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United Cleaning & Restoration, LLC v. Bank of America, N.A.

UNITED CLEANING & RESTORATION, LLC v.

BANK OF AMERICA, N.A.

(AC 45854)

Moll, Seeley and Keller, Js.

Syllabus

The plaintiff sought to recover damages from the defendant for an alleged

breach of contract and for unjust enrichment in connection with the

plaintiff’s restoration of a property that had been damaged by a fire. L,

the property owner, financed his purchase of the property with a mortgage loan that the defendant serviced. In addition, L obtained a homeowners insurance policy for the property from N Co. After the fire, L

filed a claim with N Co. N Co. paid out insurance proceeds on the claim,

which, in accordance with the loan, were held by the defendant to pay,

on behalf of L, for repair and restoration of the property. L entered into

a contract with the plaintiff to make repairs to the property in exchange

for payments from the proceeds. Less than one year later, when the

plaintiff’s repair work was approximately 50 percent completed, L died.

Although the defendant previously had made multiple disbursements

out of the proceeds to the plaintiff as it made repairs, the defendant

ceased paying the plaintiff following L’s death. At the request of T, a

comortgagor and coexecutor of L’s estate, the defendant applied the

remaining proceeds to pay down the outstanding mortgage loan balance

in connection with the sale of the property. The plaintiff claimed that

it was an intended third-party beneficiary of the mortgage, that the

defendant violated the terms of the mortgage when it applied the proceeds to the outstanding mortgage loan balance instead of paying the

proceeds to the plaintiff for the work it had completed, and that its

repair work had benefited the defendant by enhancing the marketability

of the property to its detriment. The defendant filed a motion for summary judgment as to both counts of the complaint, arguing that there

was no genuine issue of material fact that the defendant was not a party

to the proceeds contract and that the plaintiff was not a party to the

note or the mortgage, that the express language of the note and the

mortgage demonstrated no intent for the plaintiff to be a third-party

beneficiary thereof, and that there was no genuine issue of material fact

that it was not unjustly enriched by its application of the proceeds to

the outstanding mortgage loan balance. The defendant supported its

motion with, inter alia, a business record affidavit from S, its assistant

vice president, and a supplemental affidavit from K, its counsel. The

trial court granted the defendant’s motion, and the plaintiff appealed to

this court. Held:

1. The plaintiff could not prevail on its claim that the trial court erred in

granting the defendant’s motion for summary judgment because the
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

supporting affidavits did not satisfy the requirements of the applicable

rule of practice (§ 17-46) and the common law:

a. The trial court did not err in considering S’s affidavit in granting the

defendant’s motion for summary judgment; because S attested that the

defendant was the mortgage loan servicer, that she, in her role as an

assistant vice president, was authorized to make the affidavit, that she

had personal knowledge of the facts and matters stated therein, that she

was familiar with the types of records maintained by the defendant,

including the loan at issue, and that she had access to and personally

reviewed the defendant’s business records kept in the ordinary course

of its regularly conducted business, including records pertaining to the

property, S was a records custodian authorized to authenticate the defendant’s business records without her actual involvement in the transaction,

and her affidavit sufficiently demonstrated her competency to aver to

the information therein.

b. This court declined to review the plaintiff’s unpreserved claim that

K’s affidavit did not constitute competent evidence pursuant to Practice

Book § 17-46, as the plaintiff raised the claim for the first time in a

motion to reargue and, on appeal, it did not challenge the trial court’s

denial of that motion.

2. The trial court properly rendered summary judgment for the defendant

because there were no genuine issues of material fact as to either count

of the plaintiff’s complaint:

a. The trial court properly determined that the plaintiff was not an

intended third-party beneficiary of the mortgage: the clear and unambiguous language of the note and the mortgage evinced no intent of the

contracting parties to confer third-party beneficiary status on the plaintiff, as there was no direct or indirect reference to the plaintiff in either

the note or the mortgage; moreover, the language of the mortgage did

not require that the defendant make direct payments of the insurance

proceeds to a third party and further provided that insurance proceeds

would cover repairs made to the property if the repair was feasible and

the defendant’s security was not lessened or unless the defendant and

L otherwise agreed in writing, and the purpose of that language was to

protect the defendant’s interests and not to serve as a guarantee on the

payment of repair and restoration services; furthermore, this court was

unpersuaded by the plaintiff’s argument that extrinsic evidence sufficiently raised a genuine issue of material fact regarding its third-party

beneficiary status, as, having concluded that the clear and unambiguous

language of the mortgage reflected no intent to make the plaintiff a thirdparty beneficiary, the use of parol evidence to vary or contradict such

language was forbidden.

b. The trial court correctly determined that there was no genuine issue

of material fact as to the plaintiff’s unjust enrichment claim; the defendant

presented evidence that it was not benefited for the purposes of the

plaintiff’s unjust enrichment claim when it applied the proceeds toward
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

the outstanding mortgage balance and the plaintiff failed to produce

evidence that it had a superior equitable entitlement to the proceeds.

