******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
JPMORGAN CHASE BANK, N.A. v. EUGENE A.

CAM ET AL.

(AC 38622)

Lavine, Alvord and Beach, Js.

Argued January 18—officially released May 2, 2017

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Povodator, J.)

Denise A. Krall, with whom, on the brief, was Joseph

J. Cessario, for the appellant (named defendant).

Peter R. Meggers, with whom, on the brief, was Brian

D. Rich, for the appellee (plaintiff).
Opinion

LAVINE, J. The defendant Eugene A. Cam1 appeals

from the judgment of strict foreclosure claiming that

the trial court erred when it concluded that a settlement

agreement he had entered into with the plaintiff, JPMorgan Chase Bank, N.A., permitted the plaintiff to pay the

defendant a certain sum of money within a ‘‘reasonable

time’’ of the payment deadline provided in the

agreement.2 We affirm the judgment of the court.

The following facts and procedural history are relevant to our resolution of the defendant’s claim. On February 11, 2004, the defendant executed and delivered

a note in the amount of $900,000 to Washington Mutual

Bank, FA, the plaintiff’s predecessor in interest, plus a

mortgage deed securing property located at 99 Porchuck Road in Greenwich. On March 9, 2009, the plaintiff commenced a foreclosure action against the

defendant, alleging that the defendant had defaulted on

his payment obligations. The defendant asserted four

counterclaims, including a claim that he had been ‘‘damaged’’ when the plaintiff ‘‘unlawfully removed or damaged’’ his personal effects, and, as a result, wrongfully

‘‘deprived [the defendant] of his property’’ and ‘‘left [his

residence] in an uninhabitable state.’’

Prior to trial, the parties reached a settlement

agreement to resolve their respective claims. On September 17, 2014, the defendant executed the agreement,

which had been reduced to writing (agreement). The

agreement provided that the plaintiff was to pay the

defendant a certain sum of money, paying one half

of the sum ‘‘within [thirty] days of execution of this

Agreement’’ and the other half ‘‘within ten days of title

vesting to [the plaintiff].’’ In exchange, the defendant

agreed to stipulate to a judgment of strict foreclosure,

which provided that the defendant would vacate the

property on or before October 28, 2014. The agreement

did not contain a ‘‘time is of the essence’’ clause or any

equivalent language that suggested that payment by the

plaintiff to the defendant was time critical or that time

was material to the agreement.

On October 1, 2014, the plaintiff filed a motion for

judgment of strict foreclosure. On October 7, 2014, the

parties appeared before the court to enterthe stipulated

judgment, but the court, sua sponte, declined to accept

the stipulated judgment because it was concerned that

Narragansett had not been properly served. See footnote 1 of this opinion. The plaintiff served Narragansett

and filed a motion for default for failure to appear

against Narragansett in January, 2015, and the motion

was granted on February 6, 2015.

In February, 2015, the parties engaged in e-mail correspondence regarding the performance dates provided

for in the agreement in light of the fact that the court

had declined to enter judgment on the motion for judg-
ment of strict foreclosure. The defendant did not

demand that the plaintiff make payment, state how he

would be negatively affected by a late payment, or assert

that the plaintiff had breached the agreement because

it did not pay him by the established October 17, 2014

deadline. In March, 2015, however, the defendant

informed the plaintiff that he would not move forward

with the agreement.

On May 7, 2015, the plaintiff filed a motion to enforce

the agreement. In the motion, the plaintiff argued that

the agreement was clear and unambiguous, but because

the entry of the stipulated judgment had been delayed

by the court when it continued the matter on October

7, 2014, the performance dates in the agreement were

no longer applicable. It contended that the performance

dates should be modified to reflect the current circumstances, and the court should enforce the agreement

with the amended dates. The defendant filed an objection, arguing, among other things, that the plaintiff had

breached a material provision of the agreement when

it did not pay him 50 percent of the settlement within

thirty days after he executed the agreement, i.e., October 17, 2014. The court denied the motion without prejudice,3 and the plaintiff filed a renewed motion to enforce

the agreement, to which the defendant objected.

On September 29, 2015, the court granted the plaintiff’s renewed motion to enforce. The court found that

the parties had entered into an enforceable agreement.

