Your Mansion Real Estate, LLC v. RCN Capital Funding, LLC ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
YOUR MANSION REAL ESTATE, LLC v. RCN
CAPITAL FUNDING, LLC
(AC 43922)
Bright, C. J., and Moll and Clark, Js.
Syllabus
The defendant, a mortgage servicing company, appealed from the trial court’s
judgment in favor of the plaintiff, a property owner, finding that the
defendant violated the mortgage release statute (§ 49-8) by failing to
provide a timely release of the plaintiff’s mortgage. The defendant
received a payoff of the mortgage from the plaintiff, along with a demand
that specifically cited and quoted the statutory damages provisions of
§ 49-8 (c). Held:
1. The defendant could not prevail on its claim that the trial court erred in
failing to dismiss the plaintiff’s complaint on the ground that the plaintiff
did not have standing because the plaintiff did not incur actual damages,
and, therefore, was not aggrieved; the defendant acknowledged that it
had received a proper demand under § 49-8 and failed to provide the
required release to the plaintiff, the plaintiff was entitled to a release
after satisfying the mortgage, it made the proper demand for the release,
the defendant received that demand, and the defendant failed to provide
the release within the statutory sixty days, and, pursuant to the plain
language of the statute, the plaintiff was a statutorily aggrieved party.
2. The trial court did not abuse its discretion in sustaining the plaintiff’s
objection to certain questions the defendant asked of its corporate
witness concerning whether there existed a common practice whereby
borrowers recontact the defendant if they have not timely received a
requested § 49-8 (c) release, as the trial court correctly determined that
this evidence was not relevant; the defendant’s attempt to shift the
responsibility to the plaintiff for the defendants’ own failure to comply
with § 49-8 was unmoving, the fact that the defendant admitted that it
customarily fails to comply with § 49-8 did not mean that its responsibil-
ity to comply then shifted to the mortgagor to repeatedly remind the
defendant that it had a statutory obligation, and, whether others provided
the defendant with such a reminder, was of no relevance to whether
the defendant, in fact, had failed to meet its statutory obligation to fulfill
its legal duty within sixty days of the plaintiff’s proper request.
3. The defendant could not prevail on its claim that the trial court improperly
rejected its special defense in which it alleged that the plaintiff had a
duty to mitigate, but failed to mitigate its statutory damages, as the
statutory damages provision of § 49-8 was enacted as a means to curb
what the legislature considered to be a long-standing problem in the
mortgage industry; § 49-8 is coercive and provided the mortgagee with
an incentive to fully comply in a timely manner, and to require the
plaintiff to ‘‘remind’’ the mortgagee that it had a legal obligation to
comply with § 49-8 (c) by providing the plaintiff with a release, after
already properly requesting that it provide such a release, would run
counter to the intent of the statute and would encourage the abuses
the legislature sought to curb through its enactment.
4. There was no merit to the defendant’s claim that § 49-8 (c) was unconstitu-
tional as applied to this case on the ground that it permitted the court
to levy an excessive and punitive fine that is grossly in excess of the
plaintiff’s actual damages, which were none: the excessive fines clause
of the eighth amendment to the United States constitution did not apply
to this civil case between private parties, and any income tax the plaintiff
might owe on the statutory damages it received did not constitute a
fine directly imposed on the defendant by the government; moreover,
contrary to the defendant’s claim, § 49-8 did not violate the due process
clause of the fourteenth amendment in that it permitted a statutory
award of ‘‘punitive’’ damages that was greatly in excess of the plaintiff’s
actual damages, as the legislative history of § 49-8 revealed that the
purpose of the statute was to curb one of the abuses in the mortgage
industry, namely, delays in providing timely releases of mortgages, the
defendant had full control of its statutory liability because the statutory
damages were assessed on a weekly basis for each week of noncompli-
ance and the defendant knew exactly what its exposure was and the
simple step it needed to take to limit its liability.
Argued April 12—officially released August 3, 2021
Procedural History
Action to recover damages for the defendant’s failure
to timely release a certain mortgage, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield and tried to the court, Hon. Alfred J. Jennings,
Jr., judge trial referee; judgment for the plaintiff, from
which the defendant appealed to this court. Affirmed.
Matthew B. Gunter, for the appellant (defendant).
Raymond G. Heche, for the appellee (plaintiff).
Opinion
BRIGHT, C. J. Following a trial to the court, the
defendant, RCN Capital Funding, LLC, appeals from the
judgment of the trial court rendered in favor of the
plaintiff, Your Mansion Real Estate, LLC, in an action
brought pursuant to General Statutes § 49-8 (c). On
appeal, the defendant claims that the trial court erred
in (1) not dismissing the plaintiff’s complaint on the
ground that the plaintiff did not have standing because
it admitted that it had incurred no actual damages and,
therefore, was not aggrieved, (2) not permitting the
defendant to introduce testimony concerning whether
it was common practice for borrowers to contact the
defendant if they had not received a § 49-8 (c) release,
(3) rejecting the defendant’s first special defense in
which it alleged that the plaintiff had failed to mitigate
its damages, and (4) rejecting the defendant’s second
and third special defenses in which it claimed that § 49-
8 (c) was unconstitutional because it allows for punitive
damages and excessive fines in violation of the eighth
and fourteenth amendments to the United States consti-
tution. We affirm the judgment of the trial court.
The following facts, which were found by the trial
court and which are uncontested on appeal, and proce-
dural history inform our review. ‘‘Prior to November 4,
2015, the plaintiff . . . was and had been, since March
14, 2014, the owner of the premises known as 90 Reut
Drive, Stratford, Connecticut 06614 (‘premises’). The
premises were encumbered by (1) a mortgage deed
from the plaintiff to [the defendant] on March 14, 2014,
in the original amount of $112,000 recorded in the Strat-
ford land records . . . and (2) . . . a collateral assign-
ment of leases and rentals from the plaintiff to the
defendant dated March 14, 2014, recorded in the Strat-
ford land records . . . . On November 4, 2015, the
plaintiff sold and conveyed title to the premises to a
new owner. On or about October 20, 2015, prior to [the]
sale of the premises, the Law Offices of Raymond G.