Argued September 7, 2023—officially released May 28, 2024

Procedural History

Action to recover damages for, inter alia, breach of

contract, and for other relief, brought to the Superior

Court in the judicial district of Middlesex, where the

court, Shah, J., granted the defendant’s motion for summary judgment and rendered judgment thereon, from

which the plaintiff appealed to this court. Affirmed.

Lisa M. Anderson, for the appellant (plaintiff).

Pierre-Yves Kolakowski, for the appellee (defendant).

Opinion

MOLL, J. The plaintiff, United Cleaning & Restoration,

LLC, appeals from the judgment of the trial court granting the motion for summary judgment filed by the defendant, Bank of America, N.A., as to the plaintiff’s two

count amended complaint asserting claims of breach of

contract and unjust enrichment. On appeal, the plaintiff

claims that the court erred in granting the defendant’s

motion for summary judgment because the court

improperly (1) considered evidence submitted by the

defendant in support of its motion that failed to satisfy

the evidentiary requirements of Practice Book § 17-46

and the common law, and (2) concluded that there were

no genuine issues of material fact as to the plaintiff’s

claims.1 We affirm the judgment of the trial court.

The following procedural history is relevant to our

resolution of this appeal. The plaintiff commenced the

present action on February 5, 2021. In its two count

amended complaint (operative complaint), filed on

March 3, 2022, the plaintiff alleged in relevant part as

1 See footnotes 8 and 12 of this opinion.
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

follows. Prior to his death on February 4, 2019, Robert

Lopez was the owner of premises located at 25 Deerfield

Drive in Easton (property). To finance his purchase of

the property, Lopez took out a mortgage loan,2 which

the defendant serviced. In addition, Lopez obtained a

homeowners insurance policy for the property issued

by Nationwide Property & Casualty Insurance Company

(Nationwide).

In January, 2018, a fire occurred at the property.

Thereafter, Lopez filed a claim with Nationwide relating

to the loss caused by the fire. Nationwide paid out

insurance proceeds (proceeds) on the claim, and, in

accordance with the loan, the proceeds were held by

the defendant to pay, on behalf of Lopez, for repairs

and restoration of the property. On May 8, 2018, Lopez

and the plaintiff entered into an agreement (proceeds

contract) pursuant to which the plaintiff would make

repairs to the property in exchange for payment from

the proceeds. The plaintiff subsequently began its work

on the property, and the defendant made multiple disbursements out of the proceeds to the plaintiff as

repairs were made.3

Lopez passed away on February 4, 2019. At the time,

the plaintiff’s repair work was approximately 50 percent

finished. Following Lopez’ death, the defendant ceased

paying the plaintiff for the work that it had completed.

On May 8, 2019, in connection with the sale of the

property, Karen Trusty, a comortgagor and a coexecutor of Lopez’ estate, requested that the defendant apply

2 In their evidentiary submissions relating to the defendant’s motion for

summary judgment, both parties relied on an open-end mortgage deed

reflecting that, in July, 2007, Lopez and Karen Trusty executed a mortgage

on the property in favor of Countrywide Home Loans, Inc., to secure a

promissory note executed by Lopez in the amount of $569,750. 3 The parties do not appear to dispute that, on July 10, 2018, Lopez notified

the defendant of the loss caused by the fire and provided the defendant

with a copy of the proceeds contract.
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

the remaining proceeds available to pay down the outstanding mortgage loan balance on the property, which

request the defendant granted without consulting with

or notifying the plaintiff. The plaintiff then demanded

that the defendant remit payment of the outstanding

balance owed for the work it had completed, totaling

$46,850.13, which demand the defendant refused.

In its operative complaint, the plaintiff asserted

claims of breach of contract (count one) and unjust

enrichment (count two). In support of count one, the

plaintiff alleged that (1) it was an intended third-party

beneficiary of the mortgage and (2) the defendant violated the terms of the mortgage when it applied the

proceeds to the outstanding mortgage loan balance

instead of paying the proceeds to the plaintiff for the

work that it had completed. In support of count two,

the plaintiff alleged that, to its detriment, the defendant

had applied the proceeds toward the outstanding mortgage loan balance notwithstanding that its repair work

had benefited the defendant by enhancing the marketability of the property.

On March 15, 2022, the defendant filed an amended

answer and special defenses. The defendant admitted

in relevant part that (1) the fire at the property had

occurred, (2) the mortgage required it to be named as

a loss payee on Lopez’ homeowners insurance policy

and authorized it ‘‘to hold and disburse insurance proceeds in the event of damage to the property,’’ (3)

Nationwide paid out the proceeds for the loss caused

by the fire, and (4) it had made disbursements out of

the proceeds to the plaintiff prior to Trusty’s request

that the remaining proceeds be applied to the outstanding mortgage loan balance.4 The defendant denied, however, the plaintiff’s allegations that (1) the plaintiff was

4 According to the defendant, between October, 2018, and May, 2019, it

had disbursed $133,975 to the plaintiff out of the proceeds.
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

an intended third-party beneficiary of the mortgage and

(2) it had breached the mortgage by failing to pay the

plaintiff the alleged balance owed for the repair work.

