Tedesco v. Agolli , 182 Conn. App. 291 ( 2018 )

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APPENDIX
ANGELO TEDESCO, TRUSTEE
v. RESJIMI AGOLLI ET AL.*
Superior Court, Complex Litigation Docket at Waterbury
File No. CV-12-6016130-S
Memorandum filed June 21, 2016
Proceedings
Action to foreclose a mortgage on certain real prop-
erty owned by named defendant et al. Judgment for
plaintiff as to liability.
Jeremy S. Donnelly, for the substitute plaintiff Scott
Tedesco, trustee of the Heritage Builders of Waterbury,
LLC, 401 (k) Profit Sharing Plan.
Justin J. Garcia, for the named defendant et al.
Opinion
DOOLEY, J.
PRELIMINARY STATEMENT
This is an action to foreclose a mortgage covering
several parcels of real property located in Waterbury,
Connecticut, each of which is owned by the defendant
Fikri Development, LLC (Fikri). The properties at issue
are: (1) 3743 East Main Street; (2) 3496 East Main Street;
(3) 51 Matteson Road; and (4) 3514 Main Street. The
defendant Resjimi Agolli (Agolli) is currently the sole
member of Fikri. The defendants assert several special
defenses to the foreclosure action. Trial was conducted
over the course of three days in May, 2016. The court
heard testimony from seven witnesses and admitted
numerous documents into evidence. Simultaneous trial
briefs were submitted on June 1, 2016. The court has
considered the testimony and evidence introduced, the
arguments set forth in the parties’ memoranda, the
authorities cited therein, and renders this decision
based thereupon. For the reasons set forth below, judg-
ment will enter in favor of the plaintiff as to liability.
FACTUAL FINDINGS
‘‘In a case tried before a court, the trial judge is the
sole arbiter of the credibility of the witnesses and the
weight to be given specific testimony. . . . It is within
the province of the trial court, as the fact finder, to
weigh the evidence presented and determine the credi-
bility and effect to be given the evidence.’’ (Citation
omitted; internal quotation marks omitted.) Cadle Co.
v. D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004).
The court makes the following factual findings by a
fair preponderance of the evidence, unless otherwise
indicated, based upon the better, more credible evi-
dence presented.1
Agolli came to the United States in 1967 from what
is now Macedonia as a young woman newly married
to Fikri Agolli. She and her husband settled in the Water-
bury area where they raised three children. Eventually,
Agolli’s husband owned and operated a diner in Water-
bury, at which Agolli sometimes worked. As the chil-
dren grew, they helped in the diner as well. Ultimately,
each of the children pursued careers of their own. In
2006, Agolli’s husband was diagnosed with cancer, an
illness to which he would eventually succumb. Agolli
could not run the diner on her own and so arranged to
sell it. At the time, there was an interested buyer for
the diner but his interest was contingent upon a zoning
change being made. The buyer paid Agolli $7500 per
month as consideration for not selling the diner to some-
one else. Ultimately, the putative purchaser did not
obtain the zone change and terminated the option to
purchase. Thereafter, Agolli located a buyer and sold
the diner for $375,000.
During his life, Agolli’s husband had purchased
numerous parcels of undeveloped property in the
Waterbury area. After his passing, Agolli became the
owner of these parcels.
Joseph Antonios was a local mortgage broker who
ran his own business, Metro Mortgage. He also owned
and operated The Private Mortgage Fund, LLC (The
PMF), which financed mortgage loans. Fesnik Agolli
(Nik), Agolli’s son, worked for Antonios’ mortgage bro-
kerage business for approximately fourteen years. He
is presently a police officer for the city of Waterbury.
During the time that Nik Agolli worked for Metro Mort-
gage, Antonios became well known to and a friend of
the Agolli family. He would often accompany Nik Agolli
to Agolli’s home for dinner. The Agollis liked and trusted
Antonios. In 2007, Antonios began discussions with
Agolli about developing her properties so that they
would generate cash flow for Agolli.2 Fikri was formed
and Agolli transferred all of her real estate holdings
into Fikri, to include her personal residence. Agolli was
a 50 percent member; Antonios’ wife, Gina, was a 50
percent member; and Antonios was made the manager.3
The arrangement called for Antonios, as the manager, to
develop the properties. The operating agreement gave
Antonios broad and largely unfettered authority to act
on behalf of Fikri.
