Rockstone Capital, LLC v. Caldwell ( 2021 )

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ROCKSTONE CAPITAL, LLC v. MORGAN J.
CALDWELL, JR., ET AL.
(AC 43653)
Elgo, Cradle and DiPentima, Js.
Syllabus
The plaintiff sought to foreclose a mortgage on certain real property that
was jointly owned by the defendants, C and D, who were domestic
partners. The plaintiff purchased a line of credit that had been extended
to C’s business, W Co., and guaranteed by C. After the plaintiff brought
a collections action against W Co. and C for nonpayment, the plaintiff,
W Co., C and D entered into a settlement agreement in which, inter alia,
the plaintiff agreed to forbear litigation and reduce the total amount of
the indebtedness owed in exchange for W Co.’s and C’s agreement to
waive all defenses they had with respect to the agreement and to make
regular payments on the debt. D guaranteed payment of the sums due
under the settlement agreement on a nonrecourse basis, and C and D
granted the plaintiff a mortgage against their respective interests in their
residence to secure their obligations under the settlement agreement.
After W Co. and C defaulted on their payment obligations, the plaintiff
declared the entire outstanding balance immediately due and payable
and brought a foreclosure action against the real property. C and D
each pleaded separate special defenses. D claimed that she did not read
the settlement agreement prior to executing the document and that she
was not represented by counsel in connection with the same. The trial
court granted the plaintiff’s motion to strike C’s special defenses but
denied the plaintiff’s motion with respect to D’s special defenses. Follow-
ing a bench trial, the trial court rendered a judgment of strict foreclosure
in favor of the plaintiff against C but determined that, with respect to
D, the settlement agreement was unconscionable and unenforceable.
The trial court explained that the settlement agreement was both proce-
durally and substantively unconscionable as to D due to, inter alia,
the rushed nature of the closing, her lack of business acumen, her
unawareness of the terms of the agreement, a lack of consideration,
and the overly harsh terms of the agreement. On the plaintiff’s appeal
to this court, held that the trial court improperly concluded that the
settlement agreement was procedurally and substantively unconsciona-
ble as to D; the court’s findings with respect to the contract formation
process failed to support a legal conclusion of procedural unconsciona-
bility because there was no language barrier between the parties, D had
entered into a prior mortgage and, as a result, had some familiarity with
mortgage documents, D’s education level and business sophistication
were immaterial, as she did not argue that the settlement agreement
was ambiguous or exceedingly complicated and her surprise regarding
the contract terms derived solely from her failure to read the agreement,
and the court did not find that the plaintiff was responsible for any
misconduct during the contract formation process, as it did not mislead
or take advantage of D; moreover, the trial court’s conclusion that the
settlement agreement was substantively unconscionable because D did
not receive any direct consideration in exchange for her agreement to
mortgage her interest in her residence was clearly erroneous, as, even
though D was not previously obligated to pay the debts of C or W Co.,
she received consideration for her guarantee because, if the settlement
agreement had been honored, she would have avoided having to share
title to her home with the plaintiff and she incurred the liability so that
C could receive the direct benefit of forbearing litigation and reducing
his total indebtedness; accordingly, the judgment with respect to D was
reversed and the case was remanded with direction to render a judgment
of strict foreclosure against D.
Argued May 17—officially released August 24, 2021
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendants, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the court, Lee, J., granted
the plaintiff’s motion to strike the named defendant’s
special defenses and denied the plaintiff’s motion to
strike the special defenses of the defendant Vicki A.
Ditri; thereafter, the matter was tried to the court, Lee,
J.; judgment of strict foreclosure against the named
defendant, from which the plaintiff appealed to this
court. Reversed in part; judgment directed.
Deborah L. Dorio, with whom, on the brief, was
Michael A. Pease, for the appellant (plaintiff).
Sophie Laing, certified legal intern, with whom were
Jeffrey Gentes, and, on the brief, J. L. Pottenger, Jr.,
and Chaarushena Deb and Zaria Noble, certified legal
interns, for the appellee (defendant Vicki A. Ditri).