The defendant further denied the plaintiff’s substantive

allegations in support of count two. In addition, by way

of its first special defense, the defendant alleged that

it was not a party to the proceeds contract and that the

mortgage expressly identified Lopez as the sole obligor

with respect to contracts with third parties he entered

into for the repair of the property following a loss.5

On April 20, 2022, the defendant filed a motion for

summary judgment as to both counts of the operative

complaint. The defendant’s motion was accompanied

by a memorandum of law, exhibits, including a copy

of the mortgage, and a business records affidavit executed by an assistant vice president of the defendant,

Stephanie A. Saporita (Saporita affidavit), with additional exhibits appended thereto. In addressing the

plaintiff’s breach of contract claim, the defendant

argued that (1) there was no genuine issue of material

fact that (a) it was not a party to the proceeds contract

and (b) the plaintiff was not a party to the note or the

mortgage, and (2) the express language of the note and

the mortgage demonstrated no intent for the plaintiff

to be a third-party beneficiary thereof. In addition, the

defendant argued that there was no genuine issue of

material fact that it was not unjustly enriched by its

application of the proceeds to the outstanding mortgage

loan balance.

On May 23, 2022, the plaintiff filed a memorandum

of law in opposition to the defendant’s motion for summary judgment, which was accompanied by the personal affidavit of the plaintiff’s managing member, William Leone (Leone affidavit), and a copy of a portion

5 The defendant asserted thirteen additional special defenses, which are

not relevant to the issues on appeal.
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

of the mortgage. The plaintiff argued that the defendant

was not entitled to summary judgment as to (1) either

count of the operative complaint because the evidence

submitted in support of its motion for summary judgment, including the Saporita affidavit, was ‘‘inappropriate and insufficient,’’ (2) count one because there was

a genuine issue of material fact as to whether the mortgage conferred third-party beneficiary status on the

plaintiff, and (3) count two because (a) unjust enrichment is an equitable claim not suitable for adjudication

by way of a motion for summary judgment and (b) the

record demonstrated genuine issues of material fact.

On June 6, 2022, the defendant filed a reply brief, accompanied by a supplemental affidavit of its counsel, Attorney Pierre-Yves Kolakowski (Kolakowski affidavit),

with additional exhibits attached thereto.

On June 24, 2022, the court heard oral argument on

the defendant’s motion. On August 16, 2022, the court,

Shah, J., issued a memorandum of decision granting

the defendant’s motion for summary judgment as to

both counts of the operative complaint. Addressing

count one, the court determined that, on the basis of

the clear and unambiguous language of the note and

the mortgage, the plaintiff was not an intended thirdparty beneficiary thereof and that the plaintiff failed to

show the existence of a material fact in dispute. With

regard to count two, the court concluded ‘‘that the plaintiff . . . failed to raise any genuine issues of material

fact given the evidence submitted by the defendant.’’ On

August 30, 2022, the plaintiff filed a motion to reargue,

which the court denied on September 8, 2022. This

appeal followed. Additional procedural history will be

provided as necessary.

I

The plaintiff first claims that the trial court erred in

granting the defendant’s motion for summary judgment
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

as to both counts of the operative complaint because

the supporting affidavits submitted by the defendant,

i.e., the Saporita affidavit and the Kolakowski affidavit,

did not satisfy the requirements of Practice Book § 17-

46 and the common law. As to the Saporita affidavit,

we disagree on the merits; as to the Kolakowski affidavit, we conclude that the plaintiff’s claim is unpreserved.

A

We first turn to the plaintiff’s contention that the

Saporita affidavit did not constitute competent evidence pursuant to Practice Book § 17-46. Specifically,

the plaintiff contends that the Saporita affidavit did not

affirmatively show that Saporita possessed personal

knowledge of, or was competent to aver to, the facts

contained therein as she did not witness the execution

of, nor personally execute, any documents relating to

Lopez and the defendant, and she had not been personally involved in the matters between Lopez and the

defendant. In response, the defendant relies on the business records exception to the hearsay rule to argue that

the Saporita affidavit and the exhibits annexed thereto

constituted competent evidence supporting the defendant’s motion for summary judgment. We agree with

the defendant.

We begin by setting forth the well settled legal principles and standard of review governing our resolution

of this claim. Summary judgment ‘‘shall be rendered

forthwith if the pleadings, affidavits and any other proof

submitted show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law.’’ Practice Book § 17-49.

‘‘Generally, [o]ur review of the trial court’s decision to

grant the . . . motion for summary judgment is plenary. . . . When presented with an evidentiary issue,

as in this case, our standard of review depends on the
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

specific nature of the claim presented. . . . Thus, [t]o

the extent a trial court’s admission of evidence is based

on an interpretation of [law], our standard of review is

plenary. For example, whether a challenged statement

properly may be classified as hearsay and whether a

hearsay exception properly is identified are legal questions demanding plenary review. . . . A trial court’s

decision to admit evidence, if premised on a correct

view of the law, however, calls for the abuse of discretion standard of review.’’ (Citations omitted; emphasis

omitted; internal quotation marks omitted.) Midland

Funding, LLC v. Mitchell-James, 163 Conn. App. 648,

652–53, 137 A.3d 1 (2016).