Between 2008 and 2010, Antonios borrowed hun-
dreds of thousands of dollars on behalf of Fikri, secur-
ing these loans with the properties Agolli had
transferred into Fikri. Some of these loans were
financed by the Angelo P. Tedesco Money Purchase
Pension Plan (ATMPPP). Angelo Tedesco was a local
property developer. He had a business relationship with
Antonios, and would, at times, provide the funds
through which The PMF extended loans. In 2008, Anto-
nios arranged for The PMF to loan Fikri $750,000. This
debt was secured by a mortgage on the four properties
at issue here, as well as Agolli’s personal residence
located at 375 Maybrook Road, Waterbury, Connecticut,
and an undeveloped parcel of land located on Austen
Road in Waterbury, Connecticut. In 2010, Tedesco, as
Trustee of the ATMPPP, agreed to take an assignment
of this note and mortgage. In connection therewith,
Agolli, on behalf of Fikri, signed a Note and Mortgage
Modification Agreement, to include a new Promissory
Note dated January 12, 2010 (exhibit B). This transac-
tion closed on or about January 12, 2010. The Promis-
sory Note contained a 10 percent interest rate and a
payment schedule of interest only for twelve months
with the principal due in full on January 12, 2011.
No discernible progress was made in the develop-
ment of the properties. As a result, the properties did
not generate any cash flow with which to service the
enormous debt which had been taken on by Fikri.4 Fikri
defaulted under the terms of the January, 2010 Note.
By service of a writ of summons and complaint filed
September 3, 2010, Angelo Tedesco as Trustee of the
ATMPPP commenced a foreclosure action against
Agolli and Fikri.5 Fikri and Agolli were represented by
Attorney Timothy Sullivan of Mahaney, Geghan & Sulli-
van. Attorney Sullivan was a childhood friend of Nik
Agolli and had known the Agolli family for many years.
Nik Agolli asked Attorney Sullivan to defend the foreclo-
sure with the primary objective being the securing and
safeguarding of Agolli’s personal residence on May-
brook Road in Waterbury, Connecticut.
Although it is not clear precisely when the relation-
ship between Agolli and Antonios soured, following the
filing of the foreclosure action, the determination was
made to remove both Joseph and Gina Antonios from
any further involvement with Fikri. Also during this
time period, Agolli spoke directly with Angelo Tedesco
in an effort to resolve the foreclosure and satisfy Fikri’s
debt to the ATMPPP. She testified that she asked him
whether he intended to leave her ‘‘out on the street’’
with nothing. Agolli wanted Tedesco to accept $500,000
from the anticipated sale of one of the parcels of prop-
erty in full satisfaction of Fikri’s debt.
Attorney Sullivan eventually worked out a resolution
of the foreclosure action with Tedesco, who was repre-
sented by Attorney Paul Margolis. The debt would be
refinanced as follows. Fikri would consummate the sale
of property located on Austen Road, Waterbury, Con-
necticut, from which $290,000 would be paid to Tedesco
to pay down the outstanding Fikri debt. Fikri would
sign a new Promissory Note in the reduced amount
of approximately $571,000. The new Note would bear
interest at 5 percent, instead of the previous interest
rate of 10 percent. The new Note would be secured by
the four properties at issue here, but Agolli’s personal
residence would no longer be on the mortgage, pro-
tecting her home in the event of future default. The
new Note required no payments for approximately six
months, to give Fikri time to either sell or develop the
property, in a fashion that would permit Fikri to stay
current on its debt obligations.
Attorney Sullivan testified that he had regular com-
munications with Nik Agolli, Suzi (Agolli) Zenko, as
well as Agolli herself, regarding the terms of the refi-
nance and settlement of the pending foreclosure. He
testified that he sent all draft documents to Suzi because
she is an attorney. Although there were a few discus-
sions with Antonios, Attorney Sullivan was aware that
Antonios was being removed from Fikri and he took
his direction from the Agollis. Consistent with Attorney
Sullivan’s testimony, Antonios denied that he was the
architect of the refinance or that he negotiated its terms
on behalf of Fikri.6 He was being removed from Fikri,
so that limited his involvement to participating in the
execution of the negotiated agreement as necessary.
