author: GRUENDEL, J.

text:
    JOSE R. SANTIAGO, JR. v. COMMISSIONER OF MOTOR VEHICLES
    (AC 32973)
    Gruendel, Sheldon and Flynn, Js.

      Argued January 12
    officially released April 10, 2012

      Jonathan Ross Sills, for the appellant (plaintiff).

      Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
   Opinion

GRUENDEL, J.

Pursuant to General Statutes § 4-183, the plaintiff, Jose R. Santiago, Jr., commenced an administrative appeal in the Superior Court from the decision of the defendant, the commissioner of motor vehicles, suspending his motor vehicle operator’s license for ten months and his commercial driver’s license for life. Following a hearing, the court dismissed that appeal. The plaintiff now challenges the propriety of that determination. Specifically, he claims that the defendant erred in (1) admitting into evidence certain documents at the administrative hearing, (2) finding that the plaintiffs blood alcohol content was tested within two hours of his operation of a motor vehicle and (3) ordering a lifetime suspension of the plaintiffs commercial driver’s license. We affirm the judgment of the Superior Court.

The facts largely are undisputed. At the time of the incident giving rise to this appeal, the plaintiff had a history of operating a motor vehicle under the influence of alcohol. On August 14, 2006, he was arrested and charged with a violation of General Statutes (Rev. to 2005) § 14-227b due to his refusal to submit to a chemical alcohol test. His operator’s license was suspended on September 28, 2006, pursuant to General Statutes (Rev. to 2005) § 14-227b, and restored on March 28, 2006. The plaintiff subsequently obtained his commercial driver’s license in 2009.

On the evening of March 28, 2010, the plaintiff was arrested in West Hartford following an automobile accident and charged, inter alia, with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 2009) § 14-227a. After failing multiple field sobriety tests, the plaintiff was transported to the Newington police department, where two breath tests were performed at 8:33 p.m. and 8:60 p.m. Those tests yielded blood alcohol content readings of 0.182 and 0.176, respectively.

A license suspension hearing was held on April 26, 2010. At that administrative hearing, the arresting police officer, Raymond Narciso of the West Hartford police department, testified. In addition, copies of the plaintiffs driving history, the case/incident report prepared by Narciso and an A-44 form, which included the breath test results, were admitted into evidence, the latter two over the objection of the plaintiffs counsel. Thereafter, the defendant, through a hearing officer, reached the following findings of fact and conclusions of law: “1. The police officer had probable cause to arrest [the plaintiff] for a violation specified in [§] 14-227b .... 2. The [plaintiff] is the holder of a commercial driver’s license. 3. The [plaintiff] was placed under arrest. 4. [The plaintiff] was operating the motor vehicle. 5. The [plaintiff] submitted to the test or analysis and the results indicated a [blood alcohol content] of .16 [percent] or more.” In addition, the defendant determined that “[substantial evidence is found to establish operation within [two] hours of the commencement of the first breath test pursuant to the evidence and the testimony of the police officer.” On the basis of the foregoing, the defendant, through the hearing officer, ordered the suspension of the plaintiff’s motor vehicle operator’s license for ten months and his commercial driver’s license for life.

Pursuant to § 4-183, the plaintiff appealed from that decision to the Superior Court. The court conducted a hearing on November 17, 2010, at the conclusion of which it dismissed the appeal. At the request of the plaintiff, the court on March 29,2011, issued an articulation on each of the four issues raised in the administrative appeal. This appeal followed.

Before considering the defendant’s specific claims, we note the standard applicable to our review of administrative decisions. “[J]udicial review of the [defendant’s] action is governed by the Uniform Administrative Procedure Act [General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted. . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Winsor v. Commissioner of Motor Vehicles, 101 Conn. App. 674, 679-80, 922 A.2d 330 (2007).

I

The plaintiff first claims that the defendant, through the hearing officer at the license suspension hearing, improperly admitted into evidence both the A-44 form and the “case/incident report” (report) that accompanied it. We disagree.

At the outset, we note that “[h]eadngs before administrative agencies, such as those before the commissioner of motor vehicles, are informal and are not governed by the strict or technical rules of evidence.” Pizzo v. Commissioner of Motor Vehicles, 62 Conn. App. 571, 579, 771 A.2d 273 (2001). Rather, the critical inquiry is whether “the evidence is rehable and probative.” Lawrence v. Kozlowski, 171 Conn. 705, 710, 372 A. 2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 712, 692 A.2d 834 (1997); see 1B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 6, pp. 5-6. In administrative hearings involving the defendant, the hearing officer is the arbiter of the credibility of evidence. See Pizzo v. Commissioner of Motor Vehicles, supra, 579. On appeal, “[t]he plaintiff bears the burden of demonstrating that a hearing officer’s evidentiary ruling is arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Winsor v. Commissioner of Motor Vehicles, supra, 101 Conn. App. 687.

A

The plaintiff claims that the defendant improperly admitted into evidence an allegedly outdated A-44 form that “did not fully reflect the law of . . . Connecticut.” More precisely, he alleges that the form used in this case did not disclose the consequences of refusing or taking a breath test on his commercial driver’s license, thereby precluding its admission at his license suspension hearing. He is mistaken.

General Statutes § 14-227b, commonly referred to as the implied consent statute, governs license suspension hearings. Section 14-227b (g) provides in relevant part that “[t]he hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle. . . .” Our Supreme Court repeatedly has held that a license suspension hearing “is expressly limited to the four issues enumerated” in that statute. Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986); see Volck v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987) (“we continue to adhere to our declaration that a license suspension hearing must be limited to the four issues set forth in [General Statutes (Rev. to 1987)] § 14-227b [d]”). The court further has held that “whether an operator was warned of the consequences of refusing to submit to chemical tests is not made one of the issues to be adjudicated” pursuant to § 14-227b. Id., 520.

Section 14-227b (a) provides in relevant part that “ [a]ny person who operates a motor vehicle in this state shall be deemed to have given such person’s consent to a chemical analysis of such person’s blood, breath or urine . As such, “[w]hen a driver refuses a test to which he is deemed by the statute to have consented, that refusal need not be attended by the kind of warning required in criminal proceedings for a waiver of significant legal rights. The legislature, by limiting the issue at the license suspension hearing to whether a refusal has occurred, has chosen to rely on the presumption that everybody knows the law, including the consequences of breaking it.” Volck v. Muzio, supra, 204 Conn. 520-21. Thus, inquiry into whether an operator of a motor vehicle properly was advised of the consequences of refusing or consenting to a breath test plays no part in the license suspension hearing, as the “failure to warn the plaintiff of the consequences of his refusal of testing would not constitute a ground for setting aside the order of suspension.” Id., 521.

Moreover, the plaintiff cannot establish any prejudice resulting from the use of an A-44 form that did not disclose the consequences of refusing or taking a breath test. As the Superior Court aptly observed in its articulation, General Statutes § 14-44k calls for the same penalty whether the breath test is refused or failed by the holder of a commercial driver’s license. See General Statutes § 14-44k (c) (“a person is disqualified from operating a commercial motor vehicle for one year if the commissioner finds that such person has refused to submit to a test to determine such person’s blood alcohol concentration while operating any motor vehicle, or has failed such a test when given”); General Statutes § 14-44k (h) (“[a] person is disqualified for life if the commissioner takes suspension actions against such person for two or more alcohol test refusals or test failures, or any combination of such actions, arising from two or more separate incidents”). Although the plaintiff in this appeal asserts that “had the [defendant] . . . excluded the form A-44 and the attached police report, there would be no evidence of intoxication,” he neglects the fact that Narciso appeared at the administrative hearing and testified to the truth and accuracy of those documents, which detailed the plaintiffs breath test results. The plaintiffs claim, therefore, is untenable.

B

The plaintiff also alleges that the defendant erred in admitting into evidence the report that was attached to the A-44 form. He maintains that the report was unreliable because Narciso signed the A-44 form on March 28, 2010, but signed the report on March 29, 2010. We do not agree.