Heche, as counsel representing the plaintiff as seller,
requested a payoff number of the mortgage from the
defendant. On October 20, 2015, the defendant sent to
. . . Heche’s office a payoff letter stating that the payoff
number of the mortgage through November 6, 2015,
would be $118,911.96. On November 4, 2015, the date
of the closing of the sale of the premises . . . Heche,
as counsel for the plaintiff as seller of the premises,
remitted by overnight mail to the defendant at its office
at 75 Gerber Road East, South Windsor, Connecticut
06074, a bank check . . . payable to the defendant in
the payoff amount of $118,911.96 together with a copy
of the October 20, 2015 payoff letter. [The] November
4, 2015 letter to the defendant also requested that the
defendant ‘upon receipt of said payoff provide to . . .
Heche’s office in proper form a release of the mortgage
and a release of the collateral assignment.’ [The] letter
further advised:
‘‘ ‘Kindly be advised that [§] 49-8 (c) of the . . . Gen-
eral Statutes states that a mortgagee who fails to deliver
and release within [sixty] days from the request for the
same, ‘‘shall be liable . . . at the rate of $200 for each
week after the expiration of such [sixty] days or in
an amount equal to the loss sustained, whichever is
greater.’’’
‘‘On March 26, 2018, when the requested releases had
not been provided . . . Heche sent a certified mail let-
ter to the defendant . . . with another copy of his
November 4, 2015 letter and the payoff check, advising
the defendant that the requested releases had still not
been provided, and reminding the defendant again of
the [sixty] day deadline of . . . § 49-8 (c) which ‘had
long expired.’ The March 26, 2018 letter, sent more than
two years after the expiration of the original [sixty] day
deadline from November 4, 2015, gave the [d]efendant
ten days to provide the requested releases together with
statutory damages of $5000 plus attorney’s fees of $850
to avoid suit under [§] 49-8 (c). When the requested
releases had still not been received, the plaintiff,
through . . . Heche, commenced this action by com-
plaint dated April 26, 2018, seeking statutory money
damages under [§] 49-8 (c), plus costs and reasonable
attorney’s fees. . . .
‘‘The defendant filed its amended answer and special
defenses on July 28, 2019, admitting in the answer that
it had received the full payoff of $118,911.26 with . . .
Heche’s transmittal letter of November 4, 2015, and that
it had failed to provide a proper release of mortgage
at the time this action was commenced, and leaving
the plaintiff to its proof of the allegation that the plaintiff
had sold the premises on November 4, 2015, and that
the plaintiff was an aggrieved party entitled to damages
under [§] 49-8 (c). . . . The plaintiff filed [a] reply . . .
denying the allegations of all special defenses. The
pleadings were closed on November 14, 2018, and the
case was assigned for a nonjury trial . . . on Septem-
ber 11, 2019. . . .
‘‘The parties at trial presented a corrected stipulation
of fact dated September 12, 2019, by which they agreed
that the court could find the following facts established
without presentation of evidence:
‘‘ ‘1. On November 4, 2015, the plaintiff . . . sold the
premises . . . .’
‘‘ ‘2. As of April 26, 2018, the defendant . . . had not
furnished or recorded a release of mortgage related to
[the premises].’
‘‘ ‘3. On June 8, 2018, the defendant recorded a release
of mortgage to [the premises] as well as a termination
of collateral assignment of leases and rents . . . .’
‘‘ ‘4. The plaintiff has not suffered any demonstrable
loss with respect to [the] [d]efendant’s delay in furnish-
ing or recording the release of mortgage.’
‘‘ ‘5. The plaintiff, prior to sending its demand dated
March 26, 2018, but after it had sent the payoff funds,
had not, whether through its principal or its counsel,
contacted the defendant by any medium of communica-
tion.’
‘‘ ‘6. An affidavit, through counsel, has not been filed
on the land records of Stratford . . . pursuant to . . .
§ 49-8a, in order to release the mortgage on [the prem-
ises].’
‘‘[On the basis of] the corrected stipulation, the court
finds the facts recited therein to be proven.’’
On the basis of these facts, the court, in a thorough
memorandum of decision, concluded, inter alia, that the
plaintiff was statutorily aggrieved, that the defendant’s
amended special defenses had no merit, and that ‘‘the
damages requested by the plaintiff in the amount of
$5000, [were] authorized by [§] 49-8 (c) in that more
than twenty-five weeks from the January 4, 2016 sixty
day deadline flowing from the November 4, 2015 letter
requesting a release of mortgage had passed without a
release being provided. The statutory weekly damages
of $200 per week therefore reached the maximum statu-
tory damages of $5000.’’ Accordingly, the court ren-
dered judgment in favor of the plaintiff in the amount
of $5000, plus costs and reasonable attorney’s fees, as
set forth in the statute. This appeal followed.
I
The defendant first claims that the trial court erred
in not dismissing the plaintiff’s complaint on the ground
that the plaintiff did not have standing, as was demon-
strated through its concession that it had incurred no
actual damages; therefore, it was not aggrieved. The
defendant argues that ‘‘§ 49-8 (c) requires the party
bringing an action pursuant to it to be aggrieved. Only
an aggrieved party, therefore, has standing to bring the
claim.’’ The plaintiff argues, inter alia, that it, without
question, was statutorily aggrieved.1 We agree with the
plaintiff.
‘‘If a party is found to lack standing, the court is
without subject matter jurisdiction to determine the
cause. . . . A determination regarding a trial court’s
subject matter jurisdiction is a question of law. When
. . . the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record. . . .
