Kinity v. US Bancorp

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ISAAC KINITY v. US BANCORP ET AL.
(AC 44106)
Elgo, Clark and Sheldon, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, B Co. and I
Co., in connection with certain steps taken by the defendants involving
the plaintiff’s mortgaged property. B Co. was the servicer of a residential
loan to the plaintiff under a note secured by a mortgage on his property.
I Co. issued an insurance policy to the plaintiff covering the mortgaged
property against loss, as required by the mortgage. After the plaintiff
became delinquent on his mortgage payments, an inspection was com-
pleted on the mortgaged property. The resulting inspection report noted
that the property appeared to be vacant. B Co. advised I Co. of the
possible vacancy, and that there might be a change of risk, and also
sought assurances from the plaintiff that he either still occupied the
property or had procured sufficient insurance to cover it against loss
because the current insurance policy did not provide coverage if the
property was vacant. Although the plaintiff still occupied the property,
B Co.’s receipt of information to the contrary led I Co. to cancel the
insurance policy and refund a portion of the premium. Following a
conversation with the plaintiff, I Co. reinstated the policy and invoiced
the plaintiff for the refunded portion of the premium. When the premium
for the reinstated policy was never paid, B Co. procured a more costly
lender placed insurance policy at the plaintiff’s expense. The plaintiff
eventually provided B Co. with evidence that he had obtained his own
insurance coverage for the property and the lender placed policy was
cancelled. Subsequently, the plaintiff filed an action against a trade name
of B Co., and, after that company was defaulted for failure to appear,
judgment was rendered in favor of the plaintiff. When B Co. learned of
that action, it filed a motion to open and vacate the default judgment.
The trial court granted B Co.’s motion and the action was dismissed
for lack of subject matter jurisdiction and personal jurisdiction. The
plaintiff then commenced the second action against B Co. under the
accidental failure of suit statute (§ 52-592) and continuing course of
conduct doctrine to recover damages on several theories of liability for
injuries and losses, later moving successfully to cite in I Co. B Co. and
I Co. then filed separate motions for summary judgment, which the trial
court granted on the grounds that none of the plaintiff’s untimely claims
was saved by the accidental failure of suit statute or the continuing
course of conduct doctrine and were barred by the applicable statutes
of limitations, and that the plaintiff’s remaining claims failed as a matter
of law, and the plaintiff appealed to this court. Thereafter, the plaintiff
filed an amended appeal from a postjudgment order of the trial court
granting I Co.’s motion to enforce a settlement agreement it had reached
with the plaintiff. Held:
1. The trial court did not err in granting I Co.’s motion to enforce a settlement
agreement:
a. The trial court properly exercised its authority under Audubon Parking
Associates Ltd. Partnership v. Barclay & Stubbs, Inc. (225 Conn. 804)
(Audubon) to enforce the settlement agreement: even though the plaintiff
did not raise his unpreserved claim that a trial court lacked authority
to summarily enforce a settlement agreement formed postjudgment dur-
ing the pendency of an appeal, review was appropriate in the exercise
of this court’s supervisory powers under Blumberg Associates World-
wide, Inc. v. Brown & Brown of Connecticut, Inc. (311 Conn. 123), as
the record was adequate for review, all parties had an opportunity to
be heard on the issue as both parties filed supplemental briefs on this
issue, there was no unfair prejudice to any party as I Co. did not assert
that it would have presented additional evidence or proceeded differently
if the claim had been raised in the trial court, and the party who benefitted
from the application of this court’s supervisory powers, the plaintiff,
could not prevail, thus, review of the claim did not prejudice I Co. and
provided the plaintiff with a sense of finality that the plaintiff otherwise
would not have had if this court declined to review the claim; moreover,
the trial court was not deprived of its authority to enforce a settlement
agreement simply because the action that the agreement settled was on
appeal, as a settlement reached by the parties postjudgment and during
the pendency of an appeal is a settlement within the framework of the
original lawsuit under Audubon; furthermore, under Waldman v. Beck
(101 Conn. App. 669), the court had the authority to order the precise
form of relief agreed to by the parties, in this case not a judgment in
favor of a party, but rather the withdrawal of the action.
b. The trial court properly concluded that a clear, unambiguous, and
enforceable agreement had been reached between the plaintiff and I Co.
to settle the dispute between them in this action: upon a thorough review
of the record, the court’s finding concerning the mutual assent of the
parties to the terms of the agreement was not clearly erroneous as the
plaintiff’s attorney never expressly stated to I Co.’s attorney in their
e-mail communications that the settlement agreement was contingent
upon reaching a global settlement that included B Co., and the fleeting
references by the plaintiff’s attorney to negotiations with B Co. were
not enough to convey to a reasonable person in the position of the
attorney for I Co. that the agreement was contingent; moreover, the
court did not err in finding that the settlement agreement was supported
by valid consideration, as the court found that the terms of the settlement
agreement clearly and unambiguously established that I Co. would pay
the plaintiff $10,000 in exchange for his release of all claims against it.
c. Because the trial court did not err in granting I Co.’s motion to enforce
the settlement agreement, this court did not address the plaintiff’s claims
concerning the trial court’s granting I Co.’s motion for summary judg-
ment.
2. The trial court properly granted B Co.’s motion for summary judgment:
a. The trial court did not err in concluding that § 52-592 was inapplicable
and therefore could not save the plaintiff’s otherwise untimely claims;
the communications between the plaintiff and B Co. and B Co.’s belated
appearance in the original action filed by the plaintiff were insufficient
to create a genuine issue of material fact that B Co. had actually received
the summons and complaint and thereby had actual or effective notice
of the original action, as pursuant to Rocco v. Garrison (268 Conn. 541)
and Dorry v. Garden (313 Conn. 516), an action is commenced within
the meaning of § 52-592 when a defendant receives actual or effective
notice of the action, within the time period prescribed by law, by way
of receipt of the summons and complaint, and the plaintiff failed to
provide the court with any evidence that B Co. itself had actual or
effective notice of the original action by way of receipt of the summons
and complaint as in Rocco and Dorry, and there was no evidence that
service was ever made on B Co.
b. The trial court did not improperly conclude that the continuing course
of conduct doctrine was inapplicable to the plaintiff’s claims and there-
fore could not toll the applicable statutes of limitations: there was no
genuine issue of material fact regarding whether B Co. owed a continuing
duty to the plaintiff as the relationship between the parties was at arm’s
length and commercial in nature, and there was no special relationship
between the plaintiff and B Co. which gave rise to such a continuing
duty; moreover, although the court found for the purpose of deciding B
Co.’s motion for summary judgment that an implied in fact contract
existed between the parties, this court has held that a mere contractual
relationship does not create a fiduciary or confidential relationship, as
the relationship between B Co. and the plaintiff lacked the unique degree
of trust and confidence found in a special or fiduciary relationship;
furthermore, B Co., as a servicer of the loan, had a right to further its
own interests and therefore was under no duty to represent the interests
of the plaintiff.
c. The trial court did not improperly conclude that the plaintiff’s claim
of breach of the covenant of good faith and fair dealing failed as a matter
of law as there was no genuine issue of material fact as to whether B
Co. acted in bad faith: because the plaintiff became delinquent on his
mortgage payments, B Co. conducted a property inspection of the mort-
gaged property, the resulting inspection report indicated that the property
might be vacant, B Co. then informed I Co. that the property might be
vacant and, in its letter to I Co. informing it of such, there was a clear
indication of uncertainty as to the occupancy status of the property, B
Co. sent numerous letters to the plaintiff stating that it believed the
property to be vacant, it was required to inform I Co. of this belief, and
the plaintiff should have contacted I Co. with information regarding the
occupancy status of the property, and these actions all indicated that B
Co. was not acting in bad faith; moreover, the plaintiff pointed to no
evidence supporting his claim that B Co. had acted in bad faith, and his
argument that B Co. twice failed to pay the premium on his insurance
policy was plainly contradicted by evidence provided by B Co.
Argued January 20—officially released June 7, 2022
Procedural History
Action for, inter alia, negligent misrepresentation,
and for other relief, brought to the Superior Court in the
judicial district of New Haven, where State Automobile
Mutual Insurance Company and Patrons Mutual Insur-
ance Company of Connecticut were cited in as party
defendants; thereafter, the court, Wilson, J., granted
the defendants’ motions for summary judgment and
rendered judgment thereon, from which the plaintiff
appealed to this court; subsequently, the court, Wilson,
J., granted the motion to enforce a settlement agree-
ment filed by the defendant State Automobile Mutual
Insurance Company et al., and the plaintiff filed an
amended appeal. Affirmed.
Elio Morgan, for the appellant (plaintiff).
Pierre-Yves Kolakowski, for the appellees (named
defendant et al.).
Deborah Etlinger, with whom, on the brief, was Erin
Canalia, for the appellees (defendant State Automobile
Mutual Insurance Company et al.).
Opinion
SHELDON, J. This case arises from actions taken
by the defendants, US Bank NA and US Bancorp,1 as
servicer of a residential loan from People’s Bank
(lender) to the plaintiff, Isaac Kinity, and his wife, Jane
Kinity2 (borrowers), under a note secured by a mortgage
on the borrowers’ residential property, and by the
defendants, Patrons Mutual Insurance Company of Con-
necticut and State Automobile Mutual Insurance Com-
pany,3 the insurance company that issued an insurance
policy (original policy) to the plaintiff covering the
mortgaged property against loss, as required by the
mortgage, upon being informed that the property might
be vacant. Concerned that the lender’s financial interest
in maintaining the condition and value of the property
might be compromised if the property were vacant,
because in that event the plaintiff’s original policy might
not cover the risk, the bank advised the insurance com-
pany of the possible vacancy and sought assurances
from the borrowers, either that they still occupied the
property or that they had procured sufficient insurance
to cover it against loss. Ultimately, although the borrow-
ers still occupied the property, the bank’s receipt of
information to the contrary led to the cancellation of
the original policy, the later reinstatement of the policy,
the eventual cancellation of the reinstated policy due
to nonpayment of the premium, and the bank’s procure-
ment of a more costly lender placed insurance policy
(LPI policy) at the plaintiff’s expense.
After initially filing an action against a trade name
of the bank (original action), which was dismissed for
lack of subject matter jurisdiction because a trade name
cannot lawfully be sued, and for lack of personal juris-
diction due to insufficient service of process, the plain-
tiff commenced the present action against the bank
under the putative authority of the accidental failure
of suit statute, General Statutes § 52-592, and the contin-
uing course of conduct doctrine, to recover damages
on several theories of liability for injuries and losses
he allegedly sustained as a result of the bank’s actions.
The plaintiff later moved successfully to cite in the
insurance company defendants, and filed a series of
amended complaints against both the insurance com-
pany defendants and the bank defendants, seeking simi-
lar relief against both, on similar theories of liability.4
The defendants answered the plaintiff’s complaint by
denying all claims of liability and damages against them
and asserting as special defenses that all but one of the
plaintiff’s claims were barred by the applicable statutes
of limitations. In anticipation of the latter special
defense, the plaintiff pleaded in his operative complaint
that all of his otherwise untimely claims were saved
by the accidental failure of suit statute and/or by the
continuing course of conduct doctrine.
After the trial court granted the defendants’ separate
motions for summary judgment on the grounds that
none of the plaintiff’s untimely claims was saved by
the accidental failure of suit statute or the continuing
course of conduct doctrine, and thus that all of them
were barred by applicable statutes of limitations, and
that his remaining claims failed as a matter of law, the
plaintiff appealed to this court. On appeal, the plaintiff
claims, inter alia, that the trial court erred in ruling that
(1) the accidental failure of suit statute did not save
any of his untimely claims because his original action
was never ‘‘commenced,’’ and thus could not be saved
under the authority of that statute, (2) the continuing
course of conduct doctrine did not apply to any of his
untimely claims because there was no special relation-
ship between himself and any defendant that would
impose a continuing duty to him on any defendant,
(3) the bank defendants and the insurance company
defendants were entitled to judgment as a matter of
law on the plaintiff’s claims of breach of the covenant
of good faith and fair dealing against them, and (4) the
insurance company defendants were entitled to judg-
ment as a matter of law on the plaintiff’s claim of negli-
gent misrepresentation against them.5
Thereafter, while this appeal was pending, the plain-
tiff filed an amended appeal from a postjudgment order
of the trial court granting the insurance company defen-
dants’ motion to enforce settlement agreement, claim-
ing that (1) the court had no authority to summarily
enforce such an agreement after the case it purported
to settle had gone to judgment, and (2) even if it had
such authority, it could not exercise that authority in
this case because the parties had not entered into a
clear, unambiguous, and enforceable settlement agree-
ment. We affirm the judgment of the trial court and its
postjudgment order enforcing the settlement agree-
ment.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In October, 2003,
the borrowers took out a loan with the lender in the
amount of $111,500 to purchase a parcel of real property
located at 473-475 Elm Street in New Haven (property).6
The loan was secured by a mortgage on the property
given by the borrowers to the lender. The mortgage
note was subsequently endorsed to the Connecticut
Housing Finance Authority (CHFA). The bank contin-
ued thereafter to service the loan on behalf of CHFA.
The mortgage required the borrowers to insure the
property against loss and provided that if the borrowers
failed to maintain the required coverage, the lender was
authorized to obtain insurance coverage at its option
and at the borrowers’ expense. The mortgage also pro-
vided that the borrowers were required to make peri-
odic payments to the lender. These payments included
funds to be held in escrow by the bank for payment of
the insurance policy premium. In accordance with these
requirements, the plaintiff purchased a hazard insur-
ance policy for the property from Norcom Insurance,
an agent of the insurance company.7
In 2013, the borrowers became delinquent on their
mortgage payments. As a result, the borrowers were
mailed a letter, dated August 2, 2013, notifying them of
the delinquency.8 The letter also advised the borrowers
that property inspections would be completed on all
delinquent loans. On October 28, 2013, such a property
inspection was completed on the borrowers’ mortgaged
property. The resulting inspection report noted that the
property appeared to be vacant. The following day, on
October 29, 2013, the bank mailed the borrowers a
letter, notifying them of the inspection report and its
consequences as follows: ‘‘In accordance with the provi-
sion of your Mortgage or Deed of Trust, property inspec-
tions are required on all delinquent loans. We recently
received a property inspection report which stated that
your property is vacant and/or unsecured. Please note
that servicing guidelines require that we notify your
insurance holder and advise them that your property
may be vacant. You should contact your insurance
agency and provide them with the current occupancy
status of the property.’’
Thereafter, on October 30, 2013, the bank mailed a
letter to the insurance company, advising it that the
property might be vacant and, therefore, that there
might be a change of risk. The bank also mailed a letter
to the borrowers, advising them that it had contacted
the insurance company and that the current insurance
policy did not provide coverage if the property was
vacant. The letter stated: ‘‘If we do not receive evidence
of acceptable coverage, we will obtain insurance on
your behalf. You will be required to bear the cost of
this insurance either through an existing escrow
account and/or an adjustment in your monthly mortgage
payment.’’
On the basis of the letter it received from the bank,
the insurance company issued a notice of cancellation,
dated November 6, 2013, in which it informed the plain-
tiff that the policy would be cancelled, effective Decem-
ber 14, 2013, due to the change in the condition of the
risk. On September 18, 2013, the bank disbursed funds
to the insurance company in the amount of $1547 for
the annual premium on the insurance policy. Because
the premium had already been paid, however, the insur-
ance company informed the plaintiff, in the notice of
cancellation, that a refund in the amount of $1243 would
be issued to him for a portion of the unearned premium.
The insurance company issued a check, dated Novem-
ber 12, 2013, for $1243 and mailed it to the plaintiff.
The plaintiff asserts that he never received the refund
check from the insurance company. The insurance com-
pany’s records indicate that the check was never
cashed.