Section 14-227b (c) requires such reports to “be subscribed and sworn to under penalty of false statement ... by the arresting officer.” The oath section of the A-44 form, which immediately precedes Narciso’s signature, states that “[t]his report of chemical alcohol test or refusal and the attachments hereto . . . are subscribed and sworn to by me, the arresting officer, under penalty of false statement . . . .” That signature is dated March 28, 2010. Narciso also signed all three pages of the report that was attached to the A-44 form, albeit on March 29, 2010.

Significantly, Narciso testified at the plaintiffs license suspension hearing. At that time, he swore to the truth and accuracy of the report under penalty of false statement. In addition, although Narciso was cross-examined by the plaintiff, no questions were posed relating to his preparation of the report. Although we cannot condone the practice of signing an A-44 form that incorporates by reference an attached police report that was not signed at that time, its admission was harmless in the present case in light of Narciso’s sworn testimony at the hearing. In light of that testimony, the defendant reasonably could have determined that the report was both rehable and probative. Accordingly, it was not an abuse of discretion to admit the report into evidence.

n

The plaintiff next claims that the defendant erroneously found that his blood alcohol content was tested within two hours of his operation of a motor vehicle, as required by § 14-227b (c). We review that finding pursuant to the substantial evidence standard. Winsor v. Commissioner of Motor Vehicles, supra, 101 Conn. App. 679-80.

In his testimony at the plaintiffs license suspension hearing, Narciso detailed the events of the evening of March 28, 2010. He testified that he was dispatched to the accident involving the plaintiffs motor vehicle at 7:26 p.m. He explained that he “cannot say exactly at this particular moment when [the accident] happened. I can give ... a parameter, within a few minutes of dispatch. . . . [B]ased on the nature of the vehicles, where they were at, the fact that they were still leaking fluids, that the occupants were still around the area at the time and what they said to me at the time . . . .” On that basis, Narciso opined that the accident was relatively fresh. In addition, Narciso testified that the plaintiff informed him that he had consumed his last drink at seven o’clock. When asked if that time pertained to 7:00 a.m. or 7:00 p.m., Narciso replied that the plaintiff “had stated to me earlier that he had been having dinner, and he had drinks with dinner, so I assume by dinner he was responding in the p.m.” Likewise, Narciso’s report states in relevant part: “While speaking with [the plaintiff] ... I detected the odor of an alcoholic beverage on his breath. ... I then asked [the plaintiff] if he had consumed any alcoholic beverages that night. He replied that he had ‘two beers’ with dinner.” (Emphasis added.)

It is undisputed that the first breath test was administered on the plaintiff at 8:33 p.m. Narciso’s testimony at the administrative hearing and his report constituted substantial evidence on which the defendant reasonably could find that the breath test was administered within two hours of the plaintiffs operation of a motor vehicle.

Ill

As a final matter, the plaintiff contends that the defendant improperly ordered a lifetime suspension of his commercial driver’s license pursuant to General Statutes § 14-44k (h), which is implicated when the defendant takes suspension actions against a person for, inter alia, two or more alcohol test refusals and/or failures arising from two or more separate incidents. The plaintiff maintains that this statutory requirement does not apply in the present case because he had not obtained a commercial driver’s license at the time of his first license suspension.

The plaintiffs claim presents a question of statutory construction over which our review is plenary. Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 530, 839 A.2d 1250 (2004). “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) State v. Custer, 110 Conn. App. 836, 840, 956 A.2d 604 (2008).

Section 14-44k (h) provides in relevant part that “[a] person is disqualified for life [from holding a commercial driver’s license] if the [defendant] takes suspension actions against such person for two or more alcohol test refusals or test failures, or any combination of such actions, arising from two or more separate incidents. . . ,” Significantly, neither § 14-44k (h) nor any other provision in that statute contains language limiting application thereof to suspensions ordered after said person has obtained a commercial driver’s license. To the contrary, § 14-44k (h) plainly and unambiguously pertains to “suspension actions against [a] person for two or more alcohol test refusals or test failures, or any combination of such actions, arising from two or more separate incidents. . . .” It is undisputed that the defendant took suspension action against the plaintiff on September 28, 2005, and April 27, 2010, for two separate incidents in which the plaintiff violated § 14-227b.

The absence of language limiting the application of § 14-44k (h) to suspensions only occurring after a person has obtained a commercial driver’s license entirely is consistent with the underlying purpose of this statutory scheme. As we have observed, “[t]he statutory scheme is aimed at regulating potentially dangerous drivers in order to increase public safety on the state’s highways. One set of the dangers identified by the scheme, as relevant to the plaintiff, is posed by drivers who drive while under the influence of alcohol. . . . [T]he state has a legitimate interest in highway safety and a responsibility to protect its citizens from those who would drive on its roads while under the influence of alcohol, thereby placing themselves and others in harm’s way. . . . Connecticut case law [interpreting our motor vehicle licensing statutes] establishes that our legislature has promulgated an unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers. . . . With regard to drivers of commercial vehicles, the legislature has chosen to further this policy, pursuant to § 14-44k (h), by disqualifying for life individuals who have engaged twice in driving while under the influence of intoxicating liquor or drugs or have committed other specified offenses.” (Citations omitted; internal quotation marks omitted.) Cormier v. Commissioner of Motor Vehicles, 105 Conn. App. 558, 563-64, 938 A.2d 1258 (2008). It is a “fundamental tenet of statutory construction . . . that statutes are to be considered to give effect to the apparent intention of the lawmaking body.” (Internal quotation marks omitted.) Ames v. Commissioner of Motor Vehicles, supra, 267 Conn. 531. We simply cannot reconcile the plaintiffs interpretation of § 14-44k (h) with the legislature’s purpose in enacting this remedial statutory scheme.

Under the plaintiffs novel interpretation of § 14-44k (h), the defendant could have taken suspension action against a person on multiple occasions for alcohol test refusals and/or failures prior to that person obtaining a commercial driver’s license, yet the defendant would be powerless to order a lifetime suspension upon a subsequent alcohol test refusal or failure that transpired after the commercial driver’s license was obtained. To paraphrase the words of this court in Cormier, that interpretation would frustrate the clear public safety purpose of this statutory scheme by allowing a license holder whose license repeatedly has been suspended to start with a clean slate. See Cormier v. Commissioner of Motor Vehicles, supra, 105 Conn. App. 565. We decline to adopt such a bizarre interpretation of § 14-44k (h). See State v. Sandoval, 263 Conn. 524, 553, 821 A.2d 247 (2003) (“we interpret statutes to avoid bizarre or nonsensical results”).

At its essence, the plaintiffs claim asks us to rewrite § 14-44k (h) so as to insert a provision requiring suspension upon two or more alcohol test refusals and/or failures only while holding a commercial driver’s license. That we refuse to do. We are obligated to “construe a statute as written. . . . Courts may not by construction supply omissions ... or add exceptions .... The intent of the legislature ... is to be found not in what the legislature meant to say, but in the meaning of what it did say. ... It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature.” (Internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 216, 901 A.2d 673 (2006). Because the plain language indicates the legislature’s intent to apply § 14-44k (h) to “suspension actions against such person for two or more alcohol test refusals or test failures, or any combination of such actions, arising from two or more separate incidents,” rather than simply those incurred only while one holds a commercial driver’s license, we conclude, as we did in Cormier, that the defendant did not apply that statute in retroactive fashion. See Cormier v. Commissioner of Motor Vehicles, supra, 106 Conn. App. 564-65.

“The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) McCoy v. Commissioner of Public Safety, 300 Conn. 144, 150, 12 A.3d 948 (2011). Having considered the text of the statute itself and its relationship to other statutes, we conclude that § 14-44k (h) contains no ambiguity. It means what it says: a person is disqualified for life if the commissioner takes suspension actions against such person for two or more alcohol test refusals or test failures, or any combination of such actions, arising from two or more separate incidents.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also was charged with making an improper left turn in violation of General Statutes § 14-242.

