JPMorgan Chase Bank, N.A. v. Cam , 172 Conn. App. 659 ( 2017 )

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JPMORGAN CHASE BANK, N.A. v. EUGENE A.
CAM ET AL.
(AC 38622)
Lavine, Alvord and Beach, Js.
Argued January 18—officially released May 2, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Povodator, J.)
Denise A. Krall, with whom, on the brief, was Joseph
J. Cessario, for the appellant (named defendant).
Peter R. Meggers, with whom, on the brief, was Brian
D. Rich, for the appellee (plaintiff).
Opinion
LAVINE, J. The defendant Eugene A. Cam1 appeals
from the judgment of strict foreclosure claiming that
the trial court erred when it concluded that a settlement
agreement he had entered into with the plaintiff, JPMor-
gan Chase Bank, N.A., permitted the plaintiff to pay the
defendant a certain sum of money within a ‘‘reasonable
time’’ of the payment deadline provided in the
agreement.2 We affirm the judgment of the court.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s claim. On Feb-
ruary 11, 2004, the defendant executed and delivered
a note in the amount of $900,000 to Washington Mutual
Bank, FA, the plaintiff’s predecessor in interest, plus a
mortgage deed securing property located at 99 Por-
chuck Road in Greenwich. On March 9, 2009, the plain-
tiff commenced a foreclosure action against the
defendant, alleging that the defendant had defaulted on
his payment obligations. The defendant asserted four
counterclaims, including a claim that he had been ‘‘dam-
aged’’ when the plaintiff ‘‘unlawfully removed or dam-
aged’’ his personal effects, and, as a result, wrongfully
‘‘deprived [the defendant] of his property’’ and ‘‘left [his
residence] in an uninhabitable state.’’
Prior to trial, the parties reached a settlement
agreement to resolve their respective claims. On Sep-
tember 17, 2014, the defendant executed the agreement,
which had been reduced to writing (agreement). The
agreement provided that the plaintiff was to pay the
defendant a certain sum of money, paying one half
of the sum ‘‘within [thirty] days of execution of this
Agreement’’ and the other half ‘‘within ten days of title
vesting to [the plaintiff].’’ In exchange, the defendant
agreed to stipulate to a judgment of strict foreclosure,
which provided that the defendant would vacate the
property on or before October 28, 2014. The agreement
did not contain a ‘‘time is of the essence’’ clause or any
equivalent language that suggested that payment by the
plaintiff to the defendant was time critical or that time
was material to the agreement.
On October 1, 2014, the plaintiff filed a motion for
judgment of strict foreclosure. On October 7, 2014, the
parties appeared before the court to enter the stipulated
judgment, but the court, sua sponte, declined to accept
the stipulated judgment because it was concerned that
Narragansett had not been properly served. See foot-
note 1 of this opinion. The plaintiff served Narragansett
and filed a motion for default for failure to appear
against Narragansett in January, 2015, and the motion
was granted on February 6, 2015.
In February, 2015, the parties engaged in e-mail corre-
spondence regarding the performance dates provided
for in the agreement in light of the fact that the court
had declined to enter judgment on the motion for judg-
ment of strict foreclosure. The defendant did not
demand that the plaintiff make payment, state how he
would be negatively affected by a late payment, or assert
that the plaintiff had breached the agreement because
it did not pay him by the established October 17, 2014
deadline. In March, 2015, however, the defendant
informed the plaintiff that he would not move forward
with the agreement.
On May 7, 2015, the plaintiff filed a motion to enforce
the agreement. In the motion, the plaintiff argued that
the agreement was clear and unambiguous, but because
the entry of the stipulated judgment had been delayed
by the court when it continued the matter on October
7, 2014, the performance dates in the agreement were
no longer applicable. It contended that the performance
dates should be modified to reflect the current circum-
stances, and the court should enforce the agreement
with the amended dates. The defendant filed an objec-
tion, arguing, among other things, that the plaintiff had
breached a material provision of the agreement when
it did not pay him 50 percent of the settlement within
thirty days after he executed the agreement, i.e., Octo-
ber 17, 2014. The court denied the motion without preju-
dice,3 and the plaintiff filed a renewed motion to enforce
the agreement, to which the defendant objected.
On September 29, 2015, the court granted the plain-
tiff’s renewed motion to enforce. The court found that
the parties had entered into an enforceable agreement.
