Reclaimant Corp. v. Deutsch

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RECLAIMANT CORP. v. WILLIAM J. DEUTSCH ET AL.
(SC 20133)
McDonald, D’Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.
Syllabus
The plaintiff corporation sought to recover from the defendants for unjust
enrichment in connection with the alleged overpayment of funds to
them by the plaintiff’s predecessor in interest, V Co., a Delaware limited
partnership in which the defendants had invested pursuant to a limited
partnership agreement. In early 2008, the defendants, who are Connecti-
cut residents, each redeemed approximately 90 percent of the funds
from their capital accounts in V Co. and thereafter withdrew from the
partnership. The plaintiff alleged that, when the defendants redeemed
their investments, V Co. had miscalculated the net value of the partner-
ship’s assets, and, consequently, the net values of the defendants’ inter-
ests had been overstated, resulting in overpayments to the defendants.
After the plaintiff filed its action in 2013, the defendants raised various
special defenses, including, inter alia, that the plaintiff’s unjust enrich-
ment claims were time barred by either Delaware’s three year limitation
period (§ 17-607 [c]) in the Delaware Revised Uniform Limited Partner-
ship Act or Connecticut’s statutory (§ 52-577) three year limitation period
generally applicable to tort actions, or were barred by the doctrine
of laches. The plaintiff and the defendants each moved for summary
judgment on certain of the defendants’ special defenses. The trial court
denied the plaintiff’s motion for summary judgment, granted the defen-
dants’ motion as to their special defense that the plaintiff’s claims were
barred by the three year limitation period set forth in § 17-607 (c) and
rendered judgment for the defendants. The trial court reasoned that the
choice of law provision in the limited partnership agreement, which
provided that the rights and liabilities of the parties were to be governed
by and construed in accordance with the laws of Delaware, reflected
an intent that both the substantive and procedural law of Delaware
would govern the relationship between the parties and concluded that
the plaintiff’s claims were time barred by Delaware’s three year limitation
period because the plaintiff commenced its action more than three years
after V Co. dispensed the funds to the defendants. The trial court also
explicitly rejected the plaintiff’s contention that the choice of law provi-
sion governed only substantive law and not procedural issues such as
the statute of limitations. On appeal, the plaintiff claimed, inter alia, that
the trial court improperly granted the defendants’ motion for summary
judgment because the procedural law of Connecticut, rather than that
of Delaware, governed its unjust enrichment claims, under Connecticut
procedural law, an equitable action for unjust enrichment was not sub-
ject to any statutory limitation period or, in the alternative, is subject
to the six year statutory (§ 52-576 [a]) limitation period applicable to
contracts, and that its action, therefore, was timely filed. Held:
1. The trial court incorrectly determined that Delaware law, rather than
Connecticut law, governed the issue of whether the plaintiff’s unjust
enrichment claims were time barred: in a choice of law scenario, the
forum state generally will apply the substantive law of the state chosen
by the parties to govern their rights and duties under a contractual
agreement but will apply its own law to matters of judicial administration
and procedure, and, in Connecticut, whether a statute of limitations
properly is characterized as substantive or procedural depends on the
nature of the underlying right that forms the basis of the cause of action;
in the present case, the choice of law provision in the limited partnership
agreement was clear that the parties had agreed that Delaware law
controlled the substantive rights and liabilities of the parties, and, there-
fore, Delaware substantive law governed the plaintiff’s unjust enrich-
ment claims; because, however, the plaintiff’s claims for unjust enrich-
ment were claims for restitution that derived from equitable principles
under Delaware’s common law, the limitation period applicable to those
claims properly was characterized as procedural, as that limitation
period functioned only as a qualification on the remedy to enforce a
preexisting common-law right, and, accordingly, Connecticut law gov-
erned the timeliness issue; moreover, the fact that § 17-607 (c) properly
is classified as a statute of repose, rather than a statute of limitations,
had no bearing on whether that provision was deemed substantive or
procedural for choice of law purposes, and the limited partnership
agreement did not expressly incorporate that Delaware provision or
otherwise indicate an intent that Delaware’s procedural law would apply.
2. The defendants could not prevail on their claim, as an alternative ground
for affirming the trial court’s judgment, that the plaintiff’s unjust enrich-
ment claims were barred under Connecticut law by the three year limita-
tion period generally applicable to tort actions, because the plaintiff’s
claims were equitable claims for relief and, thus, were not subject to
any statute of limitations; furthermore, this court declined to address
the issue of whether the defendants could prevail on their affirmative
defense of laches, as the trial court made no factual findings with respect
to that affirmative defense, and, accordingly, the case was remanded for
the trial court’s consideration of that defense, as well as any remaining
grounds for summary judgment that the defendants raised in their sum-
mary judgment motion.
Argued November 7, 2018—officially released August 6, 2019
Procedural History
Action to recover damages for unjust enrichment,
and for other relief, brought to the Superior Court in
the judicial district of Stamford, where the defendants
filed a counterclaim; thereafter, the court, Genuario,
J., granted the defendants’ motion for summary judg-
ment and rendered judgment for the defendants as to
the plaintiff’s complaint, from which the plaintiff
appealed. Reversed; further proceedings.
David S. Golub, with whom, on the brief, was Jona-
than M. Levine, for the appellant (plaintiff).
Howard Graff, pro hac vice, with whom, on the brief,
were Stephen G. Walko and Andrea C. Sisca, for the
appellees (defendants).
Opinion
ECKER, J. The narrow issue presented by this appeal
is whether the statute of limitations of the state of
Connecticut or the state of Delaware governs the unjust
enrichment claims brought by the plaintiff, Reclaimant
Corp., against the defendants, William J. Deutsch and
Laurence B. Simon, seeking recovery for alleged over-
payments issued to the defendants by the plaintiff’s
putative predecessor in interest pursuant to a limited
partnership agreement. The trial court rendered sum-
mary judgment in favor of the defendants, concluding
that the plaintiff’s unjust enrichment claims were gov-
erned by Delaware law and were time-barred under the
three-year statute of limitations in the Delaware Revised
Uniform Limited Partnership Act (DRULPA), Del. Code
Ann. tit. 6, § 17-607 (c) (2005).1 On appeal, the plaintiff
contends that summary judgment was improper
because Connecticut law governs the timeliness of its
unjust enrichment claims and that those claims timely
were filed under Connecticut law.
We conclude that Delaware law governs the substan-
tive rights and liabilities of the parties arising out of
the limited partnership agreement but that Connecticut
law governs matters of judicial administration and pro-
cedure. We further conclude that, because the plaintiff’s
unjust enrichment claims have a common-law origin,
the limitation period properly is ‘‘characterized as pro-
cedural because it functions only as a qualification on
the remedy to enforce the preexisting right.’’ Baxter v.