On November 11, 2013, the insurance company
learned that the property was not in fact vacant when
the plaintiff spoke with an agent of the insurance com-
pany on the phone and stated that he was still residing
at the property. As a result, the insurance company
immediately reinstated the insurance policy, and mailed
a letter to the plaintiff, notifying him of the reinstate-
ment. No lapse in coverage had occurred between the
issuance of the notice of cancellation and the date of
reinstatement of the policy, because the cancellation
was not to have become effective until December 14,
2013. Because the insurance company had issued a
refund to the plaintiff in the amount of $1243, the notice
of reinstatement included an invoice for that refunded
portion of the premium. The premium for the reinstated
policy was never paid. Consequently, on December 19,
2013, the insurance company sent a notice to the plain-
tiff informing him that the premium for the reinstated
policy was past due and that the policy would be can-
celled on January 6, 2014, if payment of the premium
was not received by that date. Ultimately, because the
premium so invoiced was not received by January 6,
2014, the insurance company cancelled the reinstated
policy.
On January 8, 2014, the bank received notice of the
policy’s cancellation from the insurance company and,
in turn, informed the borrowers, via a mailed letter,
of the cancellation. The letter specified that it was a
requirement of the mortgage that homeowners insur-
ance be maintained on the property and requested that
the borrowers or their agent send evidence of accept-
able coverage or notice of reinstatement of the previous
policy. The letter further stated that if the bank did not
receive a response from the borrowers or their agent,
it would obtain insurance for the property on behalf of
the borrowers, and that the borrowers would be
required to bear the cost of such insurance. The letter
finally advised the borrowers that the bank could not
guarantee that the coverage under such a policy would
be comparable to that which they had under their previ-
ous policy. Two additional letters to the same effect,
dated January 13, 2014, and February 17, 2014, respec-
tively, were sent to the borrowers. The bank alleges
that it never received a response from the borrowers
to any of its letters concerning their obligation under
the mortgage to renew or replace the previous policy
after it was cancelled.
The bank purchased an LPI policy for the property
from Voyager Indemnity Insurance Company, which
became effective on January 6, 2014, and remained in
effect until January 6, 2015. The annual premium on
the LPI policy was $4891.12. In conjunction with its
purchase of the LPI policy, the bank issued a letter
addressed to the borrowers, dated April 2, 2014, which
stated that the bank had purchased insurance for the
property and had billed the annual premium for it to
the borrowers. The letter strongly recommended that
the borrowers obtain their own insurance coverage for
the property, but advised them that until they provided
evidence of such coverage, the LPI policy would remain
in effect.
On or about December 9, 2014, the borrowers finally
provided the bank with evidence that they had obtained
their own insurance coverage for the property. As a
result, the bank sent a letter to the borrowers, dated
December 12, 2014, stating that the LPI policy had been
cancelled, effective December 9, 2014, and informing
the borrowers that $4514.63 would be charged to their
account for the LPI policy premium for the period of
time during which the LPI policy was in effect.
On April 1, 2015, the plaintiff filed a summons and
complaint in the Superior Court for the judicial district
of New Haven, in which he pleaded a single claim of
negligent infliction of emotional distress against ‘‘US
Bank Home Mortgage Company’’ based on the bank’s
purchase of the LPI policy.9 See Kinity v. US Bank
Home Mortgage Company, Superior Court, judicial dis-
trict of New Haven, Docket No. CV-XX-XXXXXXX-S (origi-
nal action). On June 15, 2015, the plaintiff filed a motion
for default for failure to appear. The motion was granted
by the clerk’s office on June 24, 2015. On July 16, 2015,
the plaintiff filed an amended complaint pleading addi-
tional claims against the same defendant on the basis
of the bank’s purchase of the LPI policy, sounding in
negligent misrepresentation, fraud, and violations of
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq. A hearing in damages
was held on September 30, 2015, after which the court
rendered judgment in favor of the plaintiff in the amount
of $38,759.12 plus taxable costs of $580.99.
On November 7, 2016, the bank filed its first appear-
ance in the action and filed a motion to open and vacate
the default judgment, which the court granted. Also on
November 7, 2016, the bank filed a motion to dismiss,
in which it claimed that the court lacked both subject
matter jurisdiction and personal jurisdiction. On Febru-
ary 6, 2017, the court granted the bank’s motion to
dismiss the original action for lack of subject matter
jurisdiction because the named defendant was a mere
trade name that lacked the capacity to sue or be sued,
and lack of personal jurisdiction for lack of service of
process.
On April 18, 2017, the plaintiff filed the present action
against the bank defendants. The plaintiff subsequently
filed, and the court granted, motions to cite in the insur-
ance company defendants. The operative complaint is
the plaintiff’s seventh amended complaint, purportedly
filed pursuant to § 52-592 and the continuing course of
conduct doctrine. The complaint asserts claims sound-
ing in negligent misrepresentation (counts one, eight,
nine, and ten), negligent infliction of emotional distress
(counts four, seventeen, eighteen, and nineteen), fraud
(counts three, fourteen, fifteen, and sixteen), violations
of CUTPA (counts two, eleven, twelve, and thirteen),
violations of the Connecticut Unfair Insurance Prac-
tices Act (CUIPA), General Statutes § 38a-815 et seq.
(counts five and six), and breach of the implied cove-
nant of good faith and fair dealing (counts seven,
twenty, twenty-one, and twenty-two).
The bank defendants and the insurance company
defendants filed answers and special defenses in which
they denied that § 52-592 and the continuing course
of conduct doctrine applied to the action. They also
asserted, by way of special defenses, that the complaint
failed to state claims upon which relief could be granted
and that all but one of the claims were barred by the
applicable statutes of limitations. The plaintiff then filed
replies denying the bank defendants’ special defenses.
On February 27, 2019, the insurance company defen-
dants filed a motion for summary judgment. Shortly
thereafter, on February 28, 2019, the bank defendants
also filed a motion for summary judgment. On March
16, 2020, the court granted both motions for summary
judgment, concluding that all of the plaintiff’s claims
were either time barred or failed as a matter of law.
On May 15, 2020, the plaintiff appealed to this court
from the court’s judgment granting the defendants’
motions for summary judgment.
While the plaintiff’s appeal was pending before this
court, the insurance company, on September 1, 2020,
filed a motion in the trial court to enforce a settlement
agreement, asserting that it had reached a settlement
agreement with the plaintiff on June 29, 2020. The court
held an evidentiary hearing on the motion pursuant
to Audubon Parking Associates Ltd. Partnership v.
Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729(1993) (Audubon). On August 3, 2021, the court granted
the insurance company’s motion to enforce. The plain-
tiff then filed an amended appeal on August 16, 2021,
in which he challenges the court’s postjudgment order
granting the insurance company’s motion to enforce
settlement agreement.
Additional facts and procedural history will be set
forth as necessary.
I
We begin by addressing the plaintiff’s appeal from
the judgment of the trial court granting the insurance
company’s motion to enforce settlement agreement.
The plaintiff claims that the court erred by (1) exercis-
ing authority under Audubon Parking Associates Ltd.
Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn.
804, to enforce a settlement agreement, and (2) conclud-
ing that a clear, unambiguous, and enforceable agree-
ment had been reached between the plaintiff and the
defendant insurance company to settle the dispute
between them in this action. We disagree.
The following additional facts are relevant to this
claim. Attorney Elio Morgan was retained by the plain-
tiff to handle the plaintiff’s appeal. Attorney Deborah
Etlinger represented the insurance company during the
proceedings before the trial court and on appeal.
Numerous e-mails were exchanged between these
appellate counsel that are relevant to our determination
of the existence of an enforceable settlement agree-
ment. We begin by setting forth these relevant commu-
nications.
On June 3, 2020, Morgan sent an e-mail to Etlinger,
seeking to discuss a potential settlement. On June 8,
2020, Etlinger replied, stating that she had been author-
ized to extend a settlement offer of $10,000 to the plain-
tiff in exchange for the full and final settlement of all
of his claims against the insurance company defendants
in this action. In his response e-mail sent the same day,
Morgan stated that he would discuss the settlement
offer with the plaintiff. Morgan did so, e-mailing the
plaintiff later that day to inform him that the insurance
company had made him an offer in the amount of
$10,000 in exchange for his release of all claims against
it in this action. Morgan made clear in his e-mail to the
plaintiff that the offer ‘‘would not include the bank.’’
On June 11, Morgan sent a follow-up e-mail to the
plaintiff, asking him what he was looking for in this
matter. On June 14, 2020, the plaintiff responded that
he was seeking Morgan’s advice regarding the proposed
settlement. Morgan then provided the plaintiff with his
phone number and asked the plaintiff to call him the
following day. A phone conversation occurred between
Morgan and the plaintiff on June 25, 2020. The conversa-
tion is memorialized in an e-mail dated the same day.
In the e-mail, Morgan advised the plaintiff that pursuing
a settlement agreement was in his best interest. He
reiterated that the insurance company defendants had
offered to settle the plaintiff’s claims against them for
$10,000. Morgan also noted that the bank defendants
had made a settlement offer10 of $4500 plus a recommen-
dation of loss mitigation11 in exchange for the plaintiff’s
release of all claims against them. Morgan notified
Etlinger via e-mail that he was still working with his
client on the settlement offer but was hopeful that the
matter would settle.
Four days later, on June 29, 2020, Morgan again spoke
on the phone with the plaintiff regarding the insurance
company defendants’ settlement offer.12 After speaking
with the plaintiff, Morgan e-mailed Etlinger, stating: ‘‘I
received the go-ahead from my client. He understands
that it will be [$10,000] with no admission and release
of all claims. You may send me a release. Thank you.’’
In response, Etlinger thanked Morgan for confirming
that the plaintiff had accepted the $10,000 settlement
offer and stated that a release would be prepared for
Morgan’s review.
Etlinger sent the release to Morgan on July 6, 2020.
Later that same day, Morgan raised some concerns
about the last paragraph of the proposed release, which
provided: ‘‘Releasor further agrees that he will cause a
withdrawal of this action as to the Releasees to be filed
in the Connecticut Appellate Court and the Connecticut
Superior Court.’’ Specifically, Morgan expressed con-
cern that the release would require the plaintiff to with-
draw the Superior Court action, which assertedly would
require the opening of the Superior Court judgment.
After further discussion, however, counsel agreed that
the written terms of the release would remain the same
and that the plaintiff would withdraw his appeal and
file a copy of the withdrawal with the Superior Court
without needing to open the Superior Court judgment.
Etlinger then asked Morgan whether any lawyers would
be listed as payees on the settlement check from the
insurance company. Morgan replied in the negative. The
July 6, 2020 e-mail exchange concluded with Etlinger
stating that she would tell the insurance company to
issue the check to the plaintiff and that she was ‘‘look[-
ing] forward to receiving the executed [r]elease.’’ Mor-
gan sent the release to the plaintiff via e-mail later that
same day.
On July 31, 2020, the plaintiff sent an e-mail to Morgan
in which he raised concerns about settling with the
insurance company defendants. Specifically, the plain-
tiff stated that he was apprehensive about how a settle-
ment with those defendants might affect his ability to
settle with the bank defendants. The plaintiff stated
that he was ‘‘of the opinion that there ha[d] to be some
signs of hope about the position of the [bank] before
signing the [insurance company] settlement, otherwise
. . . the [bank] may become difficult in the negotiations
after my settlement with the [insurance company].’’
Morgan responded later in the day, advising the plaintiff
that he did not share the plaintiff’s concerns because,
in his view, there were two different sets of liabilities.
Morgan clarified that the plaintiff could continue the
appeal against the bank defendants even if he settled
with the insurance company defendants. Morgan fur-
ther advised the plaintiff that his claim against the insur-
ance company defendants was weak, and not the main
cause of the plaintiff’s problems.
On August 6, 2020, Morgan contacted Etlinger, again
via e-mail, stating: ‘‘My negotiations with [the bank]
[are] taking longer than expected. That puts me under
the gun as far as the deadline for [the] brief. I will be
filing a motion for extension of time today. I assume
you have no reason to object but let me know. My client
is in the hospital. If we have to, we’ll withdraw the
case against your client. Please let me know.’’ Etlinger
replied, stating: ‘‘We have no objection to your request
for an extension to file the brief. We have the settlement
check and are prepared to tender it upon our receipt
of the properly executed settlement document by the
[p]laintiff. Alternatively do you want to go ahead and
withdraw the claims against our clients? I am sorry
to hear that [the plaintiff] is in the hospital.’’ Morgan
thereafter responded that he would ‘‘prefer a global
settlement,’’ but if that was not possible he would ‘‘go
the alternate route.’’ The plaintiff, the next day, filed a
motion for extension of time to file his appellate brief,
which stated, in relevant part: ‘‘In early June, the [plain-
tiff] decided to pursue settlement with all the parties
in lieu of continued litigation. Significant progress has
been made. An agreement has been reached with one
of the [defendants]. The delay in reaching an agreement
with the other [defendant] is due in large part to circum-
stances beyond the parties’ control. The requested time
will afford the parties the opportunity to conclude an
agreement which will include withdrawal of this
appeal.’’ This statement also was included in the plain-
tiff’s motion for leave to permit the filing of a late brief
filed on August 21, 2020 with this court.
On August 19, 2020, Morgan met with the plaintiff
and the plaintiff’s wife to discuss the concerns the plain-
tiff had raised in his July 31, 2020 e-mail. On August
24, 2020, Morgan e-mailed Etlinger, as follows, regard-
ing his discussions with the plaintiff: ‘‘After a period
of illness, I finally got to meet with [the plaintiff] on
Thursday and fully discussed this and gave him a dead-
line. Unfortunately, I must inform you that [the plaintiff]
called me on Friday to inform me that he will not sign
the proposed agreement. He was not able to obtain the
global agreement he wants. He has instructed me to
move forward with the appeal. Sorry for the inconve-
nience.’’ Etlinger replied: ‘‘As stated in my [e-mail]
below, the parties have a binding settlement agreement.
We will be filing a [m]otion to [e]nforce the settlement
agreement entered into by the parties.’’
The insurance company filed its motion to enforce
settlement agreement on September 1, 2020. The plain-
tiff filed a memorandum in opposition to the motion.
An evidentiary hearing on the motion was held over
the course of four days. At the hearing, Morgan testified
that the settlement with the insurance company was
contingent upon settlement with the bank. Morgan
pointed to the statements in his e-mail exchange with
Etlinger that referenced a global settlement agreement,
arguing that these references evidenced that the agree-
ment was contingent. Morgan, however, conceded that
this contingency was never communicated in full to
Etlinger. Etlinger testified that her understanding,
based upon the e-mail exchanges between her and Mor-
gan, was that the agreement was not contingent.
Etlinger testified, ‘‘[t]here was absolutely nothing that
indicated to me that the settlement that I had reached
on behalf of my clients was contingent upon whatever
negotiations were happening with [the bank] . . . .’’
The court ultimately granted the insurance com-
pany’s motion to enforce settlement agreement on
August 3, 2021. In its memorandum of decision, the
court concluded, ‘‘based upon a fair preponderance of
the evidence, that Attorney Morgan had either actual
or apparent authority to enter into the settlement agree-
ment on behalf of the plaintiff with the defendants.
The court further conclude[d] that there was a clear,
undisputed, and unambiguous agreement entered into
by the parties, and that said agreement was not contin-
gent upon the plaintiff reaching an agreement with the
codefendant bank.’’ The amended appeal followed.
A
The plaintiff first claims that the court erred by pur-
porting to exercise authority under Audubon Parking
Associates Ltd. Partnership v. Barclay & Stubbs, Inc.,
supra, 225 Conn. 804, to enforce a settlement agree-
ment. Specifically, the plaintiff claims that a trial court
lacks the authority to summarily enforce a settlement
agreement formed postjudgment during the pendency
of an appeal. Under the plaintiff’s view, a trial court only
has the authority to summarily enforce a settlement
agreement that is reached while the case is pending in
the trial court. We disagree.