However, Nik Agolli and Agolli testified that Attorney
Sullivan never discussed the terms of the refinance with
them until the morning of the closing. Agolli further
testified that she believed Tedesco had accepted her
proposal to resolve Fikri’s debt by the payment of
$500,000 from the proceeds of the Austen Road sale,
contingent upon his receipt and review of the purchase
and sale contract. She testified that she asked Attorney
Sullivan to send the contract to Tedesco and that she
believed he had done so. Based upon these discussions,
Agolli testified that she believed that the closing which
occurred was not a refinance at all, but a resolution
of Fikri’s debt to Tedesco. She testified that she was
‘‘surprised’’ to learn that she would be asked to sign a
new Note or that there would continue to be mortgages
on some of her property. Her testimony is not credited.
To accept this testimony would be to completely ignore
or discredit the testimony of Attorney Sullivan, Anto-
nios, and Attorney Margolis,7 each of whom had the
same understanding of how this refinance came to pass,
and whose understanding is entirely consistent with
the documents created and signed by Agolli on behalf
of Fikri.
On July 26, 2011, the closing on the refinance of
the Fikri debt occurred in various stages at Attorney
Sullivan’s office. Present at various times was Agolli,
Nik Agolli, Suzi (Agolli) Zenko, Attorney Sullivan, Attor-
ney Margolis, Joseph Antonios and perhaps others.8
Fikri sold property located on Austen Road, Waterbury,
Connecticut, to a disinterested purchaser. The sale pro-
ceeds were used to pay off encumbrances on that prop-
erty, leaving approximately $290,000 for the paydown
of the Tedesco debt.9 Gina and Joseph Antonios were
removed from Fikri. The principals had already agreed
that Agolli would become the only member of Fikri
owning a 100 percent interest and Antonios would be
removed as manager. To accomplish this shift, Antonios
was to be given a mortgage in the amount of $88,000
secured by the four properties at issue here, though his
mortgage was subordinated to the Tedesco note and
mortgage. The debt subordination agreement (exhibit
4) was signed by Agolli, on behalf of Fikri, and Antonios
and provided to Tedesco’s counsel prior to the closing
of the refinance. At this juncture, Antonios left Attorney
Sullivan’s office.
Thereafter, Agolli, individually and on behalf of Fikri,
executed the documents necessary to effectuate the
settlement with Tedesco and the refinance of the debt.
These include the Promissory Note (exhibit 1) at issue
in this foreclosure and the Open End Mortgage Deed,
Security Agreement and Fixture Filing (exhibit 2),
which secured the Note. She understood that Fikri
would remain indebted to Tedesco under the terms of
the new Note and refinance. She understood that she
was, at that time, the sole member of Fikri and that
she was binding Fikri under the terms of the agreement.
As agreed, Tedesco filed a withdrawal of the foreclo-
sure action on July 27, 2011,10 indicating thereon that
the dispute had been ‘‘resolved by discussion of the
parties on their own.’’ During this time, though it is not
clear precisely when, Angelo Tedesco was diagnosed
with cancer. Prior to his passing, Scott Tedesco, his
son, became the Trustee of the ATMPPP. The note and
mortgage were thereafter transferred to the current
plaintiff, the Heritage Builders of Waterbury, LLC, for
which Scott Tedesco is also the Trustee. The plaintiff
remains in possession of the Note, signed by Agolli on
behalf of Fikri.
The first payment under the Note was due February
1, 2012. Fikri failed to make that payment and each
payment due thereafter. The Note is in default.
DISCUSSION
‘‘In order to establish a prima facie case in a mortgage
foreclosure action, the plaintiff must prove by a prepon-
derance of the evidence that it is the owner of the
note and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure, as established by the note and mortgage,
have been satisfied.’’ (Internal quotation marks omit-
ted.) Wells Fargo Bank, N.A. v. Strong, 149 Conn. App.