Sturm, Ruger & Co., 230 Conn. 335, 347, 644 A.2d 1297
(1994). Thus, Connecticut law, rather than Delaware
law, controls the timeliness of the plaintiff’s claims. We
therefore reverse the judgment of the trial court and
remand the case for further proceedings.
I
The record reveals the following relevant facts and
procedural history. In 2007, the defendants entered into
a limited partnership agreement with SV Special Situa-
tions Fund LP (SV Fund), a Delaware limited partner-
ship formed for the purpose of investing in and trading
securities and other investments. In early 2008, the
defendants redeemed their respective investments and
withdrew from the partnership as of March 31, 2008.
Deutsch received approximately 90 percent of the funds
in his capital account, for a total distribution in the
amount of $22,309,473.03, and Simon received approxi-
mately 90 percent of the funds in his capital account,
for a total distribution in the amount of $2,176,785.80.2
By letters dated September 4, 2012, Scott A. Stagg,
the director of SV Fund, informed each of the defen-
dants that the ‘‘net asset value of your interest in the
. . . Fund was . . . overstated [at the time you
redeemed your investment], resulting in . . . overpay-
ment . . . .’’ Stagg alleged that Deutsch had received
a total overpayment in the amount of $7,047,974.03 and
that Simon had received a total overpayment in the
amount of $724,557.80, and he demanded that the defen-
dants return the alleged overpayments within thirty
days.
The defendants responded by requesting documenta-
tion and clarification of the alleged overpayments. The
defendants also requested payment of the remaining
funds in their capital accounts, which had been held
back at the time of redemption. Specifically, Deutsch
asked for the payment of $807,127.97 and Simon asked
for the payment of $102,753.
SV Fund was liquidated in February, 2013, and its
claims against the defendants were assigned to the
plaintiff. On May 8, 2013, the plaintiff filed a two-count
complaint against the defendants, both of whom reside
in Connecticut. In the first count, the plaintiff alleged
that Deutsch had been ‘‘unjustly enriched as a result
of receiving and retaining’’ the alleged overpayment in
the amount of $7,047,974.03. In the second count, the
plaintiff alleged that Simon had been ‘‘unjustly enriched
as a result of receiving and retaining’’ the alleged over-
payment in the amount of $724,557.80.
The defendants moved to strike the complaint as
time-barred under the three-year statute of limitations
in § 17-607 (c) of DRULPA because ‘‘the distributions
were made in 2008 and the complaint was not filed until
2013 . . . .’’ The plaintiff opposed the defendants’
motion to strike, contending that, ‘‘if any statute of
limitations applies to the plaintiff’s equitable unjust
enrichment claims . . . it is [Connecticut’s] six-year
statute [of limitations applicable to contracts] set forth
in [General Statutes] § 52-576 (a), and the plaintiff’s
claims are, therefore, not time-barred.’’ The trial court
determined that it was ‘‘inappropriate to decide this
potentially dispositive issue within the context of a
motion to strike’’ and, therefore, denied the defen-
dants’ motion.
The defendants filed an answer denying that they
had been unjustly enriched and raising the following
affirmative defenses: (1) the plaintiff’s claims are barred
by § 17-607 (b) of DRULPA, ‘‘which specifies that a
limited partner who unknowingly receives an alleged
overpayment is not liable for returning the amount of
that distribution’’; (2) the plaintiff’s claims are barred
by the three-year statute of limitations in § 17-607 (c)
of DRULPA; (3) the plaintiff’s complaint fails to state
a claim on which relief may be granted because SV Fund
‘‘could have prevented and/or addressed any potential
alleged overpayments’’; (4) the plaintiff’s claims are
barred by the three-year statute of limitations governing
torts in General Statutes § 52-577; (5) the plaintiff ‘‘lacks
standing because [it] has not established its right to
bring a cause of action on behalf of SV Fund’’; (6) the
plaintiff ‘‘lacks standing because [it] has not established
that SV Fund or its assignees have a right to bring a
cause of action on behalf of 3V Capital Partners, LP’’;3
(7) the plaintiff’s claims are barred by the doctrine of
laches due to its ‘‘inexcusable delay’’ in filing suit; (8)
the plaintiff’s claims are ‘‘barred by the doctrine of
waiver’’; (9) the plaintiff’s claims are ‘‘barred by the
doctrine of estoppel’’; (10) the plaintiff’s claims ‘‘are
barred by the equitable doctrine of unclean hands’’; (11)
the plaintiff’s claims ‘‘are barred by the doctrine of
satisfaction and accord’’; and (12) the plaintiff ‘‘failed
to mitigate its damages, if any exist.’’ The defendants
also filed a counterclaim against the plaintiff on the
basis of SV Fund’s alleged failure to distribute the funds
remaining in their capital accounts.
The plaintiff moved for summary judgment on the
defendants’ second and fourth special defenses, con-
tending that ‘‘Connecticut’s statute of limitations law
applies to the plaintiff’s common-law unjust enrichment
claims’’ and ‘‘Connecticut law provides that either no
statute of limitations applies to an equitable action for
unjust enrichment, or, at a minimum, that a six-year
statute of limitations applies, and this action is timely
under either measure.’’ The defendants opposed the
plaintiff’s motion for summary judgment and moved for
summary judgment on their first, second, third, fourth,
and seventh special defenses. The essence of the defen-
dants’ argument was that the plaintiff’s ‘‘contention that
Connecticut law applies to [this] dispute is academic
since neither Connecticut nor Delaware law . . . per-
mit[s] parties to pursue unjust enrichment claims as a
means to rewrite the express terms of a written agree-
ment governing the payments at issue’’ and the plain-
tiff’s unjust enrichment claims are time-barred under
both Delaware and Connecticut law.
The trial court’s resolution of the parties’ competing
motions for summary judgment was guided largely by
the fact that the limited partnership agreement contains
a choice of law provision, which states: ‘‘This [a]gree-
ment and all rights and liabilities of the parties hereto
shall be governed by and construed in accordance with
the laws of the [s]tate of Delaware, without regard to
its conflicts of law principles.’’ The trial court observed
that § 187 (1) of the Restatement (Second) of Conflict
of Laws ‘‘requires that the law of the state chosen by
the parties to govern their contractual rights and duties
will be applied if the particular issue was one which
the parties could have resolved by an explicit provision
in their agreement directed to that issue.’’ The trial court
determined that the contractual choice of law provision
here ‘‘expressly elects Delaware law for all issues
regarding the parties’ rights and liabilities including
those set forth in [§] 17-607 (c) of . . . DRULPA.’’ In
arriving at its decision, the trial court rejected the plain-
tiff’s contention that the choice of law provision gov-
erned the substantive law of the contract but not proce-
dural matters like the applicable statute of limitations,
reasoning that the ‘‘broad and clear’’ language of the
contract ‘‘evidences an intent to include all issues
(whether substantive or procedural) concerning rights,
and all issues concerning liabilities, to be governed by
Delaware law within the breadth of the choice of law
election.’’ Having determined that ‘‘the parties clearly
and unambiguously elected to have Delaware law gov-
ern their relationship, even when it provides time limits
on liabilities that are different [from] the time limits on
liabilities that may be imposed by the state of Connecti-
cut,’’4 the trial court granted the defendants’ motion for
summary judgment on their second special defense,
denied the plaintiff’s motion for summary judgment,
and rendered judgment in favor of the defendants.