1
At the outset, the insurance company defendants
argue that the issue of whether Audubon authorizes
the summary enforcement of a settlement agreement
reached postjudgment, during the pendency of an
appeal, is not properly before us. The insurance com-
pany argues, and we agree, that the plaintiff did not
raise this issue before the trial court, and thus that the
claim is unpreserved. ‘‘It is well settled that [o]ur case
law and rules of practice generally limit [an appellate]
court’s review to issues that are distinctly raised at trial.
. . . [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. . . . The reason for the rule is obvious:
to permit a party to raise a claim on appeal that has
not been raised at trial—after it is too late for the trial
court or the opposing party to address the claim—
would encourage trial by ambuscade, which is unfair
to both the trial court and the opposing party. . . .
We also have recognized, however, that, although a
reviewing court is not bound to consider claims that
were not raised at trial, it has the authority to do so in
its discretion, an authority that is limited neither by
statute nor by procedural rules.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 142–43, 84
A.3d 840 (2014) (Blumberg).
Our Supreme Court has enumerated the circum-
stances under which a reviewing court may consider
unpreserved claims raised by a party: ‘‘(1) where the
issue involves a question of subject matter jurisdiction;
(2) where the issue involves a constitutional violation
reviewable under State v. Golding, 213 Conn. 233, 239–
40, 567 A.2d 823 (1989), holding modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015); (3) where
the issue is subject to reversal under the plain error
doctrine; and (4) where review is appropriate in the
exercise of the court’s supervisory powers.’’ (Footnote
omitted.) Matos v. Ortiz, 166 Conn. App. 775, 788, 144
A.3d 425 (2016), citing Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., supra, 311
Conn. 161–64. In Matos, this court was faced with the
issue of whether Audubon extended to the summary
enforcement of agreements reached outside the frame-
work of, and before the start of, the relevant litigation.
Matos v. Ortiz, supra, 787. As in Matos, the plaintiff
here failed to raise the issue before the trial court. See
id., 787–88. In those circumstances, this court con-
cluded that ‘‘the Audubon issue must be reached and
decided . . . as an exercise of this court’s supervisory
powers.’’ Id., 788.
As in Matos, we conclude that, in the instant case,
review is appropriate in the exercise of this court’s
supervisory powers. ‘‘It is well settled that [a]ppellate
courts possess an inherent supervisory authority over
the administration of justice. . . . The exercise of our
supervisory powers is an extraordinary remedy to be
invoked only when circumstances are such that the
issue at hand, while not rising to the level of a constitu-
tional violation, is nonetheless of utmost seriousness,
not only for the integrity of a particular trial but also
for the perceived fairness of the judicial system as a
whole. . . . We recognize that this court’s supervisory
authority is not a form of free-floating justice, unteth-
ered to legal principle. . . . Rather, the rule invoking
our use of supervisory power is one that, as a matter
of policy, is relevant to the perceived fairness of the
judicial system as a whole, most typically in that it lends
itself to the adoption of a procedural rule that will
guide lower courts in the administration of justice in
all aspects of the [adjudicatory] process. . . . Indeed,
the integrity of the judicial system serves as a unifying
principle behind the seemingly disparate use of [this
court’s] supervisory powers.’’ (Citations omitted; inter-
nal quotation marks omitted.) In re Yasiel R., supra,
317 Conn. 789–90.
In Blumberg, our Supreme Court laid out a four part
test for determining the circumstances under which a
reviewing court may consider unpreserved claims
raised by a party pursuant to our supervisory powers.
See Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 311 Conn. 155–61.
‘‘We recently reemphasized the fact that three criteria
must be met before we will consider invoking our super-
visory authority. . . . First, the record must be ade-
quate for review. . . . Second, all parties must be
afforded an opportunity to be heard on the issue. . . .
Third, an unpreserved issue will not be considered
where its review would prejudice a party. . . . If these
three threshold considerations are satisfied, the
reviewing court next considers whether one of the fol-
lowing three circumstances exists: (1) the parties do
not object; (2) the party that would benefit from the
application of this court’s supervisory powers cannot
prevail; or (3) a claim of exceptional circumstances is
presented that justifies deviation from the general rule
that unpreserved claims will not be reviewed.’’ (Cita-
tions omitted.) In re Yasiel R., supra, 317 Conn. 790.
‘‘[U]nless all parties agree to review of the unpreserved
claim or the party raising the claim cannot prevail, the
reviewing court should provide specific reasons, based
on the exceptional circumstances of the case, to justify
a deviation from the general rule that unpreserved
claims will not be reviewed.’’ Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., supra, 160–61.
We conclude that these four requirements are met.
First, the record is adequate for review. See id., 155
(‘‘the record must be adequate for review, such that
there is no need for additional trial court proceedings
or factual findings’’). Here, the unpreserved issue is a
pure question of law—whether Audubon extends to
the summary enforcement of a settlement agreement
reached postjudgment during the pendency of an
appeal. See Ayantola v. Board of Trustees of Technical
Colleges, 116 Conn. App. 531, 538, 976 A.2d 784 (2009)
(‘‘a question of law is [a]n issue to be decided by the
judge, concerning the application or interpretation of
the law’’ (emphasis omitted; internal quotation marks
omitted)); State v. Ledbetter, 41 Conn. App. 391, 394–95,
676 A.2d 409 (1996) (‘‘to determine whether the record
is adequate for review, we must consider the specific
claim raised, and whether the record provided is ade-
quate for meaningful review of that claim’’), aff’d, 240
Conn. 317, 692 A.2d 713 (1997). Therefore, there would
be no need for additional trial court proceedings or
factual findings.
Second, all parties have had an opportunity to be
heard on the issue. See Blumberg Associates World-
wide, Inc. v. Brown & Brown of Connecticut, Inc.,
supra, 311 Conn. 156 n. 24 (‘‘[f]undamental fairness
dictates that a party must be afforded the opportunity
to address an unpreserved claim on appeal’’). On Octo-
ber 4, 2021, the parties filed a joint motion with this
court seeking permission to file supplemental briefs on
the issue of whether the trial court properly determined
that a clear, unambiguous, enforceable agreement was
reached. This court granted the motion. In his supple-
mental brief, the plaintiff raised for the first time the
issue of whether Audubon extends to the summary
enforcement of agreements reached postjudgment dur-
ing the pendency of an appeal. When the insurance
company defendants filed their brief, they likewise
addressed this issue. Thereafter, when the case was
before the court for oral argument, the issue was fully
discussed. Thus, both parties were afforded the oppor-
tunity to be heard on the issue.
Third, there is no unfair prejudice to any party. See
id., 156–57 (‘‘[p]rejudice may be found . . . when a
party demonstrates that it would have presented addi-
tional evidence or that it otherwise would have pro-
ceeded differently if the claim had been raised at trial’’).
Here, the insurance company defendants do not assert
that they would have presented additional evidence or
would have proceeded differently if the claim had been
raised in the trial court.
We thus turn to the fourth requirement and conclude
that ‘‘the party that would benefit from the application
of this court’s supervisory powers cannot prevail
. . . .’’ In re Yasiel R., supra, 317 Conn. 790; see also
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 311 Conn. 157–58
(‘‘[r]eview of an unpreserved claim may be appropriate
. . . when . . . the party who raised the unpreserved
claim cannot prevail’’ (citation omitted; footnote omit-
ted; internal quotation marks omitted)). ‘‘Reviewing an
unpreserved claim when the party that raised the claim
cannot prevail is appropriate because it cannot preju-
dice the opposing party and such review presumably
would provide the party who failed to properly preserve
the claim with a sense of finality that the party would
not have if the court declined to review the claim.’’
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 158 n. 28. As dis-
cussed subsequently in this opinion, the plaintiff cannot
prevail on his claim that Audubon does not extend to
the summary enforcement of a settlement agreement
reached postjudgment during the pendency of an
appeal. Therefore, our review of this claim cannot preju-
dice the insurance company defendants and will pro-
vide the plaintiff with a sense of finality that the plaintiff
otherwise would not have if we declined to review
this claim.
2
We thus turn to the merits of the plaintiff’s claim that
the trial court lacked authority pursuant to Audubon
to summarily enforce a settlement agreement entered
into postjudgment while the appeal was pending in this
court. Our courts never have addressed whether Audu-
bon extends to a settlement agreement reached post-
judgment during the pendency of an appeal and thus,
this issue presents a question of first impression.
Whether Audubon applies is a pure question of law to
which we apply plenary review. See Gershon v. Back,
201 Conn. App. 225, 244, 242 A.3d 481 (2020) (‘‘[t]he
plenary standard of review applies to questions of law’’),
cert. granted, 337 Conn. 901, 252 A.3d 364 (2021); Matos
v. Ortiz, supra, 166 Conn. App. 791 (explaining that
whether Audubon applies is ‘‘a pure question of law’’).
In Audubon, our Supreme Court shaped a procedure
by which a trial court could summarily enforce a settle-
ment agreement to settle litigation. Audubon Parking
Associates Ltd. Partnership v. Barclay & Stubbs, Inc.,
supra, 225 Conn. 812. The court held that ‘‘a trial court
may summarily enforce a settlement agreement within
the framework of the original lawsuit as a matter of
law when the parties do not dispute the terms of the
agreement.’’ (Emphasis added.) Id.In coming to this conclusion, the court in Audubon
relied on federal precedent, specifically that ‘‘[a] trial
court has the inherent power to enforce summarily a
settlement agreement as a matter of law when the terms
of the agreement are clear and unambiguous. . . .
Agreements that end lawsuits are contracts, sometimes
enforceable in a subsequent suit, but in many situations
enforceable by entry of a judgment in the original suit.
A court’s authority to enforce a settlement by entry of
judgment in the underlying action is especially clear
where the settlement is reported to the court during
the course of a trial or other significant courtroom
proceedings. . . . Due regard for the proper use of
judicial resources requires that a trial judge proceed
with entry of a settlement judgment after affording the
parties an opportunity to be heard as to the precise
content and wording of the judgment, rather than
resume the trial and precipitate an additional lawsuit
for breach of a settlement agreement. This authority
should normally be exercised whenever settlements are
announced in the midst of a trial.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.) Id.,811–12. The court went on to explain the policy reasons
behind its decision: ‘‘Summary enforcement is not only
essential to the efficient use of judicial resources, but
also preserves the integrity of settlement as a meaning-
ful way to resolve legal disputes. When parties agree
to settle a case, they are effectively contracting for the
right to avoid a trial.’’ (Emphasis in original.) Id., 812.
This court has cautioned against the use of authority
pursuant to Audubon outside of the proper context.
‘‘The key element with regard to the settlement agree-
ment in Audubon . . . [was] that there [was] no factual
dispute as to the terms of the accord. Generally, [a]
trial court has the inherent power to enforce summarily
a settlement agreement as a matter of law [only] when
the terms of the agreement are clear and unambiguous
. . . and when the parties do not dispute the terms of
the agreement. . . . The rule of Audubon effects a deli-
cate balance between concerns of judicial economy on
the one hand and a party’s constitutional rights to a
jury and to a trial on the other hand. . . . To use the
Audubon power outside of its proper context is to deny
a party these fundamental rights and would work a
manifest injustice.’’ (Citations omitted; internal quota-
tion marks omitted.) Reiner v. Reiner, 190 Conn. App.
268, 277, 210 A.3d 668 (2019).
The procedure established in Audubon has since
been expanded. In Ackerman v. Sobol Family Partner-
ship, LLP, 298 Conn. 495, 4 A.3d 288 (2010), our
Supreme Court extended Audubon to permit the court
to resolve issues of fact raised in connection with a
motion to enforce a settlement agreement. In Acker-
man, the court explained that when a party breaches
a contract, the nonbreaching party may bring a suit for
specific performance of the contract. Id., 533–34. An
action for specific performance, the court explained,
invokes the equitable powers of the trial court and
where the remedy is equitable, there is no right to a
jury trial. Id., 533. The court thus concluded that the
plaintiffs ‘‘had no right to a jury trial on issues raised
in connection with enforcement of the settlement agree-
ment. Even if certain factual matters were disputed,
the motion to enforce was essentially equitable in
nature and, consequently, the court was entitled to use
its equitable powers to resolve the dispute without a
jury.’’ Id., 534–35.
Thereafter, in Matos, this court examined the outer
limits of a court’s power to summarily enforce a settle-
ment agreement. Matos v. Ortiz, supra, 166 Conn. App.
796–809. In that case, this court addressed whether
Audubon applied to agreements reached before and
outside the framework of the litigation as to which a
settlement agreement was sought to be enforced. Id.The court began its analysis by explaining that ‘‘what
began in Audubon as a summary judgment motion by
another name has evolved into an exception to the
jury right, allowing the court—rather than the jury—to
resolve factual disputes en route to disposing of an
action as barred by a release of claims, even in the
face of a jury demand.’’ Id., 798. The court noted that
‘‘Audubon itself—the first case to recognize a right to
enforce summarily an agreement to settle litigation—
was entirely consistent with the jury’s historical func-
tion, because it held only that a court could summarily
enforce such an agreement as a matter of law and did
not hold that the court could decide issues of fact. . . .
The procedure used in Audubon was identical to that
of a motion for summary judgment.’’ (Citation omitted;
internal quotation marks omitted.) Id., 800. The court
noted, however, that Ackerman had ‘‘extended Audu-
bon to permit the court to resolve not just issues of
law, but also issues of fact’’; id., 801; and that, ‘‘[i]n so
holding, the court in Ackerman implicitly approved a
line of Audubon progeny that had empowered trial
courts to find facts where necessary to summarily
enforce a settlement agreement.’’ Id., 802.
The court in Matos held that ‘‘for a contract to be
an agreement to settle litigation subject to Audubon
enforcement, it must be reached after that litigation
commenced.’’ (Emphasis added.) Id., 805. The court
explained, ‘‘[w]e reach this conclusion because the
commencement of an action first invokes the authority
of the court, which then acquires its own interest in
enforcing any settlement reached. The summary
enforcement power recognized in Audubon and prog-
eny is grounded in the court’s own interest in managing
the matters before it. That interest comprises both the
court’s interest in efficient docket management . . .
and the court’s interest in the integrity of judicial pro-
ceedings . . . . In the majority of cases where settle-
ment agreements have been summarily enforced pursu-
ant to Audubon, the agreement at issue was either read
directly into the record or otherwise reported to the
court. In the cases where a settlement agreement was
not directly presented to the court in full, it nevertheless
was in some sense placed before the court during pend-
ing litigation. . . . We have never extended Audubon
to agreements that, when made, remained wholly out-
side the court’s domain because no one had yet invoked
the court’s jurisdiction through service of a summons
and complaint. That initial invocation of the court’s
authority distinguishes an agreement to settle litiga-
tion—which may be summarily enforced by Audubon
motion—from a preemptive release of claims—which
may be enforced through a motion for summary judg-
ment or by presentation at trial as a special defense.
When an agreement is made to settle a matter pending
before the court—i.e., after the litigation has com-
menced—the swifter remedy of Audubon summary
enforcement is justified to protect the integrity of the
judicial process. We thus conclude that, to qualify as an
agreement to settle litigation for purposes of Audubon-
style summary enforcement, an agreement must be
reached after the relevant litigation commenced.’’ (Cita-
tions omitted; emphasis omitted; footnote omitted;
internal quotation marks omitted.) Id., 805–808.
The plaintiff first contends that the trial court was
deprived of its authority to render judgment pursuant
to Audubon because the settlement was reached post-
judgment while an appeal was pending. Specifically,
the plaintiff contends that, although the agreement was
reached after the relevant litigation commenced, as
required by Matos, the court lacked authority to sum-
marily enforce the settlement agreement pursuant to
Audubon because the case was no longer pending in
the trial court, and thus there was no trial to avoid. We
disagree.
