Kellogg v. Middlesex Mutual Assurance Co.

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SALLY KELLOGG v. MIDDLESEX MUTUAL
ASSURANCE COMPANY
(AC 43421)
Moll, Alexander and Flynn, Js.
Syllabus
The plaintiff sought to recover damages from the defendant insurance com-
pany for breach of contract, a violation of the Connecticut Unfair Trade
Practices Act (CUTPA) (§ 42-110a et seq.) arising from a violation of
the Connecticut Unfair Insurance Practices Act (CUIPA) (§ 38a-815 et
seq.), and promissory estoppel, in connection with a restorationist insur-
ance policy issued by the defendant. The plaintiff, the owner of a historic
property, had filed a claim pursuant to that policy for loss to her property
resulting from a tree falling on her home during a storm. In a prior
action, the plaintiff sought to vacate an arbitration award setting the
amount of the insured loss to her property. The trial court in that action,
Tierney, J., granted the plaintiff’s application to vacate the arbitration
award on the basis that it violated the applicable statute (§ 52-418). In
the defendant’s appeal from that judgment, Kellogg v. Middlesex Mutual
Assurance Co. (326 Conn. 638), our Supreme Court reversed Judge
Tierney’s decision and remanded the case with direction to render judg-
ment denying the plaintiff’s application to vacate the arbitration award,
concluding, inter alia, that Judge Tierney had improperly substituted
his judgment for that of the appraisal panel that had decided the amount
of the loss. In the present action, commenced during the pendency of
the appeal from Judge Tierney’s decision, the defendant filed a motion
to dismiss the plaintiff’s amended complaint, claiming that, in light of
the pending appeal, this action was not ripe or, alternatively, was barred
pursuant to the prior pending action doctrine. The trial court, Heller,
J., denied the defendant’s motion to dismiss. The defendant filed a
motion for summary judgment on the plaintiff’s second revised and
amended complaint, in which it argued that the breach of contract claim
was barred pursuant to the doctrine of res judicata and the suit limitation
provision of the restorationist policy, the CUTPA/CUIPA claim was time
barred and failed as a matter of law, and the promissory estoppel claim
was barred pursuant to the suit limitation provision of the policy and
failed as a matter of law. The trial court, Hernandez, J., denied the
defendant’s motion for summary judgment, relying entirely on Judge
Tierney’s findings in his decision granting the plaintiff’s application to
vacate the arbitration award in the prior proceeding, even though that
decision already had been reversed by our Supreme Court, and on Judge
Heller’s denial of the defendant’s motion to dismiss, pursuant to the
law of the case doctrine. On the defendant’s appeal to this court, held:
1. Contrary to the plaintiff’s claim, this court had subject matter jurisdiction
to consider the denial of the defendant’s motion for summary judgment
in its entirety as an appealable final judgment: the trial court relied on
the same rationale in rejecting all of the defendant’s claims raised in its
motion for summary judgment, and, consequently, all of the defendant’s
claims were inextricably intertwined.
2. The trial court erred in denying the defendant’s motion for summary
judgment, as that court improperly relied on Judge Tierney’s findings
and Judge Heller’s ruling: the law of the case doctrine did not apply to
Judge Tierney’s findings, as they were made in a decision issued in
a separate matter concerning the plaintiff’s application to vacate the
arbitration award, and, even if the law of the case doctrine were applica-
ble, Judge Tierney’s findings became a nullity in light of our Supreme
Court’s reversal of Judge Tierney’s decision in Kellogg v. Middlesex
Mutual Assurance Co.; moreover, the court’s reliance on Judge Heller’s
denial of the defendant’s motion to dismiss was improper because the
motion to dismiss and the motion for summary judgment concerned
wholly separate claims and involved different legal standards; further-
more, under the circumstances of this case, the appropriate remedy
was for this court to remand the case for further proceedings and to
provide the defendant with another opportunity to pursue its motion
for summary judgment, rather than for this court to delve into the merits
of the defendant’s claims.
Argued September 20, 2021—officially released March 22, 2022
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the trial court, Hernandez, J., denied the defen-
dant’s motion for summary judgment on the plaintiff’s
second revised and amended complaint, and the defen-
dant appealed to this court. Reversed; further proceed-
ings.
Kathleen F. Adams, with whom, on the brief, was
Peter J. Ponziani, for the appellant (defendant).
Frank W. Murphy, for the appellee (plaintiff).
Opinion
MOLL, J. The defendant, Middlesex Mutual Assur-
ance Company, appeals from the judgment of the trial
court denying its motion for summary judgment on the
second revised and amended complaint filed by the
plaintiff, Sally Kellogg, in which she raised claims of
breach of contract, a violation of the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq., arising from a violation of the Connecticut
Unfair Insurance Practices Act (CUIPA), General Stat-
utes § 38a-815 et seq., and promissory estoppel. On
appeal, the defendant claims that the court improperly
denied its motion for summary judgment because (1)
the breach of contract claim was barred pursuant to
(a) the doctrine of res judicata and (b) the suit limitation
provision of a ‘‘restorationist’’ property insurance policy
issued by the defendant, (2) the CUTPA/CUIPA claim
(a) was barred pursuant to General Statutes § 42-110g
(f), the applicable statute of limitations, and (b) failed
as a matter of law, and (3) the promissory estoppel
claim (a) was barred pursuant to the suit limitation
provision of the policy and (b) failed as a matter of
law. We reverse the judgment of the trial court.