       “The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests.” Roy v. Commissioner of Motor Vehicles, 67 Conn. App. 394, 396 n.3, 786 A2d 1279 (2001).

       The plaintiff did not appear at his license suspension hearing.

       The court’s articulation addressed (1) whether the “hearing officer erred in admitting the A-44 form because the form was a ‘stale form,’ not disclosing the consequences to one holding a commercial driver’s license ... of refusing or taking the preferred ‘breath test,’ ” (2) whether “the narrative supplements to the A-44 form [set forth in the police report] were unreliable as the A-44 was signed on March 28,2010, while the [arresting] officer signed the attachments on March 29,2010,” (3) whether “the hearing officer erroneously concluded that the first test was properly given . . . within two hours of operation,” and (4) whether “the hearing officer erred in imposing a lifetime ban” on the plaintiffs commercial driver’s license.

       We note that § 14-44k (h) also provides in relevant part that “[a]ny person disqualified for life . . . who has both voluntarily enrolled in and successfully completed an appropriate rehabilitation program, as determined by the commissioner, may apply for reinstatement of such person’s commercial driver’s license, provided any such applicant shall not be eligible for reinstatement until such time as such person has served a minimum disqualification period of ten years. . . .”

       The defendant’s September 28, 2005 suspension action stemmed from the plaintiffs refusal to submit to a blood alcohol test on August 14, 2005, while the present suspension resulted from his failure of two breath tests.


source: Caselaw Access Project

author: SHELDON, J.

license: Public Domain

text:
    MAURIZIO D. LANCIA v. STATE NATIONAL INSURANCE COMPANY ET AL.
    (AC 32987)
    DiPentima, C. J., and Beach and Sheldon, Js.

      Argued January 10
    officially released April 10, 2012

      Samuel I. Reich, with whom, on the brief, was Anthony B. Corleto, for the appellants (defendants).

      Frederick L. Murolo, with whom was Karen T. Mur-ólo, for the appellee (plaintiff).
   Opinion

SHELDON, J.

The defendants, State National Insurance Company (State National) and First Mercury Insurance Company (First Mercury), appeal from the judgment rendered by the trial court in favor of the plaintiff, Attorney Maurizio D. Lancia, on Lancia’s claim of breach of contract based on the defendants’ failure and refusal to defend him, under a liability insurance policy issued to his law firm, in four underlying actions stemming from his alleged involvement in certain real estate transactions. The defendants claim on appeal that the court erred in determining that they have a duty to defend Lancia in the underlying actions because none of the claims presented in any such action falls within the scope of the insuring agreement under the policy, which extends only to claims arising out of Lan-cia’s practice of law on behalf of his law firm, and all such claims are excluded from coverage under a policy exclusion that applies to claims arising out of Lancia’s activities as an officer, director, partner, manager or employee of any business other than that of his law firm. We agree with the defendants that all claims pending against Lancia in the underlying actions are excluded from coverage under the subject policy because, as pleaded, they unquestionably arise out of his activities as an owner of Royal Financial Services, LLC (Royal), a mortgage brokerage company. We thus conclude that the trial court’s judgment must be reversed and this case must be remanded to that court with direction to render judgment in favor of the defendants, both on Lancia’s claim of breach of contract and on the defendants’ counterclaim for a declaratory judgment that they have no duty to defend Lancia in any of the underlying actions.

The following factual and procedural history is relevant to the issues on appeal. At all times relevant to Lancia’s claims, his law firm, the Law Office of Maurizio D. Lancia, P.C., was the named insured under a professional liability insurance policy issued by State National. First Mercury serves as the claims adjuster for the policy. In 2007, Lancia was sued as a defendant in four separate civil actions stemming from his involvement in allegedly fraudulent real estate transactions: McClardy v. Guzman, Superior Court, judicial district of Hartford, Docket No. CV-07-5017594-S; Sommers v. Guzman, Superior Court, judicial district of Hartford, Docket No. CV-07-5018208-S; Reynoso v. Guzman, Superior Court, judicial district of Hartford, Docket No. CV-07-5017596-S; and Zayas v. Velez, Superior Court, judicial district of Hartford, Docket No. CV-07-5017928-S. Lancia notified the defendants of the filing of the four actions, but the defendants refused to defend him in any of them.

On April 8,2008, Lancia instituted this action, alleging breach of contract based on the defendants’ refusal to defend and to indemnify him in the four actions. Lancia alleged that at least some of the claims brought against him in each underlying action arose out of his alleged conduct as a lawyer, and thus, that the defendants breached their contract by refusing to defend him in those actions. The defendants filed a counterclaim, seeking a declaratory judgment that, pursuant to an exclusion in the policy, they are not obligated to defend Lancia in any of the underlying actions because all of the claims therein presented are alleged to have arisen out of his activities as the owner or principal of an entity other than the named insured.

In February, 2009, Lancia filed a motion for partial summary judgment as to his breach of contract claim. In support of his motion, Lancia submitted, inter alia, a personal affidavit, in which he averred that, “[a]t all times during the relevant policy period I have only rendered legal advice and/or provided legal services as an attorney in connection with the Law Office of Maurizio D. Lancia, P.C. and not in connection with any other entity. In particular, the allegations in the underlying complaints reflect conduct on the part of the undersigned as an attorney describing legal services rendered in connection with the Law Office of Maurizio D. Lancia, P.C. and not in connection with any other entity.” In April, 2009, the defendants filed an objection to Lancia’s motion together with their own motion for summary judgment with respect to their counterclaim.

By memorandum of decision dated June 2, 2009, the court granted Lancia’s motion, concluding that he had proven that there is no genuine issue of material fact that at least one of the claims made against him in each underlying action is alleged to have arisen out of his conduct as a lawyer for the Law Office of Maurizio D. Lancia, P.C. The court also concluded that the defendants had failed to meet their burden of proving that there is no genuine issue of material fact that none of the claims made in the underlying actions is alleged to have arisen out of Lancia’s conduct as a lawyer acting on behalf of his law firm. The court thus denied the defendants’ motion for summary judgment, finding that the defendants had failed to refute Lancia’s averment that “he was working for the named insured when he committed the alleged wrongful acts.” In December, 2010, the parties entered into a stipulation for judgment in favor of Lancia in the amount of $180,000, subject only to this court’s later ruling on the defendants’ present appeal from the trial court’s June 2, 2009 decision on the parties’ cross motions for summary judgment.

Our standard of review as to a trial court’s decision to grant or deny a motion for summary judgment is well settled. “Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of material fact. Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992). “On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Brooks v. Sweeney, supra, 210.

On appeal, the defendants claim that the court erred both in granting Lancia’s motion for partial summary judgment and in denying their own motion for summary judgment. The defendants claim that the underlying claims against Lancia do not fall within the scope of coverage under the policy is twofold. First, they claim that they do not owe Lancia a duty to defend him because none of the claims for which he seeks coverage is alleged to have arisen out of Lancia’s conduct as a lawyer. Second, they claim that even if any of the underlying claims falls potentially within the scope of the insuring agreement, Lancia’s conduct nonetheless is excluded from coverage under the policy because it is alleged to have arisen out of Lancia’s activities as an officer, director, partner, manager or employee of a business other than that of his law firm, the Law Office of Maurizio D. Lancia, P.C. We conclude that all of the claims for which Lancia seeks a defense in the underlying actions are excluded from coverage under the policy because they are alleged to have arisen out of his activities on behalf of an entity other than his law firm. We therefore hold that the defendants have no duty to defend Lancia on those claims.

“An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract .... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. ... In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. ... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading. . . . Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous.” (Citations omitted; internal quotation marks omitted.) Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 6-6, 942 A.2d 334 (2008). “[T]his rule of construction . . . [also] extends to exclusion clauses.” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 267, 819 A.2d 773 (2003).