‘‘Two broad yet distinct categories of aggrievement
exist, classical and statutory. . . . Classical
aggrievement requires a two part showing. First, a party
must demonstrate a specific, personal and legal interest
in the subject matter of the [controversy], as opposed
to a general interest that all members of the community
share. . . . Second, the party must also show that the
[alleged conduct] has specially and injuriously affected
that specific personal or legal interest. . . . Statutory
aggrievement [however] exists by legislative fiat, not
by judicial analysis of the particular facts of the case.
In other words, in cases of statutory aggrievement, par-
ticular legislation grants standing to those who claim
injury to an interest protected by that legislation. . . .
‘‘In order to determine whether a party has standing
to make a claim under a statute, a court must determine
the interests and the parties that the statute was
designed to protect. . . . Essentially the standing ques-
tion in such cases is whether the . . . statutory provi-
sion on which the claim rests properly can be under-
stood as granting persons in the plaintiff’s position a
right to judicial relief. . . . [Stated differently, the]
plaintiff must be within the zone of interests protected
by the statute.’’ (Citation omitted; internal quotation
marks omitted.) McKay v. Longman, 332 Conn. 394,
409–10, 211 A.3d 20 (2019).
Additionally, we are mindful that matters of statutory
construction are governed by General Statutes § 1-2z,
which provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not be
considered.’’ Matters concerning statutory construction
are reviewed de novo. See Connecticut Housing
Finance Authority v. Alfaro, 328 Conn. 134, 140–41, 176
A.3d 1146 (2018) (questions of statutory construction
present issues of law subject to de novo review).
Section 49-8 provides: ‘‘(a) The mortgagee or a person
authorized by law to release the mortgage shall execute
and deliver a release to the extent of the satisfaction
tendered before or against receipt of the release: (1)
Upon the satisfaction of the mortgage; (2) upon a bona
fide offer to satisfy the mortgage in accordance with
the terms of the mortgage deed upon the execution of
a release; (3) when the parties in interest have agreed
in writing to a partial release of the mortgage where
that part of the property securing the partially satisfied
mortgage is sufficiently definite and certain; or (4) when
the mortgagor has made a bona fide offer in accordance
with the terms of the mortgage deed for such partial
satisfaction on the execution of such partial release.
‘‘(b) The plaintiff or the plaintiff’s attorney shall exe-
cute and deliver a release when an attachment has
become of no effect pursuant to section 52-322 or sec-
tion 52-324 or when a lis pendens or other lien has
become of no effect pursuant to section 52-326.
‘‘(c) The mortgagee or plaintiff or the plaintiff’s attor-
ney, as the case may be, shall execute and deliver a
release within sixty days from the date a written request
for a release of such encumbrance (1) was sent to such
mortgagee, plaintiff or plaintiff’s attorney at the per-
son’s last-known address by registered or certified mail,
postage prepaid, return receipt requested, or (2) was
received by such mortgagee, plaintiff or plaintiff’s attor-
ney from a private messenger or courier service or
through any means of communication, including elec-
tronic communication, reasonably calculated to give
the person the written request or a copy of it. The
mortgagee or plaintiff shall be liable for damages to
any person aggrieved at the rate of two hundred dollars
for each week after the expiration of such sixty days
up to a maximum of five thousand dollars or in an
amount equal to the loss sustained by such aggrieved
person as a result of the failure of the mortgagee or
plaintiff or the plaintiff’s attorney to execute and deliver
a release, whichever is greater, plus costs and reason-
able attorney’s fees.’’
In this case, the plaintiff contends that our consider-
ation of whether it was aggrieved should be guided by
the plain language of § 49-8 as analyzed by this court
in Bellemare v. Wachovia Mortgage Corp., 94 Conn.
App. 593, 602, 894 A.2d 335 (2006), aff’d, 284 Conn. 193,
931 A.2d 916 (2007). The defendant, although acknowl-
edging that Bellemare runs counter to its claim that the
plaintiff is not aggrieved because it did not suffer actual
damages, argues that this court’s discussion of
aggrievement in Bellemare is mere dicta. We agree with
the plaintiff.
In Bellemare, this court discussed whether the plain-
tiff’s § 49-8 claim sounded in contract or in tort for
statute of limitations purposes. Id., 597–605. As part of
its analysis, this court considered that the plaintiff in
that case had sought to recover damages for violation
of ‘‘a duty annexed to the mortgage by law . . . .’’ Id.,
601. We held that, ‘‘even though § 49-8 allows the
aggrieved party to recover actual damages, the statute
does not require that the aggrieved party suffer actual
damages in order to recover. . . . [I]t is apparent that
the right vested in mortgagors by § 49-8 is to exact a
penalty on a mortgagee who fails, on proper demand,
to provide a release of mortgage within the statutorily
prescribed time. Because the wronged party is entitled
to an award of damages irrespective of whether there
has been a showing of actual damages, the statute best
can be understood as a coercive means to penalize
those who violate its prescriptions. . . . Because § 49-
8 authorizes the court to compensate a plaintiff for the
breach of this legal duty through an award of either
actual or punitive damages, it fits squarely within the
general definition of a tort action, as one founded on
the violation of a statutory duty.’’ Id., 602; see also
Jackson v. Pennymac Loan Services, LLC, 205 Conn.
App. 189, 200–201, A.3d (2021) (allegation that
defendant failed to provide release of mortgage within
sixty day statutory time period following plaintiff’s
proper demand is sufficient to demonstrate plaintiff’s
standing for purposes of § 48-9 (c)). Because this court’s
conclusion in Bellemare that the statute did not require
a showing of actual damages was central to its holding
that a claim under § 48-9 (c) sounds in tort, the conclu-
sion was not dicta, and it is binding in the present case.
The defendant in the present case acknowledges that
it received a proper demand under § 49-8 and that it
failed to provide the required release to the plaintiff.