Practice Book § 17-46 provides: ‘‘Supporting and

opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible

in evidence, and shall show affirmatively that the affiant

is competent to testify to the matters stated therein.

Sworn or certified copies of all papers or parts thereof

referred to in an affidavit shall be attached thereto.’’

‘‘Section 17-46 sets forth three requirements necessary

to permit the consideration of material contained in

affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at

trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.

. . . Affidavits that fail to meet the criteria of . . .

§ 17-46 are defective and may not be considered to

support the judgment.’’ (Citation omitted; internal quotation marks omitted.) Atlantic St. Heritage Associates,

LLC v. Atlantic Realty Co., 216 Conn. App. 530, 550,

285 A.3d 1128 (2022).

‘‘Hearsay is an out-of-court statement offered to

prove the truth of the matter asserted. . . . Unless subject to an exception, hearsay is inadmissible. . . . If

the proffered evidence consists of business records, the
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

court must determine whether the documents satisfy

the modest requirements under [General Statutes] § 52-

1806 to admit them under the business records exception to the hearsay rule. . . .

‘‘To admit evidence under the business record exception to the hearsay rule, a trial court judge must first

find that the record satisfies each of the three conditions

set forth in . . . § 52-180. The court must determine,

before concluding that it is admissible, that the record

was made in the regular course of business, that it was

in the regular course of such business to make such a

record, and that it was made at the time of the act

described in the report, or within a reasonable time

thereafter. . . . To qualify a document as a business

record, the party offering the evidence must present a

witness who testifies that these three requirements have

been met. . . . Additionally, business records may be

authenticated by the testimony of one familiar with the

books of the concern, such as a custodian or supervisor,

who has not made the record or seen it made, that

the offered writing is actually part of the records of

business.’’ (Citations omitted; footnote added; internal

quotation marks omitted.) HSBC Bank USA, National

Assn. v. Gilbert, 200 Conn. App. 335, 348–49, 238 A.3d

784 (2020).

The following additional procedural history is relevant to our resolution of this claim. In support of its

motion for summary judgment, the defendant submitted

the Saporita affidavit accompanied by thirteen exhibits,

6 General Statutes § 52-180 (a) provides: ‘‘Any writing or record, whether

in the form of an entry in a book or otherwise, made as a memorandum or

record of any act, transaction, occurrence or event, shall be admissible as

evidence of the act, transaction, occurrence or event, if the trial judge finds

that it was made in the regular course of any business, and that it was the

regular course of the business to make the writing or record at the time

of the act, transaction, occurrence or event or within a reasonable time

thereafter.’’
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

including copies of (1) the endorsed note, (2) a July

10, 2018 letter addressed to the defendant from Lopez

notifying the defendant of the fire and providing the

defendant with a copy of the proceeds contract, (3)

payment records, and (4) email correspondence

reflecting Trusty’s request that the defendant apply the

balance of the proceeds to the outstanding mortgage

loan balance. Saporita attested that the defendant was

the mortgage loan servicer, that she, as an assistant

vice president of the defendant, was authorized to make

the affidavit, and that she had personal knowledge of

the facts and matters stated therein. Saporita further

attested that, in the regular performance of her job

responsibilities, she ‘‘[is] familiar with the types of

records maintained by [the defendant] in connection

with mortgage loans serviced by [the defendant] and/

or its predecessor by merger . . . including the loan

here at issue.’’ Additionally, she attested that she had

access to, and personally reviewed, business records

kept in the ordinary course of the defendant’s regularly

conducted business activities, including the defendant’s

regularly kept business records pertaining to the property. Saporita also attested that, on the basis of her

review of the aforementioned records, (1) Lopez and

the plaintiff had entered into the proceeds contract for

the restoration of the property, (2) on July 10, 2018,

Lopez notified the defendant of the fire and property

loss and provided the defendant with a copy of the

proceeds contract, (3) the defendant made payments

out of the proceeds to the plaintiff, and (4) the defendant was asked by Trusty to apply the remainder of the

proceeds to the unpaid mortgage loan balance.7

7 In its memorandum of decision, the court acknowledged the plaintiff’s

objections to the annexed exhibits, stating that it ‘‘review[ed] the evidence

submitted by both parties’’ to reach the conclusion that no issue of material

fact was in dispute. Although the court did not expressly make findings that

the exhibits fell within the business records exception to the rule against

hearsay and, therefore, were admissible, there is nothing in the record to

suggest that it relied on the defendant’s evidence as a result of an incorrect

application of law. Rather, our review of the record reveals that the court
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

On the basis of our review of the Saporita affidavit, we

conclude that (1) Saporita’s employment as an assistant

vice president of the defendant, and the related averments, evince her role as a records custodian authorized

to authenticate the defendant’s business records without her actual involvement in the transaction and (2)

the affidavit sufficiently demonstrated Saporita’s competency to aver to the information therein. Therefore,

we conclude that the court did not err in considering

the Saporita affidavit, along with the annexed exhibits,

in granting the defendant’s motion for summary judgment.