The following facts, as set forth by our Supreme Court
in a prior decision addressing a separate matter involv-
ing the parties, and procedural history are relevant to
our resolution of this appeal. ‘‘The plaintiff . . . is the
owner of a historic property in the city of Norwalk
(property). She insured the property through a ‘[r]esto-
rationist’ policy issued by the defendant . . . . This
restorationist policy was different from a typical home-
owners policy in that it had no monetary policy limit,
and it covered the replacement or restoration cost of
the property without deduction for depreciation. Under
the policy, payment of the full restoration cost would
not be immediate, but would be made in two parts,
with depreciation initially withheld. The policy required
the defendant to first pay the actual cash value of the
loss. Once the restoration or replacement was com-
plete, the policy required the defendant to pay the
amount ‘actually spent to repair, restore or replace the
damaged building.’ This two step process is typical in
replacement cost policies, intended to address con-
cerns that a homeowner might accept the full restora-
tion cost but not actually restore the property, thus
receiving a windfall.
‘‘While the restorationist policy was in effect [in
2010], the property suffered a casualty loss when a four
and one-half ton tree fell onto the roof and chimney
during a storm, damaging the interior, exterior, and
foundation of the home. Shortly after the incident, the
plaintiff filed a claim on her restorationist policy.
Because the plaintiff’s and the defendant’s adjusters
were unable to agree on the amount of the loss, the
plaintiff invoked the policy’s appraisal provision.1 That
provision required the loss amount to be determined
through an unrestricted arbitration proceeding, mean-
ing that the arbitrators are empowered to decide issues
of law and fact, and the award is not conditioned on
judicial review. . . .
‘‘To establish the appraisal panel, the plaintiff and
the defendant, pursuant to the restorationist policy,
each appointed one appraiser to serve as an arbitrator,
and these two appraisers chose a neutral third arbitrator
to act as an umpire. The appraisers each independently
set the loss and submitted their valuations to the
umpire. The plaintiff’s appraiser claimed the damage
was in excess of $1.6 million, but the defendant’s
appraiser believed the property could be restored for
approximately $476,000. The appraisers fundamentally
disagreed on two issues: the extent of damage caused
by the tree, and the cost to repair the covered damage.
The defendant’s appraiser believed not all of the
claimed damage was related to the incident and that
much of the damage that was related could be fixed
for less than the plaintiff’s appraiser had claimed. The
umpire evaluated the differences between the two
appraisers’ submissions and set the loss, which was an
amount between the two submissions. Before setting
the loss, the umpire visited the property seven times
to evaluate the damage to the building and its contents.
The umpire also reviewed and considered more than
300 pages of the plaintiff’s submissions. He conducted
hearings with multiple witnesses, including two asbes-
tos abatement experts and a property damage expert.
He also reviewed written submissions from other
experts and consultants, all of which he considered
when determining the award. On certain items, the
umpire agreed with the valuations of the plaintiff’s
appraiser, and on other items he agreed with the defen-
dant’s appraiser. He then gave both appraisers his pre-
liminary assessment of the loss and gave them an oppor-
tunity to challenge his assessment and to advocate for
their respective positions.
‘‘The defendant’s appraiser accepted the umpire’s val-
uation, which became the appraisal panel’s decision on
the amount of the loss, and the panel issued its arbitra-
tion award in two parts: first, it awarded $578,587.64
for ‘replacement or restoration cost’ of the building on
the property, which the panel depreciated to its actual
cash value of $460,170.16, with the difference withheld
until the plaintiff completed repairs, and, second, the
panel later awarded an additional $79,731.68 for the
actual cash value loss to the plaintiff’s personal prop-
erty.’’ (Citation omitted; footnote added and footnotes
omitted.) Kellogg v. Middlesex Mutual Assurance Co.,
326 Conn. 638, 640–43, 165 A.3d 1228 (2017).
In September, 2013, the plaintiff filed in the Superior
Court an application to vacate the arbitration award
pursuant to General Statutes § 52-418.2 Id., 643; see Kel-
logg v. Middlesex Mutual Assurance Co., Superior
Court, judicial district of Stamford-Norwalk, Docket
No. CV-XX-XXXXXXX-S. On February 5, 2016, following
eight days of trial, the trial court, Hon. Kevin Tierney,
judge trial referee, granted the application to vacate the
award and remanded the matter for a new arbitration
hearing on the basis of its conclusion that the award
violated § 52-418 (a) in two ways. Kellogg v. Middlesex
Mutual Assurance Co., supra, 326 Conn. 643–44. First,
‘‘[r]elying on a valuation based on its own conclusions,’’
the court determined that the amount of the award was
insufficient, thereby prejudicing the plaintiff’s ‘‘ ‘sub-
stantial monetary rights’ ’’ in violation of § 52-418 (a)
(3). Id., 644–45. In support of its analysis, ‘‘[t]he court
identified thirty-four instances in which the plaintiff
had claimed damage to a specific portion of the property
and the [appraisal] panel awarded less than the plaintiff
had requested, sometimes awarding nothing at all.’’ Id.,
644. Second, the court concluded that the award
reflected a manifest disregard of the law in violation
of § 52-418 (a) (4). Id., 645. ‘‘More specifically, the court
concluded, based on its own interpretation of the [resto-
rationist] policy language, that the panel’s decision
‘[was] in obvious error’ when it calculated depreciation
in a policy that ‘provides for no depreciation . . . .’ ’’
Id. On February 19, 2016, the defendant appealed from
Judge Tierney’s decision to this court, and, subse-
quently, our Supreme Court transferred the appeal to
itself pursuant to General Statutes § 51-199 (c) and Prac-
tice Book § 65-1 (appraisal appeal). Id.