Opinion
CRADLE, J. In this strict foreclosure action, we con-
sider the enforceability of a settlement and forbearance
agreement (settlement agreement) entered into by the
plaintiff, Rockstone Capital, LLC, the defendants, Vicki
A. Ditri and Morgan J. Caldwell, Jr., and Caldwell’s
business, Wesconn Automotive Center, LLC (Wesconn),
that resulted from a collections action brought by the
plaintiff against Caldwell and Wesconn.1 The plaintiff
appeals from the judgment of the trial court, rendered
after a court trial, in favor of the defendant, on her
special defense that the settlement agreement was
unconscionable and, therefore, unenforceable. On
appeal, the plaintiff contends that the trial court improp-
erly concluded that the settlement agreement was both
procedurally and substantively unconscionable as to
the defendant. We agree and, accordingly, reverse in part
the judgment of the trial court.2
The following facts, as found by the trial court, and
procedural history are relevant to this appeal. The
defendant and Caldwell have been in an intimate rela-
tionship for more than twenty-eight years. Since the
1990s, they have jointly owned and lived in a residence
located at 11 Devon Avenue in Norwalk (Devon Avenue
property). In August, 2003, Wesconn3 obtained a line of
credit with Fleet National Bank, now Bank of America,
N.A., in the initial amount of $27,000, which amount
was later increased to $75,000.4 Caldwell executed a
personal guarantee of payment and performance of the
credit line. On December 14, 2004, Fleet National Bank
issued an additional $5400 to Wesconn, and Caldwell
again executed a guarantee of payment and perfor-
mance.
The plaintiff purchased Wesconn’s line of credit and
Caldwell’s guarantees from Bank of America, N.A., in
2006, and was assigned all rights to the debts. In 2007,
the plaintiff brought a collections action against Wes-
conn and Caldwell, alleging nonpayment of principal
and interest. To resolve the action, the plaintiff, Wes-
conn, Caldwell, and the defendant5 entered into the
settlement agreement on August 31, 2010.6 The settle-
ment agreement provided generally that Caldwell and
Wesconn would agree to waive all defenses with respect
to the agreement and would make regular payments in
exchange for the plaintiff’s offer to forbear litigation
and reduce the total amount of indebtedness. To secure
the obligations under the settlement agreement, Cald-
well and the defendant granted the plaintiff an open-
end mortgage against their respective interests in the
Devon Avenue property. The defendant has never had
any personal liability for the debt, beyond her interest
in the Devon Avenue property.7
On the day of closing, and at Caldwell’s behest, the
defendant traveled to the office of Caldwell’s attorneys
during her lunch break to execute the settlement agree-
ment. Prior to signing, Caldwell had not informed the
defendant of the nature of the agreement and had simply
asked her to ‘‘sign some papers.’’ The defendant had
not spoken with Caldwell’s attorneys before the closing
date and was not provided an advance copy of the
settlement agreement. At the signing, the defendant was
unrepresented by counsel, and neither Caldwell nor his
attorneys explained to the defendant what the settle-
ment agreement or mortgage entailed. The settlement
agreement was opened to the signature page when the
defendant arrived, and she did not read the other pages
before signing it. The plaintiff was not present at the
closing.
Wesconn and Caldwell subsequently defaulted on the
amounts owed under the settlement agreement and the
plaintiff exercised its option to declare the entire bal-
ance immediately due and payable. The plaintiff then
filed the present action on April 26, 2018, seeking to
foreclose the mortgage on the Devon Avenue property.
Caldwell and the defendant, each self-represented, filed
individual appearances and pleaded separate special
defenses.8 In her answer, the defendant alleged the fol-
lowing special defense: ‘‘I Vicki Ditri was not involved
in Wesconn Auto [and] Tire. Maria Janice Lawrence
stole money from Wesconn Tire [and] Auto, she got
arrested. Next thing I know I have to go to a lawyer’s
office (not my lawyer I was not [i]nvolved), to sign
papers which I never read and was not represented by
a lawyer. I would never agree to [forbearance] (which
I just learned what that means!).’’