The plaintiff filed an appeal with the Appellate Court,
and we transferred the appeal to this court pursuant
to General Statutes § 51-199 (c) and Practice Book § 65-
1. On appeal, the plaintiff claims that the trial court
improperly rendered summary judgment in favor of the
defendants because the choice of law provision in the
limited partnership agreement ‘‘refers only to Delaware
substantive law; it does not encompass Delaware proce-
dural law,’’ and the limitation period governing com-
mon-law claims properly is characterized as procedural
rather than substantive. Alternatively, the plaintiff con-
tends that, even if Delaware procedural law controls
the timeliness of its claims, § 17-607 (c) of DRULPA is
inapplicable because the defendants withdrew from the
limited partnership in 2008 and, therefore, were not
limited partners at the time the action was filed. Lastly,
the plaintiff claims that its complaint was filed timely
under Connecticut law because ‘‘unjust enrichment is
either not subject to any statute of limitations at all
(as an equitable claim) or is governed by the six-year
[limitation] period [applicable to contracts] set forth in
. . . § 52-576 (a).’’
The defendants respond that the judgment of the trial
court should be affirmed because that court properly
concluded that the limited partnership agreement
expressly incorporated Delaware law, including the
three-year limitation period in § 17-607 (c) of DRULPA.
They also argue that Connecticut law requires the appli-
cation of § 17-607 (c) because General Statutes § 34-
38f (1) provides that ‘‘the laws of the state under which
a foreign limited partnership is organized govern its
organization and internal affairs and the liability of its
limited partners.’’ Alternatively, the defendants contend
that, even if we were to conclude that Connecticut law,
rather than Delaware law, governs the timeliness of the
plaintiff’s claims, the trial court’s judgment nonetheless
should be affirmed on the ground that the plaintiff’s
unjust enrichment claims are time-barred under either
the three-year statute of limitations in § 52-577 or the
doctrine of laches. Lastly, the defendants argue that the
judgment of the trial court may be affirmed on the
alternative ground that ‘‘the equitable remedy of unjust
enrichment is unavailable where there is a written con-
tract between the parties on the subject.’’
II
The applicable standard of review is not in dispute.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . The party moving for
summary judgment has the burden of showing the
absence of any genuine issue of material fact and that
the party is, therefore, entitled to judgment as a matter
of law. . . . On appeal, we must determine whether
the legal conclusions reached by the trial court are
legally and logically correct and whether they find sup-
port in the facts set out in the memorandum of decision
of the trial court. . . . Our review of the trial court’s
decision to grant the defendant’s motion for summary
judgment is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) Cogan v. Chase Manhattan Auto
Financial Corp., 276 Conn. 1, 6–7, 882 A.2d 597 (2005).
It is well settled that ‘‘[c]hoice of law questions are
subject to de novo review.’’ Western Dermatology Con-
sultants, P.C. v. VitalWorks, Inc., 322 Conn. 541, 558,
153 A.3d 574 (2016); see also American States Ins. Co.
v. Allstate Ins. Co., 282 Conn. 454, 461, 922 A.2d 1043
(2007) (noting that ‘‘choice of law issues present ques-
tions of law over which our review is plenary’’).
Nor do the parties disagree about the fundamental
starting point of the conflict of laws analysis, which
requires initial resort to Connecticut conflict of laws
rules. ‘‘In determining the governing law, a forum
applies its own [conflict of laws] rules . . . .’’ Gibson
v. Fullin, 172 Conn. 407, 411, 374 A.2d 1061 (1977). The
applicable Connecticut conflict of laws rule depends
upon the nature of the plaintiff’s claim. See Macomber
v. Travelers Property & Casualty Corp., 277 Conn. 617,
640, 894 A.2d 240 (2006) (applying different choice of
law rules to tort and contract claims). This court pre-
viously has referred to unjust enrichment as both a tort5
and a quasi-contractual claim;6 however, we also have
recognized, more accurately, that it is neither a species
of tort nor contract but, rather, an equitable ‘‘means of
recovery in restitution.’’ Walpole Woodworkers, Inc. v.
Manning, 307 Conn. 582, 587 n.9, 57 A.3d 730 (2012)
(clarifying that unjust enrichment is a ‘‘noncontractual
means of recovery in restitution’’); see also Vertex, Inc.
v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006)
(‘‘[u]njust enrichment is, consistent with the principles
of equity, a broad and flexible remedy,’’ and there is
‘‘no other test than what, under a given set of circum-
stances, is just or unjust, equitable or inequitable, con-
scionable or unconscionable’’ [internal quotation marks
omitted]); Connecticut National Bank v. Chapman, 153
Conn. 393, 399, 216 A.2d 814 (1966) (noting that unjust
enrichment ‘‘is essentially equitable,’’ and, in order to
recover in restitution under that doctrine, there is no
requirement that ‘‘the party unjustly enriched should
have been guilty of any tortious or fraudulent act’’).
Section 221 of the Restatement (Second), titled ‘‘Res-
titution,’’ ‘‘is concerned with what law governs a per-
son’s right to recover from another, on grounds of fair-
ness and good conscience, the amount by which the
other has been unjustly enriched at his expense.’’ 1
Restatement (Second), Conflict of Laws c. 8, topic 6,
introductory note, p. 726 (1971). Section 221 provides
in relevant part that ‘‘[i]n actions for restitution, the
rights and liabilities of the parties with respect to the
particular issue are determined by the local law of the
state which, with respect to that issue, has the most
significant relationship to the occurrence and the par-
ties under the principles stated in § 6.’’7 Id., § 221 (1),
p. 727. Under subsection (2) of § 221, one of the ‘‘[c]on-
tacts to be taken into account in applying the principles
of § 6’’ is ‘‘the place where a relationship between the
parties was centered, provided that the receipt of
enrichment was substantially related to the relation-
ship.’’ Id., § 221 (2) (a), p. 727. According to the com-
mentary, ‘‘[t]he place where a relationship between the
parties was centered, provided that this relationship
was substantially related to the receipt of enrichment, is
the contact that, as to most issues, is given the greatest
weight in determining the state of the applicable law.’’