On March 7, 2016, less than one month after the
defendant had filed the appraisal appeal, the plaintiff
commenced the present action against the defendant.
The plaintiff’s original complaint set forth six counts:
breach of contract (count one); breach of the covenant
of good faith and fair dealing (count two); negligence3
(count three); a CUTPA/CUIPA claim4 (count four); neg-
ligent infliction of emotional distress (count five); and
promissory estoppel (count six). By way of an amended
complaint filed on April 14, 2016, the plaintiff added a
seventh count asserting a separate CUTPA violation
untethered to CUIPA (count seven). In support of all
of her claims, the plaintiff alleged, inter alia, that the
defendant had failed to compensate her adequately for
the damage caused to the property and to properly
implement the terms of the restorationist policy.
On April 27, 2016, the defendant filed a motion to
dismiss the plaintiff’s amended complaint, claiming
that, in light of the appraisal appeal pending at the time,
the present action was (1) not ripe or, alternatively, (2)
barred pursuant to the prior pending action doctrine.
On November 7, 2016, the court, Heller, J., denied the
motion to dismiss. The court first rejected the defen-
dant’s ripeness argument, determining ‘‘that the plain-
tiff’s claims in this action were not before the appraisal
. . . panel. They are independent of the claims asserted
in the proceeding to vacate the [arbitration] award,
and they are not contingent on the outcome of the
[appraisal] appeal . . . . They are ripe for adjudica-
tion, and, therefore, they are justiciable.’’ The court
then rejected the defendant’s claim invoking the prior
pending action doctrine, concluding that a pending
appeal is not a prior pending action.
On August 22, 2017, while the present action was
pending, our Supreme Court issued a decision in the
appraisal appeal concluding that Judge Tierney improp-
erly had vacated the arbitration award because (1) his
disagreement with the amount of the award did ‘‘not
establish that the arbitrators violated § 52-418 (a) (3)
and was not a proper ground for vacating the arbitration
award,’’ and (2) the appraisal panel did not manifestly
disregard the law in violation of § 52-418 (a) (4). Kellogg
v. Middlesex Mutual Assurance Co., supra, 326 Conn.
647–51. Accordingly, our Supreme Court reversed Judge
Tierney’s decision and remanded the case with direc-
tion to deny the plaintiff’s application to vacate the
award. Id., 651.
In the present action, on August 17, 2018, the plaintiff
filed a second revised and amended complaint (i.e., the
operative complaint). Following rulings by the court,
Jacobs, J., adjudicating motions to strike filed by the
defendant, the second revised and amended complaint
(1) reasserted counts one and six, (2) repleaded count
four, and (3) intentionally left blank counts two, three,
five, and seven to preserve the plaintiff’s rights to appel-
late review.5
On August 24, 2018, the defendant filed a motion
for summary judgment accompanied by a supporting
memorandum of law and exhibits. With respect to count
one, the defendant argued that the plaintiff’s breach of
contract claim was barred pursuant to (1) the doctrine
of res judicata and (2) the suit limitation provision of
the restorationist policy.6 With respect to count four,
the defendant contended that (1) the plaintiff’s CUTPA/
CUIPA claim was time barred pursuant to § 42-110g (f),
and (2) the plaintiff did not have an actionable CUTPA/
CUIPA claim because the defendant did not make any
misrepresentations regarding coverage afforded under
the policy. With respect to count six, the defendant
asserted that (1) the plaintiff’s promissory estoppel
claim was barred pursuant to the suit limitation provi-
sion of the policy, (2) the policy constituted a written
enforceable contract between the parties, thereby bar-
ring the promissory estoppel claim, and (3) the plaintiff
could not establish the elements of a promissory estop-
pel claim. On October 12, 2018, the plaintiff filed a
memorandum of law in opposition to the motion for
summary judgment, with accompanying exhibits. On
October 25, 2018, the defendant filed a reply brief.7
On February 4, 2019, after having heard argument
from the parties, the court, Hernandez, J., denied the
defendant’s motion for summary judgment, summarily
determining that ‘‘genuine issues as to material facts
exist.’’ On March 1, 2019, the defendant filed a motion
for reargument and/or reconsideration as to the court’s
denial of its motion for summary judgment. On March
29, 2019, the plaintiff filed an objection. On September
13, 2019, after having heard argument from the parties,
the court issued an order adhering to its decision. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
I
As a threshold matter, we consider whether the denial
of the defendant’s motion for summary judgment is
an appealable final judgment. ‘‘The jurisdiction of the
appellate courts is restricted to appeals from judgments
that are final. . . . The policy concerns underlying the
final judgment rule are to discourage piecemeal appeals
and to facilitate the speedy and orderly disposition of
cases at the trial court level. . . . The appellate courts
have a duty to dismiss, even on [their] own initiative,
any appeal that [they lack] jurisdiction to hear. . . .