On June 14, 2018, the plaintiff filed motions to strike
both Caldwell’s and the defendant’s special defenses
on the ground that they were legally insufficient
because they did not ‘‘relate to the making of the debt
obligation . . . .’’ The trial court, Lee, J., granted the
motion to strike Caldwell’s special defense but denied
the motion as to the defendant’s special defense.
A bench trial was held on July 16, 2019. On November
7, 2019, the trial court, Lee, J., issued its memorandum
of decision. The court determined that the plaintiff had
established a prima facie case of mortgage foreclosure
and rendered a judgment of strict foreclosure in favor
of the plaintiff against Caldwell.9 With regard to the
defendant, however, the court held that the settlement
agreement was unconscionable and, consequently,
unenforceable. Specifically, the court explained, inter
alia, that the rushed nature of the closing, the defen-
dant’s lack of business acumen, and the ‘‘overly harsh’’
terms of the settlement agreement rendered the agree-
ment both procedurally and substantively unconsciona-
ble.
On December 27, 2019, the plaintiff filed a motion
for articulation seeking articulation on five points.10
The trial court, Lee, J., responded to the plaintiff’s
motion for articulation, explaining, inter alia, that the
‘‘conduct of the closing of the underlying settlement
agreement and its provisions, pursuant to which [the
defendant] agreed to a mortgage securing . . . Cald-
well’s obligations, despite having no liability herself,
and being unaware of the contents or effect of the
document she was signing’’ militated a determination
of unconscionability. The plaintiff’s motion for further
articulation was denied. This appeal followed.
The plaintiff claims that the trial court erred in con-
cluding that the settlement agreement was both proce-
durally and substantively unconscionable as to the
defendant. We agree with the plaintiff.
The following legal principles guide our analysis of
the plaintiff’s claim on appeal. ‘‘We first note that the
defense of unconscionability is a recognized defense
to a foreclosure action. . . . The purpose of the doc-
trine of unconscionability is to prevent oppression and
unfair surprise. . . . As applied to real estate mort-
gages, the doctrine of unconscionability draws heavily
on its counterpart in the Uniform Commercial Code
which, although formally limited to transactions involv-
ing personal property, furnishes a useful guide for real
property transactions. . . . As Official Comment 1 to
§ 2-302 of the Uniform Commercial Code suggests, [t]he
basic test is whether, in the light of the general commer-
cial background and the commercial needs of the partic-
ular trade or case, the clauses involved are so one-
sided as to be unconscionable under the circumstances
existing at the time of the making of the contract. . . .
Unconscionability is determined on a case-by-case
basis, taking into account all of the relevant facts and
circumstances.’’ (Citations omitted; internal quotation
marks omitted.) Hirsch v. Woermer, 184 Conn. App.
583, 588–89, 195 A.3d 1182, cert. denied, 330 Conn. 938,
195 A.3d 384 (2018).
In practice, we have divided claims of unconsciona-
bility into two categories—one substantive and the
other procedural. ‘‘Substantive unconscionability
focuses on the content of the contract, as distinguished
from procedural unconscionability, which focuses on
the process by which the allegedly offensive terms
found their way into the agreement.’’ (Internal quotation
marks omitted.) Cheshire Mortgage Service, Inc. v.
Montes, 223 Conn. 80, 87 n.14, 612 A.2d 1130 (1992),
quoting J. Calamari & J. Perillo, Contracts (3d Ed. 1987)
§ 9-37, p. 399. Procedural unconscionability is intended
to prevent unfair surprise and substantive unconsciona-
bility is intended to prevent oppression. Smith v. Mit-
subishi Motors Credit of America, Inc., 247 Conn. 342,
349, 721 A.2d 1187 (1998).
‘‘The doctrine of unconscionability, as a defense to
contract enforcement, generally requires a showing that
the contract was both procedurally and substantively
unconscionable when made—i.e., some showing of an
absence of meaningful choice on the part of one of the
parties together with contract terms which are unrea-
sonably favorable to the other party . . . .’’ (Internal
quotation marks omitted.) Hirsch v. Woermer, supra,
184 Conn. App. 589–90, quoting R. F. Daddario & Sons,
Inc. v. Shelansky, 123 Conn. App. 725, 741, 3 A.3d 957(2010); see also Emeritus Senior Living v. Lepore, 183
Conn. App. 23, 29, 191 A.3d 212 (2018).