Id., comment (d), pp. 729–30. For example, ‘‘[w]hen the
enrichment was received in the course of the perfor-
mance of a contract between the parties, the law
selected by application of the rules of §§ 187–188 [of
the Restatement (Second)] will presumably govern one
party’s rights in restitution against the other. The appli-
cable law will be that chosen by the parties if they
have made an effective choice under the circumstances
stated in § 187.’’ Id., comment (d), p. 730.
In the present case, the alleged unjust enrichment
occurred in the course of the performance of the limited
partnership agreement, and, therefore, we must turn to
§ 187 of the Restatement (Second) to resolve the con-
flict of law inquiry. Section 187 of the Restatement
(Second) provides in relevant part that ‘‘[t]he law of the
state chosen by the parties to govern their contractual
rights and duties will be applied if the particular issue
is one which the parties could have resolved by an
explicit provision in their agreement directed to that
issue.’’ Id., § 187 (1), p. 561; see Elgar v. Elgar, 238
Conn. 839, 850, 679 A.2d 937 (1996) (noting that, under
§ 187, ‘‘parties to a contract generally are allowed to
select the law that will govern their contract’’). This ‘‘is
a rule providing for incorporation by reference and is
not a rule of choice of law. The parties, generally speak-
ing, have power to determine the terms of their contrac-
tual engagements. They may spell out these terms in
the contract. In the alternative, they may incorporate
into the contract by reference extrinsic material which
may, among other things, be the provisions of some
foreign law. In such instances, the forum will apply the
applicable provisions of the law of the designated state
in order to effectuate the intention of the parties.’’ 1
Restatement (Second), supra, § 187, comment (c), p.
563.
The limited partnership agreement here contains a
choice of law provision that provides: ‘‘This [a]greement
and all rights and liabilities of the parties hereto shall
be governed by and construed in accordance with the
laws of the [s]tate of Delaware, without regard to its
conflicts of law principles.’’ Pursuant to this choice of
law provision, as well as the other parts of the contract
evidencing the signatories’ intent ‘‘to form a limited
partnership . . . in accordance with the provisions of
[DRULPA],’’ we conclude that Delaware substantive
law controls the plaintiff’s unjust enrichment claims.8
This does not end our analysis, however, because it
is well established that ‘‘in a choice of law situation the
forum state will apply its own procedure . . . .’’ Paine
Webber Jackson & Curtis, Inc. v. Winters, 22 Conn.
App. 640, 650, 579 A.2d 545, cert. denied, 216 Conn. 820,
581 A.2d 1055 (1990); see, e.g., Ferri v. Powell-Ferri,
326 Conn. 438, 447, 165 A.3d 1137 (2017) (‘‘[a]lthough
the choice of law provision in the 1983 trust dictates
that matters of substance will be analyzed according
to Massachusetts law, procedural issues such as the
standard of review [and standing] are governed by Con-
necticut law’’); Montoya v. Montoya, 280 Conn. 605, 612
n.7, 909 A.2d 947 (2006) (‘‘[a]lthough the agreement’s
choice of law provision dictates that the substance of
the contract will be analyzed according to New York
law, procedural issues such as the applicable standard
of review are governed by Connecticut law’’); People’s
United Bank v. Kudej, 134 Conn. App. 432, 438, 39 A.3d
1139 (2012) (‘‘because the 1998 note and the guarantee
contain choice of law clauses stating that they are to
be governed and construed in accordance with Massa-
chusetts law . . . we are guided by Massachusetts sub-
stantive law in deciding the defendant’s claims, but we
must apply the procedural laws of Connecticut’’). This
approach is consistent with § 122 of the Restatement
(Second), which provides that ‘‘[a] court usually applies
its own local law rules prescribing how litigation shall
be conducted even when it applies the local law rules
of another state to resolve other issues in the case.’’
1 Restatement (Second), supra, § 122, p. 350. As the
commentary to that section explains, ‘‘[t]he forum has
compelling reasons for applying its own rules’’ to proce-
dural issues, even if the substantive law of another
jurisdiction applies, because, ‘‘in matters of judicial
administration, it would often be disruptive or difficult
for the forum to apply the local rules of another state.
The difficulties involved in doing so would not be repaid
by a furtherance of the values that the application of
another state’s local law is designed to promote.’’ Id.,
comment (a), p. 350. Additionally, ‘‘[p]arties do not usu-
ally give thought to matters of judicial administration
before they enter into legal transactions,’’ and, there-
fore, ‘‘the parties have no expectations as to such even-
tualities, and there is no danger of unfairly disappoint-
ing their hopes by applying the forum’s rules in such
matters.’’ Id., p. 351. Even if the application of the
forum’s procedural rule would alter the outcome of a
case, ‘‘the forum will usually apply its own rule if the
issue primarily concerns judicial administration. The
statute of limitations is a striking example of such an
issue . . . .’’ Id.
In Baxter v. Sturm, Ruger & Co., supra, 230 Conn.
339, we addressed whether a ‘‘statute of limitation[s]
is procedural or substantive for choice of law pur-
poses.’’ We noted that it is ‘‘undisputed that . . . reme-
dies and modes of procedure depend upon the lex fori’’
and that statutes of limitations typically are procedural
because they ‘‘relate to the remedy as distinguished
from the right.’’ (Internal quotation marks omitted.) Id.;
see also Thomas Iron Co. v. Ensign-Bickford Co., 131
Conn. 665, 668, 42 A.2d 145 (1945) (‘‘[i]t is undisputed
that, as a principle of universal application, remedies
and modes of procedure depend upon the lex fori’’).
Nonetheless, a statute of limitations may be deemed
substantive, rather than procedural, ‘‘if the limitation
is so interwoven with . . . the cause of action as to
become one of the congeries of elements necessary to
establish the right . . . .’’ (Internal quotation marks
omitted.) Baxter v. Sturm, Ruger & Co., supra, 340; see
also Thomas Iron Co. v. Ensign-Bickford Co., supra,
668–69 (observing that, if ‘‘the remedial law of the for-
eign jurisdiction is inseparable from the cause of
action,’’ then ‘‘the lex loci and not the lex fori governs’’).