384, 392, 89 A.3d 392, cert. denied, 312 Conn. 923, 94
A.3d 1202 (2014).
Here, based upon the facts found above, the plaintiff
has established its prima facie case. The plaintiff is the
current holder of the Note and Mortgage Deed securing
the Note and the Note is in default. The defendants do
not dispute these findings and there are no conditions
precedent to foreclosure which have been identified
as unmet.
The defendants rely instead upon several special
defenses: no meeting of the minds; duress and lack of
consideration. Each will be discussed in turn.
‘‘A valid special defense at law to a foreclosure pro-
ceeding must be legally sufficient and address the mak-
ing, validity or enforcement of the mortgage, the note
or both. . . . Where the plaintiff’s conduct is inequita-
ble, a court may withhold foreclosure on equitable con-
siderations and principles. . . . [I]f the mortgagor is
prevented by accident, mistake or fraud, from fulfilling
a condition of the mortgage, foreclosure cannot be had
. . . .’’ (Internal quotation marks omitted.) 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 principle that a special defense must relate to the
making, validity or enforcement of the note or mortgage
‘‘was . . . considered to include events leading up to
the execution of the loan documents . . . .’’ (Internal
quotation marks omitted.) TD Bank, N.A. v. M.J. Hold-
The defendants bear the burden of proving their spe-
cial defenses. See Emigrant Mortgage Co. v. D’Agos-
tino, 94 Conn. App. 793, 802, 896 A.2d 814, cert. denied,
278 Conn. 919, 901 A.2d 43 (2006). Although the defen-
dants may rely upon more than one special defense,
they need only establish one in order to defeat a finding
of liability. See Union Trust Co. v. Jackson, 42 Conn.
App. 413, 417, 679 A.2d 421 (1996).
A
Lack of Consideration
‘‘To be enforceable, a contract must be supported by
valuable consideration. . . . The doctrine of consider-
ation is fundamental in the law of contracts, the general
rule being that in the absence of consideration an execu-
tory promise is unenforceable.’’ (Citation omitted; inter-
nal quotation marks omitted.) Connecticut National
Bank v. Voog, 233 Conn. 352, 366, 659 A.2d 172 (1995).
‘‘[C]onsideration is [t]hat which is bargained-for by the
promisor and given in exchange for the promise by the
promisee . . . . [T]he doctrine of consideration does
not require or imply an equal exchange between the
contracting parties. . . . Consideration consists of a
benefit to the party promising, or a loss or detriment
to the party to whom the promise is made.’’ (Internal
quotation marks omitted.) Thoma v. Oxford Perfor-
mance Materials, Inc., 153 Conn. App. 50, 56, 100 A.3d
917 (2014). ‘‘Consideration . . . requires intent by the
parties to incur benefits or detriments at the time an
agreement is entered into.’’ Id., 57. ‘‘Whether an
agreement is supported by consideration is a factual
inquiry reserved for the trier of fact . . . .’’ (Internal
quotation marks omitted.) Viera v. Cohen, 283 Conn.
412, 442, 927 A.2d 843 (2007).
The court concludes that the Note and Mortgage Deed
were supported by consideration and are therefore
enforceable.
First, both the Note and the Mortgage Deed contain
an acknowledgement by the defendants that both are
signed upon receipt of consideration. The Note states
that it is given ‘‘FOR VALUE RECEIVED.’’ The Mortgage
Deed provides: ‘‘KNOW YE, that Fikri Development,
LLC . . . (the ‘Mortgagor’) for the consideration of
One Dollar ($1.00) and other valuable consideration
received to the Mortgagor’s full satisfaction . . . does
hereby give, grant . . . .’’ Declarations such as these
are generally sufficient to satisfy the consideration
requirements of a binding contract. See Milford Bank
v. Phoenix Contracting Group, Inc., 143 Conn. App.
519, 529–30, 72 A.3d 55 (2013).
Even absent these declarations, the evidence estab-
lished that the defendants, in fact, received good and
valuable consideration for the Note and Mortgage Deed.