It also found that ‘‘there [did] not appear to be any

provision in the agreement that made enforcement or

execution of its terms time-critical, in a time is of the

essence or equivalent sense’’ and noted that ‘‘in the

absence of an indication that timing is critical, reasonableness as to timing is to be presumed.’’4

It found that

although the agreement required the parties to take

sequential steps, ‘‘there is nothing in the agreement that

makes performance in 2015 any less effective at meeting

the expectations of the parties . . . .’’ The court also

noted that on January 13, 2015, months after the first

payment was due, the defendant requested a continuance for a scheduled status conference, indicating to

the court that the defendant acknowledged that the

agreed upon dates needed to be adjusted and that he

intended to consummate the agreement. This appeal

followed.

On appeal, the defendant asserts that the court erred

in finding that the agreement was enforceable. Specifically, he claims that the court erred in finding that the

plaintiff was required to make payment to the defendant

within a ‘‘reasonable time’’ following the execution of

the agreement rather than strictly within the thirty day

deadline. He argues that because the agreement clearly

and unambiguously provided that the plaintiff must

make payment within thirty days of its execution, which

the plaintiff failed to do, the court ‘‘erroneously inter-
preted the . . . agreement as lacking any timing provisions relevant to the expectations of the parties.’’ He

contends that even though there was no ‘‘time is of the

essence’’ clause in the agreement, the deadline was a

material term, and, thus, the plaintiff was obligated to

pay him 50 percent of the settlement thirty days after

the agreement was executed or the agreement would

be nullified. We disagree.5

We first set forth our standard of review. The defendant argues that the standard of review is plenary

because the judgment ‘‘being appealed consists of the

court’s construction of an unambiguous contract.’’ The

plaintiff argues that the standard is clearly erroneous.

We agree with the defendant.

‘‘A settlement agreement is a contract among the

parties. . . . It is well settled that [w]here the language

of the contract is clear and unambiguous, the contract is

to be given effect according to its terms. . . . Although

ordinarily the question of contract interpretation, being

a question of the parties’ intent, is a question of fact

. . . [w]here there is definitive contract language, the

determination of what the parties intended by their

contractual commitments is a question of law. . . .

The court’s determination as to whether a contract is

ambiguous is a question of law; our standard of review,

therefore, is [plenary].’’ (Internal quotation marks omitted.) McCook v. Whitebirch Construction, LLC, 117

Conn. App. 320, 328–29, 978 A.2d 1150 (2009), cert.

denied, 294 Conn. 932, 987 A.2d 1029 (2010).

Accordingly, we will determine whether the language

in the agreement is clear and unambiguous in order to

determine our standard of review of the defendant’s

claim. ‘‘In determining whether a contract is ambiguous,

the words of the contract must be given their natural

and ordinary meaning. . . . A contract is unambiguous

when its language is clear and conveys a definite and

precise intent. . . . The court will not torture words

to impart ambiguity where ordinary meaning leaves

no room for ambiguity. . . . In contrast, a contract is

ambiguous if the intent of the parties is not clear and

certain from the language of the contract itself. . . .

The contract must be viewed in its entirety, with each

provision read in light of the other provisions . . . and

every provision must be given effect if it is possible

to do so.’’ (Citation omitted; internal quotation marks

omitted.) Cruz v. Visual Perceptions, LLC, 311 Conn.

93, 102–103, 84 A.3d 828 (2014).

After reviewing the entire agreement, we conclude

that the language of the agreement is clear and unambiguous as a matter of law. There is no provision within

the agreement that is susceptible to more than one

reasonable interpretation. Thus, our review of the

defendant’s claim is plenary, and in determining the

intent of the parties, ‘‘we are limited to the express

contractual language and the parties’ intent as they
expressed it in the agreements.’’ Allstate Life Ins. Co.

v. BFA Ltd. Partnership, 287 Conn. 307, 314, 948 A.2d

318 (2008).