We determined that neither statutes of limitations nor
statutes of repose are ‘‘substantive [or] procedural per
se for choice of law purposes,’’ but, rather, the charac-
terization of the applicable limitation period ‘‘depends
on the nature of the underlying right that forms the
basis of the lawsuit. If the right existed at common law,
then the [limitation period] is properly characterized
as procedural because it functions only as a qualifica-
tion on the remedy to enforce the preexisting right. If,
however, the right is newly created by the statute, then
the [limitation period] is properly characterized as sub-
stantive because the period of repose is so integral a
part of the cause of action as to warrant saying that it
qualifie[s] the right.’’ (Internal quotation marks omit-
ted.) Baxter v. Sturm, Ruger & Co., supra, 346–47; see
also 1 Restatement (Second), supra, § 143, p. 400 (‘‘[a]n
action will not be entertained in another state if it is
barred in the state of the otherwise applicable law by
a statute of limitations which bars the right and not
merely the remedy’’).9 Applying these principles to the
facts at issue in Baxter, we held that the timeliness of
the plaintiff’s product liability claims was governed by
Connecticut’s statute of limitations, rather than Ore-
gon’s statute of repose, ‘‘in light of the [common-law]
origin of the law of products liability . . . .’’ Baxter v.
Sturm, Ruger & Co., supra, 347.
Pursuant to Baxter, the procedural or substantive
nature of the limitation period depends on whether
the plaintiff’s right to relief existed under Delaware
common law. See id., 341 (examining Oregon law to
determine whether plaintiff’s claims existed at common
law).10 Under Delaware law, unjust enrichment is a
claim for restitution. See Fleer Corp. v. Topps Chewing
Gum, Inc., 539 A.2d 1060, 1062 (Del. 1988). The right
to relief is not created by statute but, rather, derives
from equitable principles under the common law. See,
e.g., Schock v. Nash, 732 A.2d 217, 232 (Del. 1999)
(‘‘[u]njust enrichment is defined as the unjust retention
of a benefit to the loss of another, or the retention of
money or property of another against the fundamental
principles of justice or equity and good conscience’’
[internal quotation marks omitted]). Given the com-
mon-law origin of the plaintiff’s unjust enrichment
claims, we conclude that the limitation period ‘‘is prop-
erly characterized as procedural because it functions
only as a qualification on the remedy to enforce the
preexisting right.’’11 Baxter v. Strum, Ruger & Co.,
supra, 230 Conn. 347. Accordingly, Connecticut law,
rather than Delaware law, governs the timeliness of the
plaintiff’s claims.
The defendants contend that § 17-607 (c) of DRULPA
is substantive, rather than procedural, because it extin-
guishes the liability of a limited partner after the expira-
tion of three years. To support this contention, the
defendants rely on Century City Doctors Hospital, LLC
v. Friedman, 466 B.R. 1, 12–13 (Bankr. C.D. Cal. 2012),
and Freeman v. Williamson, 890 N.E.2d 1127, 1133–34
(Ill. App. 2008), both of which held that § 17-607 (c) is
substantive because it is a statute of repose, not a stat-
ute of limitations. We agree with the courts in Century
City Doctors Hospital, LLC, and Freeman that § 17-
607 (c) properly is characterized as a statute of repose
because it ‘‘clearly terminates the possibility of the lim-
ited partner’s liability after a defined period of time,
three years after receiving a distribution, regardless of
whether a potential plaintiff knows of his or her cause
of action.’’ Century City Doctors Hospital, LLC v.
Friedman, supra, 13, quoting Freeman v. Williamson,
supra, 1134; see Baxter v. Sturm, Ruger & Co., supra,
230 Conn. 341 (recognizing that ‘‘statutes of repose dif-
fer in some respects from statutes of limitation’’
because they terminate ‘‘any right of action after a spe-
cific time has elapsed, regardless of whether there has
as yet been an injury’’ [internal quotation marks omit-
ted]). Labeling the statute as such does not resolve the
issue at hand, however, because this court in Baxter
explicitly rejected the notion that ‘‘statutes of repose
. . . are always substantive’’; Baxter v. Sturm, Ruger &
Co., supra, 341; instead, concluding that statutes of
repose should be treated the same as statutes of limita-
tions for choice of law purposes because they both
‘‘serve the same public policy of avoiding the litigation
of stale claims.’’ Id., 344. Under Connecticut’s choice
of law rules, the dispositive inquiry is not whether the
statute at issue properly is characterized as a statute
of repose or a statute of limitations, but whether the
‘‘nature of the underlying right that forms the basis of
the lawsuit’’ existed at common law.12 Id., 347. Because
Delaware law recognizes a common-law claim for
unjust enrichment, § 17-607 (c) of DRULPA is a proce-
dural limitation on that preexisting right to relief.
The defendants next contend that the choice of law
provision in the limited partnership agreement is
worded broadly to include all of Delaware’s procedural
law as well as its substantive law. We disagree. ‘‘Choice
of law provisions in contracts are generally understood
to incorporate only substantive law, not procedural law
such as statutes of limitation[s].’’ Federal Deposit Ins.
Corp. v. Peterson, 770 F.2d 141, 142 (10th Cir. 1985).
Thus, ‘‘[a]bsent an express statement that the parties
intended another state’s limitations statute to apply, the
procedural law of the forum governs time restrictions
. . . .’’ Cole v. Mileti, 133 F.3d 433, 437 (6th Cir.), cert.
denied, 525 U.S. 810, 119 S. Ct. 42, 142 L. Ed. 2d 32
(1998); see also Gluck v. Unisys Corp., 960 F.2d 1168,
1179 (3d Cir. 1992) (‘‘[c]hoice of law provisions in con-
tracts do not apply to statutes of limitations, unless the
reference is express’’); Des Brisay v. Goldfield Corp.,
637 F.2d 680, 682 (9th Cir. 1981) (Choice of law ‘‘clauses
generally do not contemplate application to statutes of
limitation. [Limitation] periods are usually considered
to be related to judicial administration and thus gov-
erned by the rules of local law, even if the substantive
law of another jurisdiction applies.’’); Portfolio Recov-
ery Associates, LLC v. King, 14 N.Y.3d 410, 416, 927
N.E.2d 1059, 901 N.Y.S.2d 575 (2010) (‘‘Choice of law
provisions typically apply to only substantive issues
. . . and statutes of limitations are considered proce-
dural because they are deemed as pertaining to the
remedy rather than the right . . . . There being no
express intention in the agreement that Delaware’s stat-
ute of limitations was to apply to this dispute, the choice
of law provision cannot be read to encompass that
[limitation] period.’’ [Citations omitted; internal quota-
tion marks omitted.]).
The choice of law provision in the limited partnership
agreement does not mention, much less expressly incor-
porate, the three-year limitation period in § 17-607 (c)
of DRULPA.13 A ‘‘standard choice of law provision,’’
such as the one at issue in the present case, which does
not mention the procedural law of another state, ‘‘will
not be interpreted as covering a statute of limitations.’’