‘‘[T]he question of unconscionability is a matter of
law to be decided by the court based on all the facts
and circumstances of the case.’’ Iamartino v. Avallone,
2 Conn. App. 119, 125, 477 A.2d 124, cert. denied, 194
Conn. 802, 478 A.2d 1025 (1984). ‘‘[O]ur review on
appeal is unlimited by the clearly erroneous standard.
. . . [T]he ultimate determination of whether a transac-
tion is unconscionable is a question of law, not a ques-
tion of fact, and . . . the trial court’s determination on
that issue is subject to a plenary review on appeal. It
also means, however, that the factual findings of the
trial court that underlie that determination are entitled
to the same deference on appeal that other factual find-
ings command. Thus, those findings must stand unless
they are clearly erroneous.’’ (Citations omitted; internal
quotation marks omitted.) Cheshire Mortgage Service,
Inc. v. Montes, supra, 223 Conn. 88. With the foregoing
principles in mind, we turn to the plaintiff’s claim on
appeal.
The plaintiff first argues that the trial court improp-
erly concluded that the settlement agreement was pro-
cedurally unconscionable as to the defendant. Specifi-
cally, the plaintiff claims that the trial court’s findings
pertaining to the contract formation process fail to sup-
port a legal conclusion of procedural unconscionabil-
ity.11 We agree.
Our Supreme Court has considered various factors
in engaging in procedural unconscionability analyses,
including the contracting party’s business acumen, the
party’s awareness of material preconditions to the con-
tract, whether the party was represented by counsel
during the transaction period, and the existence of a
language barrier between the contracting parties. See
id., 89–91. In addition, this court has considered the
contracting party’s level of education, the party’s ability
to read and understand the agreement at issue, and the
reasonableness of the party’s expectation to fulfill the
contractual obligations. Family Financial Services,
Inc. v. Spencer, 41 Conn. App. 754, 763–64, 677 A.2d
479 (1996). We have also assessed the conduct of the
parties during the contract’s formation, focusing on the
process by which the allegedly unconscionable terms
found their way into the agreement. Id. (concluding
that loan agreement was procedurally unconscionable
where plaintiff’s attorneys rushed unrepresented defen-
dant into signing, failed to disclose identities of true
lenders, and withheld material term until closing).
In the present case, the trial court found that the
defendant lacked business acumen; the closing was
rushed because the defendant was on her lunch break;
the defendant was unrepresented at the closing; neither
Caldwell nor Caldwell’s attorneys explained the settle-
ment agreement or the mortgage to the defendant; and
the documents for the defendant to sign were folded
back so that only the signature page was exposed. We
conclude that these findings are insufficient to render
the settlement agreement procedurally unconscionable.
As an initial matter, the trial court did not find that
either the defendant or Caldwell had an unreasonable
expectation in fulfilling their obligations under the set-
tlement agreement. Put another way, the court did not
find that Caldwell’s financial situation made it apparent
that he could not reasonably expect to make the sched-
uled payments, or that the plaintiff entered the agree-
ment simply to reap the equity in the Devon Avenue
property. Likewise, the trial court did not find that the
defendant experienced difficulty speaking or under-
standing English. Accordingly, there was no language
barrier that prevented her from comprehending the set-
tlement agreement. Although the trial court found that
the defendant was an unsophisticated party, that finding
is discounted due to the fact that she had entered into
a prior mortgage agreement and, therefore, had some
familiarity with mortgage documents. See Cheshire
Mortgage Service, Inc. v. Montes, supra, 223 Conn.
90–91 (trial court’s finding that defendants had entered
into prior mortgage transaction undermined defen-
dants’ argument that they lacked business acumen).
Additionally, the defendant’s level of education or
business sophistication is largely immaterial to the par-
ticular circumstances in the present case. The defen-
dant does not argue that the settlement agreement was
ambiguous or exceedingly complicated. Rather, her
alleged surprise regarding the contractual terms derives
from her failure to read the agreement. Where a party
does not attempt to understand its contractual obliga-
tions before signing, considerations such as education
level, business acumen, and complexity of the contrac-
tual language become less relevant to our analysis.