“The question of whether an insurer has a duty to defend its insured is purely a question of law . . . .” Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395, 757 A.2d 1074 (2000). “In construing the duty to defend as expressed in an insurance policy, [t]he obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage. If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured’s ultimate liability. ... It necessarily follows that the insurer’s duty to defend is measured by the allegations of the complaint. . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend. ... If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured. . . .

“[Our Supreme Court] has concluded consistently that the duty to defend means that the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an injury covered by the policy; it is the claim which determines the insurer’s duty to defend; and it is irrelevant that the insurer may get information from the insured, or from any one else, which indicates, or even demonstrates, that the injury is not in fact covered. The insurer has promised to relieve the insured of the burden of satisfying the tribunal where the suit is tried, that the claim as pleaded is groundless. . . . Further, [i]t is well established . . . that a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence, even though facts outside the four comers of those pleadings indicate that the claim may be meiitless or not covered. ... An insurer, therefore, is not excused from its duty to defend merely because the underlying complaint does not specify the connection between the stated cause of action and the policy coverage. Thus, the relevant question is whether the party claiming coverage is an insured party in the capacity in which he was sued.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463-64, 876 A.2d 1139 (2005). Although the burden to prove that a claim falls within a policy’s coverage is on the insured, the insurer has the burden of proving that the claim for which coverage is sought falls within a policy’s exclusion. Schilberg Integrated Metals v. Continental Casualty, supra, 263 Conn. 257.

In light of the foregoing rules and standards governing an insurer’s duty to defend, an insured seeking summary judgment on a claim alleging breach of that duty must establish that there is no genuine issue of material fact that at least one allegation of the underlying complaint against him “ ‘falls even possibly within the coverage’ ” of the subject insurance policy. Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., supra, 274 Conn. 463. Such proof, which must be based exclusively on the provisions of the policy and the allegations of the underlying complaint, need only concern, as a threshold matter, whether the claim is one for which coverage is provided under the insuring agreement of the policy, irrespective of the potential applicability to it of any policy exclusions.

To defeat an insured’s motion for summary judgment on a claim for breach of the duty to defend, by contrast, or to prevail on its own motion for summary judgment on such a claim and/or on a counterclaim for a declaratory judgment that it has no duty to defend in the underlying action, the insurer must establish that there is no genuine issue of material fact either that no allegation of the underlying complaint falls even possibly within the scope of the insuring agreement or, even if it might, that any claim based on such an allegation is excluded from coverage under an applicable policy exclusion. In presenting countervailing proof, the insurer, no less than the insured, is necessarily limited to the provisions of the subject insurance policy and the allegations of the underlying complaint. Therefore, it is only entitled to prevail under a policy exclusion if the allegations of the complaint clearly and unambiguously establish the applicability of the exclusion to each and every claim for which there might otherwise be coverage under the policy.

An insured, in turn, may rebut an insurer’s claim that it has no duty to defend him in light of an applicable policy exclusion by showing that at least one of his allegations, as pleaded, states a claim that falls even possibly outside the scope of the exclusion or within an exception to that exclusion. Unless the allegations of any such underlying claim fall so clearly and unambiguously within a policy exclusion as to eliminate any possibility of coverage, the insurer must provide a defense to its insured. See Schwartz v. Stevenson, 37 Conn. App. 681, 686, 657 A.2d 244 (1995).

The policy at issue provides that “[c]overage shall apply to any . . . CLAIMS arising out of the conduct of the INSURED’S profession as a Lawyer . . . ,” Although it is undisputed that Lancia is the owner and principal of the named insured, the Law Offices of Maur-izio D. Lancia, P.C., the defendants claim that none of the underlying claims is alleged to have arisen out of Lancia’s conduct as a lawyer practicing law on behalf of the law firm. Consequently, the defendants contend initially that they do not have a duty to defend Lancia in any of the four underlying actions (Sommers, Reynoso, McClardy and Zayas'). In order to determine whether such a duty exists, we must first examine the underlying complaint in each action to determine whether the allegations therein pleaded can be construed to complain of Lancia’s conduct as an attorney.

The complaints in Sommers and Reynoso contain identical allegations as to Lancia in support of the following causes of action against him: breach of fiduciary duty; violation of the Connecticut Unfair Trade Practices Act; negligence; and conspiracy to defraud. In relevant part, they allege that Lancia was the owner of Royal and, in this capacity, was involved in “arranging and closing [their respective] loans and purchases of certain real estate.” In paragraph 19 of the fourth count of Jennifer Sommers’ complaint and paragraph 16 of the fifth count of Gabriela Reynoso’s complaint, respectively, which both plead claims for breach of fiduciary duty, Sommers and Reynoso allege that Lancia and Royal breached such a duty to them as their mortgage loan brokers, Although the preface to the allegations of each such paragraph categorizes Lancia’s alleged conduct as a breach of his duty to the plaintiff as a mortgage broker, subsection (c) of each such paragraph alleges that Lancia had a conflict of interest in the performance of that duty by representing the sellers in the same transaction as their attorney. Although neither Sommers nor Reynoso claims that Lancia’s alleged misconduct occurred in his legal representation of either of them, the policy does not limit its coverage to claims based on Lancia’s representation of his own clients. In their complaints, both Sommers and Reynoso further allege that Lancia “failed at any time to indicate to [either of them] that he did not represent [them] as an attorney even though he was the principal in [their] mortgage origination company.” They claim that Lan-cia breached his fiduciary duties to them by not adequately advising them of the potential ramifications of the transactions in which they were involved and failing to protect their interests in those transactions.

Jacqueline McClardy alleges the same causes of action against Lancia as do Sommers and Reynoso, using identical language to plead such claims. In addition, however, in paragraphs 18 through 20 of the fifth count of her complaint, she alleges that Lancia initially was introduced to her as her attorney, but thereafter acted inconsistently with that introduction. In paragraph 21 of that count, McClardy, like Sommers and Reynoso, asserts that Lancia breached his fiduciary duties to her in that, inter alia, he never indicated to her that, despite being introduced to her as her attorney and taking her financial information, he was not, in fact, representing her.

By way of a forty-five count amended complaint, Luis Zayas alleges the following causes of action against Lancia: fraud, negligent misrepresentation, intentional misrepresentation and civil conspiracy. In count thirty of his complaint, in which he pleads his fraud claim, Zayas claims that Lancia had agreed to represent the seller in the subject real estate transaction. Zayas alleges that Lancia had knowledge of fraudulent activity by the seller, and, as a member of Royal, participated in and was complicit in that fraud, never disclosing it to him.

In sum, in all four of the underlying complaints, it is alleged that Lancia provided legal representation to the sellers involved in the respective transactions, and in three of the complaints, it is alleged that Lancia failed to disclose to the plaintiffs that he did not represent them, thereby misleading the plaintiffs in those cases to believe that Lancia was, in fact, representing them as their attorney in those transactions. On the basis of the allegations set forth in the four underlying complaints, it is therefore possible that one or more of the allegations set forth in each complaint asserts conduct which might be construed to allege conduct by Lancia acting in his capacity as an attorney, thereby potentially triggering the defendants’ duty to defend. Because we conclude, however, that the subject policy contains an exclusion that is unambiguously fatal to Lancia’s claim for coverage on any of. the underlying claims, we need not definitively determine whether any such claim arose out of his alleged conduct as a lawyer.

The defendants claim that they do not have a duty to defend Lancia because the conduct that gave rise to the four underlying actions is excluded from the policy’s coverage. Specifically, the defendants assert that the claims in the underlying actions are excluded from coverage under the policy because they are all alleged to have arisen out of Lancia’s activities as the owner of Royal.

We begin by examining the exclusionary provision of the policy relied on by the defendants. The policy excludes from coverage, inter alia, the following: “[A]ny CLAIM arising out of any INSURED’S activities as an officer, director, partner, manager or employee of any company, corporation, operation, organization or association other than the NAMED INSURED or PRIOR LAW FIRM except as a member, director or officer of any Bar Association, its governing board or any of its committees . . . .”