B

We next turn to the plaintiff’s claim that the Kolakowski affidavit did not constitute competent evidence pursuant to Practice Book § 17-46. Specifically, the plaintiff

argues that Kolakowski was not competent to attest

to the authenticity of certain Probate Court records

annexed to the Kolakowski affidavit, which related to

the administration of the Lopez estate, because he ‘‘was

not among the attorneys involved in the probate proceedings, and did not have custody of the Probate Court

file before, during, or after preparing the [defendant’s]

motion [for summary judgment].’’ Accordingly, the

plaintiff posits, the appended Probate Court records

should not have been considered by the court because

they were not properly authenticated by the Kolakowski

considered the arguments raised by the parties during the hearing on the

motion for summary judgment and in their respective briefs, which included

the defendant’s argument that the business records exception applied. The

plaintiff did not seek an articulation from the court on its analysis of this issue

thereafter; we therefore presume that the court applied the law correctly

in considering the defendant’s evidence. See State v. James K., 209 Conn.

App. 441, 465, 267 A.3d 858 (2021) (‘‘In Connecticut, our appellate courts

do not presume error on the part of the trial court. . . . Rather, the burden

rests with the appellant to demonstrate reversible error.’’ (Internal quotation

marks omitted.)), aff’d, 347 Conn. 648, 229 A.3d 243 (2023).
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United Cleaning & Restoration, LLC v. Bank of America, N.A.

affidavit. Because we conclude that the plaintiff’s claim

is unpreserved, we decline to review it.

The following additional procedural history is relevant. In support of its motion for summary judgment,

the defendant submitted Probate Court records that

reflect a court-approved agreement between the plaintiff and the Lopez estate to settle the plaintiff’s claim

against the estate for amounts owed in connection with

the proceeds contract. In the plaintiff’s memorandum

of law in opposition to the defendant’s motion for summary judgment, it argued that the court should not

consider the Probate Court records because they were

not authenticated and, therefore, were uncertified in

violation of Practice Book § 17-46. Thereafter, the

defendant filed simultaneously its reply brief and the

Kolakowski affidavit, attached to which were the Probate Court records. During the hearing on the defendant’s motion for summary judgment, the plaintiff did

not argue that the Kolakowski affidavit was defective

in any way. In fact, the hearing transcript is silent as

to the Kolakowski affidavit.

The plaintiff’s challenge to the Kolakowski affidavit

was raised for the first time in the plaintiff’s motion to

reargue. In denying the plaintiff’s motion to reargue,

the court stated in part that ‘‘the reasons provided by

the plaintiff are . . . ones that could have been raised

in its original opposition. The plaintiff has not shown

any mistake in the application of law or a misunderstanding of the facts presented. [A] motion to reargue

cannot be used to correct the deficiencies in a prior

motion . . . .’’ (Internal quotation marks omitted.) The

plaintiff on appeal does not challenge the court’s denial

of the motion to reargue.

‘‘It is well known that this court is not bound to

consider a claim unless it was distinctly raised at the

trial or arose subsequent to the trial. Practice Book
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§ 60-5. The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to

the attention of the court the precise matter on which

its decision is being asked. . . . 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 . . . to address the claim—would

encourage trial by ambuscade, which is unfair to both

the trial court and the opposing party.’’ (Emphasis omitted; internal quotation marks omitted.) Gainty v.

Infantino, 222 Conn. App. 785, 802, 306 A.3d 1171

(2023), cert. denied, 348 Conn. 948, 308 A.3d 36 (2024).

Our examination of the record reveals that the plaintiff raised the claim that the Kolakowski affidavit was

not competent evidence with the trial court for the first

time in its motion to reargue and is not challenging the

court’s denial of that motion in the present appeal. The

plaintiff’s claim, therefore, is not properly before this

court. Accordingly, we decline to review it. Cf. Wethington v. Wethington, 223 Conn. App. 715, 726 n.10, 309

A.3d 356 (2024) (concluding that issue raised for first

time in motion to reargue was reviewable when, inter

alia, defendant claimed on appeal that court abused its

discretion in denying motion).

II

The plaintiff next claims that the trial court improperly rendered summary judgment in the defendant’s

favor because there were genuine issues of material

fact as to both counts of the operative complaint. We

reject this claim.8

8 The plaintiff also claims that the court erred in making factual findings

in rendering summary judgment in the defendant’s favor. See, e.g., Belgada

v. Hy’s Livery Service, Inc., 220 Conn. App. 102, 111, 297 A.3d 199 (2023)

(‘‘[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.)). On the basis of our review of the

court’s decision, we conclude that the court did not engage in fact-finding;
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We begin by setting forth our standard of review and

additional legal principles relevant to our resolution of

this claim. ‘‘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]. . . .

Our review of the trial court’s decision to grant . . .

[a] motion for summary judgment is plenary.’’ (Footnote

omitted; internal quotation marks omitted.) Atlantic St.