Indeed, a contracting party’s negligent failure to read
and understand an agreement has consistently been
rejected as an unconscionability defense to contract
enforcement. Smith v. Mitsubishi Motors Credit of
America, Inc., supra, 247 Conn. 351–52 (‘‘[w]e have
never held that principles of unconscionability super-
sede, in toto, the duty of a contracting party to read
the terms of an agreement or else be deemed to have
notice of the terms’’); Emeritus Senior Living v. Lep-
ore, supra, 183 Conn. App. 30 n.5 (‘‘The defendant’s
purported ignorance [with regard to understanding that
signing an assisted living residency agreement as her
mother’s representative would make her personally lia-
ble to the plaintiff] . . . does not lead us to conclude
that the formation of the agreement was procedurally
unconscionable. The defendant had an obligation to
read the agreement . . . and understand it before sign-
ing.’’ (Citation omitted.)); see also Ursini v. Goldman,
118 Conn. 554, 562, 173 A. 789 (1934) (‘‘where a person
of mature years and who can read and write, signs or
accepts a formal written contract affecting [her] . . .
interests, it is [her] duty to read it and notice of its
contents will be imputed to [her] if [she] negligently
fails to do so’’).
Moreover, our court has limited determinations of
procedural unconscionability to cases where bargaining
or contractual improprieties were committed by the
plaintiff. Shoreline Communications, Inc. v. Norwich
Taxi, LLC, 70 Conn. App. 60, 70, 797 A.2d 1165 (2002)
(‘‘we know of no case . . . in which a party may invoke
unconscionability without a showing of some kind of
relevant misconduct by the party seeking enforcement
of a contract’’); see also Emeritus Senior Living v.
Lepore, supra, 183 Conn. App. 29–30 and n.5 (rejecting
claim of procedural unconscionability where defendant
had not presented any evidence that demonstrated that
plaintiff had prevented her from reading or understand-
ing agreement).
Where the claim of unconscionability is directed at
the actions and representations of third parties, rather
than the plaintiff, we have required that an agency rela-
tionship exist between the plaintiff and the third party.12
Bank of America, N.A. v. Gonzalez, 187 Conn. App.
511, 522 n.9, 202 A.3d 1092 (2019) (‘‘[b]ecause the defen-
dant did not establish that [the third party] was an agent
or employee of [the plaintiff’s predecessor in interest],
the court correctly concluded that the defendant could
not prevail on his special defense of unconscionabil-
ity’’); CitiMortgage, Inc. v. Coolbeth, 147 Conn. App.
183, 192, 81 A.3d 1189 (2013) (‘‘existence of an agency
relationship is critical to the viability of the defendants’
special [defense of unconscionability] . . . insofar as
the special [defense] . . . [is] primarily directed
toward the representations and actions of the [third
party] . . . not the plaintiff’’), cert. denied, 311 Conn.
925, 86 A.3d 469 (2014).
Here, the trial court did not find that the plaintiff
was responsible for any misconduct in the contract
formation process. There is no evidence that the plain-
tiff intended to mislead the defendant or sought to take
advantage of her lack of counsel. Rather, the allegedly
rushed nature of the signing, folded pages, and failure
to explain the settlement agreement and mortgage each
stem from Caldwell, his attorneys, or the defendant’s
own constraints. In fact, the plaintiff was not even pres-
ent at the time the defendant signed the settlement
agreement. Moreover, as the other party to the contract,
Caldwell can in no way be characterized as the plain-
tiff’s agent, and the defendant does not argue that he
was acting in such capacity. Accordingly, we conclude
that the trial court’s findings fail to support a determina-
tion that the settlement agreement was procedurally
unconscionable as to the defendant.