Lancia contends that although each of the underlying complaints alleges that he was the owner of Royal and sets forth claims against him in that capacity, the plaintiffs in those actions also allege activities on his part that have no connection with Royal. Our reading of those complaints belies this claim. Each of the underlying claims against Lancia is based on his alleged involvement in a real estate transaction in his capacity as the owner of and a mortgage broker for Royal. The underlying complaints are devoid of any allegations against Lancia that are not predicated on his role as a mortgage broker. Even if we were to construe Lancia’s alleged conduct as the rendering of legal services, for which Lancia might otherwise be covered under the policy, any such conduct, as alleged, arises out of and is inextricably intertwined with his conduct as the owner or principal of Royal and his role as a mortgage broker. Thus, we conclude that the exclusion in the policy unambiguously establishes that the defendants do not have a duty to defend Lancia in any of the four underlying actions. Accordingly, the court erred in granting Lancia’s motion for partial summary judgment and denying the defendants’ motion for summary judgment.

The judgment is reversed and the case is remanded with direction to deny the motion for partial summary judgment filed by the plaintiff and to grant the motion for summary judgment filed by the defendants and to render judgment thereon for the defendants on their counterclaim.

In this opinion the other judges concurred.

       The court also concluded that the defendants have a duty to indemnify Lancia Because the parties have agreed that the stipulated judgment into which they entered, which is discussed herein, rests on our resolution of the court’s determination of the duty to defend, we need not consider the court’s conclusion regarding indemnification.

       The defendants also claim that the court erred in concluding that they have a duty to defend Lancia because the underlying claims are alleged to have arisen from legal services rendered by Lancia in connection with a business not covered by the policy that is owned by the insured or in which the insured is a partner or employee. Because we conclude that Lancia’s claims for coverage fail on the basis of the exclusion discussed herein, we need not address the applicability of this additional exclusion.

       The plaintiffs initial complaint also set forth claims pursuant to the Connecticut Unfair Trade Practices Act and the Connecticut Unfair Insurance Practices Act. The plaintiff filed an amended complaint setting forth causes of action for breach of fiduciary duty and bad faith. On May 20,2010, the plaintiff withdrew all of these claims, leaving only his claim for breach of contract.

         See footnote 2 of this opinion.

       Specifically, the policy provides: “COVERAGE-PROFESSIONAL LIABILITY . . . The Company shall pay on behalf of any INSURED all DAMAGES in excess of the deductible which any INSURED becomes legally obligated to pay as a result of CLAIMS first made against any INSURED during the POLICY PERIOD and reported to the Company in writing during the POLICY PERIOD or within sixty (60) days thereafter, by reason of any WRONGFUL ACT occurring on or after the RETROACTIVE DATE, if any. Coverage shall apply to any such CLAIMS arising out of the conduct of the INSURED’S profession as a Lawyer, or as a Lawyer acting in the capacity of an Arbitrator, Mediator, Neutral, Title Insurance Agent, Notary Public, member, director, officer of any Bar Association, its governing board or any of its committees, or as a member of a formal accreditation, ethics, peer review, licensing board, standards review or similar professional board or committee relating to the practice of law.”
      The policy defines the term “INSURED” as:
      “A. the NAMED INSURED;
      “B. any past or present partner, officer, director, member of a professional association, stockholder, employee, independent contractor or of counsel of the NAMED INSURED, but only as respects professional services rendered on behalf of the NAMED INSURED;
      “C. any lawyer listed in the application or added after the effective date that is a partner, officer, director, member of a professional association, stockholder, employee, independent contractor or of counsel of the NAMED INSURED as respects PROFESSIONAL SERVICES rendered by such individual while associated with a PRIOR LAW FIRM subject to the retroactive date endorsement;
      “D. any lawyer who has retired from the NAMED INSURED, but only as respects PROFESSIONAL SERVICES rendered prior to the date of retirement and on behalf of the NAMED INSURED or a predecessor Firm;
      “E. the heirs, executors, administrators and legal representatives of any INSURED in the event of any INSURED’S death, incapacity or bankruptcy, but only with the respect to PROFESSIONAL SERVICES rendered prior to such INSURED’S death, incapacity or bankruptcy and only to the extent that such INSURED would otherwise be covered by this policy.”

       Although the plaintiffs in the underlying litigation pursue various causes of action against Lancia, we focus our analysis on the cause of action that is first pleaded against him in each of the four complaints because the subsequent counts simply adopted the factual allegations of the initial claims and then set forth the legal basis for each alleged cause of action.

       Paragraph 16 of the fifth count of Reynoso’s complaint is identical to paragraph 19 of the fourth count of Sommers’ complaint. Paragraph 19 of the fourth count of Sommers’ complaint alleges: “Said defendants Lancia and/or Royal, its agents [or] employees breached their fiduciary duty as mortgage loan brokers to the plaintiff in that:
      “a. They obtained a more expensive loan with high fees and interest rates and onerous terms for purposes of enriching themselves at the plaintiffs expense and failed to shop their mortgage on the market;
      “b. [They] had an interest in a higher property sale price and loan amount which was not disclosed and which resulted in negative equity and higher interest and monthly payments for the plaintiff;
      “c. The defendant Lancia represented as an attorney the sellers in the sale of the properties, creating a direct conflict of interest by owning the plaintiffibuyer’s mortgage origination company, and furthermore held a position with Elizabeth Athan Real Estate, the seller’s real estate agent, the principals of which he had represented for many years;

        “d. Defendants charged exorbitant fees and costs which damaged the plaintiff and led to monthly payments which were foreseeably beyond the plaintiffs ability to pay;
      “e. Defendants and/or their agents for purposes of enriching themselves falsified information on loan applications and falsely represented to the plaintiff the terms of the loans/mortgages and conditions of the property upon which she relied;
      “f. Defendants) had personal relationships with the seller and/or received proceeds from the sellers for the above market sale.”

       Paragraph 20 of the fourth count of Sommers’ complaint and paragraph 17 of the fifth count of Reynoso’s complaint, allege the following: “In addition to the foregoing representations/breaches by defendant Guzman which were made in part on behalf of/for benefit of defendants Lancia and Royal, the plaintiff relied on representations/fiduciary duties from defendant Lancia which he breached in that:
      “a. he failed at any time to indicate to her that he did not represent her as an attorney even though he allowed himself to be introduced to her as her attorney and confirmed that by, inter alia, personally taking her financial information;
      “b. he failed to timely advise her as to the ramifications of executing mortgages for large amounts of money with large balloon payments, high interest rates, prepayment penalties and as to important terms which are required to be timely disclosed to a borrower by federal and state law;
      “c. he failed to give her undivided duty of loyalty and investigate the propriety of the transaction for her as well as advance her interests in terms of mortgage terms/costs, options, property price/acUustment and other terms in the property purchase;

        “d. he in fact at the closing represented the seller and/or had an interest in the real estate agency which was representing the seller thereby placing himself in direct conflict of the interest with the plaintiff whom he led to believe he represented as an attorney and whom he did represent as mortgage originator;
      “e. he knew or should have known that Guzman had acted as a real estate agent towards the buyer and violated law and breached fiduciaries duties to the plaintiff and had failed to protect her interest and in fact had promoted the seller’s interest at the plaintiffs expense and yet he ratified said unlawful conduct.”

