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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 completed 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 during the pendency of an appeal, review was appropriate in the exercise

of this court’s supervisory powers under Blumberg Associates Worldwide, 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 judgment.

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 therefore 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 mortgaged 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 Insurance 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 agreement 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 Connecticut and State Automobile Mutual Insurance Company,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 company 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 borrowers 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 procurement 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 jurisdiction due to insufficient service of process, the plaintiff commenced the present action against the bank

under the putative authority of the accidental failure

of suit statute, General Statutes § 52-592, and the continuing 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 company defendants and the bank defendants, seeking similar 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 relationship 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 judgment as a matter of law on the plaintiff’s claim of negligent misrepresentation against them.5

Thereafter, while this appeal was pending, the plaintiff filed an amended appeal from a postjudgment order

of the trial court granting the insurance company defendants’ motion to enforce settlement agreement, claiming 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 agreement. We affirm the judgment of the trial court and its

postjudgment order enforcing the settlement agreement.

The following facts and procedural history are relevant 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 continued 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 provided that the borrowers were required to make periodic 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 provision of your Mortgage or Deed of Trust, property inspections 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 plaintiff that the policy would be cancelled, effective December 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 insurance 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 November 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 company’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 company 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 reinstatement. 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 plaintiff informing him that the premium for the reinstated

policy was past due and that the policy would be cancelled 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 insurance be maintained on the property and requested that

the borrowers or their agent send evidence of acceptable 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 previous policy. Two additional letters to the same effect,

dated January 13, 2014, and February 17, 2014, respectively, 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 district of New Haven, Docket No. CV-15-5035395-S (original 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 additional 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 appearance 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 February 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 insurance 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 sounding 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 Practices Act (CUIPA), General Statutes § 38a-815 et seq.

(counts five and six), and breach of the implied covenant 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 defendants 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 plaintiff 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) exercising authority under Audubon Parking Associates Ltd.

Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn.

804, to enforce a settlement agreement, and (2) concluding that a clear, unambiguous, and enforceable agreement 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 plaintiff 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 agreement. We begin by setting forth these relevant communications.

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 authorized to extend a settlement offer of $10,000 to the plaintiff 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 conversation 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 recommendation 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 concern that the release would require the plaintiff to withdraw 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.’’ Morgan 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 plaintiff stated that he was apprehensive about how a settlement 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 further advised the plaintiff that his claim against the insurance 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 [plaintiff] 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 circumstances 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 plaintiff’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 plaintiff had raised in his July 31, 2020 e-mail. On August

24, 2020, Morgan e-mailed Etlinger, as follows, regarding 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 deadline. 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 inconvenience.’’ 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 plaintiff 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 agreement 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 Morgan, 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 company’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 agreement 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 contingent upon the plaintiff reaching an agreement with the

codefendant bank.’’ The amended appeal followed.

A

The plaintiff first claims that the court erred by purporting to exercise authority under Audubon Parking

Associates Ltd. Partnership v. Barclay & Stubbs, Inc.,

supra, 225 Conn. 804, to enforce a settlement agreement. 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 company 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), citingBlumberg 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 framework 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 concluded 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 constitutional 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, untethered 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; internal 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 adequate 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 following 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.’’ (Citations 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 adequate 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 Worldwide, 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 October 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 supplemental brief, the plaintiff raised for the first time the

issue of whether Audubon extends to the summary
enforcement of agreements reached postjudgment during 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 opportunity 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 additional evidence or that it otherwise would have proceeded 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 omitted; internal quotation marks omitted)). ‘‘Reviewing an

unpreserved claim when the party that raised the claim

cannot prevail is appropriate because it cannot prejudice 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 discussed 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 prejudice the insurance company defendants and will provide 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 Audubon extends to a settlement agreement reached postjudgment 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 settlement 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 meaningful 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 agreement 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 delicate 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 quotation 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 Partnership, 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 Ackerman, 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 agreement. 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 settlement 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 function, 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 Audubon 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 progeny 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 proceedings . . . . In the majority of cases where settlement agreements have been summarily enforced pursuant 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 pending litigation. . . . We have never extended Audubon

to agreements that, when made, remained wholly outside 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 litigation—which may be summarily enforced by Audubon

motion—from a preemptive release of claims—which

may be enforced through a motion for summary judgment 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 commenced—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 Audubonstyle summary enforcement, an agreement must be

reached after the relevant litigation commenced.’’ (Citations 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 postjudgment 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 summarily 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 agreement 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 Associates 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 agreement 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 litigation. Audubon itself referred to [a]greements that end

lawsuits . . . .’’ (Emphasis in original; internal quotation marks omitted.) Matos v. Ortiz, supra, 166 Conn.

App. 797. A settlement reached by the parties postjudgment and during the pendency of an appeal is a settlement within the framework of the original lawsuit. In

the present case, the parties entered a settlement agreement 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. Partnership 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 undisputed 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 liability. 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 withdraw the action against the defendant and that no judgment would enter against him. Id., 673. This court concluded 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 undisputed 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 merits, 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; internal 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 Waldman, 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 agreement 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 additional lawsuit for breach of a settlement agreement.

Audubon Parking Associates Ltd. Partnership v. Barclay & 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 proceedings 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 settlement 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 litigation has commenced—the swifter remedy of Audubon

summary enforcement is justified to protect the integrity 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 postjudgment, 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 agreement, 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 quotation 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 summarily 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 mistake has been committed. . . . In making this determination, 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 establish 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 omitted.) 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 misapprehension 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 parties to contract to substance and terms. It is an agreement 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 recognized, 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 decisive question is the intent of the parties as expressed.