The plaintiff also challenges the trial court’s determi-
nation that the settlement agreement was substantively
unconscionable. In particular, the plaintiff argues that
the factual basis underlying the court’s legal conclusion
that the settlement agreement was substantively uncon-
scionable—that the defendant received ‘‘no direct con-
sideration’’ for agreeing to the mortgage on her home—
was clearly erroneous. We agree.13
‘‘[C]onsideration is [t]hat which is bargained-for by
the promisor and given in exchange for the promise by
the promisee . . . . [It] consists of a benefit to the
party promising, or a loss or detriment to the party to
whom the promise is made. . . . [U]nder the law of
contract, a promise is generally not enforceable unless
it is supported by consideration.’’ (Citations omitted;
internal quotation marks omitted.) NSS Restaurant Ser-
vices, Inc. v. West Main Pizza of Plainville, LLC, 132
Conn. App. 736, 740–41, 35 A.3d 289 (2011).
It is axiomatic that the ‘‘doctrine of consideration
does not require or imply an equal exchange between
the contracting parties. . . . The general rule is that,
in the absence of fraud or other unconscionable circum-
stances, a contract will not be rendered unenforceable
at the behest of one of the contracting parties merely
because of an inadequacy of consideration.’’ (Internal
quotation marks omitted.) Christian v. Gouldin, 72
Conn. App. 14, 23, 804 A.2d 865 (2002). ‘‘Whether an
agreement is supported by consideration is a factual
inquiry reserved for the trier of fact and subject to
review under the clearly erroneous standard.’’ (Internal
quotation marks omitted.) Viera v. Cohen, 283 Conn.
412, 442, 927 A.2d 843 (2007).
The trial court’s finding of ‘‘no direct consideration’’
is based on the fact that the defendant was not obligated
to pay Wesconn’s and Caldwell’s business debts. In
other words, the court held that the plaintiff’s offer to
forbear litigation and reduce Caldwell’s indebtedness
provided nothing of value in exchange for the defen-
dant’s interest in the Devon Avenue property. Consider-
ation is not construed so narrowly.
As this court has repeatedly recognized, the intangi-
ble benefit of assisting one’s family is sufficient to con-
stitute valuable consideration. Sullo Investments, LLC
v. Moreau, 151 Conn. App. 372, 383–84, 95 A.3d 1144(2014) (holding that father’s ability to help his son
finance purchase of restaurant equipment, despite not
personally receiving loan proceeds, established consid-
eration); Deutsche Bank National Trust Co. v. DelMas-
tro, 133 Conn. App. 669, 680–81, 38 A.3d 166 (finding
mortgage supported by consideration where mother
‘‘received the benefit of trying to help her son’’ and
‘‘incurred a detriment by assuming the role of guarantor
to the mortgage,’’ but did not receive financial benefit
(internal quotation marks omitted)), cert. denied, 304
Conn. 917, 40 A.3d 783 (2012).
The fact that consideration did not directly flow from
the plaintiff to the defendant in the form of a financial or
legal benefit does not render the settlement agreement
unenforceable. See Sullo Investments, LLC v. Moreau,
supra, 151 Conn. App. 382–84. The settlement agree-
ment was entered into in order to reduce Caldwell’s
and Wesconn’s debts and avoid a potential collections
judgment. If the agreement had been honored, Caldwell
would have been able to retain his interest in the family
home and the defendant would not have had to share
title with the plaintiff. This is sufficient to establish
consideration.
Finally, our courts have upheld contractual agree-
ments as enforceable where one party incurs personal
liability for a third person’s debts in exchange for the
other party’s offer to forgo pursuing legal action on
those debts.14 Hofmann v. De Felice, 136 Conn. 187,
190, 70 A.2d 129 (1949) (reversing trial court’s finding
of no consideration where defendant assumed responsi-
bility for her parents’ debts in exchange for plaintiff’s
promise to abstain from pursuing collections action
against her parents); see also Markel v. DiFrancesco, 93
Conn. 355, 359–60, 105 A. 703 (1919) (finding adequate
consideration for note that wife signed with husband
for benefit of plaintiff in exchange for plaintiff’s agree-
ment to extend maturity date of husband’s existing
indebtedness). ‘‘An agreement to forbear to sue in con-
sideration of a written promise by a third person to
pay the debt of another constitutes a valid contract.’’