‘‘Where a time for performance is stated in an

agreement, a party’s tender of performance within a

reasonable time thereafter will be considered substantial performance unless the parties intended that time

for performance be of the essence. See J. Calamari &

J. Perillo, Contracts (2d Ed.) § 11-22, pp. 409–10. Where

the agreement does not specifically state that time is

of the essence, it is presumed not to be unless the

parties have expressed a contrary intent.’’ (Emphasis

added.) Mihalyak v. Mihalyak, 11 Conn. App. 610, 616,

529 A.2d 213 (1987). ‘‘The fact that a contract states a

date for performance does not necessarily make time

of the essence.’’ Grenier v. Compratt Construction Co.,

189 Conn. 144, 151, 454 A.2d 1289 (1983).

The contract in the present case provides a time of

performance as to when the plaintiff was to pay the

defendant 50 percent of the settlement but is silent as

to whether time was of the essence with regard to

compliance with the payment schedule. Looking exclusively at the language, and absence of language, in the

entire agreement, we conclude that the court properly

found that the agreement clearly and unambiguously

indicates that the parties did not intend forthe plaintiff’s

payment to the defendant to be time critical, but,

instead, intended for performance to be consummated

within a ‘‘reasonable time’’ of the thirty day deadline.

The agreement contains no ‘‘time is of the essence’’

provision or any language that implicitly indicates that

performance was time critical.6 See Pack 2000, Inc. v.

Cushman, 311 Conn. 662, 688, 89 A.3d 869 (2014) (no

time is of essence provision).

The defendant also failed to show that the time of

performance on behalf of the plaintiff is a material

provision to the agreement. We agree with the trial

court that ‘‘there is nothing in the agreement that makes

performance in 2015 any less effective at meeting the

expectations of the parties as expressed in [the]

agreement.’’ See id., 675 (‘‘a technical breach of the

terms of a contract is excused, not because compliance

with the terms is objectively impossible, but because

actual performance is so similar to the required performance that any breach that may have been committed

is immaterial’’ [internal quotation marks omitted]). In

addition, there is no indication in the agreement that

either party would have been harmed if payment were

not made by the thirty day deadline. See Grenier v.

Compratt Construction Co., supra, 189 Conn. 151

(defendant did not show how it was injured by ten day

delay). If the parties believed that they would have

been harmed if the plaintiff did not pay the defendant

within thirty days, they could have incorporated a ‘‘time

is of the essence’’ provision into the agreement, but
they did not. See O’Connor v. Waterbury, 286 Conn.

732, 746, 945 A.2d 936 (2008) (‘‘[w]e are prohibited from

implying the existence of a term that is not expressly

written in the agreement, because that would require

us to rewrite the agreement for the parties’’).

We, therefore, conclude that the court properly found

that the agreement was enforceable and that reasonableness as to time of performance by the plaintiff was

to be presumed.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Also named as defendants in the foreclosure action were Wachovia Bank,

Narragansett Indian Tribal Historical Preservation Office (Narragansett), Jill

Cam individually, and Jill Cam as the parent and guardian of Jason Christopher Cam and Jennica Christina Cam. Only Eugene Cam is involved in this

appeal. We, therefore, refer to Eugene Cam as the defendant.

2 The defendant also claims that because the timing of performance was

a material provision of the settlement agreement, the plaintiff’s failure to

pay by the date specified in the agreement rendered the agreement void

and unenforceable. This claim presumes that the time frame for payment

stated in the agreement is to be strictly construed. Because we conclude

that the agreement required performance only within a reasonable time, we

need not reach this claim.

3 The court denied the motion because the plaintiff did not attach a copy

of a nonredacted version of the agreement to the motion.

4 On November 9, 2015, the court rendered a judgment of strict foreclosure.

5 The plaintiff argues that the agreement required it to make payment

within a reasonable time of the execution of the agreement because the

agreement is akin to a real estate contract. We reject the plaintiff’s argument

that the agreement should be treated as if it were a real estate contract.

See Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn. App. 1,

19, 852 A.2d 799 (stipulated judgment not real estate contract), cert. denied,

271 Conn. 940, 861 A.2d 514 (2004).

6 The trial court in Raymond Marketing Corp. v. Cary, Superior Court,

judicial district of Fairfield, Docket No. CV-95-0322740 (December 17, 1996)

(18 Conn. L. Rptr. 480), found that even though there was no ‘‘time is of

the essence’’ clause, the language in the stipulated judgment—such as failure

to make payment would render the agreement ‘‘null and void’’ and ‘‘[t]he

defendant shall bearthe sole responsibility for making sure thatthe plaintiff’s

counsel receives each payment before these default deadlines’’—implicitly

supported the proposition that payment by the defendant to the plaintiff

was time critical. Although we note that this case is not binding precedent,

we find the difference in settlement language instructive.