We therefore must always determine the threshold
question of whether the appeal is taken from a final
judgment before considering the merits of the claim.’’
(Citations omitted; internal quotation marks omitted.)
Wolfork v. Yale Medical Group, 335 Conn. 448, 459, 239
A.3d 272 (2020).
We begin by setting forth the following relevant pro-
cedural history. On October 2, 2019, the plaintiff filed
a motion to dismiss this appeal for lack of a final judg-
ment, and, in turn, the defendant filed an objection. On
January 8, 2020, this court denied the motion to dismiss
without comment. In their respective appellate briefs
filed between September and December, 2020, the par-
ties again addressed the finality of judgment question.
Thereafter, on August 25, 2021, prior to hearing oral
argument in this matter, we sua sponte ordered the
parties to file supplemental briefs ‘‘addressing, sepa-
rately as to each claim, whether or not the trial court’s
denial of the defendant’s motion for summary judgment
with respect to (1) the policy’s contractual limitation,
(2) the plaintiff’s promissory estoppel claim, and (3)
the plaintiff’s CUTPA/CUIPA claim is ‘inextricably inter-
twined’ with the court’s denial of the motion on res
judicata grounds. See Santorso v. Bristol Hospital, 308
Conn. 338, 354 n.9, [63 A.3d 940] (2013).’’ The parties
submitted supplemental briefs in compliance with
our order
Notwithstanding that this court denied the plaintiff’s
motion to dismiss this appeal for lack of a final judg-
ment, ‘‘we may choose to reevaluate the jurisdictional
question at this juncture. See, e.g., Governors Grove
Condominium Assn., Inc. v. Hill Development Corp.,
187 Conn. 509, 511 and n.6, 446 A.2d 1082 (1982), over-
ruled on other grounds by Morelli v. Manpower, Inc.,
226 Conn. 831, 628 A.2d 1311 (1993); Barry v. Historic
District Commission, 108 Conn. App. 682, 687 n.2, 950
A.2d 1, cert. denied, 289 Conn. 943, 959 A.2d 1008 (2008),
and cert. denied, 289 Conn. 942, 959 A.2d 1008 (2008);
Rocque v. Sound Mfg., Inc., 76 Conn. App. 130, 132 n.3,
818 A.2d 884, cert. denied, 263 Conn. 927, 823 A.2d 1217(2003); Groesbeck v. Sotire, 1 Conn. App. 66, 67–68, 467
A.2d 1245 (1983).’’ Village Mortgage Co. v. Veneziano,
203 Conn. App. 154, 165, 247 A.3d 588 (2021). Following
a review of the case upon full briefing and oral argu-
ment, we conclude that it is prudent to revisit the issue
and to reaffirm that we have subject matter jurisdiction
to consider the denial of the defendant’s motion for
summary judgment in its entirety.
‘‘[O]rdinarily, the denial of a motion for summary
judgment is not an appealable final judgment. . . .
When the decision on a motion for summary judgment,
however, is based on the doctrine of collateral estoppel,
the denial of that motion does constitute a final judg-
ment for purposes of appeal. . . . That precept applies
to the doctrine of res judicata with equal force.’’ (Inter-
nal quotation marks omitted.) Deutsche Bank AG v.
Sebastian Holdings, Inc., 174 Conn. App. 573, 578 n.4,
166 A.3d 716 (2017), aff’d, 331 Conn. 379, 204 A.3d 664(2019). Accordingly, insofar as the defendant appeals
from the denial of its motion for summary judgment
on count one vis-à-vis the doctrine of res judicata, we
conclude that this appeal is jurisdictionally sound.
In its motion for summary judgment, the defendant
did not contend that counts four and six were barred
pursuant to the doctrine of res judicata; rather, the
defendant argued that (1) count four (a) was time
barred pursuant to § 42-110g (f), and (b) failed as a
matter of law, and (2) count six (a) was barred pursuant
to the suit limitation provision of the restorationist pol-
icy and (b) failed as a matter of law. The defendant
also argued that the suit limitation provision of the
policy barred count one. The defendant maintains these
claims on appeal. Additional analysis is necessary to
determine whether we have subject matter jurisdiction
over these claims.
‘‘[A]lthough normally the court’s denial of a motion
for summary judgment on grounds other than those
that fully conclude the rights of the parties would not
be considered a final judgment for appeal purposes, if
summary judgment is sought primarily on the basis of
res judicata . . . but the movants move unsuccessfully
for summary judgment on an alternative ground as well,
the court may review the denial of such a claim along
with the denial of the res judicata defense when the
two are inextricably intertwined with one another.’’
Girolametti v. Michael Horton Associates, Inc., 173
Conn. App. 630, 648, 164 A.3d 731 (2017), aff’d, 332
Conn. 67, 208 A.3d 1223 (2019); see also Santorso v.
Bristol Hospital, supra, 308 Conn. 354 n.9 (claim regard-
ing denial of statute of limitations defense reviewable
when inextricably intertwined with claim regarding
denial of res judicata defense).
Although it did not address a res judicata claim, we
are guided by our Supreme Court’s decision in Collins
v. Anthem Health Plans, Inc., 266 Conn. 12, 836 A.2d
1124 (2003). In Collins, the plaintiffs, several orthopedic
surgeons and groups of orthopedic surgeons, brought
an action claiming breach of contract, tortious interfer-
ence with business expectations, and a violation of
CUTPA on the basis of allegations that the defendant,
among other things, had failed to pay adequately for
medical procedures pursuant to the terms of written
agreements executed between the parties. Id., 16–17.