. . . The intention is to be determined from the language used, the circumstances, the motives of the parties 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 determine 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 original.)

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 subjective 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 hidden 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 admission and release of all claims. You may send me a

release. Thank you.’’ These overt acts and words establish 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 agreement 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.’’ Morgan 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 withdraw 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 company 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 unpersuaded.

‘‘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 fundamental in the law of contracts, the general rule being

that in the absence of consideration an executory promise is unenforceable. . . . Put another way, [u]nder the

law of contract, a promise is generally not enforceable

unless it is supported by consideration. . . . [C]onsideration 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 support 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 consideration is a factual inquiry reserved for the trier of fact

and subject to review under the clearly erroneous standard. . . . 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 consideration. 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 insurance 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 Wittman 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 undertakings does not establish the time at which their undertakings 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 engaging 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 parties . . . may reach a binding agreement even if some

of the terms of that agreement are still indefinite.’’ (Citation omitted; internal quotation marks omitted.)). Furthermore, 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 judgment of the trial court granting both the bank defendants’ 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 insurance 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 misrepresentation, and that the court erred in determining the

date on which the action commenced against the insurance 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 history. 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 Secretary,’’ at 17500 Rockside Road, Bedford, Ohio, 44146-

2099. No return receipts were filed in the original

action.13 The case was assigned docket number NNHCV-15-5035395-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 Company’’ 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 evidence 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 inapplicable 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 emotional 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 insurance coverage, and encouraged him to get in contact

with the [bank] defendants and/or [the insurance company] 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 submitted 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, however, 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 quotation 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 limitations, the burden normally shifts to the plaintiff to establish 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 defendants’ 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) provides 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 seasonably, 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 quotation 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 diligent 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.’’ (Citations 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 commenced. 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 original 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 defendant nor returned to the court. . . . [N]o proceeding

was commenced prior to the initiation of the instant

action. Courts which have considered whether an original 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 unseasonable 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 commencement 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 plaintiff to request that the defendant waive formal service.

Id., 545–46. The plaintiffs sent the summons and complaint 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 applicable statute of limitations. Id. The defendant, however,

did not waive formal service of process and the statute

of limitations lapsed before the plaintiff could effectuate 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 commenced a second action pursuant to § 52-592. Id. The

defendant, however, moved for summary judgment,

alleging that the original action had not been commenced 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 commencement 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 properly.’’ (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 service 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 meaning and preclude the filing of a second action. We therefore 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 contends.’’ (Citation omitted; emphasis in original; internal

quotation marks omitted.) Id., 550–51.

The court instead agreed with the plaintiffs’ contention 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 ‘‘ ‘commenced’ ’’ 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 plaintiffs’ counsel sent her a written request to waive the

required service of process. Moreover, the record contains 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 defendant. 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 defendant, the plaintiffs, for all practical purposes, also satisfied the requirements of state law pertaining to formal

service of process. In Connecticut, an action is commenced 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 certified mail four days before the expiration of the statute

of limitations. Moreover, the plaintiffs filed the complaint 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 serving 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 statute.’’ (Footnote omitted; internal quotation marks omitted.) 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 quotation 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 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 omitted.) Id., 530.

The court concluded that, as to the first two defendants, 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 undisputed 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 determined that the savings statute did not operate to save

the plaintiff’s second action against those four defendants.’’ 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 withRocco. Specifically, the plaintiff contends 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 evidence 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 omitted.) 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 defendants had actual notice of the original action. We conclude 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. Garrison, 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 indicating 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 limitations. 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 plaintiff and the bank engaged in communications concerning the original action, and (2) counsel for the bank

appeared in the original action. We conclude that neither 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 complaint 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 reference 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, approximately eight months prior to these June, 2016 communications.
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 insufficient 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 original 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 commenced 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 omitted)). 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 Company’’ 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 plaintiff 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 improperly concluded that the continuing course of conduct

doctrine is inapplicable to the plaintiff’s claims and

therefore could not toll the applicable statutes of limitations. 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 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. . . . 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 professional 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 bringing 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 defendant 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 omission 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) committed an initial wrong upon the plaintiff; (2) owed a continuing 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 doctrine 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 conclusion 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 infliction of emotional distress, and negligent misrepresentation, 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 interests. . . . [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 fiduciary 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 establish 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 service 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 collecting and holding funds in escrow and to disburse the

escrowed funds for payment of hazard insurance premium 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 conclude 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 relationship of special trust and confidence. . . . Accordingly, 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. 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 contractual 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 plaintiff 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 conducted 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 improperly 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 property 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 defendants 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 property was vacant, and, thus, the bank was required, pursuant 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 decision 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, concluded 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 potential 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 insurance 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 provided 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 insurance 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, however, 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 activity 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 selfserving 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 contradicted 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 mortgage, 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 evidence 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 covenant 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 covenant 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 interested 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 obligation 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 conscious 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 evidence in the record demonstrating that the bank defendants had acted in bad faith. Paragraph 9 of the mortgage agreement provides that ‘‘[i]f . . . [b]orrower

fails to perform the covenants and agreements contained in this [s]ecurity [i]nstrument . . . then [l]ender

may do and pay for whatever is reasonable or appropriate 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 insurance 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 cancellation 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 borrowers that the bank had purchased the LPI policy and

billed the borrowers for the annual premium.

Although the plaintiff contends that there was a genuine 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 withstand 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; internal 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 submit evidence sufficient to raise a genuine issue of material 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 hereinafter, 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 insurance 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 conversation.

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 memorandum 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 mistake, inadvertence or excusable neglect.’’ (Internal quotation marks omitted.) 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 opposition 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, however, 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’’).