and is codified at 15 U.S.C. § 1601 et seq. The purpose of [the act] is to promote the informed use of consumer credit by requiring disclosures about its terms and cost.” (Internal quotation marks omitted.) Cheshire Mortgage Services, Inc. v. Montes, 223 Conn. 80, 96-97, 612 A.2d 1130 (1992). The act provides for a limited right of rescission in a consumer credit transaction that allows the consumer to rescind the agreement “until midnight of the third business day following the consummation of the transaction . . . .” 15 U.S.C. § 1635 (a). Connecticut has incorporated the federal rescission right into its version of the act, codified at General Statutes §§ 36a-675 through 36a-685. See General Statutes § 36a-683 Q) (1).

       The defendant argued to the court at the hearing on the motion for summary judgment that he owed “absolutely nothing” to the plaintiff because he had exercised his right to rescind the note and mortgage within the three day period provided for under federal law. In response, the plaintiff noted that the defendant had not presented any documentation in support his claim and that the claim was belied by the fact that the defendant had made payments on the note for nearly three years. The defendant was unable to provide the court with a direct answer when asked: “And would you explain why you paid on this claim for three years before you decided that you were not—you owed nothing on it?”