Subsequently, the plaintiffs filed a motion for class certi-
fication, which the trial court granted only as to three
subparagraphs of factual allegations contained in the
plaintiffs’ complaint that were alleged in support of
each of the plaintiffs’ claims. Id., 20. The defendant
appealed from the class certification order to this court,
and our Supreme Court transferred the appeal to itself
pursuant to § 51-199 (c) and Practice Book § 65-1.8 Id.,
16 n.1.
Before reaching the merits of the defendant’s claims
in Collins, our Supreme Court considered whether it
had subject matter jurisdiction to entertain the portion
of the appeal challenging the class certification order
vis-à-vis the plaintiffs’ non-CUTPA counts. Id., 28. The
court determined that, by statute, an order granting
class certification for an action brought pursuant to
CUTPA was subject to immediate appellate review, and,
therefore, ‘‘there [was] no question about the appeal-
ability of the CUTPA counts . . . .’’ Id., 29; see General
Statutes § 42-110h. The court further concluded that it
would review the defendant’s claims as to the non-
CUTPA counts pursuant to the ‘‘inextricably inter-
twined’’ rationale. Collins v. Anthem Health Plans, Inc.,
supra, 266 Conn. 29. As the court explained: ‘‘[T]he trial
court granted class certification with respect to three
subparagraphs of the plaintiffs’ complaint that con-
tained factual allegations supporting each count of the
complaint; and the certification order did not differenti-
ate among, or even address, the individual counts of
the complaint. Therefore, in a realistic, if not a formal,
sense, our analysis of the court’s class certification
order would apply to all counts of the complaint,
because each count depends upon the same factual
issues certified for class representation in the court’s
order. Any restriction of our review of this class certifi-
cation order with respect to the CUTPA count would,
therefore, be purely hypothetical. Consequently, we
conclude that where, as here, the factual and legal bases
of the class certification issues do not differ among the
CUTPA and [non-CUTPA] claims, and where they are,
therefore, inextricably intertwined with each other, our
conclusions regarding the class certification of the
CUTPA counts will, as a matter of law, govern the class
certification of the [non-CUTPA] counts as well.’’
(Emphasis in original.) Id., 30.
We consider the circumstances in this case to be
comparable to Collins. As we will discuss in detail in
part II of this opinion, in denying the defendant’s motion
for summary judgment, the trial court did not separately
address each of the defendant’s claims; rather, it denied
the motion for summary judgment in toto on the basis
of its reliance on (1) Judge Tierney’s findings in his
decision granting the plaintiff’s application to vacate
the arbitration award and (2) Judge Heller’s denial of the
defendant’s motion to dismiss the plaintiff’s amended
complaint. In other words, the court relied on the same
rationale in rejecting all of the defendant’s claims raised
in its motion for summary judgment, including its res
judicata defense directed to count one. As such, our
analysis as to the defendant’s res judicata claim is
equally applicable to the rest of its claims, and, conse-
quently, we deem all of the defendant’s claims to be
inextricably intertwined. As in Collins, restricting our
review on appeal to the defendant’s res judicata claim
would be ‘‘purely hypothetical.’’ Id.; cf. Rockwell v.
Rockwell, 196 Conn. App. 763, 772–73, 230 A.3d 889(2020) (denial of so-called ‘‘motion to dismiss and/or
motion for summary judgment’’ raising statute of limita-
tions defense was not inextricably intertwined with
denial of motion for summary judgment predicated on
doctrines of res judicata and/or collateral estoppel
when claims were presented in two separate motions
and no ‘‘meaningful connection’’ was discerned
between claims). Accordingly, we conclude that we
have subject matter jurisdiction to consider all of the
defendant’s claims on appeal directed to the trial court’s
denial of its motion for summary judgment.
II
With respect to the merits of this appeal, the defen-
dant claims that the trial court improperly denied its
motion for summary judgment. For the reasons that
follow, we conclude that the court committed error in
denying the motion for summary judgment and that, as
a result, the denial of the motion for summary judgment
must be reversed and the matter must be remanded for
further proceedings.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . The party moving for
summary judgment has the burden of showing the
absence of any genuine issue of material fact and that
the party is, therefore, entitled to judgment as a matter
of law. . . . On appeal, we must determine whether
the legal conclusions reached by the trial court are
legally and logically correct and whether they find sup-
port in the facts set out in the memorandum of decision
of the trial court.’’ (Internal quotation marks omitted.)
Deutsche Bank AG v. Sebastian Holdings, Inc., supra,174 Conn. App. 578–79. Accordingly, we exercise ple-
nary review over the court’s denial of the defendant’s
motion for summary judgment. Id., 579.