In Audubon, as previously noted, the court held that
‘‘a trial court may summarily enforce a settlement agree-
ment within the framework of the original lawsuit’’
rather than ‘‘precipitate an additional lawsuit for breach
of a settlement agreement.’’ (Emphasis added; internal
quotation marks omitted.) Audubon Parking Associ-
ates Ltd. Partnership v. Barclay & Stubbs, Inc., supra,
225 Conn. 812. The court in Audubon also emphasized
that the court’s authority to enforce a settlement agree-
ment was ‘‘especially clear where the settlement is
reported to the court during the course of a trial or
other significant courtroom proceedings.’’ (Emphasis
added; internal quotation marks omitted.) Id., 811. We
also note that ‘‘courts have summarily enforced releases
pursuant to Audubon only when they were parts of
agreements to end litigation, reached during that litiga-
tion. Audubon itself referred to [a]greements that end
lawsuits . . . .’’ (Emphasis in original; internal quota-
tion marks omitted.) Matos v. Ortiz, supra, 166 Conn.
App. 797. A settlement reached by the parties postjudg-
ment and during the pendency of an appeal is a settle-
ment within the framework of the original lawsuit. In
the present case, the parties entered a settlement agree-
ment to end the litigation, and did so in the course
of that litigation. An appeal is a significant courtroom
proceeding and a settlement agreement reached while
an appeal is pending does not only end that proceeding,
but in so doing, ends all related future proceedings in
the lawsuit, either on remand in the event of a reversal
or in ancillary proceedings required to perfect the
record on appeal or to make or clarify prior orders or
findings in anticipation of appellate review. Thus, we
conclude that the court is not deprived of its authority
to enforce a settlement agreement simply because the
action that the agreement settles is on appeal.
The plaintiff also contends that the court’s authority
pursuant to Audubon and its progeny is limited to the
authority to render judgment in the original action in
accordance with the terms of the settlement agreement.
We disagree. The court’s authority pursuant to Audubon
is to ‘‘summarily enforce a settlement agreement within
the framework of the original lawsuit as a matter of
law . . . .’’ Audubon Parking Associates Ltd. Partner-
ship v. Barclay & Stubbs, Inc., supra, 225 Conn. 812;
see also Vance v. Tassmer, 128 Conn. App. 101, 117,
16 A.3d 782 (2011) (explaining that court’s authority
pursuant to Audubon is ‘‘limited to enforcing the undis-
puted terms of the settlement agreement that are clearly
and unambiguously before it’’ (internal quotation marks
omitted)), appeal dismissed, 307 Conn. 635, 59 A.3d 170(2013); Waldman v. Beck, 101 Conn. App. 669, 673–74,
922 A.2d 340 (2007) (same).
In Waldman v. Beck, supra, 101 Conn. App. 671, the
plaintiff filed a motion to enforce settlement agreement
in which the plaintiff alleged that the parties had
reached an agreement to settle the matter, whereby the
defendant agreed to pay the plaintiff $20,000 and the
plaintiff agreed to discharge the defendant from liabil-
ity. After the hearing on the motion to enforce, the court
rendered a written judgment granting the plaintiff’s
motion and entering an award in the amount of $20,000.
Id., 672. On appeal, the defendant argued that the terms
of the agreement provided that the plaintiff would with-
draw the action against the defendant and that no judg-
ment would enter against him. Id., 673. This court con-
cluded that the trial court had ‘‘improperly exercised
its discretion by rendering sua sponte a judgment that
contradicted the terms of the settlement agreement,
which the court had the power to enforce.’’ Id., 674.
The court explained that ‘‘[w]here the terms of an undis-
puted settlement agreement have been reported on the
record during the course of a significant courtroom
proceeding, it is especially clear that the court has the
authority to enforce a settlement by entry of judgment in
the underlying action . . . . Nevertheless, the court’s
authority in such a circumstance is limited to enforcing
the undisputed terms of the settlement agreement that
are clearly and unambiguously before it, and the court
has no discretion to impose terms that conflict with
the agreement. . . . [I]n determining the details of
relief, the judge may not award whatever relief would
have been appropriate after an adjudication on the mer-
its, but only those precise forms of relief that are either
agreed to by the parties . . . or fairly implied by their
agreement.’’ (Citations omitted; emphasis added; inter-
nal quotation marks omitted.) Id., 673–74. The court
thus affirmed the court’s order granting the plaintiff’s
motion to enforce settlement agreement but reversed
the judgment in favor of the plaintiff. Id., 674.
We therefore disagree with the plaintiff’s contention
that the only mechanism for enforcing the agreement
was to enter judgment in the lawsuit that the parties
had thereby agreed to settle. Rather, pursuant to Wald-
man, the court had the authority to order the precise
form of relief agreed to by the parties. In this case, as
in Waldman, the form of relief agreed to by the parties
was not a judgment in favor of a party, but rather, the
withdrawal of the action.
A number of policy considerations also support our
conclusion that Audubon applies to a settlement agree-
ment reached postjudgment and during the pendency
of an appeal. First, as our Supreme Court explained in
Audubon, summary enforcement is ‘‘essential to the
efficient use of judicial resources . . . .’’ Audubon
Parking Associates Ltd. Partnership v. Barclay &
Stubbs, Inc., supra, 225 Conn. 812; see also Matos v.
Ortiz, supra, 166 Conn. App. 806 (explaining that court
has interest in ‘‘efficient docket management’’). In
Audubon, the court emphasized how this procedure
permits a court to summarily enforce a settlement
agreement and avoid further litigation rather than
resume the matter before it and precipitate an addi-
tional lawsuit for breach of a settlement agreement.
Audubon Parking Associates Ltd. Partnership v. Bar-
clay & Stubbs, Inc., supra, 812. Permitting a court to
summarily enforce a settlement agreement postjudg-
ment while the matter is on appeal accomplishes these
same objectives; further litigation can be avoided. The
potential litigation thereby avoided is fourfold: the
appeal itself; further ancillary proceedings in the trial
court while the appeal remains pending; further pro-
ceedings in the trial court should the judgment be
reversed and the case be remanded for a new trial or
other further proceedings; and an additional lawsuit for
breach of the settlement agreement.
This conclusion also preserves the integrity of settle-
ment as a meaningful way to resolve legal disputes,
protecting the integrity of the judicial process. See id.,
812 (‘‘[s]ummary enforcement . . . preserves the
integrity of settlement as a meaningful way to resolve
legal disputes’’); see also Matos v. Ortiz, supra, 166
Conn. App. 808 (‘‘[w]hen an agreement is made to settle
a matter pending before the court—i.e., after the litiga-
tion has commenced—the swifter remedy of Audubon
summary enforcement is justified to protect the integ-
rity of the judicial process’’ (emphasis in original)). The
party seeking enforcement of a settlement agreement
should not be deprived of the ability to file a motion
to enforce simply because the matter thereby settled
is on appeal when the parties reach an agreement.
We therefore conclude that a trial court has the
authority pursuant to Audubon to summarily enforce
a settlement agreement reached by the parties postjudg-
ment, during the pendency of an appeal.
B
The plaintiff also claims that the trial court’s decision
to grant the insurance company defendants’ motion to
enforce settlement agreement was clearly erroneous
because the evidence does not establish the existence of
a final, unambiguous, and binding agreement between
them. Specifically, the plaintiff contends that the court’s
decision was clearly erroneous because (1) there was
no meeting of the minds as to the nature of the agree-
ment, and (2) even if there was an agreement, that
agreement is unenforceable. We disagree.
As explained in Audubon, ‘‘[a] trial court has the
inherent power to enforce summarily a settlement
agreement as a matter of law when the terms of the
agreement are clear and unambiguous.’’ (Internal quota-
tion marks omitted.) Hogan v. Lagosz, 124 Conn. App.
602, 613, 6 A.3d 112 (2010), cert. denied, 299 Conn. 923,
11 A.3d 151 (2011). When a party challenges ‘‘the trial
court’s legal conclusion that the agreement was sum-
marily enforceable, we must determine whether that
conclusion is legally and logically correct and whether
[it finds] support in the facts set out in the memorandum
of decision . . . . In addition, to the extent that the
[party’s] claim implicates the court’s factual findings,
our review is limited to deciding whether such findings
were clearly erroneous. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . . In making this determi-
nation, every reasonable presumption must be given
in favor of the trial court’s ruling.’’ (Citation omitted;
internal quotation marks omitted.) Id.1
The plaintiff argues that the evidence does not estab-
lish the existence of an enforceable agreement because
there was no meeting of the minds as to the nature of
the agreement. Specifically, the plaintiff argues that the
settlement agreement was contingent upon the plaintiff
reaching an agreement with the bank to achieve a global
settlement. We disagree.
‘‘Whether a meeting of the minds has occurred is a
factual determination.’’ M.J. Daly & Sons, Inc. v. West
Haven, 66 Conn. App. 41, 48, 783 A.2d 1138, cert. denied,
258 Conn. 944, 786 A.2d 430 (2001). We therefore apply
the clearly erroneous standard of review. See Hogan
v. Lagosz, supra, 124 Conn. App. 613.
‘‘A settlement agreement is a contract among the
parties.’’ (Internal quotation marks omitted.) Wittman
v. Intense Movers, Inc., 202 Conn. App. 87, 98, 245 A.3d
479, cert. denied, 336 Conn. 918, 245 A.3d 803 (2021).
‘‘In order to form a binding and enforceable contract,
there must exist an offer and an acceptance based on
a mutual understanding by the parties. . . . The mutual
understanding must manifest itself by a mutual assent
between the parties.’’ (Internal quotation marks omit-
ted.) Platt v. Tilcon Connecticut, Inc., 196 Conn. App.
564, 577, 230 A.3d 854, cert. denied, 335 Conn. 917,
230 A.3d 643 (2020). In other words, ‘‘[i]n order for an
enforceable contract to exist, the court must find that
the parties’ minds had truly met. . . . If there has been
a misunderstanding between the parties, or a misappre-
hension by one or both so that their minds have never
met, no contract has been entered into by them and
the court will not make for them a contract which they
themselves did not make. . . . Meeting of the minds
is defined as mutual agreement and assent of two par-
ties to contract to substance and terms. It is an agree-
ment reached by the parties to a contract and expressed
therein, or as the equivalent of mutual assent or mutual
obligation. . . . This definition refers to fundamental
misunderstandings between the parties as to what are
the essential elements or subjects of the contract. It
refers to the terms of the contract, not to the power of
one party to execute a contract as the agent of another.’’
(Citations omitted; internal quotation marks omitted.)
Tedesco v. Agolli, 182 Conn. App. 291, 307–308, 189 A.3d
672, cert. denied, 330 Conn. 905, 192 A.3d 427 (2018).
Importantly, however, ‘‘[m]utual assent is to be
judged only by overt acts and words rather than by the
hidden, subjective or secret intention of the parties.’’
(Internal quotation marks omitted.) Computer
Reporting Service, LLC v. Lovejoy & Associates, LLC,
167 Conn. App. 36, 45, 145 A.3d 266 (2016); see
Ravenswood Construction, LLC v. F.L. Merritt, Inc.,
105 Conn. App. 7, 12, 936 A.2d 679 (2007) (‘‘[i]n the
formation of contracts . . . it was long ago settled that
secret, subjective intent is immaterial, so that mutual
assent is to be judged only by overt acts and words
rather than by the hidden, subjective or secret intention
of the parties’’ (internal quotation marks omitted)); see
also Connecticut Light & Power Co. v. Proctor, 324
Conn. 245, 267–68, 152 A.3d 470 (2016) (‘‘We have recog-
nized, consistent with the objective theory of contracts,
that [t]he making of a contract does not depend upon
the secret intention of a party but upon the intention
manifested by his words or acts, and on these the other
party has a right to proceed. . . . Although [t]he phrase
meeting of the minds is . . . commonly used by the
courts to determine whether there has been mutual
assent, it has been described as a misnomer because
the minds of the parties to a contract need not, in fact,
subjectively meet; rather . . . objective assent is all
that is required.’’ (Citations omitted; internal quotation
marks omitted.))
Thus, ‘‘[i]n construing the agreement . . . the deci-
sive question is the intent of the parties as expressed.
. . . The intention is to be determined from the lan-
guage used, the circumstances, the motives of the par-
ties and the purposes which they sought to accomplish.
. . . Furthermore, [p]arties are bound to the terms of
a contract even though it is not signed if their assent
is otherwise indicated.’’ (Citation omitted; emphasis in
original; internal quotation marks omitted.) Wittman v.
Intense Movers, Inc., supra, 202 Conn. App. 98–99.
In its well reasoned memorandum of decision, the
court stated that it had ‘‘conducted a hearing to deter-
mine if the parties had reached a meeting of the minds
for settlement. The parties’ intent to settle is clearly
evidenced in the parties’ words, acts, and e-mails setting
forth the terms . . . . After [a] settlement inquiry was
made by the plaintiff’s counsel, an offer was made to
the plaintiff to settle his claims against the [insurance
company] defendants for $10,000 and the plaintiff
through counsel, who had authority to do so, accepted
the offer.’’ The court concluded that ‘‘[t]he credible
evidence [did] not support the plaintiff’s claim’’ that the
settlement agreement was contingent upon a settlement
with the bank defendants. The court explained that
‘‘[n]owhere in the evidence [did] the plaintiff expressly
state that the settlement was to be contingent upon
settlement with the bank. Attorney Morgan’s fleeting
reference in a few e-mails that he would prefer a global
settlement, and that he was in continued negotiations
with the bank does not defeat the mutual assent
between the parties that an agreement had been
reached for $10,000. . . . The evidence establishes that
on June 29, 2020, Attorney Morgan e-mailed Attorney
Etlinger, and accepted the settlement offer without any
contingencies.’’ (Citation omitted; emphasis in origi-
nal.)
Upon our thorough review of the record, we cannot
conclude that the court’s finding concerning the mutual
assent of the parties to the terms of the agreement was
clearly erroneous. As the trial court aptly described,
Morgan never expressly stated to Etlinger in their e-mail
communications that the settlement agreement was
contingent upon reaching a global settlement that
included the bank. Morgan’s fleeting references to his
negotiations with the bank were not enough to convey
to a reasonable person in Etlinger’s position that the
agreement was contingent. See Connecticut Light &
Power Co. v. Proctor, supra, 324 Conn. 268 (explaining
that proper inquiry is what reasonable person would
have understood in circumstances). Morgan’s subjec-
tive intent for the agreement to be contingent upon
reaching a settlement with the bank is immaterial to
the determination of mutual assent. See Computer
Reporting Service, LLC v. Lovejoy & Associates, LLC,
supra, 167 Conn. App. 46–47 (‘‘[t]he existence of a hid-
den or subjective intent on the part of one party to a
contract does not render a finding of mutual assent
clearly erroneous’’). We therefore conclude that the
court did not err in concluding that the parties had a
meeting of the minds and a settlement agreement was
formed when Morgan e-mailed Etlinger on June 29,
2020, stating: ‘‘I received the go-ahead from my client.
He understands that it will be [$10,000] with no admis-
sion and release of all claims. You may send me a
release. Thank you.’’ These overt acts and words estab-
lish objective assent to a settlement agreement for
$10,000 that was not contingent upon an agreement
with the bank.
2
We next turn to the plaintiff’s argument that, even if
the parties reached a settlement agreement, the agree-
ment is unenforceable because it imposes a condition
on the plaintiff that is legally impossible to satisfy or
fulfill. We disagree.
As previously noted, the last paragraph of the release
provided: ‘‘Releasor further agrees that he will cause a
withdrawal of this action as to the Releasees to be filed
in the Connecticut Appellate Court and the Connecticut
Superior Court.’’ The plaintiff essentially argues that
this clause renders the agreement unenforceable
because ‘‘a case cannot be withdrawn after judgment
was entered unless the judgment is first opened and
the case restored to pending or pleading status.’’ Mor-
gan raised concerns about this clause in the release,
namely that the release required the plaintiff to with-
draw the Superior Court action, which assertedly would
require the opening of the Superior Court judgment.
After further discussion, however, counsel agreed that
the written terms of the release would remain the same
and that the plaintiff would withdraw his appeal and
file a copy of the withdrawal with the Superior Court
without needing to open the Superior Court judgment.