Federal Deposit Ins. Corp. v. Peterson, supra, 770 F.2d
142–43; see also Generali-U.S. Branch v. Lachel & Asso-
ciates, Inc., Docket No. 3:16-cv-595-DJH, 2017 WL
6999998, *3 (W.D. Ky. August 7, 2017) (holding that
‘‘the phrase ‘governed by’ is not an express statement
indicating that Indiana law should apply to the statute
of limitations’’); American Energy Technologies, Inc.
v. Colley & McCoy Co., Docket No. CIV A. 98-398 MMS,
1999 WL 301648, *2 (D. Del. April 15, 1999) (holding
that choice of law provision, providing in relevant part
that ‘‘[t]he agreement shall be interpreted according to
the laws of the [c]ommonwealth of Virginia,’’ did ‘‘not
expressly provide for the laws of the [c]ommonwealth
of Virginia to apply to the statute of limitations,’’ and,
therefore, ‘‘Virginia’s five-year statute of limitations for
contract cases [was] inapplicable’’).
Finally, the defendants contend that § 17-607 (c) of
DRULPA must apply to the plaintiff’s unjust enrichment
claims pursuant to the Connecticut Uniform Limited
Partnership Act (CULPA), General Statutes § 34-9 et
seq., which provides in relevant part that ‘‘[s]ubject to
the Constitution of this state . . . the laws of the state
under which a foreign limited partnership is organized
govern its organization and internal affairs and the lia-
bility of its limited partners . . . .’’ General Statutes
§ 34-38f (1). Again, we disagree. Consistent with CULPA
and the choice of law provision in the limited partner-
ship agreement, Delaware law governs the substantive
liability of the defendants with respect to the plaintiff’s
unjust enrichment claims. As we have explained, how-
ever, the time in which to file a Delaware unjust enrich-
ment action is a matter of judicial administration and
procedure that is controlled by Connecticut law. There-
fore, Connecticut law governs the timeliness of the
plaintiff’s claims.
III
Having concluded that Connecticut law governs the
timeliness of the plaintiff’s unjust enrichment claims,
we next address the defendants’ contention that the
judgment of the trial court may be affirmed on the
alternative ground14 that the plaintiff’s claims are barred
by the three-year statute of limitations in § 52-577 gener-
ally applicable to tort actions.15 The plaintiff responds
that § 52-577 is inapplicable to the present case because
unjust enrichment is not a tort but an equitable claim for
relief. The plaintiff contends that its unjust enrichment
claims are not subject to any limitation period at all or,
in the alternative, are subject to the six-year statute of
limitations applicable to contract actions. See General
Statutes § 52-576 (a).16
As a preliminary matter, we note that the trial court
did not reach the issue of which statute of limitations,
if any, governs the plaintiff’s unjust enrichment claims
under Connecticut law. When a trial court has not ruled
on all of the grounds raised in a motion for summary
judgment, we have the discretion either to ‘‘remand
for further trial court proceedings’’ or ‘‘to consider
whether, as a matter of law, the trial court’s judgment
can be sustained on . . . [alternative] grounds.’’ Skuzi-
nski v. Bouchard Fuels, Inc., 240 Conn. 694, 703, 694
A.2d 788 (1997); see also Vollemans v. Wallingford, 103
Conn. App. 188, 219, 928 A.2d 586 (2007) (‘‘[a]lthough
the trial court did not rule on those [alternative] grounds
for summary judgment, it is within our discretion to do
so on appeal’’), aff’d, 289 Conn. 57, 956 A.2d 579 (2008).
Because the issue presents a pure question of law17 that
has been briefed extensively by the parties on appeal,
the interest of judicial economy induces us to consider
whether the plaintiff’s unjust enrichment claims are
barred by the three-year limitation period in § 52-577.
As explained in part II of this opinion, unjust enrich-
ment is not a legal claim sounding in either tort or
contract—it is an equitable claim for relief. As an equita-
ble claim, its timeliness is not subject to a statute of
limitations but, rather, to the equitable doctrine of
laches. See Dunham v. Dunham, 204 Conn. 303, 326–27,
528 A.2d 1123 (1987) (holding that plaintiff’s equitable
claim for relief was not barred by three-year statute
of limitations in § 52-577), overruled in part on other
grounds by Santopietro v. New Haven, 239 Conn. 207,
213 n.8, 682 A.2d 106 (1996); see also Government
Employees Ins. Co. v. Barros, 184 Conn. App. 395, 399,
401, 195 A.3d 431 (2018) (recognizing that ‘‘[s]tatutes
of limitations do not apply in a strict fashion to causes
of action arising in equity,’’ and when ‘‘the plaintiff’s
claim sounds only in equity, not in law or in both law
and equity . . . the plaintiff’s claim is not subject to
any statute of limitations, let alone the same statutes
of limitations applicable to the underlying claims’’ [foot-
note omitted]). In an action for equitable relief, a court
is not ‘‘bound to apply the statute of limitations that
governs the underlying cause of action. In fact, in an
equitable proceeding, a court may provide a remedy
even though the governing statute of limitations has
expired, just as it has discretion to dismiss for laches
an action initiated within the period of the statute.’’
Dunham v. Dunham, supra, 326. ‘‘Although courts in
equitable proceedings often look by analogy to the stat-
ute of limitations to determine whether, in the interests
of justice, a particular action should be heard, they are
by no means obliged to adhere to those time limita-
tions.’’ Id., 326–27; see Certain Underwriters at Lloyd’s,
London v. Cooperman, 289 Conn. 383, 411, 957 A.2d
836 (2008) (concluding that plaintiffs’ equitable claims
were time-barred because its legal claims were time-
barred under statute of limitations). As equitable claims
for relief, the plaintiff’s unjust enrichment claims are
not barred by the three-year limitation period in § 52-
577.
The defendants contend18 that, even under the doc-
trine of laches, the three-year limitation period in § 52-
577 should apply to this action by analogy because the
plaintiff ‘‘has no excuse whatsoever for waiting until
2013 to seek recovery of payments made in 2008,’’ and
the defendants have suffered prejudice as a conse-
quence of the plaintiff’s delay because ‘‘SV Fund recou-
ped the alleged loss, SV Fund no longer exists, and all
of the other partners have received their distributions.’’
To prevail on the affirmative defense of laches, the
defendants must establish, first, that there was an inex-
cusable delay and, second, that the delay ‘‘prejudiced
the defendant[s]. . . . The mere lapse of time does not
constitute laches . . . unless it results in prejudice to
the defendant[s] . . . . A conclusion that a plaintiff
has been guilty of laches is one of fact for the trier and
not one that can be made by this court, unless the
subordinate facts found make such a conclusion inevita-
ble as a matter of law.’’ (Citations omitted; internal
quotation marks omitted.) Papcun v. Papcun, 181 Conn.
618, 620–21, 436 A.2d 282 (1980). The trial court made
no factual findings regarding the defendants’ special
defense of laches, and, in the absence of subordinate
facts, we decline to address the issue. We therefore
remand this case to the trial court for consideration of
the defendants’ seventh special defense of laches, as
well as the remaining grounds for summary judgment
raised in the defendants’ August 12, 2016 motion for
summary judgment.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other justices concurred.