First and foremost, Angelo Tedesco withdrew the pend-
asserted and which was poised to go to judgment. Fur-
thermore, the debt was restructured at a lower interest
rate; the Note allowed for a six month grace period
during which no payments would be due; and the mort-
gage deed no longer extended to Agolli’s personal resi-
dence, removing any risk that she would lose her home
in the event of a future default. The defendants’ argu-
ments to the contrary are not persuasive.11
B
Duress
‘‘The classical or common law definition of duress
is any wrongful act of one person that compels a mani-
festation of apparent assent by another to a transaction
without his volition. . . . The defendant must prove:
[1] a wrongful act or threat [2] that left the victim no
reasonable alternative, and [3] to which the victim in
fact acceded, and that [4] the resulting transaction was
unfair to the victim. . . . The wrongful conduct at issue
could take virtually any form, but must induce a fearful
state of mind in the other party, which makes it impossi-
ble for [the party] to exercise his own free will.’’ (Cita-
tion omitted; internal quotation marks omitted.). Chase
Manhattan Mortgage Corp. v. Machado, 83 Conn. App.
183, 189–90, 850 A.2d 260 (2004).
The defendants presented no evidence to support
this special defense. The defendants do not identify any
wrongful act or threat by Tedesco. Agolli did not testify
that she felt any fear or threat at the closing as a result
of any conduct by Tedesco or otherwise. Agolli did not
testify that her free will was overborne. The resulting
transaction, as noted above, was not unfair to Fikri or
Agolli and indeed provided an opportunity for Fikri to
right its ship and for Agolli to keep her home from fore-
closure.
Agolli testified that she did not like the deal. Nik
Agolli testified that in his opinion, his mother ‘‘had no
choice.’’ The testimony derives from the viewpoint that
Antonios had defrauded Agolli and Fikri leaving her
‘‘with no choice’’ but to proceed with the refinance.12
This is insufficient. See Chase Manhattan Mortgage
Corp. v. Machado, supra, 83 Conn. App. 190 (‘‘[w]e
will not invalidate a mortgage agreement against the
mortgagee unless it participated in the alleged duress
or had reason to know of its existence’’). The question
is whether Tedesco’s conduct placed Agolli under
duress. It did not.13 See Noble v. White, 66 Conn. App.
54, 59, 783 A.2d 1145 (2001) (‘‘[w]here a party insists
on a contractual provision or a payment that he honestly
believes he is entitled to receive, unless that belief is
without any reasonable basis, his conduct is not wrong-
ful and does not constitute duress or coercion under
Connecticut law’’). Further, even if Agolli consented to
the transaction under protest, which does not appear
to be the case, this does not establish duress. See id.,citing Smedley Co. v. Lansing, 35 Conn. Supp. 578, 579,
398 A.2d 1208 (1978); see also Twachtman v. Hastings,
Superior Court, judicial district of Tolland, Docket No.
CV-95-57307-S (July 23, 1997) (Hon. Harry T. Hammer,
judge trial referee) (20 Conn. L. Rptr. 145), aff’d, 52
Conn. App. 661, 727 A.2d 791 (consent secured by the
pressure of financial circumstance is not sufficient to
establish duress), cert. denied, 249 Conn. 930, 733 A.2d
851 (1999).
The defendants failed to prove the special defense
of duress.
C
No Meeting of the Minds
Last, the defendants claim that there was no meeting
of the minds as between Agolli and Tedesco with
respect to the Note and Mortgage Deed. The argument
is twofold. The defendants claim that Agolli could not
legally bind Fikri at the time she executed the Note and
Mortgage Deed purporting to do so. The defendants
also claim that she did not have an adequate understand-
ing of the transaction.
‘‘In order for an enforceable contract to exist, the
court must find that the parties’ minds had truly met.
. . . If there has been a misunderstanding between the
parties, or a misapprehension by one or both so that
their minds have never met, no contract has been
entered into by them and the court will not make for
them a contract which they themselves did not make.’’
(Internal quotation marks omitted.) Milford Bank v.
Phoenix Contracting Group., Inc., supra, 143 Conn.
App. 527–28. ‘‘ ‘Meeting of the minds’ is defined as
‘mutual agreement and assent of two parties to contract
to substance and terms. It is an agreement reached by
the parties to a contract and expressed therein, or as
the equivalent of mutual assent or mutual obligation.’