       McClardy alleges in relevant part: “18. Prior to the plaintiffs purchase of the two properties at 358 Vauxhall Street and 20-22 Lincoln Avenue, New London, the defendant Lancia met with the plaintiff at 349-351 Broad Street, New London, at which time defendant Guzman introduced defendant Lancia to the plaintiff as her lawyer for the closing.
      “19. Defendant Lancia then agreed that he would be representing her and asked for her financial information for her loan application and stated that he would be helping her in the property purchase.
      “20. At the closing for the properties, defendant Lancia was there and the plaintiff thought that defendant Lancia was representing her; however, only defendant Guzman discussed mortgage documents with her in Spanish. ”

       Count thirty alleges in relevant part: “55. At all times mentioned herein, Attorney Lancia was and is a licensed attorney authorized to practice in the state of Connecticut. Attorney Lancia agreed to represent defendant Velez in the sale of the subject property.
      “56. Defendant Lancia, as a member of . . . Koyal . . . had specific knowledge that Royal . . . deliberately and intentionally made false representations and assurances to the plaintiff ... to purchase the subject property so that the defendant could immediately receive the commission upon approval of the mortgage financing at closing.
      “57. Defendant Lancia had knowledge that a representative of . . . Royal . . . submitted false documents to the mortgage company without the plaintiffs knowledge and knew the document submitted and representation made to the mortgage company were false in order to obtain mortgage approval.
      “58. Defendant Lancia had specific knowledge that false representations were made and did not inform the plaintiff that they had submitted fraudulent documents through defendant Royal ... in order to obtain approval of financing.
      “59. Defendant Lancia had specific knowledge that the seller, defendant Velez, was selling the property to the plaintiff in the amount of $330,000 and that representations were made to the plaintiff that the property would be sold with no money down and 100 [percent] financing, when in fact that was not true.
      “60. Defendant Lancia, as the attorney for defendant Velez, was present at the closing and represented the legal interest of defendant Velez for the sale of the subject property, and defendant Lancia had knowledge that various financial information represented in the HUD statement was false.
      “61. Defendant Lancia had specific knowledge that the plaintiff did not purchase a property with 100 [percent] financing and that the plaintiff did not bring any funds to the closing in order to proceed with the purchase of the property and defendant Lancia further misrepresented documents at the closing in order to benefit from the transaction as a representative of . . . Royal . . . .”

       Similarly, we need not determine whether Lancia’s claimed legal representation is alleged to have been rendered on behalf of the named insured law firm.


author: ROBINSON, J.

text:
    ULSTER SAVINGS BANK v. 28 BRYNWOOD LANE, LTD., ET AL.
    (AC 32568)
    Robinson, Bear and Schaller Js.

      Argued January 17
    officially released April 10, 2012

      Genevieve P. Salvatore, for the appellant (named defendant).

      Peter A. Ventre, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, 28 Brynwood Lane, Ltd., appeals from the trial court’s judgment of strict foreclosure rendered following the granting of a motion for summary judgment in favor of the plaintiff, Ulster Savings Bank. On appeal, the defendant claims that the court improperly (1) granted summary judgment as to liability on the foreclosure complaint in favor of the plaintiff because the defendant’s special defenses alleging lack of standing, unclean hands and breach of the covenant of good faith and fair dealing raised triable issues of fact and (2) granted summary judgment as a matter of law on the defendant’s counterclaim because there were genuine issues of material fact as to whether the plaintiffs actions violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claims. On October 4, 2002, the defendant and Robert T. Chipley, Jr., obtained a three million dollar construction loan for a home that Chipley intended to build on property located at 28 Brynwood Lane in Greenwich. The defendant and Chipley executed a note in favor of the lender, Ulster Home Mortgage, Inc. The terms of the note required monthly, interest only payments until April 4, 2004, at which time any unpaid principal and interest would be due in full. As security for the note, the defendant executed a mortgage on the subject property in favor of Ulster Home Mortgage, Inc. On the same day that the note and mortgage were executed and recorded, Ulster Home Mortgage, Inc., assigned the mortgage and note to the plaintiff. The assignment was recorded on the land records.

In October, 2005, the plaintiff commenced this action to foreclose the mortgage on the subject property. According to the complaint, the note had matured by its terms and payment was now due in full. The plaintiff filed a motion for summary judgment as to liability only against the defendant and Chipley. On January 27, 2010, the defendant filed its third amended answer, which included three special defenses, a claim for setoff and a counterclaim against the plaintiff alleging a CUTPA violation. The first special defense alleged that the plaintiff lacked standing to bring the foreclosure action because it was not a valid holder of the note and mortgage. The second special defense alleged that the plaintiff was barred from foreclosing on the mortgage because it had unclean hands in connection with its enforcement of the mortgage. The third special defense alleged that the plaintiff had breached the covenant of good faith and fair dealing.

The factual underpinning for the defendant’s CUTPA counterclaim and for its special defenses of unclean hands and breach of the covenant of good faith and fair dealing is a letter that the plaintiff sent to the defendant in January, 2004, which the defendant describes as a “[lo]an [m]odification [l]etter.” The letter noted the approaching loan maturity date. It expressly provided that the plaintiff would consider the loan to be in default if it matured before the defendant either paid off the loan in full or converted it into a “permanent mortgage.” The letter also stated that if the loan matured before it was paid off or converted, the plaintiff would review the file to determine whether refinancing of the loan was necessary, in which case the defendant would be responsible for additional closing costs, or whether the plaintiff simply would continue to accept payments without refinancing, but at a higher, variable rate of interest until the mortgage was paid in full or converted. At the bottom of the letter were the directions “[p]lease sign and return” along with a line for a signature and date.

The plaintiff filed a “supplement” to its pending motion for summary judgment requesting that the court also render summary judgment against the defendant on its CUTPA counterclaim and its claim for a setoff. The plaintiff also argued in the accompanying supplemental memorandum of law that the special defenses asserted by the defendant failed to raise any triable issues of material fact that would preclude the court from rendering summary judgment as to liability on the complaint.

The court heard oral argument on the plaintiffs motion for summary judgment, as supplemented, on May 19, 2010. On May 27, 2010, the court issued a memorandum of decision granting, inter alia, summary judgment in favor of the plaintiff on the foreclosure complaint as to liability only and on the defendant’s counterclaim. On July 19, 2010, the court rendered a judgment of strict foreclosure with law days to begin on September 13, 2010. This appeal followed.

Our resolution of the defendant’s appeal “is governed by a well established standard of review. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmov-ing party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Mortgage Electronic Registration Systems, Inc. v. Goduto, 110 Conn. App. 367, 370-71, 955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420 (2008). Further, because any valid special defense raised by the defendant ultimately would prevent the court from rendering judgment for the plaintiff, a “motion for summary judgment should be denied when any [special] defense presents significant fact issues that should be tried.” (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn. App. 413, 417, 679 A.2d 421 (1996). “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 102 Conn. App. 305, 310, 925 A.2d 432, cert. denied, 284 Conn. 906, 931 A.2d 261 (2007).

“Our review of the trial court’s decision to grant the . . . motion for summary judgment is plenary. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Navin v. Essex Savings Bank, 82 Conn. App. 255, 258, 843 A.2d 679, cert. denied, 271 Conn. 902, 859 A.2d 563 (2004). With those principles in mind, we turn to the defendant’s claims on appeal.

I

The defendant first argues that in rejecting its special defenses and rendering summary judgment against it as to liability on the foreclosure complaint, the court improperly decided genuine issues of material fact that should have precluded summary judgment. We disagree with the defendant that its special defenses raised any triable issues of fact. We address each of the defenses in turn.

A

The defendant’s first special defense alleged that the plaintiff lacked standing to bring the foreclosure action because it is not the holder of the applicable note and mortgage. The court concluded that the defendant’s challenges to the validity of the assignment of the note and mortgage failed as a matter of law, the defendant had presented no triable issue of fact concerning the plaintiffs right to enforce the note, and, accordingly, the plaintiff had standing to maintain the foreclosure action. We agree with the court’s conclusion.

The question of standing implicates a court’s subject matter jurisdiction and, as such, may be raised at any time during the proceedings. See Housing Authority v. Local 1161, Council 4, AFSCME, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). “Our review of the question of . . . standing is plenary.” Cimmino v. Household Realty Corp., 104 Conn. App. 392, 395, 933 A.2d 1226 (2007), cert. denied, 285 Conn. 912, 943 A.2d 470 (2008). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Citation omitted; internal quotation marks omitted.) Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570, 575, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010).