Heritage Associates, LLC v. Atlantic Realty Co., supra,

216 Conn. App. 539–40.

rather, applying the correct legal standard, the court determined that the

defendant had established the absence of genuine issues of material fact

and that, once the burden had shifted to it, the plaintiff had failed to prove

the existence of any genuine issue of material fact.
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A

As to count one, the plaintiff contends that there was

a genuine issue of material fact as to whether it was

an intended third-party beneficiary of the mortgage.

The plaintiff maintains that the court improperly construed the mortgage to provide, in clear and unambiguous terms, that the parties to the mortgage did not

intend for the plaintiff to be a third-party beneficiary

thereof. We disagree.

‘‘Whether a party is a third party beneficiary of a

contract is a question of the intent of the contracting

parties.’’ Connecticut Housing Finance Authority v.

John Fitch Court Associates Ltd. Partnership, 49 Conn.

App. 142, 146, 713 A.2d 900, cert. denied, 247 Conn. 908,

719 A.2d 901 (1998). ‘‘When the language of a contract

is ambiguous, the determination of the parties’ intent

is a question of fact . . . . [When] there is definitive

contract language, [however] the determination of what

the parties intended by their contractual commitments

is a question of law. . . . It is implicit in this rule that

the determination as to whether contractual language

is plain and unambiguous is itself a question of law

subject to plenary review. . . . We accord the language

employed in the contract a rational construction based

on its common, natural and ordinary meaning and usage

as applied to the subject matter of the contract. . . .

Where the language is unambiguous, we must give the

contract effect according to its terms. . . . 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. . . . Moreover,

the mere fact that the parties advance different interpretations of the language in question does not necessitate

a conclusion that the language is ambiguous. . . . In

contrast, a contract is ambiguous if the intent of the

parties is not clear and certain from the language of
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the contract itself. . . . [A]ny ambiguity in a contract

must emanate from the language used by the parties.

. . . 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. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the

contract is ambiguous.’’ (Internal quotation marks omitted.) CCI Computerworks, LLC v. Evernet Consulting,

LLC, 221 Conn. App. 491, 503–504, 302 A.3d 297 (2023).

‘‘[O]ur courts have continued to refer to the intent

of the parties to create a direct obligation between the

promisor and the beneficiary as the test for determining

whether a nonparty to the contract is a third party

beneficiary thereof. . . . In determining whether a person has a right of action as a third party beneficiary,

[t]he ultimate test to be applied . . . is whether the

intent of the parties to the contract was that the promisor should assume a direct obligation to the third party

[beneficiary] and . . . that intent is to be determined

from the terms of the contract read in the light of the

circumstances attending its making, including the

motives and purposes of the parties. . . . Further, [t]he

intention of the parties to a contract is to be determined

from the language used interpreted in the light of the

situation of the parties and the circumstances connected with the transaction. The question is not what

intention existed in the minds of the parties but what

intention is expressed in the language used....

Because [a] promissory note and a mortgage deed are

deemed parts of one transaction and must be construed

together as such . . . we turn to the express language

in each of the loan instruments [as applicable].’’ (Citations omitted; emphasis in original; internal quotation

marks omitted.) Connecticut Housing Finance Authority v. John Fitch Court Associates Ltd. Partnership,

supra, 49 Conn. App. 147.
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Section 5 of the mortgage, titled ‘‘Property Insurance,’’ provides in relevant part: ‘‘In the event of loss,

Borrower shall give prompt notice to the insurance

carrier and Lender. . . . Unless Lender and Borrower

otherwise agree in writing, any insurance proceeds,

whether or not the underlying insurance was required

by Lender, shall be applied to restoration or repair of

the Property, if the restoration or repair is economically

feasible and Lender’s security is not lessened. During

such repair and restoration period, Lender shall have

the right to hold such insurance proceeds until Lender

has had an opportunity to inspect such Property to

ensure the work has been completed to Lender’s satisfaction, provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the

repairs and restoration in a single payment or in a series

of progress payments as the work is completed. . . .

Fees for public adjusters, or other third parties, retained

by Borrower shall not be paid out of the insurance

proceeds and shall be the sole obligation of Borrower.

If the restoration or repair is not economically feasible

or Lender’s security would be lessened, the insurance

proceeds shall be applied to the sums secured by this

Security Instrument, whether or not then due, with the

excess, if any, paid to Borrower. . . .’’

In rendering its decision as to count one, and, specifically, in considering the question of whether the plaintiff was a third-party beneficiary, the court reviewed

both the note and the mortgage and concluded that

‘‘the note and mortgage concerned only Lopez’ promise

to pay back the amounts loaned to him and the mortgage

was meant to protect the lender from any losses if all

payments were not made. Additionally, section 5 of the

mortgage specifically provided that ‘[f]ees for public

adjusters, or other third parties, retained by Borrower

shall not be paid out of the insurance proceeds and

shall be the sole obligation of Borrower.’ Neither the
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note nor the mortgage referenced [the plaintiff], directly

or indirectly, as a direct or intended beneficiary of those

contracts. The language is clear that Lopez was the sole

obligor on any contracts with third parties, such as [the

plaintiff]. . . . While the plaintiff points to language in

section 5 regarding the payment of insurance proceeds

for restoration and repair, this section states that in the

event of loss, ‘any insurance proceeds . . . shall be

applied to restoration or repair of the Property, if the

restoration or repair is economically feasible and Lender’s security is not lessened,’ unless the lender and the

borrower agree otherwise. The burden shifted to the

plaintiff to raise issues of fact regarding its claims of

being a third-party beneficiary, and it has failed to do

so.’’ (Citation omitted.)