The plaintiff contends that the requirement that he with-
draw the action is a ‘‘legal impossibility,’’ and therefore,
the agreement is not enforceable and the plaintiff’s
assent to releasing all claims against the insurance com-
pany defendants cannot serve as valid consideration.
The plaintiff acknowledges, however, that the parties
agreed to ‘‘ ‘live with the language,’ ’’ yet contends that
this agreement between counsel does not render the
settlement agreement enforceable. We are unper-
suaded.
‘‘A release is an agreement to give up or discharge a
claim. . . . It terminates litigation or a dispute and [is]
meant to be a final expression of settlement. . . . A
release acts like a contract and, as with any contract,
requires consideration, voluntariness and contractual
capacity.’’ (Citations omitted; internal quotation marks
omitted.) Viera v. Cohen, 283 Conn. 412, 427–28, 927
A.2d 843 (2007). ‘‘The doctrine of consideration is funda-
mental in the law of contracts, the general rule being
that in the absence of consideration an executory prom-
ise is unenforceable. . . . Put another way, [u]nder the
law of contract, a promise is generally not enforceable
unless it is supported by consideration. . . . [C]onsid-
eration is [t]hat which is bargained-for by the promisor
and given in exchange for the promise by the promisee
. . . . We also note that [t]he doctrine of consideration
does not require or imply an equal exchange between
the contracting parties. . . . Consideration consists of
a benefit to the party promising, or a loss or detriment
to the party to whom the promise is made.’’ (Citations
omitted; internal quotation marks omitted.) Thoma v.
Oxford Performance Materials, Inc., 153 Conn. App.
50, 55–56, 100 A.3d 917 (2014). ‘‘Forbearance from suit
is, of course, valid consideration for a contract if the
claim on which the suit was threatened was valid and
enforceable. . . . Moreover, [i]t is a general rule of law
that forbearance to prosecute a cause of action, where
the right is honestly asserted under the belief that it is
substantial, although it may in fact be wholly
unfounded, is a valuable consideration which will sup-
port a promise.’’ (Citations omitted; internal quotation
marks omitted.) Dick v. Dick, 167 Conn. 210, 225, 355
A.2d 110 (1974).
‘‘Whether an agreement is supported by consider-
ation is a factual inquiry reserved for the trier of fact
and subject to review under the clearly erroneous stan-
dard. . . . The conclusion drawn from the facts so
found, i.e., whether a particular set of facts constitutes
consideration in the particular circumstances, is a ques-
tion of law . . . and, accordingly, is subject to plenary
review.’’ (Citation omitted; internal quotation marks
omitted.) Thoma v. Oxford Performance Materials,
Inc., supra, 153 Conn. App. 55.
Applying the governing law to the present case, we
conclude that the court did not err in finding that the
settlement agreement was supported by valid consider-
ation. As discussed previously, the court found that the
evidence clearly established that on June 29, 2020, the
parties had entered into a settlement agreement—the
terms of which clearly and unambiguously established
that the insurance company defendants would pay the
plaintiff $10,000 in exchange for his release of all claims
against them. Per the terms of this agreement, the insur-
ance company defendants would provide consideration
in the form of $10,000 while the plaintiff would provide
consideration in the form of his promise to release the
insurance company defendants from all claims.
Although Morgan raised concerns about the written
terms of the release and he and Etlinger discussed those
concerns, those discussions did not alter the time at
which the parties entered into the agreement. See Witt-
man v. Intense Movers, Inc., supra, 202 Conn. App. 99(‘‘[T]he fact that parties engage in further negotiations
to clarify the essential terms of their mutual undertak-
ings does not establish the time at which their undertak-
ings ripen into an enforceable agreement . . . [and we
are aware of no authority] that assigns so draconian a
consequence to a continuing dialogue between parties
that have agreed to work together. We know of no
authority that precludes contracting parties from engag-
ing in subsequent negotiations to clarify or to modify
the agreement that they had earlier reached. . . . More
important . . . [when] the general terms on which the
parties indisputably had agreed . . . included all the
terms that were essential to an enforceable agreement
. . . [u]nder the modern law of contract . . . the par-
ties . . . may reach a binding agreement even if some
of the terms of that agreement are still indefinite.’’ (Cita-
tion omitted; internal quotation marks omitted.)). Fur-
thermore, the e-mail exchanges between the parties
clearly indicate that after the settlement agreement had
been reached, Morgan consented to Etlinger’s proposal
that the written terms of the release would remain the
same and that the plaintiff would withdraw his appeal
and file a copy of the withdrawal with the Superior
Court without opening the Superior Court judgment.
As a result, we conclude that the settlement agreement
between the parties was enforceable and supported by
adequate consideration.
II
We next turn to the plaintiff’s appeal from the judg-
ment of the trial court granting both the bank defen-
dants’ and the insurance company defendants’ motions
for summary judgment. Because we conclude that the
court did not err in granting the insurance company
defendants’ motion to enforce settlement agreement,
we do not address the plaintiff’s claims concerning the
insurance company defendants, namely, that the insur-
ance company defendants were not entitled to judgment
as a matter of law on the plaintiff’s claims of negligent
infliction of emotional distress and negligent misrepre-
sentation, and that the court erred in determining the
date on which the action commenced against the insur-
ance company for purposes of the statute of limitations.
As to the bank defendants, the plaintiff claims that
the court improperly concluded that (1) § 52-592 was
inapplicable in this case, (2) the continuing course of
conduct doctrine was inapplicable in this case, and (3)
the bank defendants were entitled to judgment as a
matter of law on the plaintiff’s claims for breach of the
covenant of good faith and fair dealing. We disagree.
The record before the court, viewed in the light most
favorable to the plaintiff as the nonmoving party,
reveals the following relevant facts and procedural his-
tory. As previously noted, in the original action, the
plaintiff filed a summons and complaint in the Superior
Court in the judicial district of New Haven on April 1,
2015, alleging a single claim of negligent infliction of
emotional distress against ‘‘US Bank Home Mortgage
Company’’ based upon the bank’s purchase of the LPI
policy. The summons listed the address of ‘‘US Bank
Home Mortgage Company’’ as 17500 Rockside Road,
Bedford, Ohio, 44146-2099. According to the marshal’s
return, on February 26, 2015, and again on March 20,
2015, the marshal sent the summons and complaint via
U.S. certified mail, return receipt requested, to ‘‘US
Bank Home Mortgage Company,’’ care of ‘‘The Secre-
tary,’’ at 17500 Rockside Road, Bedford, Ohio, 44146-
2099. No return receipts were filed in the original
action.13 The case was assigned docket number NNH-
CV-XX-XXXXXXX-S.
On June 15, 2015, the plaintiff filed a motion for
default for failure to appear. The motion was granted
by the clerk’s office on June 24, 2015. On July 16, 2015,
the plaintiff filed an amended complaint adding claims
of negligent misrepresentation, fraud, and violations of
CUTPA. A hearing in damages was held on September
30, 2015, after which the court rendered judgment in
favor of the plaintiff in the amount of $38,759.12 plus
taxable costs of $580.99.
On November 7, 2016, the bank filed a motion to
open and vacate the judgment, which the court granted.
Also on November 7, 2016, the bank filed a motion to
dismiss, in which it claimed that the court lacked both
subject matter jurisdiction and personal jurisdiction.
The bank argued that the court lacked subject matter
jurisdiction because ‘‘US Bank Home Mortgage Com-
pany’’ is a trade name, and therefore a nonexistent
entity, which has no independent legal rights to assert
or protect and lacks any capacity to be sued. The bank
argued, in the alternative, that even if the court had
subject matter jurisdiction over the action, it lacked
personal jurisdiction over the bank because the bank
had not been served in accordance with Connecticut
law.
On February 6, 2017, the court granted the bank’s
motion to dismiss. The court concluded that it lacked
subject matter jurisdiction because ‘‘US Bank Home
Mortgage Company’’ is a trade name, not a legal entity.
The court also concluded that the plaintiff failed to
effect service on the bank, explaining that ‘‘[w]hile the
court may presume delivery from the attestation that
the marshal placed the documents in the U.S. mail, no
such presumption can be drawn with regard to the issue
of receipt.’’ As a result of the lack of service of process,
the court found that it lacked personal jurisdiction over
the bank. The plaintiff did not appeal from the judgment
of dismissal.
The plaintiff commenced the present action against
the bank defendants on March 22, 2017. The operative
complaint asserted claims against the bank sounding
in negligent misrepresentation, negligent infliction of
emotional distress, fraud, violations of CUTPA, and
breach of the implied covenant of good faith and fair
dealing. The bank asserted special defenses, claiming,
inter alia, that all claims, except the good faith and fair
dealing claim, were barred by applicable statutes of
limitations.
On February 28, 2019, the bank filed a motion for
summary judgment, asserting that the plaintiff’s
CUTPA, fraud, negligent infliction of emotional distress,
and negligent misrepresentation claims were all barred
by applicable statutes of limitations. As to the plaintiff’s
claim of breach of the covenant of good faith and fair
dealing, the bank argued that the plaintiff could not
establish that claim because he had presented no evi-
dence that the bank had acted in bad faith.
The plaintiff filed a memorandum in opposition to
the motion for summary judgment, arguing that his
claims had been brought in timely fashion under (1)
§ 52-592, (2) the continuing course of conduct doctrine,
and/or (3) the fraudulent concealment statute, General
Statutes § 52-595. The plaintiff also contended that the
evidence submitted to the court in opposition to the
bank defendants’ motion raised at least a genuine issue
of material fact as to whether the bank had acted in
bad faith.
In response, the bank argued that § 52-592 was inap-
plicable in this case because the original action was
never ‘‘commenced’’ within the meaning of the statute,
that the continuing course of conduct doctrine was
inapplicable because the plaintiff could not establish
that the bank owed a continuing duty to the plaintiff
that was related to the alleged original wrong, and that
the evidence did not establish fraudulent concealment.
Oral argument was held on July 1, 2019.
The court granted the bank’s motion for summary
judgment on March 16, 2020. The court concluded that
there was no genuine issue of material fact that the
plaintiff’s CUTPA, fraud, negligent infliction of emo-
tional distress, and negligent misrepresentation claims
were all barred by applicable statutes of limitations.
The court also concluded, under the facts presented on
the motion construed in the light most favorable to the
plaintiff, that (1) § 52-592 did not save the plaintiff’s
untimely claims because the original action was never
‘‘commenced’’ for the purposes of the statute, (2) the
continuing course of conduct doctrine did not apply to
any of the plaintiff’s untimely claims because there was
no fiduciary relationship between the bank and the
plaintiff that would give rise to such a continuing duty
on their part toward the plaintiff, and (3) the plaintiff
could not establish his claim of fraudulent concealment.
The court further found, in relation to the plaintiff’s
claim of the breach of the covenant of good faith and
fair dealing, that ‘‘the evidence demonstrate[d] that, on
multiple occasions, the [bank] defendants notified the
plaintiff of issues that would impact his hazard insur-
ance coverage, and encouraged him to get in contact
with the [bank] defendants and/or [the insurance com-
pany] to clarify any discrepancies.’’ Therefore, the court
concluded, summary judgment was proper on that
claim as well. This appeal followed.
We begin our analysis by setting forth the well settled
standard of review of a motion for summary judgment.
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. The courts are in entire agreement that
the moving party for summary judgment has the burden
of showing the absence of any genuine issue as to all
the material facts, which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law. The courts hold the movant to a strict standard.
To satisfy his burden the movant must make a showing
that it is quite clear what the truth is, and that excludes
any real doubt as to the existence of any genuine issue
of material fact. . . . As the burden of proof is on the
movant, the evidence must be viewed in the light most
favorable to the opponent. . . . When documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue. . . . It is not enough, however, for the opposing
party merely to assert the existence of such a disputed
issue. Mere assertions of fact . . . are insufficient to
establish the existence of a material fact and, therefore,
cannot refute evidence properly presented to the court
under Practice Book § [17-45].14. . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Footnote added; internal quota-
tion marks omitted.) Ramirez v. Health Net of the
Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).
‘‘[I]n the context of a motion for summary judgment
based on a statute of limitations special defense, [the
defendants] typically [meet their] initial burden of
showing the absence of a genuine issue of material
fact by demonstrating that the action had commenced
outside of the statutory limitation period. . . . When
the plaintiff asserts that the limitations period has been
tolled by an equitable exception to the statute of limita-
tions, the burden normally shifts to the plaintiff to estab-
lish a disputed issue of material fact in avoidance of
the statute. . . . Put differently, it is then incumbent
upon the party opposing summary judgment to establish
a factual predicate from which it can be determined,
as a matter of law, that a genuine issue of material
fact exists.’’ (Citation omitted; internal quotation marks
omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d
1145 (2014).
‘‘A material fact is a fact which will make a difference
in the result of the case. . . . [I]ssue-finding, rather
than issue-determination, is the key to the procedure.
. . . [T]he trial court does not sit as the trier of fact
when ruling on a motion for summary judgment. . . .
[Its] function is not to decide issues of material fact,
but rather to determine whether any such issues exist.’’
(Internal quotation marks omitted.) Vestuti v. Miller,
124 Conn. App. 138, 142, 3 A.3d 1046 (2010).
A
The plaintiff argues that, in granting the bank defen-
dants’ motion for summary judgment, the court erred in
concluding that § 52-592 was inapplicable and therefore
could not save the plaintiff’s otherwise untimely
CUTPA, fraud, negligent infliction of emotional distress,
and negligent misrepresentation claims.15 Specifically,
the plaintiff contends that the court’s conclusion (1) is
based upon an insufficient factual record, and (2) is
inconsistent with our Supreme Court’s decision in
Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004).
We disagree.
We begin our analysis with an examination of our
case law interpreting § 52-592. Section 52-592 (a) pro-
vides in relevant part: ‘‘If any action, commenced within
the time limited by law, has failed one or more times
to be tried on its merits because of insufficient service
or return of the writ due to unavoidable accident or
the default or neglect of the officer to whom it was
committed, or because the action has been dismissed
for want of jurisdiction . . . the plaintiff . . . may
commence a new action . . . for the same cause at
any time within one year after the determination of the
original action or after the reversal of the judgment.’’
(Emphasis added.) ‘‘When a suit has been started sea-
sonably, the statute extends the [s]tatute of [l]imitations
for a period of one year after the determination of the
original action.’’ (Internal quotation marks omitted.)
Davis v. Family Dollar Store, 78 Conn. App. 235, 240,
826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655,
859 A.2d 25 (2004).
‘‘Deemed a saving statute, § 52-592 enables plaintiffs
to bring anew causes of action despite the expiration
of the applicable statute of limitations.’’ (Internal quota-
tion marks omitted.) Estela v. Bristol Hospital, Inc.,
179 Conn. App. 196, 204, 180 A.3d 595 (2018). The statute
‘‘is remedial in its character. It was passed to avoid
hardships arising from an unbending enforcement of
limitation statutes.’’ (Internal quotation marks omitted.)
Rosario v. Hasak, 50 Conn. App. 632, 637, 718 A.2d
505 (1998).
This court has cautioned that, ‘‘[a]lthough § 52-592 is
remedial in nature, passed to avoid hardships arising
from an unbending enforcement of limitation statutes
. . . it should not be construed so liberally as to render
statutes of limitation[s] virtually meaningless. . . .
[B]y its plain language, [§ 52-592] is designed to prevent
a miscarriage of justice if the [plaintiff fails] to get a
proper day in court due to the various enumerated
procedural problems. . . . It was adopted to avoid
hardships arising from an unbending enforcement of
limitation statutes. . . . Its purpose is to aid the dili-
gent suitor. . . . Its broad and liberal purpose is not
to be frittered away by any narrow construction. The
important consideration is that by invoking judicial aid,
a litigant gives timely notice to his adversary of a present
purpose to maintain his rights before the courts.’’ (Cita-
tions omitted; internal quotation marks omitted.) Davis
v. Family Dollar Store, supra, 78 Conn. App. 240.