The parties agree that on October 4, 2002, the defendant executed and delivered a valid note and mortgage to Ulster Home Mortgage, Inc. On that same day, Ulster Home Mortgage, Inc., executed an assignment that transferred ownership of the mortgage “together with the note therein described” from Ulster Home Mortgage, Inc., to the plaintiff. In support of its motion for summary judgment, the plaintiff submitted a certified copy of the assignment and an uncontested, sworn affidavit from an assistant vice president of the plaintiff attesting to the fact that the note and mortgage were transferred to the plaintiff on October 4, 2002. The trial court found, on the basis of its examination of the assignment, that it “was properly executed, acknowledged and recorded in the Greenwich [ljand [rjecords.” The plaintiff also submitted the original note to the trial court as an exhibit at the hearing on the motion for summary judgment.

The only evidence submitted by the defendant relevant to the standing issue was an affidavit from a paralegal who had examined copies of the note and the assignment. The paralegal attested that her review of the note revealed that it was neither specially endorsed to the plaintiff nor endorsed in blank, which the defendant argues creates an issue of material fact regarding whether the plaintiff has standing to enforce the note. The affidavit also indicated that the assignment does not contain specific recording information about the mortgage it purports to assign, and it is attested to by only a single witness, both of which, the defendant claims, calls into question the validity of the assignment.

Although the defendant contends that the assignment’s lack of information regarding the book and page number on which the mortgage it purports to assign is recorded raises a factual dispute about the validity of the assignment, the defendant cites no statutory authority or case law that supports the proposition that a mortgage assignment is rendered ineffective without such information. General Statutes § 49-10 (b) provides that a valid assignment of mortgage debt must be in writing and that it must contain “a sufficient description to identify the mortgage” being assigned. Section 49-10 (b) contains suggested language for an assignment that makes use of the book and page number of the land record on which the mortgage is recorded to help identify the mortgage being assigned. There is no statutory requirement, however, that a party use the exact language or form provided for in the statute. Here, rather than identifying the mortgage by its recording information, the assignment identifies the mortgage by describing it as “a mortgage dated October 4, 2002, made by 28 BRYNWOOD LANE LTD on lands located at T/Greenwich in the County of Fairfield and State of CT to secure payment of the principal sum of $3,000,000, which mortgage is being recorded simultaneously herewith in the Office of the Registrar of T/Greenwich Township, together with the Note therein described, and the money due and to grow due thereon . . . .” The trial court legally and logically determined that the description contained in the assignment was sufficient to identify the mortgage at issue here, especially given that the mortgage and the assignment were recorded simultaneously, and the assignment of mortgage is recorded in the same book, on pages immediately following the recording of the mortgage.

We further agree with the trial court that it is immaterial to the validity of the assignment and, thus, to the issue of standing, that the assignment of the mortgage was only attested to by a single witness. An assignment of a mortgage “is in effect a conveyance of the land included in the mortgage”; (internal quotation marks omitted) Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754, 761, 677 A.2d 479 (1996); accordingly, the provisions of General Statutes § 47-5 generally apply, including the requirement that a conveyance be “attested to by two witnesses with their own hands.” General Statutes § 47-5 (a). Our statutes also provide, however, that a conveyance of Connecticut property that is executed and acknowledged in another state is valid so long as it was executed and acknowledged “in conformity with the laws of that state . . . relating to the conveyance of real estate therein situated.” General Statutes § 47-7 (a). Here, the assignment indicates on its face that it was executed in Ulster County, New York. Under New York law, conveyances of property must be duly acknowledged, but no attesting witnesses are required. See N.Y. Real Prop. Law § 291 (McKinney 2006). The assignment was duly acknowledged before a New York notary public. Accordingly, the assignment is valid as a matter of law, despite being attested to by only a single witness.

As for the note, we agree with the trial court that the note’s lack of an endorsement does not raise any triable issue of fact regarding the plaintiffs standing to bring this foreclosure action. The mortgage note, as a negotiable instrument, is governed by the provisions of Connecticut’s Uniform Commercial Code concerning negotiable instruments. General Statutes § 42a-3-101 et seq. A blank or special endorsement is necessary to negotiate an instrument. See General Statutes § 42a-3-204 (a) (i). Negotiation of an instrument means a transfer of possession by someone other than the issuer of the instrument to another person, who, through negotiation, becomes the holder of the instrument. See General Statutes § 42a-3-201 (a). Nevertheless, “[transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due corase . . . .” (Emphasis added.) General Statutes § 42a-3-203 (b). An instrument is transferred “when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.” General Statutes § 42a-3-203 (a). Accordingly, a note that is unendorsed still can be transferred to a third party. Although that third party technically is not a holder of the note, the third party nevertheless acquires the right to enforce the note so long as that was the intent of the transferor. In the present case, Ulster Home Mortgage, Inc., transferred the note to the plaintiff for the purpose of giving the plaintiff the right to enforce the note, as evidenced by the valid assignment, the sworn affidavit and the plaintiffs possession of the original note. The transfer vested in the plaintiff the same right to initiate the present foreclosure action as Ulster Home Mortgage, Inc., had as the uncontested original holder of the note.

In sum, it is undisputed that the plaintiff is in lawful possession of the original note. The assignment of mortgage from Ulster Home Mortgage, Inc., to the plaintiff is evidence that ownership of the mortgage and the right to recover under the note were transferred to the plaintiff on October 4, 2002, before the commencement of this foreclosure action. On the basis of our plenary review, we conclude that the court’s decision that the plaintiff had standing to bring this foreclosure action is legally and logically correct and supported by the uncontested facts.

B

The defendant’s second special defense alleged that the plaintiff had unclean hands in connection with its enforcement of the mortgage. The court rejected the unclean hands special defense as a matter of law because the defendant failed to show the existence of a genuine issue of fact regarding whether the plaintiff had engaged in wrongful conduct sufficient to support application of the doctrine. We conclude that the court properly interpreted the doctrine of unclean hands and correctly granted summary judgment as to the special defense.

Because “an action to foreclose a mortgage is an equitable proceeding,” the doctrine of unclean hands may be applicable. Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). “The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue. . . . Unless the plaintiffs conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply.” (Citation omitted.) Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 525, 686 A.2d 481 (1996). “[Application of the doctrine of unclean hands rests within the sound discretion of the trial court. . . . The exercise of [such] equitable authority ... is subject only to limited review on appeal. . . . The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court’s] action. . . . Whether the trial court properly interpreted the doctrine of unclean hands, however, is a legal question distinct from the trial court’s discretionary decision whether to apply it.” (Citations omitted; internal quotation marks omitted.) Thompson v. Orcutt, supra, 308.

According to the defendant, the wrongful conduct of the plaintiff that supports application of the doctrine of unclean hands was the plaintiffs issuance of the January, 2004 letter. According to the defendant, the letter amounted to a promise by the plaintiff to extend the term and rate of the original note and mortgage without specifying a new date certain by which time the loan had to be paid off or converted. The defendant claims it relied on the letter as a modification of the terms of the original note and mortgage, in particular the original note’s April 4, 2004 maturity date, and that it sent payments to the plaintiff in accordance with the letter, which the plaintiff accepted. The defendant claims that the plaintiff acted unfairly, inequitably and wilfully when, after agreeing to modify the loan, it nevertheless filed the present foreclosure action declaring the defendant in default on the original note. Put simply, the defendant’s position is that the note as modified by the January, 2004 letter is not in default and, thus, cannot provide a basis for foreclosing on the mortgage.