1
Section 17-607 of DRULPA provides that, ‘‘[u]nless otherwise agreed, a
limited partner who receives a distribution from a limited partnership shall
have no liability under this chapter or other applicable law for the amount
of the distribution after the expiration of 3 years from the date of the distri-
bution.’’
2
Deutsch received the following distributions: (1) $15,000,000 in January,
2008; (2) $5,305,029.10 on May 8, 2008; (3) $2,000,000 on May 13, 2008; and
(4) $4,443.93 on May 14, 2008. Simon received the following distributions:
(1) $1,250,000 in January, 2008; and (2) $926,785.80 on May 2, 2008.
3
3V Capital Partners, LP, was a predecessor partnership to SV Fund, of
which the defendants were limited partners.
4
Additionally, the trial court rejected the plaintiff’s argument that ‘‘[§] 17-
607 (c) [of DRULPA] is not applicable because, upon their withdrawal, the
defendant[s] ceased to be limited partners under the terms of the [limited
partnership agreement].’’ The trial court determined that ‘‘a thorough reading
of [§] 17-607 as a whole makes it clear that the words ‘limited partner’ refer
to the person or entity who receives the distribution by virtue of the partner’s
status as a limited partner and applies even to withdrawing limited partners.’’
The trial court did not reach the issue of ‘‘whether . . . the Connecticut
statute of limitations would bar the plaintiff’s claim[s].’’
5
See, e.g., LaSalla v. Doctor’s Associates, Inc., 278 Conn. 578, 595, 898
A.2d 803 (2006); Macomber v. Travelers Property & Casualty Corp., supra,
277 Conn. 640; Fink v. Golenbock, 238 Conn. 183, 193, 680 A.2d 1243 (1996).
6
See, e.g., Habetz v. Condon, 224 Conn. 231, 236 n.9, 618 A.2d 501 (1992);
Sidney v. DeVries, 215 Conn. 350, 351–52 n.1, 575 A.2d 228 (1990); Liljedah
Bros., Inc. v. Grigsby, 215 Conn. 345, 346 n.1, 576 A.2d 149 (1990); see
generally Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 511,
735 A.2d 813 (1999) (‘‘[a]lthough, linguistically, such a claim is sometimes
denominated an implied-in-law claim, or a quasi contract claim, it is more
descriptive to call it what it is, a claim in restitution whose basis is the
alleged unjust enrichment of one person at the expense of another’’).
7
We recognize that, in Macomber v. Travelers Property & Casualty Corp.,
supra, 277 Conn. 640, we held that unjust enrichment was a tort for choice
of law purposes, and, therefore, ‘‘we apply the law of the state in which the
plaintiff was injured, unless to do so would produce an arbitrary or irrational
result.’’ As this court recently clarified, however, ‘‘we have completely aban-
doned the lex loci test in tort actions’’ and adopted ‘‘the most significant
relationship test outlined in §§ 6 (2) and 145 of the Restatement (Second)
of Conflict of Laws [as] the proper test to apply in tort actions to determine
which state’s law applies.’’ Western Dermatology Consultants, P.C. v.
VitalWorks, Inc., supra, 322 Conn. 551 n.9. Thus, regardless of whether a
claim for unjust enrichment is characterized as a tort or an equitable claim
for restitution, the same conflict of law principles apply, namely, the most
significant relationship test set forth in the Restatement (Second).
8
There is no contention that either of the exceptions listed in § 187 (2)
of the Restatement (Second) is applicable to the present case. See 1
Restatement (Second), supra, § 187 (2), p. 561 (providing that law of state
chosen by parties will be applied unless either ‘‘the chosen state has no
substantial relationship to the parties or the transaction and there is no
other reasonable basis for the parties’ choice’’ or ‘‘application of the law of
the chosen state would be contrary to a fundamental policy of a state which
has a materially greater interest than the chosen state in the determination
of the particular issue and which, under the rule of § 188, would be the
state of the applicable law in the absence of an effective choice of law by
the parties’’); see also Elgar v. Elgar, supra, 238 Conn. 850 (holding that
‘‘parties to a contract generally are allowed to select the law that will govern
their contract, unless either’’ exception in § 187 [2] of Restatement [Second]
is applicable).
9
We recognize that §§ 142 and 143 of the Restatement (Second) were
repealed and replaced with an amended § 142 in the 1988 revision of the
Restatement (Second), which abandoned the procedural/substantive distinc-
tion and embraced ‘‘the emerging trend’’ that ‘‘a claim will not be maintained
if it is barred by the statute of limitations of the state which, with respect
to the issue of limitations, is the state of most significant relationship to the
occurrence and the parties under the principles stated in § 6.’’ 1 Restatement
(Second), Conflict of Laws § 142, comment (e), p. 125 (Supp. 1989). The
parties in the present case have not asked us to overrule our prior precedent
employing the traditional approach and adopt the 1988 revision to § 142 of
the Restatement (Second), and, therefore, we have no reason to address
the issue here. See Spencer v. Hartford Financial Services Group, Inc., 256
F.R.D. 284, 300 (D. Conn. 2009) (noting that, although ‘‘Connecticut courts
are trending [toward] following the Restatement’s ‘most significant relation-
ship’ test in place of traditional rules,’’ this court’s 1994 decision in Baxter,
which postdated 1988 revision to § 142 of Restatement [Second], reflects
that Connecticut courts continue to ‘‘follow the traditional rule’’ with respect
to statutes of limitations); see also Doe No. 1 v. Knights of Columbus, 930
F. Supp. 2d 337, 356 n.25 (D. Conn. 2013); Bilodeau v. Vlack, Docket No.
07-CV-1178 (JCH), 2009 WL 1505571, *4 (D. Conn. 2009).
10
In Baxter, the term ‘‘common law’’ is used broadly to include all rights
preexisting ‘‘new right[s] created by statute.’’ Baxter v. Sturm, Ruger & Co.,
supra, 230 Conn. 340. Thus, although the term may be used more narrowly in
other contexts, in the present context, the ‘‘common law’’ includes ‘‘judicial
precedent,’’ ‘‘case law,’’ and ‘‘natural law,’’ as opposed to statutory law.