In Davis, this court was faced with the question of
whether the plaintiff could bring a new action under
§ 52-592 when the original action was never com-
menced. Id., 236. The plaintiff in Davis attempted to
commence an action by delivering a writ of summons
and complaint to a sheriff to be served on the defendant.
Id. Service, however, was never made on the defendant
and the writ of summons and complaint were returned
to the plaintiff. Id. The plaintiff then commenced a
second action, purportedly pursuant to § 52-592, after
the applicable statute of limitations period had expired.
Id. The defendant filed a motion for summary judgment,
claiming that § 52-592 could not save the plaintiff’s
untimely action because no service of process was
attempted in the original action and, therefore, the origi-
nal action was never commenced. Id. The trial court
granted the defendant’s motion for summary judgment,
holding that ‘‘there [was] no prior action, commenced
or otherwise, upon which a determination has been
made. . . . [P]rocess was not served upon the defen-
dant nor returned to the court. . . . [N]o proceeding
was commenced prior to the initiation of the instant
action. Courts which have considered whether an origi-
nal action was commenced for purposes of § 52-592
recognize that [there] must be a preceding disposition
of a prior action.’’ (Internal quotation marks omitted.)
Id., 236–37.
On appeal, this court explained that ‘‘[t]he [plaintiff]
must satisfy all of the criteria in § 52-592 in order to
prevail’’; (internal quotation marks omitted) id., 242;
and that ‘‘[t]he language of § 52-592 requires a plaintiff
to have commenced an original action before the statute
can be applied to save a subsequent action.’’ (Emphasis
in original.) Id., 239–40. The court explained that,
‘‘[w]ithout the existence of a prior action, the plaintiff
cannot invoke the protection of § 52-592. Section 52-
592 requires that the initial suit be commenced within
the time limited by law. . . . [A]n action is commenced
not when the writ is returned but when it is served upon
the defendant.’’ (Internal quotation marks omitted.) Id.,
240–41. The court concluded that ‘‘[b]ecause the writ
of summons and complaint were never served on the
defendant, the original action did not commence and,
therefore, § 52-592 [did] not authorize another action
to be filed or to extend any statute of limitations.’’ Id.,
241. As a result, the court affirmed the decision of the
trial court, reasoning that ‘‘[t]he plaintiff, here, has not
fulfilled the requirements of § 52-592. The original
action was not commenced, resulting in an unseason-
able suit. Although the statute is remedial, the language
is clear and unambiguous. Section 52-592 (a) provides
in relevant part: If any action, commenced within the
time limited by law, has failed . . . the plaintiff . . .
may commence a new action . . . . Without the com-
mencement of an original action, no action exists for the
statute to save.’’ (Emphasis omitted; internal quotation
marks omitted.) Id., 242.
The applicability of § 52-592 was further clarified in
our Supreme Court’s decision in Rocco v. Garrison,
supra, 268 Conn. 541. In Rocco, the plaintiffs followed
the procedures established by rule (4) (d) (2) of the
Federal Rules of Civil Procedure, which permits a plain-
tiff to request that the defendant waive formal service.
Id., 545–46. The plaintiffs sent the summons and com-
plaint to the defendant’s home address via certified
mail. Id., 546. The plaintiffs received a return receipt
from the United States Postal Service indicating that
the papers had been delivered to the defendant at her
address four days prior to the expiration of the applica-
ble statute of limitations. Id. The defendant, however,
did not waive formal service of process and the statute
of limitations lapsed before the plaintiff could effectu-
ate formal service of process. Id. The defendant subse-
quently filed a motion for summary judgment, arguing
that the plaintiffs had not commenced their action prior
to the expiration of the statute of limitations and the
court granted the motion. Id. The plaintiffs then com-
menced a second action pursuant to § 52-592. Id. The
defendant, however, moved for summary judgment,
alleging that the original action had not been com-
menced within the meaning of § 52-592 due to lack of
proper service, and, thus, that § 52-592 did not apply
and could not save the second action from being barred
by the statute of limitations. Id., 547. The trial court
granted the defendant’s motion and the plaintiffs
appealed. Id.
On appeal, the defendant argued that ‘‘the commence-
ment of an action under Connecticut law occurs when
the writ is served upon the defendant, and that an action
is not commenced if the defendant is not served prop-
erly.’’ (Emphasis in original.) Id., 547–48. Our Supreme
Court disagreed with the defendant’s argument, stating
that ‘‘[t]he defendant’s interpretation of § 52-592 would
render a key portion of that statute meaningless. If the
savings statute requires effective commencement of the
original action, and commencement requires valid ser-
vice of process, as the defendant argues, then any failure
of service of process would require us to conclude that
no action had been commenced and that the statute
does not apply. This would render superfluous one of
the principal purposes of the savings statute, namely,
to save those actions that have failed due to insufficient
service of process. Moreover, the language of § 52-592
distinguishes between the commencement of an action
and insufficient service of process by providing that the
action may fail following its commencement because
of insufficient service. To accept the view that improper
or insufficient service defeats such an action would
undermine the statute’s clear and unambiguous mean-
ing and preclude the filing of a second action. We there-
fore conclude that the term commenced, as used in
§ 52-592 to describe an initial action that has failed . . .
to be tried on its merits because of insufficient service
. . . cannot be construed to mean good, complete and
sufficient service of process, as the defendant con-
tends.’’ (Citation omitted; emphasis in original; internal
quotation marks omitted.) Id., 550–51.
The court instead agreed with the plaintiffs’ con-
tention that their original action was ‘‘commenced’’ in
a timely manner for purposes of § 52-592 ‘‘when the
defendant received clear and unmistakable notice of
that action upon delivery of the summons, complaint
and related materials pursuant to rule 4 (d) (2).’’ Id.,
547. The court noted that ‘‘under the law of our state,
an action is commenced not when the writ is returned
but when it is served upon the defendant.’’ (Footnote
omitted; internal quotation marks omitted.) Id., 549.
The court concluded that the original action was ‘‘ ‘com-
menced’ ’’ within the meaning of § 52-592 ‘‘when the
defendant received effective notice of that action’’
within the time period prescribed by the applicable
statute of limitations. Id., 551. In so holding, the court
stated: ‘‘The defendant does not dispute that the plain-
tiffs’ counsel sent her a written request to waive the
required service of process. Moreover, the record con-
tains evidence, and the defendant does not dispute, that
the plaintiffs’ counsel sent by certified mail each of the
other items required under rule 4 (d) (2) to effect service
of process, including the summons and complaint, two
copies of the notice regarding the waiver of formal
service and an envelope with sufficient postage for
return of the signed waiver. Finally, the record reveals
that the plaintiffs’ counsel received a return receipt
from the United States Postal Service indicating that
the items had been delivered to the defendant at her
. . . home four days before the two year statute of
limitations had expired. A review of the record thus
discloses that, although the plaintiffs’ counsel did not
serve a formal summons upon the defendant within
the time period prescribed by the applicable statute of
limitations, all of the requirements of rule 4 (d) (2) were
satisfied and all of the necessary papers to obtain a
waiver of formal service were delivered to the defen-
dant. That the defendant failed to sign and return the
waiver does not detract from the fact that the plaintiffs’
original action was commenced, for purposes of the
savings statute, when the defendant received actual
notice of the action within the time period prescribed
by the statute of limitations. Thus, in our view, although
the original action was not commenced in a timely
manner under the applicable statute of limitations due
to insufficient service of process, it nevertheless was
commenced for purposes of the savings statute.
‘‘By following the procedure set forth in rule 4 (d)
(2) to obtain a waiver of formal service from the defen-
dant, the plaintiffs, for all practical purposes, also satis-
fied the requirements of state law pertaining to formal
service of process. In Connecticut, an action is com-
menced when the writ, summons and complaint have
been served upon the defendant. . . . In the present
case, the summons, a copy of the complaint and a notice
of the action were delivered to the defendant by certi-
fied mail four days before the expiration of the statute
of limitations. Moreover, the plaintiffs filed the com-
plaint in the [federal] District Court, as required under
the federal rules, prior to the issuance of the signed
and sealed summons. . . . Accordingly, there is ample
support for our conclusion that the original action was
commenced in a timely manner within the meaning
of the savings statute.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) Id., 552–53.
The court therefore reversed the trial court’s judgment
granting the defendant’s motion for summary judgment.
Id., 559.
Subsequently, in Dorry v. Garden, 313 Conn. 516,
525, 98 A.3d 55 (2014), our Supreme Court was again
tasked with interpreting the language ‘‘commenced
within the time limited by law’’ within § 52-592 (a). In
Dorry, the plaintiff sent a writ, summons and complaint
to a marshal by overnight delivery and requested that
the defendants be served in hand. Id., 520. The marshal
attempted to serve the defendants but rather than serv-
ing the defendants in hand, the marshal left copies of the
writ, summons and complaint in various professional
or hospital offices. Id. The marshal then erroneously
indicated on the return that each defendant had been
served in hand. Id. The trial court dismissed the claims
against the defendants due to improper service. Id. The
plaintiff then commenced a second action pursuant to
§ 52-592. Id. The defendants thereafter filed motions
for summary judgment, or in the alternative, dismissal,
under the applicable statutes of limitations. Id. The trial
court granted the defendants’ motions and dismissed
the action ‘‘on the ground that, although the present
action was commenced within one year of the dismissal
of the first action, because the defendants were not
properly served within the statute of limitations, the
trial court was without jurisdiction to hear the case. In
doing so, the trial court determined that § 52-592 did
not apply to save the plaintiff’s action because the first
action was not commenced for purposes of that stat-
ute.’’ (Footnote omitted; internal quotation marks omit-
ted.) Id., 520–21.
On appeal to our Supreme Court, the plaintiff
asserted that ‘‘the trial court improperly determined
that § 52-592 did not operate to save the present action
because it had not commenced within the time limited
by law due to improper service. Specifically, the plaintiff
claim[ed] that, under Rocco . . . the first action was
commenced within the time limited by law because
each of the defendants had effective notice within the
statute of limitations.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 524. The defendants asserted
in response that ‘‘the trial court properly determined
that § 52-592 did not operate to save the present action
because it had not been commenced within the time
limited by law . . . . Specifically, the defendants
assert[ed] that Rocco [did] not apply to the facts of the
. . . case.’’ (Internal quotation marks omitted.) Id.
The court noted that in interpreting the language of
§ 52-592 (a), it was bound by its previous interpretations
of the language and the purpose of the statute, namely
the court’s analysis in Rocco. Id., 526. The court in Dorry
recognized that the court in Rocco made clear that
‘‘ ‘commenced within the time limited by law’ ’’ could
not mean effectuating proper service, and that effective
notice to a defendant is sufficient. Id., 529. The court
in Dorry explained: ‘‘[I]n Rocco, this court explicitly
explained that the plaintiffs’ original action was com-
menced, for purposes of the savings statute, when the
defendant received actual notice of the action within
the time period prescribed by the statute of limitations.’’
(Internal quotation marks omitted.) Id., 530.
The court concluded that, as to the first two defen-
dants, the original action was commenced against them
because they had effective notice of the action within
the time period prescribed by the applicable statute of
limitations. Id., 530. The court explained, ‘‘it is undis-
puted that the plaintiff’s counsel sent the writ, summons
and complaint to a marshal . . . by overnight delivery
and requested that the marshal effect in hand service
on the defendants. The evidence further demonstrates
that, despite indicating on the return of service that she
effected in hand service, the marshal actually left copies
of the writ, summons and complaint at the business
addresses of the defendants. Nevertheless, the plaintiff
produced evidence demonstrating that [the first two
defendants] became aware of the first action and
received a copy of the writ, summons and complaint
. . . within the statute of limitations.’’ Id., 529.
The court also concluded that the original action had
commenced against the third and fourth defendants. Id.,
530–31. The court explained, ‘‘[a]s we have previously
explained herein, the savings statute allows for an
action to be saved if it was commenced within the
time limited by law, even if improper service was made
within that time, if the defendant had effective notice
during that time period.’’ Id., 532. The court concluded
that it was clear that these defendants had ‘‘received
effective notice within the time period limited by law’’
and therefore that ‘‘the trial court improperly deter-
mined that the savings statute did not operate to save
the plaintiff’s second action against those four defen-
dants.’’ Id., 535. Having set forth the law that governs
our analysis, we turn to the plaintiff’s claims on appeal.
The plaintiff first contends that the court’s conclusion
that § 52-592 did not apply to save the plaintiff’s action
is inconsistent with Rocco. Specifically, the plaintiff con-
tends that a genuine issue of material fact remains as
to whether the bank defendants received actual notice
of the original action. We disagree.
As previously noted, ‘‘the party seeking summary
judgment has the burden of showing the nonexistence
of any material fact . . . .’’ (Internal quotation marks
omitted.) Kidder v. Read, 150 Conn. App. 720, 728, 93
A.3d 599 (2014). In support of their motion for summary
judgment, the bank defendants relied on the marshal’s
return of service in the original action. The return,
which was attached to the bank defendants’ motion for
summary judgment, establishes that the summons and
complaint were mailed to an address that was not the
official address of the bank. The bank defendants also
noted in their motion for summary judgment that no
evidence of return receipts, confirming the delivery of
the summons and complaint to that address, were ever
provided to the court. The bank defendants therefore
argued that the plaintiff had not shown that the original
action was ‘‘ ‘commenced’ ’’ within the meaning of
§ 52-592.
‘‘Although the party seeking summary judgment has
the burden of showing the nonexistence of any material
fact . . . a party opposing summary judgment must
substantiate its adverse claim by showing that there is
a genuine issue of material fact together with the evi-
dence disclosing the existence of such an issue. . . .
The party opposing summary judgment must present a
factual predicate for [the party’s] argument to raise a
genuine issue of fact.’’ (Internal quotation marks omit-
ted.) Kidder v. Read, supra, 150 Conn. App. 728. In the
plaintiff’s objection to the bank defendants’ motion for
summary judgment, the plaintiff asserted that the defen-
dants had actual notice of the original action. We con-
clude that the plaintiff has failed to present evidence
sufficient to show that there was a genuine issue of
material fact regarding whether the bank had actual or
effective notice of the original action. Specifically, the
plaintiff has failed to present evidence that the bank
had actual or effective notice by way of receipt of the
summons and complaint as in Rocco and Dorry.
In Rocco, the defendant did not dispute receiving
the summons, complaint, and two copies of the notice
regarding the waiver of formal service. Rocco v. Garri-
son, supra, 268 Conn. 552. The evidence in the record
revealed that the plaintiff had sent the documents via
certified mail and had received a return receipt indicat-
ing that the items had been delivered to the defendant’s
home four days prior to the expiration of the applicable
statute of limitations. Id. The court concluded that,
although the plaintiffs’ counsel did not serve a formal
summons upon the defendant within the time period
prescribed by the applicable statute of limitations, the
defendant received actual notice of the action within
that time period by way of receipt of the summons and
complaint, and therefore the action was commenced
for purposes of § 52-592. Id. Likewise, in Dorry, the
plaintiff produced evidence demonstrating that the
defendants had become aware of the original action by
way of receipt of a copy of the writ, summons, and
complaint. Dorry v. Garden, supra, 313 Conn. 529.
In both Rocco and Dorry, the court determined that
the original action had commenced for purposes of § 52-
592 because, even though service of the summons and
complaint was defective, the defendants actually
received the summons and complaint, and thereby got
actual or effective notice of the action within the time
period prescribed by the applicable statute of limita-
tions. In the present case, by contrast, the plaintiff has
presented no evidence that the bank actually received
the summons and complaint in the original action. The
plaintiff nevertheless contends that there is sufficient
evidence to create a genuine issue of material fact as
to whether the bank had actual or effective notice of
the original action. Specifically, the plaintiff argues that
the bank ‘‘had actual notice of the [original] action
because [counsel for the plaintiff] was contacted by
[the bank’s] corporate counsel prior to counsel
appearing.’’ In the plaintiff’s objection to the bank’s
motion for summary judgment before the trial court,
the plaintiff similarly argued that there was a genuine
issue of material fact regarding whether the bank had
actual notice of the original action because (1) the plain-
tiff and the bank engaged in communications concern-
ing the original action, and (2) counsel for the bank
appeared in the original action. We conclude that nei-
ther the communications between the plaintiff and the
bank nor the bank’s appearance in the original action
were sufficient to create a genuine issue of material
fact as to whether the bank had actual or effective
notice of the original action.
