Villano v. Polimeni

• Decision Date: 07 September 1999
• Docket Number: (AC 17810)
• Citation: 54 Conn. App. 744,737 A.2d 950
• Court: Connecticut Court of Appeals
• Parties: ELIZABETH A. VILLANO, EXECUTRIX (ESTATE OF FREDERICK VILLANO) v. CARLO POLIMENI ET AL.

54 Conn. App. 744

737 A.2d 950

ELIZABETH A. VILLANO, EXECUTRIX (ESTATE OF FREDERICK VILLANO) v. CARLO POLIMENI ET AL.

(AC 17810)

Appellate Court of Connecticut.

Argued April 27, 1999.

Officially released September 7, 1999.

O'Connell, C. J., and Landau and Dupont, JS.

C. George Kanabis, with whom, on the brief, was Renee Houle, for the appellant (plaintiff). Thomas M. DeLillo, with whom, on the brief, was James E. Mattern, for the appellee (defendant Joseph Polimeni).

Opinion

O'CONNELL, C. J.

This is a mortgage foreclosure action in which the plaintiff appeals from the trial court's judgment for the defendant Joseph Polimeni¹ on both special defenses. The trial court's judgment was in accordance with the report of an attorney trial referee. The plaintiff executrix of her husband's estate claims that the conclusions of law reached by the referee and adopted by the trial court that (1) a merger of title interest and mortgage interest occurred and (2) the estate was not the owner of the property at the time of the creation of the note and mortgage are inconsistent with the subordinate facts found.² Because we conclude that the subordinate facts found by the referee support the legal conclusion that payment in full was made on the note thus extinguishing the mortgage that is the subject of the foreclosure, we affirm the judgment of the trial court.³

The attorney trial referee found the following relevant facts. The plaintiff, Elizabeth A. Villano, as executrix of the estate of Frederick Villano, conveyed the estate's entire interest in and to certain real property to the defendants Joseph Polimeni and Carlo Polimeni as tenants in common.⁴ As consideration for the transfer of property, the Polimenis gave the estate a note and mortgage. Subsequently, Joseph Polimeni conveyed his interest in the property to Carlo Polimeni. In connection with this transaction, Carlo Polimeni executed a new note and mortgage deed to the plaintiff,⁵ and gave Joseph Polimeni a second mortgage on the subject property.

When Carlo Polimeni experienced difficulty in paying the note, he quitclaimed his fee interest in the mortgaged property to the plaintiff. The plaintiff accepted the conveyance of the property in payment of the note.

The plaintiff initiated this action against the Polimenis as executrix of the estate⁶ seeking strict foreclosure of the mortgage given to the estate by Carlo Polimeni.⁷ Joseph Polimeni filed two special defenses, the first alleging that the note and mortgage merged into the title holder of the subject property when Carlo Polimeni quitclaimed his fee interest in the property to the plaintiff, and the second alleging that Carlo Polimeni conveyed to the plaintiff his interest in the subject property in full payment of the note and mortgage cited in the plaintiffs complaint.

The attorney trial referee made findings of fact that led him to conclude that both merger and payment had occurred, thus extinguishing the mortgage that is the subject of the foreclosure action. Accordingly, pursuant to the recommendation of the referee, the trial court rendered judgment for Joseph Polimeni on both special defenses.

"We begin by setting forth the applicable standards of review. Attorney trial referees are empowered to hear and decide issues of fact. Spears v. Kerars Realty Co., 171 Conn. 699, 702-703, 372 A.2d 121 (1976). It is axiomatic that `a reviewing authority may not substitute its findings for those of the trier of the facts.' Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989)." Romano v. Derby, 42 Conn. App. 624, 626, 681 A.2d 387 (1996). "Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney trial] referee. See Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256, 524 A.2d 610 (1987)." (Internal quotation marks omitted.) Kallas v. Harnen, 48 Conn. App. 253, 257, 709 A.2d 586, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998).

The attorney trial referee made a factual finding that payment of the debt occurred, thus extinguishing the mortgage that is the subject of this foreclosure. The referee found that the plaintiff had accepted the quitclaim deed in full satisfaction of the debt. The referee further found that the plaintiff made no demand of the Polimenis for interest or principal on the debt from the time that the property was conveyed to her until she executed this foreclosure action on behalf of the estate four and one-half years later, thus lending further credence to the conclusion that she accepted the quitclaim deed in full satisfaction of the debt.⁸ The trial court relied on those factual findings in its memorandum of decision⁹ to conclude that "the plaintiff accepted the quitclaim deed in payment of the debt and, therefore, Carlo Polimeni owed the plaintiff no obligation under the mortgage."

Our review of the record, briefs and oral argument convinces us that the conclusion reached by the attorney trial referee and accepted by the trial court that payment occurred is more than adequately supported by the subordinate facts found.

The judgment is affirmed.

In this opinion the other judges concurred.

1. The original defendants in this action are Carlo Polimeni, Joseph Polimeni and Farmers and Mechanics Savings...