The trial court concluded that, even considering all the evidence most favorably to the defendant, no reasonable fact finder could conclude that the January, 2004 letter modified or offered to modify the terms of the loan so as to eliminate the loan’s April 4, 2004 maturity date. To the contrary, the January, 2004 letter expressly stated that the loan “will mature on April 4, 2004” and “[sjhould your loan become mature before it is paid off or converted to a permanent mortgage it will be considered in default.” That portion of the letter addressing the defendant’s obligation to continue to pay interest on the loan at the same or higher rate until the loan was either paid off or converted was consistent with the default procedure contained in the original note. In other words, the letter was a reminder of the penalty that would be imposed if the defendant defaulted on the note. The only evidence presented by the defendant in support of its claim of unclean hands is an affidavit from Chipley attesting that the defendant had relied on the letter as a modification. The defendant does not claim nor is there evidence in the record that either party sought or even suggested a modification of the terms of the original loan. As the trial court observed, construing the letter in the way sought by the defendant would be unreasonable because it would lead to the bizarre result that, so long as interest payments were made, a bank would agree to waive or to forgive indefinitely repayment of a three million dollar loan it would otherwise be entitled to collect. On the basis of our review of the record, we disagree with the defendant’s assertion on appeal that the letter raised a genuine issue of material fact concerning improper action of the plaintiff necessary to avoid summary judgment on its special defense of unclean hands.

C

The defendant’s third special defense to the foreclosure action alleged that the plaintiffs actions in connection with the January, 2004 letter constituted a violation of the covenant of good faith and fair dealing. The defendant claims that the January, 2004 letter left the defendant with the reasonable expectation that it did not need to pay off the construction loan by April 4, 2004. We disagree.

“[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. ... In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).

As we determined in addressing the special defense of unclean hands, the trial court correctly concluded that, even considering all the evidence most favorably to the defendant, no reasonable fact finder could conclude that the January, 2004 letter modified or offered to modify the terms of the loan so as to eliminate the loan’s April 4, 2004 maturity date. In rejecting the defendant’s special defense based on an alleged breach of the covenant of good faith and fair dealing, therefore, the court properly concluded as a matter of law that the defendant could not have had a reasonable expectation that there was no obligation to pay off or convert the loan by April 4, 2004. By filing the foreclosure action and declaring the defendant in default, the plaintiff was simply pursuing its rights under the terms of the parties’ existing agreement. Such action could not form the basis for a claim of bad faith or unfair dealings on the part of the plaintiff. The court therefore legally and logically determined that the defendant’s claim of a violation of the covenant of good faith and fair dealing could not survive summary judgment.

II

Finally, the defendant claims that the court improperly granted summary judgment in favor of the plaintiff on its CUTPA counterclaim. The defendant, relying once again on its assertion that the January, 2004 letter modified or promised to modify its obligation to pay off the construction loan by April 4, 2004, argues that the plaintiff wholly disregarded its promises and representations in the January, 2004 letter and that it affirmatively and in bad faith shirked its obligations under the letter. The court ultimately concluded that the facts alleged by the defendant failed to support the defendant’s counterclaim alleging a CUTPA violation. We agree that the CUTPA counterclaim fails as a matter of law.

CUTPA provides in relevant part that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b (a). “Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen). . . . Thus, a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. . . . Whether a practice is unfair and thus violates CUTPA is an issue of fact. . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court. . . . Additionally, our Supreme Court has stated that [a]ll three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” (Citation omitted; internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 413, 867 A.2d 841 (2005).

“A party seeking to recover damages under CUTPA must meet two threshold requirements. First, [the party] must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, [the party] must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” (Citation omitted.) A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990). Apart from the January, 2004 letter, the only evidence presented in support of the defendant’s CUTPA counterclaim regarding the plaintiffs alleged unfair trade practice was the Chipley affidavit in which Chipley attests that the plaintiff promised in the January, 2004 letter to extend the term and rate of the original note and that the letter did not specify a new date by which time the loan had to be paid off or converted. We already have affirmed the trial court’s determination that Chipley’s conclusory statements are wholly unsupported by the text of the letter and do not raise a disputed issue of material fact because no reasonable fact finder could conclude that the January, 2004 letter either modified or offered to modify the terms of the loan so as to eliminate the loan’s April 4, 2004 maturity date. Although whether a claimed practice is unfair and thus violates CUTPA is ordinarily a question of fact for the trier, summary judgment is appropriate where, as here, the plaintiff would be entitled to a directed verdict. See Boone v. William W. Backus Hospital, supra, 102 Conn. App. 310. Because the defendant’s claim of unfair trade practices rests entirely on a factually unsupported allegation that the plaintiff failed to honor a promised modification of the note contained in the January, 2004 letter, the CUTPA claim fails as a matter of law, and the court was legally and logically correct in having granted summary judgment in favor of the plaintiff.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       Because 28 Brynwood Lane, Ltd., is the only defendant that is a party to this appeal, we will refer to it as the defendant throughout this opinion. Robert T. Chipley, Jr., who formed 28 Brynwood Lane, Ltd., for the purpose of taking title to the subject property, was named as a defendant in this foreclosure action as the comaker of the note but has not challenged the judgment of foreclosure. The complaint also named as additional defendants Victoria R. Koch, the holder of a $1.6 million purchase money mortgage, and Seaport Electric, Inc., and Pasiak Construction Services, LLC, each of whom holds a mechanic’s lien on the subject property. Those interests were subsequent in right to the plaintiffs mortgage. Seaport Electric, Inc., and Pasiak Construction Services, LLC, never appeared before the trial court; Koch appeared as a self-represented party and participated in the action, but she is not a party to this appeal. Finally, the town of Greenwich was named in the complaint by virtue of holding inchoate real estate tax liens that are prior in right to the plaintiffs mortgage.

       The letter provided as follows: “The most recent review of your . . . construction loan indicates that it will mature on April 4, 2004. The original terms of your Building and Loan Agreement require the loan to be completely satisfied or converted to a permanent mortgage within eighteen months.
      “Should your loan become mature before it is paid off or converted to a permanent mortgage it will be considered in default. Upon maturity, Ulster Savings Bank will review your mortgage file to determine whether you should refinance your construction loan for a new construction term. If refinance is found to be necessary, you will incur all additional closing costs.
      “If we determine that the refinancing of your loan will not be necessary, the following will occur. The interest rate on your construction loan will become variable upon maturity. The rate will be the higher of your current interest rate or the Prime Rate plus 2%. This variable rate structure will remain in effect until the loan is converted to a permanent mortgage or paid off in full. This will be reflected in your monthly interest billing statement following the date of maturity.”

       The defendant abandoned further pursuit of its setoff claim at the hearing on the motion for summary judgment.

         After examining the note produced by the plaintiff, the trial court stated: “I’m going to state for the record that it appears to be an original. If there’s any evidence to the contrary I’ll hear that evidence.” The defendant never presented any such contrary evidence or otherwise suggested that the note presented was not the original. In fact, the defendant itself relied on the fact that the note was the original in support of its claim that the note was unendorsed. Counsel for the defendant stated: “Your Honor has the original notes provided by the plaintiff today, and Your Honor will see that there [are] no endorsements.”

       Section 49-10 (b) provides in relevant part: “Whenever any mortgage debt is assigned by an instrument in writing containing a sufficient description to identify the mortgage, assignment of rent or assignment of interest in a lease, given as security for the mortgage debt, and that assignment has been executed, attested and acknowledged in the manner prescribed by law for the execution, attestation and acknowledgment of deeds of land, the title held by virtue of the mortgage, assignment of rent or assignment of interest in a lease, shall vest in the assignee. An instrument substantially in the following form is sufficient for such assignment:
      “Know all Men by these Presents, That .... of .... in the county of .... and state of ... . does hereby grant, bargain, sell, assign, transfer and set over a certain (mortgage, assignment of rent or assignment of interest in a lease) from .... to ... . dated .... and recorded in the records of the town of ... . county of ... . and state of Connecticut, in book . . . . at page ....
      “In Witness Whereof .... have hereunto set ... . hand and seal, this .... day of ... . A.D.
      “Signed, sealed and delivered
      “in the presence of
      (SEAL)
      (Acknowledged)”