Black’s Law Dictionary (6th Ed. 1990). This definition
refers to fundamental misunderstandings between the
parties as to what are the essential elements or subjects
of the contract. It refers to the terms of the contract,
not to the power of one party to execute a contract as
the agent of another.’’ Sicaras v. Hartford, 44 Conn.
App. 771, 784, 692 A.2d 1240, cert. denied, 241 Conn.
916, 696 A.2d 340 (1997).14
When an agreement is reduced to writing and signed
by all parties, the agreement itself is substantial evi-
dence that a meeting of the minds has occurred. See
Tsionis v. Martens, 116 Conn. App. 568, 577–78, 976
A.2d 53 (2009) (‘‘[i]n light of the fact that a contract
existed in written form that was signed by both parties,
the plaintiffs’ argument that a meeting of the minds did
not occur is contrary to the evidence provided to the
court’’); see also Reid v. Landsberger, 123 Conn. App.
260, 268, 1 A.3d 1149 (‘‘[b]ecause the agreement existed
in written form and was signed by all parties, [the defen-
dant’s] argument that a meeting of the minds did not
occur is not supported by the evidence, at least where
there is no mutual mistake as to the fundamental prom-
ises’’), cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).
Nonetheless, the defendants argue that Agolli was
inadequately advised as to the terms of the settlement
and refinance by Attorney Sullivan; that Attorney Sulli-
van did not explain the content of the documents; that
her lack of proficiency in reading and writing English
prevented her from understanding the documents she
signed. As noted previously, the court credited Attorney
Sullivan’s testimony that he not only negotiated the
terms of the settlement and refinance with input from,
and at the direction of, Agolli as well as her children,
but also that he explained the closing documents to
Agolli. Perhaps Agolli had hoped for a different outcome
but she was represented by counsel, she was involved
in the negotiation; counsel explained the documenta-
tion to her and she understood and agreed to the terms
of the refinance. The special defense on this basis is
therefore not proven.
The defendants next argue that Agolli did not have
the authority to bind Fikri. At the summary judgment
phase of this litigation, the defendants relied upon the
inconsistencies in the dates which appeared in the vari-
ous closing documents to raise a genuine issue of mate-
rial fact as to whether Joe and Gina Antonios were
removed from Fikri prior to Agolli’s signing of the Note
and Mortgage Deed in which she purports to act on
behalf of Fikri as its sole member. As a factual matter,
that argument was laid to rest by, inter alia, Agolli’s tes-
timony:
‘‘Q. [By Attorney Donnelly]: Now, I want to bring
you back, again, to that July 26th, 2011 closing. Do
you understand?
‘‘A. Yes.
‘‘Q. Okay, Now your home was removed; we’ve been
over that, correct?
‘‘A. Yes.
‘‘Q. In addition, the interest rate was lowered from
10 percent to 5 percent on the loan, correct?
‘‘A. Yes. Uh-huh.
‘‘Q. And you’re aware that. Also, on that date, you
were able to remove Mr. Antonios and Mrs. Antonios
from being involved in Fikri Development, correct?
‘‘A. Yes.
‘‘Q. All right. So, the removed—they were removed
on that day.
‘‘A. Yes.
‘‘Q. And after—and you signed those loan documents
representing Fikri Development, correct?
‘‘A. Yes. . . .
‘‘Q. Well, I will rephrase. So, you just stated that Mr.
and Mrs. Antonios were removed from the company,
true?
‘‘A. Yes.
‘‘Q. Okay, so you were the only remaining member
at the time you signed the documents that you signed
on July 26th.
‘‘A. Yes.
‘‘Q. Okay, so, by doing so you represented to my
client that you had the ability to sign for Fikri Develop-
ment, correct?
‘‘A. Yes.’’ (May 12, 2016 transcript, pp. 18–19.)
Agolli’s testimony is entirely consistent with the testi-
mony of Antonios, Attorney Sullivan and Suzi Zenko15
as well as the executed closing documents.