It also found that ‘‘there [did] not appear to be any
provision in the agreement that made enforcement or
execution of its terms time-critical, in a time is of the
essence or equivalent sense’’ and noted that ‘‘in the
absence of an indication that timing is critical, reason-
ableness as to timing is to be presumed.’’4 It found that
although the agreement required the parties to take
sequential steps, ‘‘there is nothing in the agreement that
makes performance in 2015 any less effective at meeting
the expectations of the parties . . . .’’ The court also
noted that on January 13, 2015, months after the first
payment was due, the defendant requested a continu-
ance for a scheduled status conference, indicating to
the court that the defendant acknowledged that the
agreed upon dates needed to be adjusted and that he
intended to consummate the agreement. This appeal
followed.
On appeal, the defendant asserts that the court erred
in finding that the agreement was enforceable. Specifi-
cally, he claims that the court erred in finding that the
plaintiff was required to make payment to the defendant
within a ‘‘reasonable time’’ following the execution of
the agreement rather than strictly within the thirty day
deadline. He argues that because the agreement clearly
and unambiguously provided that the plaintiff must
make payment within thirty days of its execution, which
the plaintiff failed to do, the court ‘‘erroneously inter-
preted the . . . agreement as lacking any timing provi-
sions relevant to the expectations of the parties.’’ He
contends that even though there was no ‘‘time is of the
essence’’ clause in the agreement, the deadline was a
material term, and, thus, the plaintiff was obligated to
pay him 50 percent of the settlement thirty days after
the agreement was executed or the agreement would
be nullified. We disagree.5
We first set forth our standard of review. The defen-
dant argues that the standard of review is plenary
because the judgment ‘‘being appealed consists of the
court’s construction of an unambiguous contract.’’ The
plaintiff argues that the standard is clearly erroneous.
We agree with the defendant.
‘‘A settlement agreement is a contract among the
parties. . . . It is well settled that [w]here the language
of the contract is clear and unambiguous, the contract is
to be given effect according to its terms. . . . Although
ordinarily the question of contract interpretation, being
a question of the parties’ intent, is a question of fact
. . . [w]here there is definitive contract language, the
determination of what the parties intended by their
contractual commitments is a question of law. . . .
The court’s determination as to whether a contract is
ambiguous is a question of law; our standard of review,
therefore, is [plenary].’’ (Internal quotation marks omit-
ted.) McCook v. Whitebirch Construction, LLC, 117
Conn. App. 320, 328–29, 978 A.2d 1150 (2009), cert.
denied, 294 Conn. 932, 987 A.2d 1029 (2010).
Accordingly, we will determine whether the language
in the agreement is clear and unambiguous in order to
determine our standard of review of the defendant’s
claim. ‘‘In determining whether a contract is ambiguous,
the words of the contract must be given their natural
and ordinary meaning. . . . A contract is unambiguous
when its language is clear and conveys a definite and
precise intent. . . . The court will not torture words
to impart ambiguity where ordinary meaning leaves
no room for ambiguity. . . . In contrast, a contract is
ambiguous if the intent of the parties is not clear and
certain from the language of the contract itself. . . .
The contract must be viewed in its entirety, with each
provision read in light of the other provisions . . . and
every provision must be given effect if it is possible
to do so.’’ (Citation omitted; internal quotation marks
omitted.) Cruz v. Visual Perceptions, LLC, 311 Conn.
93, 102–103, 84 A.3d 828 (2014).
After reviewing the entire agreement, we conclude
that the language of the agreement is clear and unambig-
uous as a matter of law. There is no provision within
the agreement that is susceptible to more than one
reasonable interpretation. Thus, our review of the
defendant’s claim is plenary, and in determining the
intent of the parties, ‘‘we are limited to the express
contractual language and the parties’ intent as they
expressed it in the agreements.’’ Allstate Life Ins. Co.
v. BFA Ltd. Partnership, 287 Conn. 307, 314, 948 A.2d
318 (2008).