For the reasons that follow, we agree with the court’s

reasoning that the language used in the note and the

mortgage dispel any notion that the plaintiff was an

intended third-party beneficiary thereof. As an initial

matter, there is no direct or indirect reference to the

plaintiff in either the note or the mortgage. Lopez was

the sole signatory to the note as a borrower, and only

Lopez and Trusty were signatories to the mortgage as

coborrowers. Second, § 5 of the mortgage, governing

‘‘Property Insurance,’’ does not require that the defendant make direct payments of insurance proceeds to a

third party such as the plaintiff and further provides

that insurance proceeds shall cover repairs made to the

property ‘‘if the restoration or repair is economically

feasible and Lender’s security is not lessened,’’ ‘‘[u]nless

Lender and Borrower otherwise agree in writing.’’

Third, the purpose of § 5 of the mortgage is to protect

the defendant’s interests and not to serve as a guarantee

on the payment of repair and restoration services, the

obligation of which belonged to the borrower. In sum,

the clear and unambiguous language of the foregoing

provisions, read collectively, evinces no intent of the
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contracting parties to confer third-party beneficiary status to the plaintiff.

The plaintiff relies on the isolated portion of § 5 of

the mortgage providing that ‘‘any insurance proceeds,

whether or not the underlying insurance was required

by Lender, shall be applied to restoration or repair of

the Property, if the restoration or repair is economically

feasible and Lender’s security is not lessened’’ to contend that there is ambiguity as to whether it was

intended to be a third-party beneficiary of the mortgage,

thereby creating a factual issue regarding the intent of

the parties to the mortgage. According to its reading

of this language, the plaintiff posits that ‘‘any insurance

proceeds’’ distributed following a loss must be used to

pay the plaintiff because it is ‘‘the one responsible for

‘restoration or repair of the Property.’ ’’ (Emphasis

altered.) We iterate that ‘‘the mere fact that the parties

advance different interpretations of the language in

question does not necessitate a conclusion that the

language is ambiguous’’ and that ‘‘[t]he 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.’’ (Internal

quotation marks omitted.) CCI Computerworks, LLC

v. Evernet Consulting, LLC, supra, 221 Conn. App. 503–

504. Further, the plaintiff disregards the prefatory

clause directly preceding the mortgage provision on

which it relies, namely, ‘‘Unless Lender and Borrower

otherwise agree in writing . . . .’’ As we explain in

the preceding paragraph, when read collectively, the

relevant portions of § 5 of the mortgage are clear and

unambiguous in evincing no intent by the parties to the

mortgage to confer third-party beneficiary status on the

plaintiff.

In addition, the plaintiff argues that there was extrinsic evidence that sufficiently raised a genuine issue of
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material fact regarding the plaintiff’s third-party beneficiary status under the mortgage.9 The plaintiff asserts

that this extrinsic evidence assists in interpreting the

relevant contractual terms on the question of intent and

supports the position that the plaintiff is a third-party

beneficiary under the mortgage. As we set forth earlier,

however, ‘‘[t]he question is not what intention existed

in the minds of the parties but what intention is

expressed in the language used.’’ (Emphasis in original;

internal quotation marks omitted.) Connecticut Housing Finance Authority v. John Fitch Court Associates

Ltd. Partnership, supra, 49 Conn. App. 147. Because,

as we have concluded, the clear and unambiguous language of the note and the mortgage reflects no intent

to make the plaintiff a third-party beneficiary thereof,

the use of parol evidence to vary or contradict such

language is forbidden. See Hirschfeld v. Machinist, 181

Conn. App. 309, 323–24, 186 A.3d 771, cert. denied, 329

Conn. 913, 186 A.3d 1170 (2018).

In sum, we conclude that the court properly determined that the note and the mortgage, in clear and

unambiguous terms, evinced no intent for the plaintiff

to be a third-party beneficiary thereof and that there

was no genuine issue of material fact barring the rendering of summary judgment as a matter of law in the

defendant’s favor on count one.

B

As to count two, the plaintiff claims that there existed

genuine issues of material fact regarding its unjust

enrichment claim. We are unpersuaded.

9 Specifically, the plaintiff cites (1) averments made in the Leone affidavit,

(2) averments made in the Saporita affidavit, (3) evidence of payments from

the proceeds made by the defendant to the plaintiff, and (4) a disclosure

filed by the plaintiff on March 14, 2022, of an expert witness, who, according

to the plaintiff, would offer testimony relating to the third-party beneficiary

issue, ‘‘as the issue of whether the plaintiff was an intended beneficiary

under the mortgage is of a particularly complex nature . . . .’’
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‘‘Unjust enrichment is a legal doctrine to be applied

when no remedy is available pursuant to a contract.