Under the statute, that is all that is required for the
plaintiff to establish statutory aggrievement: it was enti-
tled to a release after satisfying the mortgage, it made
proper demand for the release, the defendant received
that demand, and the defendant failed to provide the
release within the statutory sixty days. See Jackson v.
Pennymac Loan Services, LLC, supra, 205 Conn. App.
205. Pursuant to the plain language of the statute, as
already interpreted by this court in Bellemare and in
Jackson, the plaintiff is a statutorily aggrieved party.
See Jackson v. Pennymac Loan Services, LLC, supra,
205; Bellemare v. Wachovia Mortgage Corp., supra, 94
Conn. App. 602.
II
The defendant next claims that the trial court erred
in sustaining the plaintiff’s objection to questions asked
of the defendant’s corporate witness, Angelica Mako,
concerning whether there exists a common practice
whereby borrowers recontact the defendant if they have
not timely received a requested § 49-8 (c) release. The
defendant argues that we should employ a plenary stan-
dard of review to its claim because ‘‘[t]he trial court’s
conclusion that ‘whether something is commonly done
or not doesn’t import legal obligation’ is simply wrong’’
and that this ruling had an adverse impact on its special
defense regarding the plaintiff’s failure to mitigate dam-
ages. The plaintiff argues that the court properly exer-
cised its discretion when it sustained the plaintiff’s
objection, and that any alleged error was harmless
because, as the defendant acknowledges, the sought-
after testimony came in through other witnesses.2 We
conclude that the court did not abuse its discretion in
sustaining the plaintiff’s objection on the ground that
the sought-after testimony had no relevancy.
The defendant cites to the following colloquy:
‘‘[The Defendant’s Counsel]: In the event that a mort-
gage release had not been done when it should have,
was it common or routine for like a borrower or an
attorney or a title company or somebody to call—
‘‘[The Plaintiff’s Counsel]: Objection, Your Honor.
‘‘[The Defendant’s Counsel]: Was it—was it common
or routine for somebody such as a borrower or a title
company or an attorney to call or contact [the defen-
dant] in some way—
‘‘A: Yes.
‘‘[The Defendant’s Counsel]: —to ask for a release?
‘‘The Court: Don’t answer, please.
‘‘[The Plaintiff’s Counsel]: Too vague. It’s vague.
‘‘The Court: I’ll sustain the objection. Whether some-
thing is commonly done or not doesn’t import legal
obligation. Sustained.’’
‘‘A trial court’s ruling on the admissibility of evidence
is entitled to great deference. . . . [T]he trial court has
broad discretion in ruling on the admissibility . . . of
evidence . . . [and its] ruling on evidentiary matters
will be overturned only upon a showing of a clear abuse
of the court’s discretion. . . . We will make every rea-
sonable presumption in favor of upholding the trial
court’s ruling. . . . Moreover, evidentiary rulings will
be overturned on appeal only where there was . . . a
showing by the defendant of substantial prejudice or
injustice.’’ (Internal quotation marks omitted.) Gianetti
v. Norwalk Hospital, 304 Conn. 754, 786, 43 A.3d 567(2012).
‘‘[E]vidence is admissible only if it is relevant. . . .
Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.’’
(Internal quotation marks omitted.) Wahba v. JPMor-
gan Chase Bank, N.A., 200 Conn. App. 852, 864, 241
A.3d 706 (2020), cert. denied, 336 Conn. 909, 244 A.3d
562 (2021). ‘‘Evidence is relevant when it has any ten-
dency to make the existence of any fact that is material
to the determination of the proceeding more probable
or less probable than it would be without the evidence.
. . . As it is used in our code,3 relevance encompasses
two distinct concepts, namely, probative value and
materiality. . . . [M]ateriality turns upon what is at
issue in the case, which generally will be determined
by the pleadings and the applicable substantive law.
. . . What is in issue is determined by the pleadings
. . . . Once the pleadings have been filed, the evidence
proffered must be relevant to the issues raised therein.’’
(Citation omitted; footnote added; internal quotation
marks omitted.) Johnson v. Board of Education, 130
Conn. App. 191, 198, 23 A.3d 68 (2011), appeal dis-
missed, 310 Conn. 302, 77 A.3d 137 (2013).
In the present case, the plaintiff alleged that the
defendant failed to comply with the mandate set forth
in § 49-8 (c) that it timely provide to the plaintiff a
release. Whether other similarly situated individuals or
companies frequently ask the defendant a second time,
or a third time for that matter, to perform its statutory
obligation is irrelevant to whether it, in this instance,
had performed its statutory obligation. The defendant’s
attempt to shift the responsibility to the plaintiff for
the defendant’s own failure to comply with our law is
unmoving. The fact that the defendant admits that it
customarily fails to comply with § 49-8 does not mean
that its responsibility to comply with the law then shifts
to the mortgagor to repeatedly remind the defendant
that it has a statutory obligation. Whether others pro-
vide the defendant with such a reminder is of no rele-
vance to whether the defendant, in fact, had failed to
meet its statutory obligation to fulfill its legal duty
within sixty days of the plaintiff’s proper request.
Accordingly, we agree with the trial court that this evi-
dence was not relevant.
III
The defendant also claims that the trial court erred
in rejecting its first special defense in which it alleged
that the plaintiff had a duty to mitigate, but failed to
mitigate its statutory damages. It argues that the court
improperly ruled that the plaintiff had no ‘‘legal duty
to remind [the defendant] to issue a release of the mort-
gage.’’ The plaintiff argues that the court properly held
that § 49-8 (c) does not require that the plaintiff attempt
to mitigate its damages by reminding the defendant that
it has failed to comply with the statutory mandate to
provide a timely release. The plaintiff further argues
that ‘‘[§] 49-8 (c) is the reminder to the defendant
. . . .’’ (Emphasis in original.) We wholeheartedly agree
with the plaintiff.