In a decision issued on July 31, 2020, further articulat-
ing its rationale for denying the defendant’s motion for
summary judgment,9 the court briefly summarized (1)
Judge Tierney’s decision granting the plaintiff’s applica-
tion to vacate the arbitration award, (2) our Supreme
Court’s decision in Kellogg v. Middlesex Mutual Assur-
ance Co., supra, 326 Conn. 638, reversing Judge Tier-
ney’s decision, and (3) Judge Heller’s denial of the
defendant’s motion to dismiss the plaintiff’s amended
complaint. Thereafter, the court determined that ‘‘[t]he
law of the case in this action precludes a finding that
there exist no triable issues of fact with respect to
[counts one, four, and six of the plaintiff’s second
revised and amended complaint].’’ Specifically, relying
entirely on Judge Tierney’s findings and Judge Heller’s
ruling,10 the court concluded that (1) counts one, four,
and six ‘‘state[d] viable causes of action,’’ (2) counts
one, four, and six ‘‘were not before the appraisal . . .
panel, and, therefore, were not before [our] Supreme
Court [in the appraisal appeal],’’ and (3) ‘‘the evidence
[that] resulted in the factual findings of Judge Tierney
[in his decision granting the plaintiff’s application to
vacate the award], if presented at trial, would present
material issues of fact regarding [counts one, four, and
six].’’ With regard to Judge Tierney’s findings, the court
explained that Judge Tierney had ‘‘recognized the his-
toric and unique nature of the subject property, the
sweeping promises contained in the restorationist pol-
icy and identified thirty-four instances in which the
defendant failed to pay the plaintiff under the policy
for the dwelling or its contents. . . . These findings
set forth the manner in which the defendant allegedly
failed to carry out the terms of its sweeping policy [that]
it marketed to the plaintiff. As such, those findings raise
justiciable factual issues regarding [counts one, four,
and six].’’ (Citation omitted.) Although the court
acknowledged that Judge Tierney’s decision had been
reversed by our Supreme Court in Kellogg v. Middlesex
Mutual Assurance Co., supra, 326 Conn. 638, it deter-
mined that (1) Judge Tierney’s findings were not before
our Supreme Court in the appraisal appeal, (2) our
Supreme Court reversed Judge Tierney’s judgment
vacating the award only on procedural grounds, and
(3) our Supreme Court’s decision did not invalidate any
of Judge Tierney’s findings.
The defendant claims that, in denying its motion for
summary judgment, the court improperly relied on (1)
Judge Tierney’s findings in his decision granting the
plaintiff’s application to vacate the arbitration award
and (2) Judge Heller’s denial of its motion to dismiss.
We agree.
Before addressing the merits of the defendant’s
claims, we note that the court’s reliance on Judge Tier-
ney’s findings and Judge Heller’s ruling stemmed from
its application of the law of the case doctrine. ‘‘The law
of the case doctrine expresses the practice of judges
generally to refuse to reopen what has been decided
and is not a limitation on their power. . . . Where a
matter has previously been ruled upon interlocutorily,
the court in a subsequent proceeding in the case may
treat that decision as the law of the case . . . . [T]he
law of the case doctrine does not preclude a judge
from deciding an issue in a way contrary to how it was
decided by a predecessor judge in the same case. . . .
[It] provides that judges may treat a prior ruling as the
law of the case if they agree with the determination.
He or she may, however, decide the issue differently if
he or she is convinced that the prior decision is wrong.’’
(Citation omitted; internal quotation marks omitted.)
Sullivan v. Thorndike, 137 Conn. App. 223, 227–28, 48
A.3d 130 (2012).
A
We first address the defendant’s claim that the court
committed error in predicating its denial of the defen-
dant’s motion for summary judgment on Judge Tierney’s
findings in his decision granting the plaintiff’s applica-
tion to vacate the arbitration award because Judge Tier-
ney’s decision was reversed by our Supreme Court in
Kellogg v. Middlesex Mutual Assurance Co., supra, 326
Conn. 638. We conclude that the court’s reliance on
Judge Tierney’s findings was improper.
Initially, we observe that the court incorrectly deter-
mined that Judge Tierney’s findings were subject to the
law of the case doctrine in this matter. At a minimum,
‘‘[t]he law of the case doctrine applies only to subse-
quent proceedings in the same case.’’ (Emphasis in
original.) Forte v. Citicorp Mortgage, Inc., 66 Conn.
App. 475, 481, 784 A.2d 1024 (2001). Thus, the law of the
case doctrine did not apply to Judge Tierney’s findings,
which were made in a decision issued in a separate
matter concerning the plaintiff’s application to vacate
the arbitration award.
Even if the law of the case doctrine were applicable,
the court erred in basing its denial of the motion for
summary judgment on Judge Tierney’s findings in light
of our Supreme Court’s reversal of Judge Tierney’s deci-
sion in Kellogg v. Middlesex Mutual Assurance Co.,
supra, 326 Conn. 638. ‘‘[W]e note that, [i]f a judgment
is set aside on appeal, its effect is destroyed and the
parties are in the same condition as before it was ren-
dered.’’ (Internal quotation marks omitted.) Hospital
Media Network, LLC v. Henderson, 209 Conn. App. 395,
409, A.3d (2021). As such, factual findings set
forth in a judgment that has been unconditionally
reversed have no precedential value. See, e.g., id.,410–11 (trial court acted within scope of remand order
by making independent factual findings on basis of
entire record when prior judgment was reversed and
matter was remanded for new hearing in damages); cf.
Fazio v. Fazio, 199 Conn. App. 282, 287, 289–90, 235
A.3d 687 (prior finding of cohabitation was binding on
trial court on remand when that finding was not chal-
lenged in prior appeal and this court in prior appeal,
instead of remanding for new trial, issued ‘‘limited
remand’’ directing trial court ‘‘ ‘to determine the intent
of the parties after consideration of all the available
extrinsic evidence and the circumstances surrounding
the entering of the [separation] agreement’ ’’), cert.
denied, 335 Conn. 963, 239 A.3d 1213 (2020).