Faced with this testimony, the defendants argue that
Attorney Sullivan, Joseph Antonios and Gina Antonios
failed to comply with the procedures in the Connecticut
Limited Liability Company Act, General Statutes § 34-
100 et seq. (the Act), or the Operating Agreement in
effectuating Antonios’ removal as manager and Gina
Antonios as a member. Thus, they argue, Agolli could
not legally bind Fikri.16
This argument is largely premised on ‘‘facts’’ which
are not supported by the body of evidence. The defen-
dants assert that ‘‘[n]one of the formalities necessary for
Fikri to validly execute documents were ever followed.’’
Attorney Sullivan was not questioned about such ‘‘for-
malities,’’ the requirements of the Act, or even what he
did or did not do to effectuate the removal of Joe and
Gina Antonios. The defendants assert further that ‘‘Mrs.
Antonios never provided written notice to Fikri,’’ as
required under the Act. Mrs. Antonios was asked
whether she gave written notice. She replied that she
did not recall. This is not evidence from which the
court can infer that no written notice was given. The
defendants aver that ‘‘Mrs. Agolli and Mrs. Antonios
never voted to remove Mr. Antonios as manager.’’ The
court recalls neither testimony nor documentary evi-
dence to support this assertion. Ironically, the defen-
dants aver that ‘‘there is no evidence Mrs. Agolli ever
even spoke with Mrs. Antonios about removal of Mr.
Antonios.’’ It is likely there was no evidence because
this issue was not adequately raised prior to trial. How-
ever, the lack of evidence as to whether the procedural
mechanisms necessary to removal were complied with
inures to the defendants’ detriment. The defendants
bear the burden of proof with respect to their special
defense. See Emigrant Mortgage Co. v. D’Agostino,
supra, 94 Conn. App. 802.
In any event, and most importantly, the evidence is
both overwhelming and consistent that the removal of
Joseph and Gina Antonios occurred prior to the closing
on the refinance.
For all of the foregoing reasons, the defendants failed
to prove the special defense of no meeting of the minds.
Judgment will enter in favor of the Plaintiff as to lia-
bility.
* Affirmed. Tedesco v. Agolli, 182 Conn. App. 291, A.3d (2018).
1
The court does not attempt to include in this decision all of the evidence
relied upon in the court’s factual findings. The court has considered all of
the evidence admitted. The reference to any subset of the evidence presented
should not be construed as identifying the exclusive basis for the court’s
finding, and the court’s failure to identify or mention specific evidence should
not give rise to an inference that such evidence has not been considered.
2
Nik Agolli testified that Antonios approached he and his mother, while
Antonios testified that the Agollis approached him. The court need not
determine which account is accurate in this litigation.
3
Gina Antonios did not personally invest in Fikri and was largely unin-
volved or passive with respect to Fikri’s activities. The purpose of Gina’s
involvement in, and the structure of Fikri, remains unclear.
4
Antonios’ conduct, as manager of Fikri, is the subject of a civil action
captioned Fikri Development, LLC, et al. v. The Private Mortgage Fund,
LLC, et al., which is pending on this court’s docket at CV-12-6013458. Therein,
Fikri alleges that Antonios defrauded Fikri, borrowing against the property
only to divert the funds to his own personal use. This trial does not require
a determination as to where the money went or to what purposes it was
put by Antonios. Although Fikri asserted Antonios’ fraudulent conduct as
a defense in this foreclosure, the court previously determined that there
was no genuine issue of material fact that Tedesco was not a knowing
participant in any such chicanery. Therefore, Antonios’ purported fraud
against Fikri and Agolli cannot be visited upon the plaintiff by way of
special defense to this foreclosure. See Chase Manhattan Mortgage Corp.
v. Machado, 83 Conn. App. 183, 850 A.2d 260 (2004) (fraud by a third party
upon a mortgagor does not invalidate a mortgage as against the mortgagee
unless the mortgagee in some way participated in or knew of the fraud).
5
The foreclosure action was filed in Waterbury Superior Court and was
captioned Angelo Tedesco, Trustee v. Resjimi Agolli et al., Docket No. CV-
XX-XXXXXXX. This court is permitted to and does therefore take judicial notice
of the file in that matter. See Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830
A.2d 193 (2003); Wasson v. Wasson, 91 Conn. App. 149, 157, 881 A.2d 356,
cert. denied, 276 Conn. 932, 890 A.2d 574 (2005).