On July 7, 2015, the plaintiff sent a letter to the bank
seeking clarification of the events that had transpired
with regard to his insurance policy and the amount due
on his account. Importantly, this letter did not mention
the original action, which the plaintiff had attempted
to commence in February and March of 2015, much
less did it describe or suggest that the plaintiff had
served the bank with copies of the summons or com-
plaint in that action. The bank sent the plaintiff a reply
letter on July 24, 2015, detailing the series of events
that had occurred with the plaintiff’s insurance policy.
This letter also failed to mention or to make any refer-
ence to any pending lawsuit between the parties or to
any pleadings in such a lawsuit. Thus, neither letter
was sufficient to raise a genuine issue of material fact
as to the bank’s receipt of actual or effective notice of
the original action by any means, including, critically,
by receipt of legal process in that action.
Further communications also took place between the
plaintiff and the bank almost one year later in June,
2016. In particular, on June 27, 2016, the bank sent an
e-mail to the plaintiff’s counsel memorializing a phone
conversation that had occurred between the plaintiff’s
counsel and the bank that morning. The e-mail stated,
in part: ‘‘As we discussed, I hope that we can find a
way to resolve your client’s legitimate concerns with
his mortgage loan and the default judgment that was
entered against U.S. Bank Home Mortgage Company.
As I mentioned, we have serious concerns about the
validity of the judgment to the service of process and
corporate entity issues.’’ As indicated by this e-mail,
these communications between the plaintiff and the
bank occurred after default judgment had already
entered in the original action. Default judgment entered
in the original action on October 22, 2015, approxi-
mately eight months prior to these June, 2016 communi-
cations.
On November 7, 2016, the bank filed an appearance in
the original action. Like the June, 2016 communications,
the appearance was filed after default judgment was
entered in the original action. This suggests that the
bank first became aware of the original action only by
way of the default judgment.16 Therefore, the June, 2016
communications and the bank’s appearance were not
sufficient to create a genuine issue of material fact as
to whether the bank had actual or effective notice of
the original action by way of receipt of the summons
and complaint, as required by Rocco and Dorry, as
opposed to by way of the default judgment.
In sum, we conclude that the communications
between the plaintiff and the bank, and the bank’s
belated appearance in the original action were insuffi-
cient to create a genuine issue of material fact that the
bank had actually received the summons and complaint,
and thereby got actual or effective notice of the origi-
nal action.
As previously described, § 52-592 requires that the
original action have been commenced. Pursuant to § 52-
592, the original action may be commenced by way
of insufficient or defective service rather than good,
complete, and sufficient service of process. See Rocco
v. Garrison, supra, 268 Conn. 551; see also Dorry v.
Garden, supra, 313 Conn. 529. However, ‘‘[a]n action
is commenced not when the writ is returned but when
it is served upon the defendant.’’ (Internal quotation
marks omitted.) Davis v. Family Dollar Store, supra,
78 Conn. App. 241. In other words, the action is com-
menced in a timely manner for purposes of § 52-592
‘‘when the defendant receive[s] clear and unmistakable
notice of that action upon delivery of the summons,
complaint and related materials . . . .’’ (Emphasis
added.) Rocco v. Garrison, supra, 268 Conn. 547; see
also Dorry v. Garden, supra, 313 Conn. 530 (‘‘[i]n Rocco,
this court explicitly explained that the plaintiffs’ original
action was commenced, for purposes of the savings
statute, when the defendant received actual notice of
the action within the time period prescribed by the
statute of limitations’’ (internal quotation marks omit-
ted)). Pursuant to our Supreme Court’s decisions in
Rocco and Dorry, an action is commenced within the
meaning of § 52-592 when a defendant receives actual
or effective notice of the action, within the time period
prescribed by law, by way of receipt of the summons
and complaint.
Here, as previously noted, the original complaint
alleged a single claim against ‘‘US Bank Home Mortgage
Company,’’ a trade name. Furthermore, the summons
listed the address of ‘‘US Bank Home Mortgage Com-
pany’’ as 17500 Rockside Road, Bedford, Ohio, 44146-
2099, which was not the address of the bank’s principal
place of business. Although the marshal indicated that
he sent the summons and complaint via U.S. certified
mail, return receipt requested, to this address, the plain-
tiff failed to provide the court with any evidence that
the bank itself had actual or effective notice of the
original action by way of receipt of the summons and
complaint as in Rocco and Dorry. The present case is
thus akin to Davis, where the court was presented
with no evidence that service was ever made on the
defendant. See Davis v. Family Dollar Store, supra, 78
Conn. App. 236.17
On the basis of the foregoing analysis, we conclude
that the plaintiff failed to demonstrate the existence
of a genuine issue of material fact as to whether the
defendant had actual or effective notice of the original
action by way of receipt of the summons and complaint.
As a result, the court properly determined that § 52-
592 could not operate to save the plaintiff’s untimely
claims.18
B
The plaintiff next argues that the trial court improp-
erly concluded that the continuing course of conduct
doctrine is inapplicable to the plaintiff’s claims and
therefore could not toll the applicable statutes of limita-
tions. Specifically, the plaintiff argues that the court
erred in concluding that the bank defendants owed no
continuing duty to the plaintiff. We disagree.
‘‘In certain circumstances . . . we have recognized
the applicability of the continuing course of conduct
doctrine to toll a statute of limitations. Tolling does not
enlarge the period in which to sue that is imposed by
a statute of limitations, but it operates to suspend or
interrupt its running while certain activity takes place.
. . . Consistent with that notion, [w]hen the wrong
sued upon consists of a continuing course of conduct,
the statute does not begin to run until that course of
conduct is completed. . . . [I]n order [t]o support a
finding of a continuing course of conduct that may toll
the statute of limitations there must be evidence of the
breach of a duty that remained in existence after the
commission of the original wrong related thereto. That
duty must not have terminated prior to commencement
of the period allowed for bringing an action for such a
wrong. . . . Where [our Supreme Court has] upheld a
finding that a duty continued to exist after the cessation
of the act or omission relied upon, there has been evi-
dence of either a special relationship between the par-
ties giving rise to such a continuing duty or some later
wrongful conduct of a defendant related to the prior
act. . . . Furthermore, [t]he doctrine of continuing
course of conduct as used to toll a statute of limitations
is better suited to claims where the situation keeps
evolving after the act complained of is complete . . . .’’
(Citation omitted; internal quotation marks omitted.)
Medical Device Solutions, LLC v. Aferzon, 207 Conn.
App. 707, 753, 264 A.3d 130, cert. denied, 340 Conn. 911,
264 A.3d 94 (2021).
‘‘The test for determining whether the continuing
course of conduct doctrine should apply has developed
primarily in negligence cases. For instance, we have
recognized the continuing course of conduct doctrine
in claims of medical malpractice. . . . In doing so, we
noted that [t]he continuing course of conduct doctrine
reflects the policy that, during an ongoing relationship,
lawsuits are premature because specific tortious acts
or omissions may be difficult to identify and may yet
be remedied. . . . The continuing course of conduct
doctrine has also been applied to other claims of profes-
sional negligence in this state. . . .
‘‘In these negligence actions, this court has held that
in order [t]o support a finding of a continuing course
of conduct that may toll the statute of limitations there
must be evidence of the breach of a duty that remained
in existence after commission of the original wrong
related thereto. That duty must not have terminated
prior to commencement of the period allowed for bring-
ing an action for such a wrong. . . . Where we have
upheld a finding that a duty continued to exist after the
cessation of the act or omission relied upon, there has
been evidence of either a special relationship between
the parties giving rise to such a continuing duty or some
later wrongful conduct of a defendant related to the
prior act. . . .
‘‘Therefore, a precondition for the operation of the
continuing course of conduct doctrine is that the defen-
dant must have committed an initial wrong upon the
plaintiff. . . . A second requirement for the operation
of the continuing course of conduct doctrine is that
there must be evidence of the breach of a duty that
remained in existence after commission of the original
wrong related thereto. . . . This court has held this
requirement to be satisfied when there was wrongful
conduct of a defendant related to the prior act. . . .
Such later wrongful conduct may include acts of omis-
sion as well as affirmative acts of misconduct . . . .
‘‘In sum, [i]n deciding whether the trial court properly
granted the defendant’s motion for summary judgment,
we must determine if there is a genuine issue of material
fact with respect to whether the defendant: (1) commit-
ted an initial wrong upon the plaintiff; (2) owed a contin-
uing duty to the plaintiff that was related to the alleged
original wrong; and (3) continually breached that duty.’’
(Citations omitted; internal quotation marks omitted.)
Flannery v. Singer Asset Finance Co., LLC, 312 Conn.
286, 311–13, 94 A.3d 553 (2014). If insufficient evidence
has been presented to raise a genuine issue of material
fact as to any of those three necessary elements, the
availability of the doctrine as a basis for tolling the
statute of limitations must be rejected as a matter of law.
The trial court concluded in this case that, ‘‘[a]s an
initial matter, with regard to the plaintiff’s CUTPA
claims, the continuing course of conduct doctrine does
not toll the statute of limitations. See Flannery v. Singer
Asset Finance Co., LLC, 128 Conn. App. 507, 514, 17
A.3d 509 (2011), aff’d, 312 Conn. 286, 94 A.3d 553 (2014)
(‘[A]s to the plaintiff’s CUTPA claim, our Supreme Court
has stated that the continuing course of conduct doc-
trine does not toll the three year statute of limitations
set forth in General Statutes § 42-110g (f)’) . . . .’’ On
appeal, the plaintiff does not challenge the court’s con-
clusion that the continuing course of conduct doctrine
could not apply to the plaintiff’s CUTPA claims.
As to the plaintiff’s claims of fraud, negligent inflic-
tion of emotional distress, and negligent misrepresenta-
tion, the court concluded that there was no genuine
issue of material fact as to whether the bank defendants
owed a continuing duty to the plaintiff. The court
explained that the relationship between the parties was
‘‘at arm’s length and commercial in nature.’’ The court
went on to explain that ‘‘at all relevant times, [the bank]
serviced the mortgage on the plaintiff’s property. [The
bank] was not obligated to represent the plaintiff’s inter-
ests. . . . [T]he parties’ submissions do not contain
evidence of a unique degree of trust and confidence
between the plaintiff and the defendant akin to a fidu-
ciary or special relationship. . . . As such, there was
no fiduciary relationship between the parties that would
give rise to a continuing duty on the part of the [bank]
defendants. Therefore, the plaintiff has failed to estab-
lish that the continuing course of conduct doctrine
applies to toll the statute of limitations as to any of the
untimely claims.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.)
On appeal, the plaintiff concedes that the bank was
not the mortgagee in relation to the plaintiff’s mortgage
and acknowledges that the bank’s sole role was to ser-
vice the mortgage on behalf of CHFA pursuant to a
servicing agreement between the bank and CHFA. See
footnote 6 of this opinion. The plaintiff nevertheless
suggests that the bank owed a continuing duty to the
plaintiff arising from ‘‘an implied agreement’’ between
the bank and the plaintiff. According to the plaintiff,
‘‘the trial court accepted that an implied agreement
exist[ed] between the [bank] and the plaintiff. Under
the agreement the [bank] [was] responsible for collect-
ing and holding funds in escrow and to disburse the
escrowed funds for payment of hazard insurance pre-
mium and tax obligations on behalf of the plaintiff when
they [became] due and payable. Each party undertook
their respective responsibilities continuously for ten
consecutive years. The [bank] breached its duty to the
plaintiff when it refused to pay the premium to [the
insurance company] to reinstate the hazard insurance
policy when payment was requested . . . .’’ We con-
clude that there was no special relationship between
the plaintiff and the bank which gave rise to such a
continuing duty.
‘‘Our appellate courts have not defined precisely what
constitutes a special relationship for purposes of tolling
because the existence of such a relationship will depend
on the circumstances that exist between the parties
and the nature of the claim at issue. Usually, such a
special relationship is one that is built upon a fiduciary
or otherwise confidential foundation. A fiduciary or
confidential relationship is characterized by a unique
degree of trust and confidence between the parties, one
of whom has superior knowledge, skill or expertise and
is under a duty to represent the interests of the other.
. . . The superior position of the fiduciary or dominant
party affords him great opportunity for abuse of the
confidence reposed in him. . . . Fiduciaries appear in
a variety of forms, including agents, partners, lawyers,
directors, trustees, executors, receivers, bailees and
guardians. . . . The fact that one [businessperson]
trusts another and relies on [that person] to perform [his
obligations] does not rise to the level of a confidential
relationship for purposes of establishing a fiduciary
duty. . . . [N]ot all business relationships implicate the
duty of a fiduciary. . . . In the cases in which this court
has, as a matter of law, refused to recognize a fiduciary
relationship, the parties were either dealing at arm’s
length, thereby lacking a relationship of dominance and
dependence, or the parties were not engaged in a rela-
tionship of special trust and confidence. . . . Accord-
ingly, a mere contractual relationship does not create
a fiduciary or confidential relationship.’’ (Internal quo-
tation marks omitted.) Medical Device Solutions, LLC
v. Aferzon, supra, 207 Conn. App. 761–62.
Furthermore, ‘‘[a]s a general matter, the law does not
impose a duty on lenders to use reasonable care in its
commercial transactions with borrowers because the
relationship between lenders and borrowers is contrac-
tual and loan transactions are conducted at arm’s
length.’’ Cenatiempo v. Bank of America, N.A., 333
Conn. 769, 808, 219 A.3d 767 (2019); see also Saint
Bernard School of Montville, Inc. v. Bank of America,
312 Conn. 811, 836, 95 A.3d 1063 (2014) (‘‘[g]enerally
there exists no fiduciary relationship merely by virtue
of a borrower-lender relationship between a bank and
its customer’’ (internal quotation marks omitted));
Southbridge Associates, LLC v. Garofalo, 53 Conn. App.
11, 19, 728 A.2d 1114 (‘‘[a] lender has the right to further
its own interest in a mortgage transaction and is not
under a duty to represent the customer’s interest’’),
cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).
Although the court found, for the purpose of deciding
the bank’s motion for summary judgment, ‘‘that an
implied in fact contract existed between the parties,’’
this court has held that ‘‘a mere contractual relationship
does not create a fiduciary or confidential relationship.’’
(Internal quotation marks omitted.) Medical Device
Solutions, LLC v. Aferzon, supra, 207 Conn. App. 762.
In the present case, the dealings between the bank
and the plaintiff did not establish a special or fiduciary
relationship between them giving rise to a continuing
duty. The relationship between the bank and the plain-
tiff lacked the unique degree of trust and confidence
found in a special or fiduciary relationship. See Id.,761–62. The transactions between the parties were con-
ducted at arm’s length. See Cenatiempo v. Bank of
America, N.A., supra, 333 Conn. 808. Furthermore, the
bank, as the servicer of the loan for CHFA, had a right
to further its own interests and therefore was under
no duty to represent the interests of the plaintiff. See
Southbridge Associates, LLC v. Garofalo, supra, 53
Conn. App. 19.
We therefore conclude that there was no genuine
issue of material fact regarding whether the bank owed
a continuing duty to the plaintiff, and thus that the court
did not err in concluding that the continuing course of
conduct doctrine could not apply to toll the statute of
limitations as to the plaintiff’s otherwise untimely
claims.