Whether a plaintiff has a duty to mitigate statutory
damages to which it is entitled pursuant to § 49-8 (c)
presents a legal question. Accordingly, our review is
plenary. See Bellemare v. Wachovia Mortgage Corp.,
supra, 94 Conn. App. 598.
In Bellemare, this court explained that the statutory
damages set forth in § 49-8 (c), although sounding in tort
rather than contract, are similar to a penalty, enacted
by our legislature against a mortgagee, who, on proper
demand, fails to comply with the statute by providing
a release of mortgage. Id., 600–601. Section 49-8 ‘‘best
can be understood as a coercive means to penalize
those who violate its prescriptions.’’ Id., 602. As this
court further explained in Bellemare, ‘‘in 1986, during
the hearings to amend § 49-8a, the cousin of § 49-8,
Representative William L. Wollenberg noted the ‘con-
stant problem in the real estate [world] with mortgage
releases . . . . When it comes time to sell a house or
any real estate a release of that mortgage is necessary.
. . . What has developed is an extreme difficulty in
getting out of state mortgage companies and financial
people . . . . [t]o . . . give you the pay off, let alone
a formal release of the mortgage for the land records.’
29 H.R. Proc., Pt. 11, 1986 Sess., pp. 416768.
‘‘In 1989, § 49-8 was amended in Public Acts 1989,
No. 347, § 18, ‘An Act Concerning Mortgage Brokers
and Mortgages Servicers and Establishing a Home Buy-
er’s Bill of Rights,’ which, inter alia, increased the pen-
alty due from a mortgagee who failed to provide a timely
release of mortgage to a mortgagor. See 32 H.R. Proc.,
Pt. 29, 1989 Sess., pp. 10,312–20; 32 H.R. Proc., Pt. 30,
1989 Sess., pp. 10,408–39. Then, in 1995, § 49-8 was
amended as part of ‘An Act Concerning Release or Satis-
faction of a Mortgage Lien.’ Public Acts 1995, No. 95-
102, § 1. The stated purpose of ‘An Act Concerning
Release or Satisfaction of a Mortgage Lien’ was to
‘revise the procedure for the release or satisfaction of a
mortgage lien by increasing incentives to assure lenders
comply with laws requiring releases and by enhancing
the remedies and options available to mortgagors and
attorneys when lenders fail to comply.’ . . . Raised
Committee Bill No. 990, January Sess. 1995, p. 9. Accord-
ingly, the legislative history and statutory scheme of
§ 49-8 establish that the statute was enacted and con-
tinues not only to protect property owners, but it has
a more general purpose of enhancing the marketability
of titles and facilitating economic intercourse in
deeded transactions. See id.; Conn. Joint Standing Com-
mittee Hearings, Banks, 1979 Sess., pp. 283–84; 29 H.R.
Proc., Pt. 11, 1986 Sess., pp. 4166–68.’’ (Emphasis
altered.) Bellemare v. Wachovia Mortgage Corp., supra,94 Conn. App. 604–605.
The statutory damages provision of § 49-8 was
enacted as a means to curb what the legislature consid-
ered to be a longstanding problem in the mortgage
industry. See id. The statute is coercive and provides
the mortgagee with an incentive to fully comply in a
timely manner. See id. We conclude that to require the
plaintiff to ‘‘remind’’ the mortgagee that it has a legal
obligation to comply with § 49-8 (c) by providing the
plaintiff with a release, after already properly requesting
that it provide such a release, would run counter to the
intent of the statute and would encourage the abuses
the legislature sought to curb through its enactment.4
Accordingly, we conclude that this claim is without
merit.
IV
The defendant’s final claim is that the trial court erred
in rejecting its second and third special defenses in
which it claimed that § 49-8 (c) was unconstitutional
as applied in this case because it allowed for excessive
fines and punitive damages that are grossly in excess
of actual damages, in violation of the eighth and four-
teenth amendments to the United States constitution.
The defendant’s argument, set forth in its appellate
brief, is not a model of clarity. At times, the defendant
appears to argue that the statutory damages provision
of § 49-8 (c) is unconstitutional on its face and, at other
times, it specifically states that it is claiming that § 49-8
(c) is unconstitutional only as applied to this particular
case. Nevertheless, the defendant’s special defenses
clearly allege that § 49-8 (c) is unconstitutional only as
applied in this case. We conclude that the defendant’s
claim is without merit.
‘‘Determining the constitutionality of a statute pre-
sents a question of law over which our review is plenary.
. . . It [also] is well established that a validly enacted
statute carries with it a strong presumption of constitu-
tionality, [and that] those who challenge its constitu-
tionality must sustain the heavy burden of proving its
unconstitutionality beyond a reasonable doubt. . . .
The court will indulge in every presumption in favor of
the statute’s constitutionality . . . . Therefore, [w]hen
a question of constitutionality is raised, courts must
approach it with caution, examine it with care, and
sustain the legislation unless its invalidity is clear. . . .
In evaluating the constitutionality of a statute, more-
over, we will construe the statute in such a manner as
to save its constitutionality, rather than to destroy it.
. . . In doing so, we may also add interpretative gloss
to a challenged statute in order to render it constitu-
tional. In construing a statute, the court must search
for an effective and constitutional construction that
reasonably accords with the legislature’s underlying
intent.’’ (Citations omitted; internal quotation marks
omitted.) Boisvert v. Gavis, 332 Conn. 115, 143–44, 210
A.3d 1 (2019).
The defendant first argues that § 49-8 (c) is unconsti-
tutional as applied to this case because it permitted the
court to levy, what essentially amounts to, an excessive
and punitive fine that is grossly in excess of the plain-
tiff’s actual damages, which were none. The defendant
contends that the United States Supreme Court
‘‘wrongly decided’’ Browning-Ferris Industries of Ver-
mont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S.