6
Notwithstanding this testimony, the defendants maintain in their posttrial
submission that this court should, as a factual finding, conclude that Anto-
nios, in collusion with Tedesco, was the person responsible for the negoti-
ated terms of the settlement and refinance. This is but one example of the
defendants’ proposed findings of fact having little or no support in the
evidence presented.
7
The defendants argue that the testimony of both Attorney Sullivan and
Attorney Margolis was not credible. They snidely suggest the testimony
suffered from ‘‘convenient’’ lapses of memory and/or was self-serving to
conceal their own exposure for what the defendants suggest was legal
malpractice on their part. The defendants, however, presented no credible
evidence to rebut the testimony of Attorneys Sullivan and Margolis and
indeed, the court found their testimony forthright and believable.
8
The events in question occurred almost five years ago and none of the
witnesses questioned were completely confident in their recollection as to
who was present at what time during the course of the day on July 26, 2011.
9
Two of the mortgages paid off on the Austen Road property were paid
to Antonios related entities. Those mortgages total approximately $233,000.
The validity of those mortgages and Antonios’ entitlement to those funds
will be determined in the fraud case brought by Fikri against Antonios.
10
It is worth noting that the defendants had been defaulted for failure to
disclose a defense and the plaintiff had filed a motion for judgment by strict
foreclosure, which, if granted, would have resulted in Agolli losing her home.
11
For the first time, in their posttrial brief, the defendants assert that
Tedesco released Fikri from all debt, as evidenced by exhibit E, a release
of the 2010 Tedesco mortgage dated July 14, 2011, which was prepared in
connection with the July 26, 2011 closing. The defendants never asserted
any purported release as a special defense. It will not be further addressed.
12
Indeed, the defendants argue that it was Antonios who ‘‘eliminated Mrs.
Agolli’s free will.’’
13
The defendants claim that ‘‘Mr. Antonios and Mr. Tedesco created a
trap for Mrs. Agolli with only one result possible for Mrs. Agolli and Fikri:
loss of her land’’ is without support in the evidence. This court has previously
determined that there was no genuine issue of material fact that Tedesco
was neither involved in nor aware of any treachery on the part of Antonios.
The evidence at trial did not alter this conclusion. Indeed, if Tedesco’s
nefarious goal was to ultimately take Agolli’s land, he would simply have
done so by way of the first foreclosure.
14
The court had previously questioned whether the defendants’ special
defense of no meeting of the minds, as pleaded by the defendants, included
the argument that Agolli could not bind Fikri. As a factual matter, it was first
raised in the defendants’ opposition to the plaintiff’s motion for summary
judgment. As noted at that time, this allegation does not appear in the
defendants’ special defenses. However, insofar as the issue was briefed
without objection on this basis by the plaintiff, the court addressed the
issue in the motion for summary judgment. Indeed, it was this argument as
to which the court found a genuine issue of material fact and on which the
court heard evidence at trial.
15
Suzi Zenko testified as follows:
‘‘Q. With respect to the July 26, 2011 closing, what was the result of that
closing: in essence, what did that closing accomplish?
‘‘A. We got rid of Joe.
‘‘Q. Okay. How did you get rid of Joe?
‘‘A. I mean, it was—he was removed. He withdrew from the LLC. Him
and Gina were out.’’
16
The broadest possible reading of the defendants’ special defenses does
not include such a claim, nor is this claim arguably within the scope of the
issues addressed in the summary judgment motion. ‘‘Pleadings are intended
to limit the issues to be decided at the trial of a case and [are] calculated
to prevent surprise. . . . [The] purpose of pleadings is to frame, present,
define, and narrow the issues, and to form the foundation of, and to limit,
the proof to be submitted on the trial . . . . It is axiomatic that the parties
are bound by their pleadings.’’ (Internal quotation marks omitted.) Brye v.
State, 147 Conn. App. 173, 177, 81 A.3d 1198 (2013). Notwithstanding, the
court addresses the argument.