C
Finally, the plaintiff argues that the trial court improp-
erly concluded that the plaintiff’s claim of breach of
the covenant of good faith and fair dealing failed as a
matter of law. Specifically, the plaintiff contends that
a genuine issue of material fact existed as to whether
the bank acted in bad faith on the basis of the bank’s
refusal to pay the premium for the reinstated insurance
policy based upon its belief that the home was vacant.
We disagree.
In the plaintiff’s operative complaint, he alleged that
the inspection of the property indicated that the prop-
erty was in fact occupied, but the bank, nevertheless,
sent a letter to the insurance company stating that the
property may have been vacant. The plaintiff asserted
that these actions were taken in bad faith in order
to initiate the cancellation of the plaintiff’s insurance
policy and permit the bank to replace it with the more
expensive LPI policy.
In their motion for summary judgment, the bank
defendants argued that they were entitled to summary
judgment because the plaintiff could not demonstrate
that the bank had acted in bad faith. The bank defen-
dants asserted that they were entitled to order an
inspection of the property pursuant to the terms of the
mortgage. The bank defendants further asserted that
the inspection report did in fact indicate that the prop-
erty was vacant, and, thus, the bank was required, pur-
suant to servicing guidelines, to inform the insurance
company of this belief. Furthermore, according to the
bank defendants, the events that occurred after the
bank contacted the insurance company were the result
of the plaintiff’s failure to respond to its numerous let-
ters.
In the plaintiff’s objection to the motion for summary
judgment, the plaintiff argued that the bank had acted
in bad faith when it failed to pay the premium for the
plaintiff’s insurance policy in September, 2013, and
again in December, 2013. According to the plaintiff, the
bank became aware that the property was not vacant
on November 21, 2013, yet continued to assert, in bad
faith, that the house was vacant.
The court initially noted in its memorandum of deci-
sion that ‘‘for the purposes of deciding [the] motion,
the court will conclude that an implied in fact contract
existed between the parties.’’ The court, however, con-
cluded that no evidence was presented that established
that the bank had acted in bad faith. The court explained
that, contrary to the plaintiff’s assertion, the property
inspection report listed the status of the property as
‘‘partial vacant’’ and had a note stating ‘‘ ‘[v]acant/
[s]ecure/personal property visible/[e]lectric on/[f]or
rent posted.’ ’’ Furthermore, in the bank’s October 29,
2013 letter to the insurance company, the bank stated
that it believed that the property was vacant and was
therefore notifying the insurance company of a poten-
tial change of risk. The court concluded that the letter
provided no evidence of bad faith because the letter
clearly indicated uncertainty as to the occupancy status
of the property. The court also stated that the letters
sent by the bank to the borrowers indicated that the
bank was not acting in bad faith because the letters
stated that (1) the bank believed the property was
vacant, (2) the bank was required to inform the insur-
ance company of this belief, and (3) the borrowers
should contact the insurance company with information
regarding the occupancy status of the property.
As to the plaintiff’s argument that the bank failed to
pay the premium on his insurance policy in September,
2013, and December, 2013, the court concluded that
this argument was plainly contradicted by evidence pro-
vided by the bank. On September 18, 2013, the bank
disbursed funds to the insurance company in the
amount of $1547 for the annual premium on the insur-
ance policy. After that, under the incorrect belief that
the property was vacant, the insurance company issued
a refund check in the plaintiff’s name in the amount of
$1243 for the unearned portion of the premium. Upon
learning that the property was not in fact vacant, how-
ever, the insurance company reinstated the policy. The
insurance company then billed the plaintiff $1243
because the insurance company had issued the plaintiff
the refund check in that same amount for the unearned
portion of the premium. The insurance company’s activ-
ity list on December 27, 2013, shows that an agent of
the insurance company called the bank and asked why
the bill in the amount of $1243 had not been paid. The
agent noted that the bank claimed that the property
was vacant and required proof that it was occupied.
The agent further noted that she had called the plaintiff
and advised him to call the bank. The court determined
that this evidence did not show bad faith, but rather,
supported the bank’s position that the property was
vacant.
The court also concluded that the plaintiff’s own self-
serving affidavit, in which he averred that he had called
the bank on November 11, 2013 and informed it that
the property was not vacant, was insufficient to raise
a genuine issue of material fact on that issue.
Finally, the trial court concluded that the plaintiff’s
assertion that the bank had acted in bad faith was con-
tradicted by the fact that the bank had sent a letter to
the plaintiff on January 8, 2014, notifying the plaintiff
that the reinstated insurance policy had been cancelled,
that insurance was required per the terms of the mort-
gage, and that the bank would obtain insurance for
the property on behalf of the borrowers if proof of
acceptable coverage was not provided.
On the basis of the foregoing, the court concluded
that the plaintiff had failed to offer any concrete evi-
dence that the bank had acted in bad faith, and thus
it granted the bank defendants’ motion for summary
judgment.
On appeal, the plaintiff argues that the court erred
in concluding that there was not a genuine issue of
material fact as to whether the bank had acted in bad
faith. Specifically, the plaintiff argues that the bank’s
‘‘refusal to pay the lesser reinstatement premium to
[the insurance company] based on its original, refuted,
unfounded belief that [the plaintiff’s] home was vacant
was a deliberate action by [the bank] to create the
circumstances where it could purchase a forced placed
policy . . . .’’ (Emphasis omitted; internal quotation
marks omitted.) We disagree.
‘‘The relevant legal principles are well established.
[I]t is axiomatic that the . . . duty of good faith and
fair dealing is a covenant implied into a contract or a
contractual relationship. . . . In other words, every
contract carries an implied duty requiring that neither
party do anything that will injure the right of the other
to receive the benefits of the agreement. . . . The cove-
nant of good faith and fair dealing presupposes that the
terms and purpose of the contract are agreed upon
by the parties and that what is in dispute is a party’s
discretionary application or interpretation of a contract
term. . . . To constitute a breach of [the implied cove-
nant of good faith and fair dealing], the acts by which
a defendant allegedly impedes the plaintiff’s right to
receive benefits that he or she reasonably expected to
receive under the contract must have been taken in
bad faith. . . .
‘‘Bad faith has been defined in our jurisprudence in
various ways. Bad faith in general implies both actual
or constructive fraud, or a design to mislead or deceive
another, or a neglect or refusal to fulfill some duty or
some contractual obligation, not prompted by an honest
mistake as to one’s rights or duties, but by some inter-
ested or sinister motive. . . . Bad faith means more
than mere negligence; it involves a dishonest purpose.
. . . [B]ad faith may be overt or may consist of inaction,
and it may include evasion of the spirit of the bargain
. . . .’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) Landry v. Spitz, 102 Conn.
App. 34, 42–43, 925 A.2d 334 (2007). ‘‘[B]ad faith is
defined as the opposite of good faith, generally implying
a design to mislead or to deceive another, or a neglect
or refusal to fulfill some duty or some contractual obli-
gation not prompted by an honest mistake as to one’s
rights or duties . . . . [B]ad faith is not simply bad
judgment or negligence, but rather it implies the con-
scious doing of a wrong because of dishonest purpose
or moral obliquity . . . . [I]t contemplates a state of
mind affirmatively operating with furtive design or ill
will.’’ (Internal quotation marks omitted.) Hutchinson
v. Farm Family Casualty Ins. Co., 273 Conn. 33, 42
n.4, 867 A.2d 1 (2005). ‘‘Absent allegations and evidence
of a dishonest purpose or sinister motive, a claim for
breach of the implied covenant of good faith and fair
dealing is legally insufficient.’’ (Internal quotation
marks omitted.) Sidorova v. Board of Education, 158
Conn. App. 872, 892, 122 A.3d 656, cert. denied, 319
Conn. 911, 123 A.3d 436 (2015).
On the basis of our thorough review of the record,
we conclude that there was no genuine issue of material
fact as to whether the bank defendants acted in bad
faith. As the court explained in its thorough and well
reasoned memorandum of decision, there was no evi-
dence in the record demonstrating that the bank defen-
dants had acted in bad faith. Paragraph 9 of the mort-
gage agreement provides that ‘‘[i]f . . . [b]orrower
fails to perform the covenants and agreements con-
tained in this [s]ecurity [i]nstrument . . . then [l]ender
may do and pay for whatever is reasonable or appro-
priate to protect [l]ender’s interest in the [p]roperty
and rights under this [s]ecurity [i]nstrument, including
protecting and/or assessing the value of the [p]roperty,
and securing and/or repairing the [p]roperty.’’ Because
the borrowers became delinquent on their mortgage
payments, the bank conducted a property inspection
of the borrowers’ mortgaged property. The resulting
inspection report indicated that the property might be
vacant by a note stating: ‘‘[v]acant/[s]ecure/personal
property visible/[e]lectric on/[f]or rent posted.’’ The
bank then informed the insurance company that the
property ‘‘may be vacant.’’ The bank also sent numerous
letters to the plaintiff. These letters included (1) a letter
dated October 29, 2013, notifying the borrowers that it
had informed the insurance company that the property
‘‘may be vacant’’ and advising him to contact the insur-
ance company on that subject, (2) a letter dated October
30, 2013, advising the borrowers that if it did not receive
evidence of acceptable coverage it would obtain other
insurance on the borrowers’ behalf, (3) a letter dated
January 8, 2014, informing the borrowers of the cancel-
lation of the reinstated insurance policy, requesting that
they send it evidence of acceptable coverage, and
informing them that if such evidence was not received,
the bank would obtain other insurance for the property
on the borrowers’ behalf, (4) a letter dated January 13,
2014, to the same effect as the January 8, 2014 letter,
(5) a letter dated February 17, 2014, to the same effect
as both the January 8, 2014 and January 13, 2014 letters,
and (6) a letter dated April 2, 2014, informing the bor-
rowers that the bank had purchased the LPI policy and
billed the borrowers for the annual premium.
Although the plaintiff contends that there was a genu-
ine issue of material fact as to the issue of bad faith,
he points to no evidence supporting his claim that the
bank had acted in bad faith. As previously noted, ‘‘[b]are
assertions by the nonmovant are not enough to with-
stand summary judgment. . . . Although the party
seeking summary judgment has the burden of showing
the nonexistence of any material fact . . . a party
opposing summary judgment must substantiate its
adverse claim by showing that there is a genuine issue
of material fact together with the evidence disclosing
the existence of such an issue.’’ (Citation omitted; inter-
nal quotation marks omitted.) Macellaio v. Newington
Police Dept., 145 Conn. App. 426, 436–37, 75 A.3d 78(2013). We conclude that the plaintiff has failed to sub-
mit evidence sufficient to raise a genuine issue of mate-
rial fact as to his claim that the bank acted in bad faith.
The judgment and the postjudgment order enforcing
the settlement agreement are affirmed.
In this opinion the other judges concurred.
1
US Bank NA is a wholly owned subsidiary of US Bancorp. US Bancorp
and US Bank NA will be referred to collectively as the bank or the bank
defendants in this opinion.
2
Jane Kinity has never been a party to either the underlying action or
this appeal.
3
State Automobile Mutual Insurance Company is the parent company of
Patrons Mutual Insurance Company of Connecticut. State Automobile
Mutual Insurance Company and Patrons Mutual Insurance Company of
Connecticut will be referred to collectively as the insurance company or
the insurance company defendants in this opinion.
4
The insurance company defendants and the bank defendants are herein-
after, collectively, referred to as the defendants.
5
The plaintiff also lists, in his appellate brief, as a claim of error, the
court’s determination of the date this action commenced against the insur-
ance company defendants. Because we conclude that the court did not err
in granting the insurance company defendants’ motion to enforce settlement
agreement, we do not address this claim.
6
The borrowers also took out a loan with the Connecticut Housing Finance
Authority (CHFA) in the amount of $35,000, secured by a mortgage on
the property.
7
The insurance policy was in the plaintiff’s name alone. The policy covered
the period from October 3, 2013, to October 3, 2014.
8
The plaintiff maintains that he never received any notice from the bank
regarding the cancellation of his insurance policy and the purchase of the
LPI policy. The plaintiff, however, does not specifically deny receiving the
bank’s letters other than those sent on January 13, 2014, February 17, 2014,
and April 2, 2014, which he does specifically deny receiving.
9
The insurance company was not named as a defendant.
10
The bank’s settlement offer did not involve the insurance company.
11
Morgan explained that if the plaintiff qualified for loss mitigation, the
bank would modify the plaintiff’s mortgage terms to include his current
balance. In other words, the bank would essentially add the plaintiff’s debt
to the balance of the mortgage. Morgan emphasized, however, that there
was no guarantee the plaintiff would qualify for loss mitigation.
12
There is no writing memorializing the substance of this phone conversa-
tion.
13
The plaintiff attached to his objection to the bank’s motion to open
and vacate judgment what purports to be a return receipt, indicating that
correspondence was mailed and delivered to ‘‘US Bank Home Mortgage
Co.’’ on June 28 in Ohio. However, the return receipt was not attached to
the return of service filed by the marshal. Furthermore, the return date in
the original action was April 7, 2015. ‘‘US Bank Home Mortgage Co.’’ is a
trade name, not a legal entity. The court in the present action, in its memoran-
dum of decision granting the bank’s motion for summary judgment, found
that ‘‘[n]o return receipts were filed in the original action.’’ On appeal, the
plaintiff does not challenge this factual finding by the court, nor does he
argue that the return receipt creates a genuine issue of material fact as to
whether the bank had actual or effective notice of the original action by
way of receipt of the summons and complaint of the original action.
14
Practice Book § 17-45 (a) provides: ‘‘A motion for summary judgment
shall be supported by appropriate documents, including but not limited to
affidavits, certified transcripts of testimony under oath, disclosures, written
admissions and other supporting documents.’’
15
It is undisputed that if neither § 52-592 nor the continuing course of
conduct doctrine applies, the plaintiff’s CUTPA, fraud, negligent infliction
of emotional distress, and negligent misrepresentation claims are barred by
the applicable statutes of limitation.
16
There is no evidence in the record indicating how the bank became
aware of the default judgment entered against it. The court granted the
bank’s motion to open and vacate judgment ‘‘[b]ased upon the fact that the
address at which the defendant received notice of the judgment in this case
is different from the address listed in the return of service . . . .’’
17
The plaintiff also contends that the court failed to conduct a factual
inquiry into whether the bank had received actual or effective notice of the
original action. In so arguing, the plaintiff relies on Ruddock v. Burrowes,
243 Conn. 569, 576–77, 706 A.2d 967 (1998). Ruddock, however, provided
that ‘‘a plaintiff must be afforded an opportunity to make a factual showing
that the prior dismissal was a matter of form in the sense that the plaintiff’s
noncompliance with a court order occurred in circumstances such as mis-
take, inadvertence or excusable neglect.’’ (Internal quotation marks omit-
ted.) Id., 577. Ruddock requires that, where an action has been terminated
by way of a disciplinary dismissal, the court must afford a plaintiff, seeking
to bring a second action pursuant to § 52-592, the opportunity to make a
factual showing that the disciplinary dismissal was a ‘‘matter of form’’ as
required by § 52-592. See id., 576–77.
In the present case, the original action was not terminated by way of a
disciplinary dismissal. Here, the plaintiff had the opportunity, in its opposi-
tion to the defendants’ motion for summary judgment, to present evidence,
via affidavits or other supporting documents, to demonstrate the existence
of a genuine issue of material fact as to actual or effective notice. If he had
presented such evidence, the plaintiff could have defeated the defendants’
motions for summary judgment. In the absence of any such evidence, how-
ever, the plaintiff failed to meet his burden. The plaintiff’s reliance on
Ruddock is therefore unavailing.
18
To the extent that the plaintiff argues that General Statutes § 52-593
applies to save his CUTPA, fraud, negligent infliction of emotional distress,
and negligent misrepresentation claims, we decline to review this argument
because it was not raised before the trial court and therefore is not properly
preserved. See Murphy v. EAPWJP, LLC, 306 Conn. 391, 399, 50 A.3d 316(2012) (‘‘[i]t is well established that a claim must be distinctly raised at trial
to be preserved for appeal’’).