Hofmann v. De Felice, supra, 190. In the present case,
the record indicates that the defendant incurred a liabil-
ity—her interest in the Devon Avenue property—so
that Caldwell could receive the direct benefit of the
plaintiff’s forbearing litigation and reducing his total
indebtedness. Accordingly, we conclude that the trial
court erred in holding the settlement agreement sub-
stantively unconscionable and, therefore, unenforce-
able as to the defendant.
The judgment is reversed with respect to the trial
court’s determination that the settlement agreement
was procedurally and substantively unconscionable as
to the defendant and the case is remanded with direc-
tion to render a judgment of strict foreclosure against
the defendant; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
The plaintiff’s complaint originally named Caldwell and Ditri as defen-
dants. Caldwell did not appeal from the trial court’s judgment of strict
foreclosure rendered against him in favor of the plaintiff and is not a party
to this appeal. All references to the defendant in this opinion are to Ditri.
2
The defendant argues, as alternative grounds for affirmance, that the
settlement agreement is invalid for (1) lack of consideration and (2) lack
of mutual assent. She raised these issues for the first time in her brief to
this court and did not file a preliminary statement of alternative grounds
on which the judgment may be affirmed, in accordance with Practice Book
§ 63-4 (a) (1) (A). ‘‘[O]nly in [the] most exceptional circumstances can and
will this court consider a claim, constitutional or otherwise, that has not
been raised and decided in the trial court. . . . This rule applies equally to
[alternative] grounds for affirmance.’’ (Internal quotation marks omitted.)
Li v. Yaggi, 185 Conn. App. 691, 711, 198 A.3d 123 (2018). Because the trial
court’s determination of unconscionability depended largely on its finding
that the settlement agreement contained ‘‘no direct consideration,’’ we
address that issue later in this opinion. The trial court did not, however,
make specific factual findings regarding mutual assent or resolve the issue
in its memorandum of decision. Accordingly, the record is inadequate on
the issue of mutual assent and, therefore, we decline to review that claim.
3
The defendant did not possess an ownership interest in Wesconn and
was not involved in its business operations.
4
At trial, Caldwell claimed that his secretary/bookkeeper fraudulently
drew on the line of credit for her own benefit, increasing it from the initial
amount to $75,000. The secretary was charged with fraud in 2008, and
eventually pleaded guilty to that charge. The trial court repeatedly rejected
this assertion as a valid special defense to the plaintiff’s claim in this case.
5
Although the defendant was not obligated on the note to Wesconn and
Caldwell and, therefore, was not a party to the collections action, she never-
theless executed the settlement agreement and the mortgage.
6
The settlement agreement identified Wesconn and Caldwell’s indebted-
ness as $175,000, plus interest and costs of collections, including attorney’s
fees. The terms provided for a settlement sum of $119,000, payable by an
initial payment of $8000, due within three days of signing, and monthly
payments thereafter. The settlement agreement also set the interest rate at
10 percent, with a default rate of 18 percent. As of July 16, 2019, the date
of trial, the total indebtedness had increased to $435,485.84, with a per diem
interest charge of $83.63.
7
Paragraph 14 of the settlement agreement provides, ‘‘[t]he undersigned,
Vicki A. Ditri, hereby agrees to the terms and conditions of this Agreement,
and hereby guarantees the payment of the sums due hereunder by [Wesconn]
to ROCKSTONE on a non-recourse basis, meaning that, notwithstanding
the foregoing, ROCKSTONE and Vicki A. Ditri hereby acknowledge and
agree that Vicki A. Ditri’s liability for the payment of the sums due and
owing by [Wesconn] herein shall be limited to Vicki A. Ditri’s interest in,
and to that certain real property commonly known as 11 Devon Avenue,
Norwalk, Connecticut, which interest shall be secured by and subject to
the terms and conditions of a[n] Open-End Mortgage, attached hereto.’’
8
In his answer, Caldwell alleged the following special defense: ‘‘I had a
[secretary] that embezzled a lot of money on opening lines of credit, cashing
company checks made to my business, credit cards, cash, and was arrested.