‘‘Where a time for performance is stated in an
agreement, a party’s tender of performance within a
reasonable time thereafter will be considered substan-
tial performance unless the parties intended that time
for performance be of the essence. See J. Calamari &
J. Perillo, Contracts (2d Ed.) § 11-22, pp. 409–10. Where
the agreement does not specifically state that time is
of the essence, it is presumed not to be unless the
parties have expressed a contrary intent.’’ (Emphasis
added.) Mihalyak v. Mihalyak, 11 Conn. App. 610, 616,
529 A.2d 213 (1987). ‘‘The fact that a contract states a
date for performance does not necessarily make time
of the essence.’’ Grenier v. Compratt Construction Co.,
189 Conn. 144, 151, 454 A.2d 1289 (1983).
The contract in the present case provides a time of
performance as to when the plaintiff was to pay the
defendant 50 percent of the settlement but is silent as
to whether time was of the essence with regard to
compliance with the payment schedule. Looking exclu-
sively at the language, and absence of language, in the
entire agreement, we conclude that the court properly
found that the agreement clearly and unambiguously
indicates that the parties did not intend for the plaintiff’s
payment to the defendant to be time critical, but,
instead, intended for performance to be consummated
within a ‘‘reasonable time’’ of the thirty day deadline.
The agreement contains no ‘‘time is of the essence’’
provision or any language that implicitly indicates that
performance was time critical.6 See Pack 2000, Inc. v.
Cushman, 311 Conn. 662, 688, 89 A.3d 869 (2014) (no
time is of essence provision).
The defendant also failed to show that the time of
performance on behalf of the plaintiff is a material
provision to the agreement. We agree with the trial
court that ‘‘there is nothing in the agreement that makes
performance in 2015 any less effective at meeting the
expectations of the parties as expressed in [the]
agreement.’’ See id., 675 (‘‘a technical breach of the
terms of a contract is excused, not because compliance
with the terms is objectively impossible, but because
actual performance is so similar to the required perfor-
mance that any breach that may have been committed
is immaterial’’ [internal quotation marks omitted]). In
addition, there is no indication in the agreement that
either party would have been harmed if payment were
not made by the thirty day deadline. See Grenier v.
Compratt Construction Co., supra, 189 Conn. 151
(defendant did not show how it was injured by ten day
delay). If the parties believed that they would have
been harmed if the plaintiff did not pay the defendant
within thirty days, they could have incorporated a ‘‘time
is of the essence’’ provision into the agreement, but
they did not. See O’Connor v. Waterbury, 286 Conn.
732, 746, 945 A.2d 936 (2008) (‘‘[w]e are prohibited from
implying the existence of a term that is not expressly
written in the agreement, because that would require
us to rewrite the agreement for the parties’’).
We, therefore, conclude that the court properly found
that the agreement was enforceable and that reason-
ableness as to time of performance by the plaintiff was
to be presumed.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Also named as defendants in the foreclosure action were Wachovia Bank,
Narragansett Indian Tribal Historical Preservation Office (Narragansett), Jill
Cam individually, and Jill Cam as the parent and guardian of Jason Christo-
pher Cam and Jennica Christina Cam. Only Eugene Cam is involved in this
appeal. We, therefore, refer to Eugene Cam as the defendant.
2
The defendant also claims that because the timing of performance was
a material provision of the settlement agreement, the plaintiff’s failure to
pay by the date specified in the agreement rendered the agreement void
and unenforceable. This claim presumes that the time frame for payment
stated in the agreement is to be strictly construed. Because we conclude
that the agreement required performance only within a reasonable time, we
need not reach this claim.
3
The court denied the motion because the plaintiff did not attach a copy
of a nonredacted version of the agreement to the motion.
4
On November 9, 2015, the court rendered a judgment of strict fore-
closure.
5
The plaintiff argues that the agreement required it to make payment
within a reasonable time of the execution of the agreement because the
agreement is akin to a real estate contract. We reject the plaintiff’s argument
that the agreement should be treated as if it were a real estate contract.
See Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn. App. 1,
19, 852 A.2d 799 (stipulated judgment not real estate contract), cert. denied,
271 Conn. 940, 861 A.2d 514 (2004).
6
The trial court in Raymond Marketing Corp. v. Cary, Superior Court,
judicial district of Fairfield, Docket No. CV-95-0322740 (December 17, 1996)
(18 Conn. L. Rptr. 480), found that even though there was no ‘‘time is of
the essence’’ clause, the language in the stipulated judgment—such as failure
to make payment would render the agreement ‘‘null and void’’ and ‘‘[t]he
defendant shall bear the sole responsibility for making sure that the plaintiff’s
counsel receives each payment before these default deadlines’’—implicitly
supported the proposition that payment by the defendant to the plaintiff
was time critical. Although we note that this case is not binding precedent,
we find the difference in settlement language instructive.