In Kellogg v. Middlesex Mutual Assurance Co., supra,326 Conn. 638, our Supreme Court reversed Judge Tier-
ney’s decision in full and remanded the matter with
direction to deny the plaintiff’s application to vacate
the arbitration award. Id., 651. The court’s decision
rested on its conclusion that Judge Tierney improperly
substituted his judgment for that of the appraisal panel
and failed to properly defer to the panel. Id., 640, 645,
647–51. As the court explained, ‘‘[w]hen considering a
motion to vacate an unrestricted arbitration award, a
trial court should not substitute its judgment for that
of the arbitrators. . . . When the scope of the submis-
sion is unrestricted, the resulting award is not subject
to de novo review even for errors of law so long as the
award conforms to the submission. . . . In other
words, [u]nder an unrestricted submission, the arbitra-
tors’ decision is considered final and binding; thus, the
courts will not review the evidence considered by the
arbitrators nor will they review the award for errors
of law or fact.’’ (Emphasis omitted; internal quotation
marks omitted.) Id., 645–46.
Put simply, Judge Tierney’s findings became a nullity
as a result of Kellogg. It follows that the court erred in
relying on Judge Tierney’s findings to deny the defen-
dant’s motion for summary judgment.
B
The defendant also claims that, in denying its motion
for summary judgment, the court improperly relied on
Judge Heller’s denial of its motion to dismiss the plain-
tiff’s amended complaint notwithstanding that its
motion to dismiss and its motion for summary judgment
concerned wholly separate claims. We agree.
First, as posited by the defendant, the motion to dis-
miss and the motion for summary judgment raised dis-
tinct claims. In its motion to dismiss, the defendant
asserted that the present action was (1) not ripe or,
alternatively, (2) barred pursuant to the prior pending
action doctrine. In contrast, the defendant’s motion for
summary judgment was predicated on, among others,
a res judicata defense.
Additionally, ‘‘[a] trial court applies different princi-
ples and a different analysis when ruling on a motion to
dismiss as opposed to a motion for summary judgment.’’
Henderson v. Lagoudis, 148 Conn. App. 330, 339, 85
A.3d 53 (2014). ‘‘Whereas a motion to dismiss is decided
only on the allegations in the complaint and the facts
implied from those allegations, summary judgment is
decided by looking at all of the pleadings, affidavits
and documentary evidence presented to the court in
support of the motion. The latter standard, therefore,
takes account of the facts that have been developed
through discovery, rather than merely relying on the
plaintiffs’ allegations at the outset of the action.’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 340. In short, the law of the case doctrine is inappli-
cable to the circumstances of this case. See Sidorova
v. East Lyme Board of Education, 158 Conn. App. 872,
878–79 n.7, 122 A.3d 656 (rejecting claim that denial of
motion to dismiss and denial in part of motion to strike,
directed to prior versions of operative complaint, con-
stituted law of case that should have resulted in denial
of motion for summary judgment, deeming law of case
doctrine inapplicable), cert. denied, 319 Conn. 911, 123
A.3d 436 (2015); Henderson v. Lagoudis, supra, 339–41
(law of case doctrine was inapplicable to situation when
trial court granted defendants’ motion for summary
judgment on basis that plaintiff lacked standing not-
withstanding prior court’s denial of defendants’ motion
to dismiss predicated on standing).
In sum, we conclude that the court’s reliance on
Judge Heller’s denial of the defendant’s motion to dis-
miss to support its denial of the defendant’s motion for
summary judgment was improper.
C
Having concluded that the court improperly denied
the defendant’s motion for summary judgment, we now
consider the appropriate remedy. In its appellate briefs,
the defendant asks us to conclude that it is entitled to
summary judgment as to counts one, four, and six of
the plaintiff’s second revised and amended complaint.
Under the circumstances of this case, we believe that
the appropriate recourse is to remand the case for fur-
ther proceedings and to provide the defendant with
another opportunity to pursue its motion for summary
judgment. In essence, by improperly basing its denial
of the defendant’s motion for summary judgment on
Judge Tierney’s findings in his decision granting the
plaintiff’s application to vacate the arbitration award
and Judge Heller’s denial of the defendant’s motion to
dismiss the plaintiff’s amended complaint, the court
failed to properly address the defendant’s motion for
summary judgment. Rather than delving into the merits
of the defendant’s claims, we are inclined to permit the
court to address them on remand following a proper
consideration of the motion for summary judgment,
should the defendant choose to renew it. See, e.g.,
Greene v. Keating, 156 Conn. App. 854, 861–62, 115
A.3d 512 (2015) (vacating denial of motion for summary
judgment and granting of cross motion for summary
judgment and remanding case for proper consideration
of motions when trial court, in ruling on motions, sua
sponte raised and considered ground not presented or
briefed by parties); Singhaviroj v. Board of Education,
124 Conn. App. 228, 234–37, 4 A.3d 851 (2010) (reversing
denial of motions for summary judgment and remanding
for further proceedings when trial court summarily
denied motions without determining whether genuine
issue of material fact existed regarding res judicata and
collateral estoppel defenses and without giving parties
opportunity to argue merits of those defenses); Mani-
fold v. Ragaglia, 94 Conn. App. 103, 123, 891 A.2d 106(2006) (reversing denial of motion for summary judg-
ment and remanding case for further proceedings when
trial court improperly treated motion for summary judg-
ment as motion to dismiss in relation to claim that court
lacked subject matter jurisdiction).11
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
In their respective appellate briefs, the parties represent that the defen-
dant invoked the appraisal provision. This discrepancy is of no moment.