. . . In order for the plaintiff to recover under the doctrine, it must be shown that the [defendant] [was] benefited, that the benefit was unjust in that it was not paid

for by the [defendant], and that the failure of payment

operated to the detriment of the plaintiff.’’ (Internal

quotation marks omitted.) CCI Computerworks, LLC

v. Evernet Consulting, LLC, supra, 221 Conn. App. 508.

In rendering summary judgment in the defendant’s

favor on count two, the court stated in relevant part

that ‘‘the plaintiff claims that the defendant was unjustly

benefited because the plaintiff performed the work at

the property and the defendant . . . applied the sales

proceeds10 to the note and mortgage, instead of paying

the plaintiff. Specifically, the plaintiff’s work enriched

the defendant because the repair work increased the

value the defendant was able to obtain for the [property]. In an unjust enrichment case, ‘[t]he question is:

did he, [the party liable] to the detriment of someone

else, obtain something of value to which he was not

entitled?’ . . . Piccolo v. American Auto Sales, LLC,

[195 Conn. App. 486, 496, 225 A.3d 961 (2020)]. The

defendant bargained to be legally entitled to the maintenance of the value of its collateral without additional

expenses under the mortgage’s terms. Additionally, the

defendant was not a party to the proceeds contract and

had no obligation to make any of the payments due

under that agreement.’’ (Footnote added.)

The plaintiff asserts that the court overlooked evidence that it submitted demonstrating that its repair

work benefited the defendant by enhancing the marketability of the property while causing the plaintiff to

10 Although the court refers to ‘‘sales proceeds,’’ we presume the court

was addressing the insurance proceeds as discussed in this opinion.
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incur a monetary loss.11 As the court determined, however, the defendant established that there was no genuine issue of material fact that it did not ‘‘ ‘obtain something of value to which [it] was not entitled’ ’’ because

it was ‘‘legally entitled to the maintenance of the value

of its collateral without additional expenses under the

mortgage’s terms . . . .’’ In other words, the court concluded that the defendant was not ’’benefited’’ for purposes of the plaintiff’s unjust enrichment claim when it

applied the proceeds toward the outstanding mortgage

loan balance.12 In fact, the record reflects that, at the

time Trusty requested that the defendant apply the

remaining proceeds available to pay down the outstanding mortgage loan balance, the available insurance proceeds were insufficient to cover the balance (leaving

the estate to pay the remaining balance). Simply put,

the defendant demonstrated that it did not receive more

than it was entitled to under the loan. Because the

defendant’s evidence demonstrated that there was no

genuine issue of material fact relating to this element

of the plaintiff’s claim, the plaintiff was obligated to set

forth sufficient evidence to raise a genuine issue of

material fact that it has a superior equitable entitlement

to the proceeds. The plaintiff failed to do so.13

11 Specifically, as supporting evidence, the plaintiff refers to (1) averments

made in the Leone affidavit and (2) its expert witness disclosure filed on

March 14, 2022. 12 The plaintiff also claims that the court ‘‘incorrectly ma[de] equitable

determinations in contravention of [the] standard on this disposition of

summary judgment.’’ This claim is untenable under the same rationale that

we set forth in footnote 8 of this opinion.

In addition, while citing no appellate authority for the proposition, the

plaintiff appears to raise a distinct contention that an unjust enrichment

claim, given its equitable nature, is not suitable for adjudication by way of

a motion for summary judgment. This claim is without merit. Cf. Professional

Electrical Contractors of Connecticut, Inc. v. Stamford Hospital, 196 Conn.

App. 430, 442–43, 230 A.3d 773 (2020) (summary judgment on unjust enrichment claim, although available, was not proper when movant failed to demonstrate absence of genuine issue of material fact). 13 The plaintiff argues that the trial court failed to consider the plaintiff’s

expert disclosure of James McConnon dated March 14, 2022, which,
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In sum, we conclude that the court correctly determined that there were no genuine issues of material

fact concerning either count of the operative complaint

and that the defendant was entitled to summary judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

according to the plaintiff, created a genuine issue of material fact with

respect to each count. This argument is without merit.

It is well settled that any evidence considered in connection with a motion

for summary judgment must be admissible. See Hudson City Savings Bank

v. Hellman, 196 Conn. App. 836, 861, 231 A.3d 182 (2020) (court is limited to

considering documents that would be admissible at trial); Midland Funding,

LLC v. Mitchell-James, supra, 163 Conn. App. 655 (‘‘[o]nly evidence that

would be admissible at trial may be used to support or oppose a motion

for summary judgment’’). An expert disclosure pursuant to Practice Book

§ 13-4—which is prepared, signed, and filed either by a self-represented

party or a party’s attorney (here, the plaintiff’s attorney) and which is not

signed by the expert witness identified therein—is not admissible evidence.

Unlike the deposition testimony of an expert witness, an expert witness

affidavit, or a written report of an expert witness, an expert witness disclosure has no evidentiary value. See, e.g., Universal North America Ins. Co.

v. Bentley, Superior Court, judicial district of Fairfield, Docket No. CV-20-

6100732-S (June 7, 2022) (‘‘[a]n expert disclosure is not admissible evidence’’).