Ct. 2909, 106 L. Ed. 2d 219 (1989) (Browning-Ferris),
a case in which the court firmly held that the excessive
fines clause of the eighth amendment was meant to
limit the sovereign from improperly employing its pros-
ecutorial power and that it ‘‘does not apply to awards
of punitive damages in cases between private parties.’’
Id., 259–60. The defendant requests that we not follow
Browning-Ferris. Alternatively, the defendant argues
that ‘‘to the extent [Browning-Ferris] requires the gov-
ernment to be a recipient or at least share in the pro-
ceeds of a penalty award . . . then the requirement
is met by the state of Connecticut’s (like the federal
government’s) collection of income tax on any punitive
damages award.’’ (Emphasis in original.) We conclude
that the defendant’s arguments border on frivolity.
The eighth amendment to the Unites States constitu-
tion provides: ‘‘Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual
punishment inflicted.’’ In Browning-Ferris, the United
States Supreme Court held that ‘‘the [e]xcessive [f]ines
[c]lause was intended to limit only those fines directly
imposed by, and payable to, the government.’’ (Empha-
sis added.) Browning-Ferris Industries of Vermont,
Inc. v. Kelco Disposal, Inc., supra, 492 U.S. 268; see
also Paroline v. United States, 572 U.S. 434, 456, 134
S. Ct. 1710, 188 L. Ed. 2d 714 (2014). We are bound by
these decisions and conclude that the excessive fines
clause of the eighth amendment does not apply to this
civil case between private parties. Furthermore, any
income taxes the plaintiff might owe on the statutory
damages it receives do not constitute a fine directly
imposed on the defendant by the government. In fact, a
holding to the contrary would render Browning-Ferris
meaningless because, as the defendant notes, all such
awards are taxable.5
The defendant also argues that, under the facts of
this case, § 49-8 (c) violated the due process clause of
the fourteenth amendment to the United States consti-
tution because it permitted a statutory award of ‘‘puni-
tive damages’’ that was greatly in excess of the plaintiff’s
actual damages. The defendant urges the application
of the Gore factors, which is the test employed by the
trial court in this case. See BMW of North America,
Inc. v. Gore, 517 U.S. 559, 575, 116 S. Ct. 1589, 134 L.
Ed. 2d 809 (1996) (directing courts to consider three
guideposts when reviewing punitive damage awards:
‘‘[1] the degree of reprehensibility of the [defendant’s
misconduct]; [2] the disparity between the harm or
potential harm suffered by [the plaintiff] and [the] puni-
tive damages award; and [3] the difference between
[the punitive damages awarded by the jury] and the
civil penalties authorized or imposed in comparable
cases’’). We conclude that Gore is not applicable to this
case because the statutory damages available under
§ 49-8 are not punitive damages for purposes of Gore.
See generally Harty v. Cantor Fitzgerald & Co., 275
Conn. 72, 91 n.10, 93–97, 881 A.2d 139 (2005) (when
legislature has not expressly provided for award of puni-
tive damages, provision allowing for statutory double
damages is not equivalent to punitive damages); see
also In re Marriage of Chen, 354 Ill. App. 3d 1004, 1022,
820 N.E.2d 1136 (2004) (‘‘Unlike the inherent uncer-
tainty associated with punitive damages, [the relevant
statute at issue] provides employers with exact notice
of the [$100 per day] penalty they will face for failing to
comply with a support order. Indeed, employers receive
personal notice of their duties to withhold and pay over
income, as well as the penalty for failing to do so,
through service of the income withholding order. While
[the employer] characterizes the penalty as ‘excessive’
compared to the amount actually owed, the penalty
complained of is $100 per day, and it is the employer
that controls the extent of the fine.’’). We further con-
clude that, although our analysis differs from that of
the trial court, the court correctly held that the applica-
tion of the statutory damages provision of § 49-8 (c)
did not violate the defendant’s right to due process
of law.
As explained in Class Action Reports: ‘‘Punitive dam-
ages and statutory damages are fundamentally differ-
ent. In Gertz v. Robert Welch, Inc., [418 U.S. 323, 350,
94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)] the United States
Supreme Court explained that punitive damages ‘are
not compensation for injury. Instead, they are private
fines levied by civil juries to punish reprehensible con-
duct and to deter its future occurrence.’ Statutory dam-
ages, on the other hand, not only are subject to limits
established by the legislature, but they are at least partly
(if not principally) designed to provide compensation
to individuals where actual damages are difficult or
impossible to determine. Because of these differences,
two of the Gore guideposts—the disparity between the
harm and potential harm suffered and the damages
awarded, and the difference between the damages and
the civil penalties authorized or imposed in comparable
cases—cannot even be assessed. Statutory damages are
awarded in lieu of actual damages, and the damages
already reflect the legislative judgment of the appro-
priate amount of damages for the prohibited conduct.
‘‘Moreover, the underlying constitutional concerns
articulated in Gore . . . and related cases, are essen-
tially procedural; i.e., that the defendant must have fair
notice of the potential damages that could be assessed,
and that the jury’s discretion in awarding punitive dam-
ages is not unlimited. In the case of statutory damages,
the terms of the statute put potential defendants on
notice of the conduct triggering the right to statutory
damages, and of the potential exposure. In addition,
the trier of fact’s discretion is already limited by the
range set forth in the operative statute. For these rea-
sons, a number of courts have refused to apply the
holdings of Gore [and related cases] . . . in the context
of statutory damages. Other courts, while not expressly
distinguishing Gore and its progeny, have nonetheless
relied on a different line of cases—beginning with the
Supreme Court case of St. Louis, [Iron Mountain &
Southern Railway Co. v. Williams, 251 U.S. 63, 40 S. Ct.
71, 64 L. Ed. 139 (1919)]—to decide the constitutional
question.’’ (Footnotes omitted.) S. Larson & M. Friel,
‘‘The Legacy of Ratner v. Chemical Bank:6 Aggregate
Statutory Damages in the Class Action Context,’’ 28
Class Action Reports (May-June 2007). We agree with
this analysis and conclude that our consideration of the
defendant’s due process claim is guided by the United
States Supreme Court’s decision in Williams.
