212 Conn.App. 791
Conn. App. Ct.2022Background
- Borrowers (Isaac and Jane Kinity) defaulted on a mortgage; US Bank (servicer) inspected the property and reported it appeared vacant, prompting insurer (State Automobile/Patrons Mutual) to cancel then briefly reinstate the homeowner policy; reinstatement premium went unpaid and the bank obtained an expensive lender-placed insurance (LPI) which it charged to the borrowers.
- Plaintiff sued initially (naming a trade name of US Bank), obtained default judgment, then that judgment was opened and the original action dismissed for lack of jurisdiction and insufficient service; plaintiff then filed a new action asserting many claims and invoking § 52-592 (accidental failure of suit) and the continuing course of conduct doctrine to save otherwise time-barred claims.
- Defendants (bank and insurers) moved for summary judgment; trial court granted both motions, concluding § 52-592 and the continuing course doctrine did not save the claims and remaining claims failed as a matter of law.
- While the appeal was pending, plaintiff’s counsel negotiated a $10,000 settlement with the insurers; insurers moved to enforce the settlement in the trial court under Audubon; the trial court found a clear, enforceable agreement and ordered its terms enforced (withdrawal of action), and this postjudgment enforcement was appealed by plaintiff.
- Appellate court affirmed: (1) trial court had authority under Audubon to enforce a settlement reached postjudgment during an appeal; (2) the settlement was clear, unambiguous, supported by consideration, and not contingent on a global settlement with the bank; and (3) the bank was entitled to summary judgment because § 52-592 did not apply (no evidence bank received summons/complaint), the continuing course doctrine did not toll limitations (no special/fiduciary relationship), and there was no factual showing of bad faith.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court may summarily enforce a settlement reached postjudgment while appeal pending under Audubon | Audubon power limited to enforcement while case pending in trial court (not postjudgment on appeal) | Audubon applies to settlements that end litigation and can include ones reached during an appeal; court has supervisory interest | Court: Audubon authority extends to postjudgment settlements during appeal; enforcement proper |
| Existence/enforceability of settlement with insurers ($10,000 release) | Settlement contingent on global deal with bank; release clause (withdraw Superior Court action) made performance impossible | Parties manifested objective assent; counsel agreed to "live with" language; insurers provided consideration | Court: objective manifestations show mutual assent; agreement clear, supported by consideration, enforceable |
| Applicability of § 52-592 to save plaintiff’s untimely claims against bank | Original action was commenced and § 52-592 saves claims because defendants had notice; communications/appearance by bank show notice | Original action was not commenced as to bank (no evidence bank received summons/complaint); Rocco/Dorry require defendant received actual/effective notice by receipt of process | Court: § 52-592 inapplicable—plaintiff failed to show bank received summons/complaint; summary judgment proper |
| Whether continuing course of conduct doctrine tolled statutes of limitations against bank | Bank had ongoing duties (servicing, escrow, insurance premium handling); implied contract created continuing duty to borrower | Relationship was arm’s-length commercial servicing; no fiduciary/special relationship; no continuing breach evidence | Court: doctrine inapplicable—no special fiduciary relationship or continuing duty; summary judgment proper |
Key Cases Cited
- Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804 (trial court may summarily enforce clear unambiguous settlement to end litigation)
- Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495 (court may resolve factual disputes on motions to enforce settlements; equitable enforcement)
- Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123 (standards for appellate review of unpreserved claims under supervisory powers)
- Matos v. Ortiz, 166 Conn. App. 775 (Audubon enforcement limited to agreements reached after litigation commenced)
- Rocco v. Garrison, 268 Conn. 541 (for § 52-592, an original action is "commenced" when defendant receives actual/effective notice of summons/complaint)
- Dorry v. Garden, 313 Conn. 516 (reaffirming that effective notice can satisfy § 52-592 despite defective service)
- Waldman v. Beck, 101 Conn. App. 669 (trial court limited to enforcing the precise relief agreed to in settlement)
- Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286 (elements and limits of continuing course of conduct doctrine)