2
General Statutes § 52-418 (a) provides: ‘‘Upon the application of any
party to an arbitration, the superior court for the judicial district in which
one of the parties resides or, in a controversy concerning land, for the
judicial district in which the land is situated or, when the court is not in
session, any judge thereof, shall make an order vacating the award if it
finds any of the following defects: (1) If the award has been procured by
corruption, fraud or undue means; (2) if there has been evident partiality
or corruption on the part of any arbitrator; (3) if the arbitrators have been
guilty of misconduct in refusing to postpone the hearing upon sufficient
cause shown or in refusing to hear evidence pertinent and material to the
controversy or of any other action by which the rights of any party have
been prejudiced; or (4) if the arbitrators have exceeded their powers or so
imperfectly executed them that a mutual, final and definite award upon the
subject matter submitted was not made.’’
3
The plaintiff labeled this count as ‘‘negligence in settling claim.’’
4
‘‘CUTPA is, on its face, a remedial statute that broadly prohibits unfair
methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce. . . . To give effect to its provisions,
[General Statutes] § 42-110g (a) of [CUTPA] establishes a private cause of
action, available to [a]ny person who suffers any ascertainable loss of money
or property, real or personal, as a result of the use or employment of a
method, act or practice prohibited by [General Statutes §] 42-110b . . . .
CUIPA, which specifically prohibits unfair business practices in the insur-
ance industry and defines what constitutes such practices in that industry
. . . does not authorize a private right of action but, instead, empowers the
[Insurance Commissioner] to enforce its provisions through administrative
action. . . . In Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986),
[however, our Supreme Court] determined that individuals may bring an
action under CUTPA for violations of CUIPA.’’ (Citations omitted; internal
quotation marks omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co.,
317 Conn. 602, 623, 119 A.3d 1139 (2015).
5
On December 22, 2017, the defendant filed a motion to strike the plaintiff’s
amended complaint. On June 1, 2018, the court, Jacobs, J., granted in part
the defendant’s motion to strike, striking counts two, three, five, and seven.
The court declined to strike count one on the basis that the defendant was
asking the court to ‘‘look beyond the four corners of the amended complaint
to judicially notice the disposition of related issues between the same parties
in [the appraisal appeal],’’ which the court deemed to be improper. The
court also declined to strike count four, concluding that the plaintiff alleged
sufficient facts to support one part of her CUTPA/CUIPA claim predicated
on a violation of General Statutes § 38a-816 (1); however, the court observed
that the plaintiff failed to allege sufficient facts to support the other part
of her CUTPA/CUIPA claim predicated on a violation of § 38a-816 (6). In
addition, the court declined to strike count six, concluding that the plaintiff
had alleged sufficient facts to support her promissory estoppel claim.
On June 15, 2018, the plaintiff filed a substituted and amended complaint
in which she (1) reasserted counts one and six, (2) repleaded counts two,
four, and seven, and (3) intentionally left blank counts three and five to
preserve her rights to appellate review. On June 29, 2018, the defendant
filed a motion to strike counts two, four, and seven of the substituted and
amended complaint, which the court granted on August 16, 2018.
6
The defendant also argued that it was entitled to summary judgment on
count one on the basis that its request for an appraisal under the restora-
tionist policy barred the plaintiff’s breach of contract claim. The defendant
does not address that ground in its appellate briefs and, therefore, we need
not further discuss it.
7
In its reply brief, the defendant further asserted that the plaintiff had
failed to disclose an expert vis-à-vis her CUTPA/CUIPA claim.
8
In addition, the plaintiffs cross appealed from the class certification
order. Collins v. Anthem Health Plans, Inc., supra, 266 Conn. 16 n.1.
9
On November 20, 2019, pursuant to Practice Book § 66-5, the defendant
filed a motion for articulation as to the court’s February 4, 2019 order
denying the motion for summary judgment. On July 31, 2020, in response
to the motion for articulation, the court issued a memorandum of decision
further articulating the basis of its denial of the motion for summary judg-
ment.
10
Earlier in its decision, in setting forth the background of the case, the
court made a passing reference to Judge Jacobs’ rulings on the defendant’s
motions to strike. See footnote 5 of this opinion. Although the court expressly
referenced Judge Tierney’s findings and Judge Heller’s ruling in setting forth
the basis of its denial of the motion for summary judgment, the court did
not mention Judge Jacobs’ rulings in its analysis.
11
In the portion of its principal appellate brief setting forth the nature of
the proceedings and the facts of the case, the defendant states that the
plaintiff submitted inadmissible evidence in support of her memorandum
of law in opposition to the defendant’s motion for summary judgment. The
defendant raised this issue in its reply brief filed in response to the plaintiff’s
memorandum of law in opposition to its motion for summary judgment,
but this issue was not addressed by the court. Insofar as the defendant is
raising this issue as a claim of error on appeal, we need not address it in
light of our resolution of this appeal.