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

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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 mort-
gage loan that the defendant serviced. In addition, L obtained a home-
owners 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 pro-
ceeds 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 sum-
mary 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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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 defen-
dant’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 unambigu-
ous language of the note and the mortgage evinced no intent of the
contracting parties to confer third-party beneficiary status on the plain-
tiff, 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 suffi-
ciently 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 third-
party 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 sum-
mary 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 (defen-
dant).
Opinion

MOLL, J. The plaintiff, United Cleaning & Restoration,
LLC, appeals from the judgment of the trial court grant-
ing the motion for summary judgment filed by the defen-
dant, 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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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 dis-
bursements 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 coexecu-
tor 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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the remaining proceeds available to pay down the out-
standing 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 vio-
lated 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 mort-
gage loan balance notwithstanding that its repair work
had benefited the defendant by enhancing the market-
ability 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 pro-
ceeds 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 outstand-
ing mortgage loan balance.4 The defendant denied, how-
ever, 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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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 exe-
cuted by an assistant vice president of the defendant,
Stephanie A. Saporita (Saporita affidavit), with addi-
tional 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 sum-
mary judgment, which was accompanied by the per-
sonal affidavit of the plaintiff’s managing member, Wil-
liam 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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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 judg-
ment, including the Saporita affidavit, was ‘‘inappropri-
ate and insufficient,’’ (2) count one because there was
a genuine issue of material fact as to whether the mort-
gage conferred third-party beneficiary status on the
plaintiff, and (3) count two because (a) unjust enrich-
ment 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, accom-
panied by a supplemental affidavit of its counsel, Attor-
ney 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 third-
party 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 plain-
tiff . . . 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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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 affida-
vit, we conclude that the plaintiff’s claim is unpre-
served.
A
We first turn to the plaintiff’s contention that the
Saporita affidavit did not constitute competent evi-
dence 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 person-
ally involved in the matters between Lopez and the
defendant. In response, the defendant relies on the busi-
ness records exception to the hearsay rule to argue that
the Saporita affidavit and the exhibits annexed thereto
constituted competent evidence supporting the defen-
dant’s motion for summary judgment. We agree with
the defendant.
We begin by setting forth the well settled legal princi-
ples 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 ple-
nary. . . . When presented with an evidentiary issue,
as in this case, our standard of review depends on the
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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 ques-
tions 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 discre-
tion 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 knowl-
edge, 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 proceed-
ing. The material must: (1) be based on personal knowl-
edge; (2) constitute facts that would be admissible at
trial; and (3) affirmatively show that the affiant is com-
petent 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 quo-
tation 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 sub-
ject to an exception, hearsay is inadmissible. . . . If
the proffered evidence consists of business records, the
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court must determine whether the documents satisfy
the modest requirements under [General Statutes] § 52-
1806 to admit them under the business records excep-
tion to the hearsay rule. . . .
‘‘To admit evidence under the business record excep-
tion 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 rele-
vant 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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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 prop-
erty. 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 defen-
dant 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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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 aver-
ments, evince her role as a records custodian authorized
to authenticate the defendant’s business records with-
out her actual involvement in the transaction and (2)
the affidavit sufficiently demonstrated Saporita’s com-
petency 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 judg-
ment.

B

We next turn to the plaintiff’s claim that the Kolakow-
ski affidavit did not constitute competent evidence pur-
suant 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 pro-
ceedings, 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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affidavit. Because we conclude that the plaintiff’s claim
is unpreserved, we decline to review it.
The following additional procedural history is rele-
vant. In support of its motion for summary judgment,
the defendant submitted Probate Court records that
reflect a court-approved agreement between the plain-
tiff 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 sum-
mary 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 Pro-
bate Court records. During the hearing on the defen-
dant’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 misunder-
standing 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 dis-
tinctly 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 omit-
ted; 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 plain-
tiff 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. Wething-
ton 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 improp-
erly 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 proce-
dure. . . . [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 nonexis-
tence 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 sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation 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 dis-
puted 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 pre-
sented 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 con-
strued the mortgage to provide, in clear and unambigu-
ous 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 interpre-
tations 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 suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Internal quotation marks omit-
ted.) 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 per-
son 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 promi-
sor 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 con-
nected 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].’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) Connecticut Housing Finance Author-
ity v. John Fitch Court Associates Ltd. Partnership,
supra, 49 Conn. App. 147.
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Section 5 of the mortgage, titled ‘‘Property Insur-
ance,’’ 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 satis-
faction, provided that such inspection shall be under-
taken 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, specifi-
cally, in considering the question of whether the plain-
tiff 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 Lend-
er’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 defen-
dant 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 sta-
tus 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 con-
tend 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 extrin-
sic evidence that sufficiently raised a genuine issue of
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material fact regarding the plaintiff’s third-party benefi-
ciary 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 Hous-
ing Finance Authority v. John Fitch Court Associates
Ltd. Partnership, supra, 49 Conn. App. 147. Because,
as we have concluded, the clear and unambiguous lan-
guage 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 deter-
mined 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 render-
ing 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 doc-
trine, it must be shown that the [defendant] [was] bene-
fited, 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 [prop-
erty]. 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 mainte-
nance 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 evi-
dence that it submitted demonstrating that its repair
work benefited the defendant by enhancing the market-
ability 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, how-
ever, the defendant established that there was no genu-
ine issue of material fact that it did not ‘‘ ‘obtain some-
thing 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 con-
cluded that the defendant was not ’’benefited’’ for pur-
poses 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 outstand-
ing mortgage loan balance, the available insurance pro-
ceeds 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 enrich-
ment claim, although available, was not proper when movant failed to demon-
strate 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 deter-
mined that there were no genuine issues of material
fact concerning either count of the operative complaint
and that the defendant was entitled to summary judg-
ment 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 disclo-
sure 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 evi-
dence’’).