In Williams, the Arkansas legislature had enacted a
statute ‘‘regulating rates for the transportation of pas-
sengers between points within the [s]tate, [which pro-
vided that] any railroad company that demands or col-
lects a greater compensation than the statute prescribes
is subjected ‘for every such offense’ to a penalty of ‘not
less than fifty dollars, nor more than three hundred
dollars and costs of suit, including a reasonable attor-
ney’s fee,’ and [which gave] the aggrieved passenger
. . . a right to recover the same in a civil action.’’ St.
Louis, Iron Mountain & Southern Railway Co. v. Wil-
liams, supra, 251 U.S. 63–64. The court explained: ‘‘The
provision assailed is essentially penal, because [it is]
primarily intended to punish the carrier for taking more
than the prescribed rate. . . . True, the penalty goes
to the aggrieved passenger and not the [s]tate, and is
to be enforced by a private and not a public suit. But
this is not contrary to due process of law; for, as is said
in Missouri Pacific [Railway] Co. v. Humes, 115 U.S.
512, 523, [6 S. Ct. 110, 29 L. Ed. 463 (1885)], ‘the power
of the [s]tate to impose fines and penalties for a viola-
tion of its statutory requirements is coeval with govern-
ment; and the mode in which they shall be enforced,
whether at the suit of a private party, or at the suit of
the public, and what disposition shall be made of the
amounts collected, are merely matters of legislative
discretion.’ Nor does giving the penalty to the aggrieved
passenger require that it be confined or proportioned
to his loss or damages; for, as it is imposed as a punish-
ment for the violation of a public law, the legislature
may adjust its amount to the public wrong rather than
the private injury, just as if it were going to the [s]tate.’’
(Citations omitted.) St. Louis, Iron Mountain & South-
ern Railway Co. v. Williams, supra, 66.
The court further explained: ‘‘That [the due process]
clause places a limitation upon the power of the [s]tates
to prescribe penalties for violations of their laws has
been fully recognized, but always with the express or
tacit qualification that the [s]tates still possess a wide
latitude of discretion in the matter, and that their enact-
ments transcend the limitation only where the penalty
prescribed is so severe and oppressive as to be wholly
disproportioned to the offense and obviously unreason-
able.’’ Id., 66–67.
As to the specific statutory penalty in Williams, the
court explained: ‘‘It is commonly known that carriers
are not prone to adhere uniformly to rates lawfully
prescribed and it is necessary that deviation from such
rates be discouraged and prohibited by adequate liabili-
ties and penalties, and we regard the penalties pre-
scribed as no more than reasonable and adequate to
accomplish the purpose of the law and remedy the
evil intended to be reached. . . . When the penalty is
contrasted with the overcharge possible in any instance
it of course seems large, but, as we have said, its validity
is not to be tested in that way. When it is considered
with due regard for the interests of the public, the num-
berless opportunities for committing the offense, and
the need for securing uniform adherence to established
passenger rates, we think it properly cannot be said to
be so severe and oppressive as to be wholly dispropor-
tioned to the offense or obviously unreasonable.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id., 67.
We are guided further by the more recent case of
Sony BMG Music Entertainment v. Tenenbaum, 719
F.3d 67 (1st Cir. 2013), which also relied on Williams
and found Gore inapplicable to a private claim for statu-
tory damages. In Tenenbaum, the defendant had down-
loaded and distributed copyrighted music, and the plaintiff
brought a civil suit against him for statutory damages,
pursuant to the Copyright Act, 17 U.S.C. § 101 et seq.,
and for injunctive relief. Id., 68–69. The jury awarded the
plaintiff $22,500, which was 15 percent of the statutory
maximum award, for each of the defendant’s thirty vio-
lations, for a total award of $675,000. Id., 69. The trial
court, in reliance on Gore, reduced the total award to
$67,500 after concluding that the original award violated
the defendant’s right to due process of law. Id., 69. The
United States Court of Appeals for the First Circuit
reversed the judgment of the trial court, concluding
that Williams, rather than Gore, applied to the facts of
the case, and it remanded the matter to the trial court.
Id. On remand, the trial court, relying on Williams,
reinstated the original $675,000 jury award. Id., 69–70.
On appeal from that new judgment, the First Circuit
explained why Williams and not Gore applied to that
case. Id., 70–71.
Specifically, the First Circuit explained: ‘‘Gore . . .
address[ed] the related but distinct issue of when a
jury’s award of punitive damages is so excessive that
it violates due process. See [BMW of North America,
Inc. v.] Gore, [supra], 517 U.S. 574. In Gore, the [c]ourt,
animated by the principle that due process requires that
civil defendants receive fair notice of the severity of
the penalties their conduct might subject them to, id.,identified three ‘guideposts’ for a court’s consideration
of whether a punitive damage award is so excessive
that it deprives a defendant of due process: (1) the
degree of reprehensibility of the defendant’s conduct,
[id., 575–80], (2) the ratio of the punitive award to the
actual or potential harm suffered by the plaintiff, [id.,
580–83], and (3) the disparity between the punitive
award issued by the jury and the civil or criminal penal-
ties authorized in comparable cases, [id., 583–85].
‘‘Here, the [D]istrict [C]ourt correctly chose to apply
the Williams standard. By its own terms, Williams
applies to awards of statutory damages, which the jury
awarded in this case, while Gore applies to awards of
punitive damages, which the jury did not award. Gore
did not overrule Williams, and the Supreme Court has
not suggested that the Gore guideposts should extend
to constitutional review of statutory damage awards.