(Internal quotation marks omitted.) Moore v. Ganim, 233 Conn. 557, 599,
660 A.2d 742 (1995); see also Western Union Telegraph Co. v. Call Publishing
Co., 181 U.S. 92, 102, 21 S. Ct. 561, 45 L. Ed. 765 (1901) (‘‘[a]s distinguished
from law created by the enactment of legislatures, the common law com-
prises the body of those principles and rules of action relating to the govern-
ment and security of persons and property, which derive their authority
solely from usages and customs of immemorial antiquity, or from the judg-
ments and decrees of the courts recognizing, affirming and enforcing such
usages and customs’’ [internal quotation marks omitted]); State v. Courch-
esne, 296 Conn. 622, 674 n.36, 998 A.2d 1 (2010) (‘‘[t]he common law is
generally described as those principles, usage, and rules of action applicable
to the government and security of persons and property which do not rest
for their authority [on] any express and positive declaration of the will of
the legislature’’ [internal quotation marks omitted]). We recognize that there
is a distinction between ‘‘legal’’ and ‘‘equitable’’ claims, which derives from
the historical distinction in England between ‘‘courts of law and courts
of equity.’’ Blumberg Associates Worldwide, Inc. v. Brown & Brown of
Connecticut, Inc., 311 Conn. 123, 145, 84 A.3d 840 (2014); see id. (noting
that, ‘‘[i]n the United States, most jurisdictions, including Connecticut and
the federal courts, have merged law and equity courts’’). This distinction,
however, is irrelevant to the procedural/substantive analysis of a limitation
period under Baxter and our use of the term ‘‘common law’’ here.
11
The defendants, quoting Baxter v. Sturm, Ruger & Co., supra, 230
Conn. 340, contend that DRULPA ‘‘created rights based on unique statutory
relationships that did not exist at common law,’’ and, therefore, the three-
year statute of limitations in § 17-607 (c) is ‘‘one of the ‘congeries of elements
necessary to establish the right.’ ’’ Although DRULPA created a statutory
framework that did not exist at common law, the plaintiff does not seek to
recover under DRULPA or any of the statutory rights created therein; it
seeks recovery solely under the common-law doctrine of unjust enrichment.
As the master of the complaint, the plaintiff is free to decide what theory
of recovery to pursue, and, under Baxter, the theory of recovery chosen by
the plaintiff is dispositive of whether a statute of limitations is deemed
procedural or substantive for choice of law purposes. See Baxter v. Sturm,
Ruger & Co., supra, 347.
12
The defendants point out that ‘‘numerous Connecticut cases’’ have held
‘‘that a statute of limitation[s] is substantive.’’ Nothing in the cases cited by
the defendants is inconsistent with our holding in Baxter or the principles
elucidated in this opinion, because, in all of those cases, the limitation period
was part of a statutory scheme that did not exist at common law. See
Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10,
26, 848 A.2d 418 (2004) (holding that 120-day limitation in General Statutes
§ 52-102b is substantive because it is part of statutory scheme that ‘‘confers
rights that did not exist at common law’’); Ecker v. West Hartford, 205 Conn.
219, 233, 530 A.2d 1056 (1987) (holding that three-year limitation in General
Statutes § 52-555 is substantive because wrongful death statute ‘‘creates
liability where none formerly existed’’ at common law); Diamond National
Corp. v. Dwelle, 164 Conn. 540, 543, 325 A.2d 259 (1973) (holding that time
limitation in General Statutes § 49-39 is substantive because ‘‘[a] mechanic’s
lien is a creature of statute and gives a right of action which did not exist
at common law’’); Simmons v. Holcomb, 98 Conn. 770, 774–75, 120 A. 510
(1923) (holding that statute of limitations for worker’s compensation claim
is substantive because ‘‘right of action . . . did not exist at common law,’’
and, therefore, ‘‘it is a limitation of the liability itself, as created, and not
of the remedy alone’’ [internal quotation marks omitted]); Federal National
Mortgage Assn. v. Jessup, Docket No. CV-XX-XXXXXXX-S, 1999 WL 624453,
*11 (Conn. Super. August 3, 1999) (holding that statute of limitations for
claim under Connecticut Unfair Trade Practices Act [CUTPA] is substantive
because ‘‘CUTPA is a statutory creation’’).
13
The limited partnership agreement provides that the limited partnership
is ‘‘create[d] and form[ed]’’ in accordance with DRULPA but is ‘‘governed
by and construed in accordance with the laws of the [s]tate of Delaware
. . . .’’ (Emphasis added.) Thus, although the parties may have incorporated
DRULPA with respect to the creation and formation of the partnership, the
agreement itself and ‘‘all rights and liabilities of the parties’’ arising out of
the agreement are governed by Delaware law generally. In any event, as
explained in the text of this opinion, § 187 of the Restatement (Second) ‘‘is
a rule providing for incorporation by reference and is not a rule of choice
of law.’’ 1 Restatement (Second), supra, § 187, comment (c), p. 563. Accord-
ingly, even where the law of another state expressly has been incorporated
into a contract by reference, the procedural law of the forum applies in the
absence of an express statement to the contrary. See id., § 122 and comments
(a) through (c), pp. 350–53.
14
We note that the defendants did not file a preliminary statement of the
issues ‘‘present[ing] for review alternative grounds upon which the judgment
may be affirmed,’’ as required Practice Book § 63-4 (a) (1). Nonetheless, we
may consider the defendants’ alternative grounds for affirmance as properly
raised if ‘‘neither party would be prejudiced by our doing so . . . .’’ (Internal
quotation marks omitted.) Gerardi v. Bridgeport, 294 Conn. 461, 466, 985
A.2d 328 (2010). Because the applicability of § 52-577 was discussed exten-
sively in its principal appellate brief, we conclude that the plaintiff would
not be prejudiced by our consideration of the defendants’ alternative grounds
for affirmance. See, e.g., Connecticut Ins. Guaranty Assn. v. Fontaine, 278
Conn. 779, 784 n.4, 900 A.2d 18 (2006).
15
General Statutes § 52-577 provides that ‘‘[n]o action founded upon a
tort shall be brought but within three years from the date of the act or
omission complained of.’’
16
General Statutes § 52-576 (a) provides in relevant part that ‘‘[n]o action
for an account, or on any simple or implied contract, or on any contract
in writing, shall be brought but within six years after the right of action
accrues . . . .’’
17
See, e.g., Certain Underwriters at Lloyd’s, London v. Cooperman, 289
Conn. 383, 407–08, 957 A.2d 836 (2008) (‘‘[t]he question of whether a party’s
claim is barred by the statute of limitations is a question of law, which this
court reviews de novo’’ [internal quotation marks omitted]).
18
The defendants also contend that the judgment of the trial court may
be affirmed on the alternative ground that ‘‘[i]t is well settled in Connecticut
that the equitable remedy of unjust enrichment is unavailable where there
is a written contract between the parties on the subject.’’ We decline to
address the defendants’ alternative ground for affirmance in light of our
conclusion in part II of this opinion that Delaware law, rather than Connecti-
cut law, governs the substance of the plaintiff’s unjust enrichment claims.