She was ordered restitution. She broke her probation and was rearrested
after failing to pay 800 plus dollars a month back to me and Wesconn. She
cried and told the judge she was on social security and disability and had
no way of repaying me. The judge ordered her no restitution and she did
not pay me back for approx[imately] $100,000.00. So sad.’’
9
The court also awarded the plaintiff (1) attorney’s fees and costs in the
amount of $104,289.11; (2) appraisal fees in the amount of $1300; and (3)
title search fees in the amount of $225.
10
Specifically, the plaintiff sought articulation on the following points: (1)
‘‘In ruling that the [defendant] had sustained the burden of proof as to her
unconscionability defense, did the court consider its concomitant finding
that ‘there [was] no proof of any misconduct by [the plaintiff]?’ ’’ (2) ‘‘After
finding that ordinarily the failure to read a document is not a defense to
enforceability but that the handling of the closing here created the requisite
‘surprise,’ did the court consider the fact that there was no evidence adduced
to show that the [defendant] ever asked any questions about the subject
matter of the documents or sought additional time to review the documents?’’
(3) ‘‘Was the factual and legal basis for the court’s determination that the
[defendant] received no ‘direct consideration’ for agreeing to the mortgage
limited to the fact [that] she had no legal obligation to pay the debts of
Wesconn or . . . Caldwell?’’ (4) ‘‘Did the court consider the plain language
of paragraph 1 (a) and paragraph [5] of the settlement agreement as set
forth in the memorandum of decision in ruling for the [defendant]?’’ And
(5) ‘‘[h]ow did the court’s finding that the [defendant] was not a sophisticated
business person excuse her failure to ask commonsense questions at the
closing, or to seek more time to review and understand the documents?’’
11
Because we conclude that the court’s findings did not support its legal
conclusion that the settlement agreement was procedurally unconscionable,
we need not address the plaintiff’s claim that those findings are not supported
by the record.
12
In instances where the plaintiff is not an original party to the contract
and, thus, played no part in the contract formation process, the defendant
must demonstrate an agency relationship between the third party and the
plaintiff’s predecessor in interest. See Bank of America, N.A. v. Gonzalez,
187 Conn. App. 511, 515–16, 202 A.3d 1092 (2019).
13
The trial court also determined that the ‘‘overly harsh’’ terms of the
settlement agreement rendered the contract substantively unconscionable,
but the court failed to identify the specific provisions it claimed to be
oppressive. The trial court explained in its articulation that the consultation
with counsel clause of the settlement agreement was ‘‘so contrary to the
facts of the situation, that . . . it was consistent with the oppressive nature
of the document . . . .’’ The clause states that, ‘‘[t]he parties hereto
acknowledge each has had the opportunity to be advised by counsel and
the parties agree that for all purposes (including the resolution of any
ambiguities herein), this [a]greement shall be deemed to have been negoti-
ated by the parties and strictly construed as if both parties shared equally
in the drafting of [the] same.’’ The trial court’s conclusion, however, has
little to do with the contract’s substance and, instead, simply restates the
arguments that the defendant was (1) unrepresented at the closing and (2)
received inadequate consideration.
14
Although neither party raised the argument, we also note that the defen-
dant’s role in the settlement agreement is similar to that of an accommoda-
tion party. General Statutes § 42a-3-419 (a) provides in relevant part that
where ‘‘an instrument is issued for value given for the benefit of a party to
the instrument . . . and another party to the instrument . . . signs the
instrument for the purpose of incurring liability on the instrument without
being a direct beneficiary of the value given for the instrument, the instru-
ment is signed by the accommodation party ‘for accommodation.’ ’’ The
accommodation party is obliged to pay the instrument in the capacity in
which she signs, notwithstanding whether the accommodation party receives
consideration for the accommodation. General Statutes § 42a-3-419 (b). ‘‘The
want of consideration is the peculiar characteristic of accommodation
paper’’ and, as such, lack of consideration is ineffective as a special defense.
Seaboard Finance Co. of Connecticut, Inc. v. Dorman, 4 Conn. Cir. 154,
156, 227 A.2d 441 (1966).