The concerns regarding fair notice to the parties of
the range of possible punitive damage awards, which
underpin Gore, are simply not present in a statutory
damages case where the statute itself provides notice
of the scope of the potential award. Moreover, Gore’s
second and third guideposts cannot logically apply to
an award of statutory damages under the Copyright
Act. The second due process guidepost requires a com-
parison between the award and the harm to the plaintiff,
but a plaintiff seeking statutory damages under the
Copyright Act need not prove actual damages. F.W.
Woolworth Co. v. Contemporary Arts, Inc., 344 U.S.
228, 233, 73 S. Ct. 222, 97 L. Ed. 276 (1952). The third
guidepost requires a comparison between the award
and the authorized civil and criminal penalties in com-
parable cases. Because an award of statutory damages
is by definition an authorized civil penalty, this guide-
post would require a court to compare the award to
itself, a nonsensical result. Therefore, we conclude, as
have other courts, that the standard articulated in Wil-
liams governs the review of an award of statutory dam-
ages under the Copyright Act. See Capitol Records, Inc.
v. Thomas–Rasset, 692 F.3d 899, 907 (8th Cir. 2012);
Zomba Enterprises, Inc. v. Panorama Records, Inc.,
491 F.3d 574, 587 (6th Cir. 2007).’’ (Emphasis altered.)
Sony BMG Music Entertainment v. Tenenbaum, supra,
719 F.3d 70–71.
In the present case, to determine whether the penalty
prescribed against the defendant is so severe and
oppressive as to be wholly disproportionate to the
offense and obviously unreasonable, we must examine
the purpose of statutory damages under § 49-8 (c). See
St. Louis, Iron Mountain & Southern Railway Co. v.
Williams, supra, 251 U.S. 66–67; Sony BMG Music
Entertainment v. Tenenbaum, supra, 719 F.3d 71.
As we explained in part III of this opinion, the legisla-
tive history of § 49-8 reveals that the purpose of the
statute is to curb one of the abuses in the mortgage
industry, namely, delays in providing timely releases of
mortgages, which the legislature viewed as a serious
problem. See Bellemare v. Wachovia Mortgage Corp.,
supra, 94 Conn. App. 604–605. The statute not only
provides for damages for injury, but it also provides
statutory damages meant to discourage wrongful con-
duct and to encourage mortgagees to provide timely
releases. See Sony BMG Music Entertainment v. Ten-
enbaum, supra, 719 F.3d 71. In this case, the defendant
received a payoff of the mortgage from the plaintiff, by
overnight mail, along with a demand that specifically
cited to and quoted the statutory damages provision of
§ 49-8 (c). Despite that demand, the defendant failed to
provide the mandatory release of mortgage, and, nearly
three years later, it faced the maximum statutory pen-
alty of $5000, in addition to costs and reasonable attor-
ney’s fees. Furthermore, the defendant had full control
of its statutory liability because the statutory damages
are assessed on a weekly basis for each week of non-
compliance. Unlike in Gore, in the present case, the
defendant knew exactly what its exposure was and the
simple step it needed to take to limit its liability.
Finally, as in Tenenbaum, the defendant here con-
tends that the award violates its right to due process
of law because the award is not tied to any actual
damages suffered by the plaintiff. In rejecting such an
argument in Tenenbaum, the First Circuit explained:
‘‘[T]his argument asks us to disregard the deterrent
effect of statutory damages . . . . More importantly,
the Supreme Court held in Williams that statutory dam-
ages are not to be measured this way: ‘Nor does giving
the penalty to the aggrieved [party] require that it be
confined or proportioned to his loss or damages; for,
as it is imposed as a punishment for the violation of a
public law, the [l]egislature may adjust its amount to
the public wrong rather than the private injury, just as
if it were going to the state.’ [St. Louis, Iron Mountain &
Southern Railway Co. v. Williams, supra 251 U.S. 66];
see also [Capitol Records, Inc. v.] Thomas-Rasset,
[supra, 692 F.3d 909–10] (rejecting, in a case with similar
facts, the [D]istrict [C]ourt’s conclusion that ‘statutory
damages must still bear some relation to actual dam-
ages’).’’ (Emphasis omitted.) Sony BMG Music Enter-
tainment v. Tenenbaum, supra, 719 F.3d 71–72. For the
foregoing reasons, we conclude that the plaintiff’s due
process claim has no merit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff further argues that the record establishes that it also was
classically aggrieved. Because we conclude that the plaintiff was statutorily
aggrieved, we need not consider this additional argument.
2
In its appellate brief, the defendant acknowledges that the court allowed
testimony of a similar nature from other witnesses: ‘‘Incongruously, the trial
court allowed testimony, over [the plaintiff’s] objection, which established
that borrowers, title companies, or attorneys would make the further
requests. . . . The trial court’s exclusion of evidence as to how often or
how routine such requests were made was incorrect and such testimonial
evidence must be admitted and considered.’’
3
As provided in our Code of Evidence: ‘‘All relevant evidence is admissible
. . . . Evidence that is not relevant is inadmissible.’’ (Emphasis added.)
Conn. Code Evid. § 4-2. Additionally, ‘‘ ‘[r]elevant evidence’ means evidence
having any tendency to make the existence of any fact that is material to
the determination of the proceeding more probable or less probable than
it would be without the evidence.’’ Conn. Code Evid. § 4-1.
4
We express no opinion at this time as to whether a plaintiff has a duty
to mitigate its damages when it makes a claim for actual monetary losses
under § 49-8 (c).
5
We further note that, even if the penalty were paid directly to the state,
it would not constitute a fine for eighth amendment purposes. See Seramonte
Associates, LLC v. Hamden, 202 Conn. App. 467, 482–83, 246 A.3d 513, cert.
granted, 336 Conn. 923, 246 A.3d 492 (2021) (10 percent penalty for failing
to file tax forms in timely manner not fine subject to eighth amendment).
6
See Ratner v. Chemical Bank New York Trust Co., 329 F. Supp. 270(S.D.N.Y. 1971).