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JOHN B. ONTHANK v. PIERCE
ONTHANK ET AL.
(AC 43949)
Moll, Clark and Eveleigh, Js.
Syllabus
The plaintiff sought to recover damages for, inter alia, breach of contract,
alleging that the defendants had failed to make all payments required
under a promissory note. The trial court rendered judgment for the
plaintiff on his breach of contract claim and rejected the defendants’
special defenses, including their defense that the plaintiff failed to allege
or establish that he had fulfilled every condition precedent prior to
bringing an action on the promissory note. On the defendants’ appeal
to this court, held:
1. This court affirmed the judgment of the trial court as to the breach of
contract claim on the ground that the plaintiff substantially complied
with the notice of default provision in the promissory note under the
circumstances of this case; although the plaintiff did not send the letter
declaring default by certified mail, as required by the notice provision
in the promissory note, there was no contractual requirement of proof
of actual delivery, the defendants did not contest that they had actual
notice of the declaration of default, and any noncompliance by the
plaintiff with the requisite method of delivery as provided in the promis-
sory note did not result in any prejudice to the defendants.
2. The trial court’s award of damages was not clearly erroneous, as there
was ample evidence in the record to support its finding that the defen-
dants were not entitled to a $120,000 credit for the purported value of
certain stock provided to the plaintiff as security; the share value for
the stock claimed by the defendants was based on market transactions
in December, 2015, but the plaintiff did not have an obligation under
the note to sell the shares until after he declared a default in September,
2016, the defendants provided no evidence as to the value of the shares
at the time of the declaration of default, the evidence actually revealed
substantial fluctuations in the stock price over the years, and there was
evidence that the shares were not accessible in the plaintiff’s account
and, therefore, not transferable, until January, 2017, contradicting the
defendants’ claim that the plaintiff could freely sell the shares in Decem-
ber, 2015.
Argued May 24—officially released July 20, 2021
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 Stamford-Norwalk and
tried to the court, Hon. Kenneth B. Povodator, judge
trial referee; judgment for the plaintiff, from which the
defendants appealed to this court. Affirmed.
Pierce Onthank and Susan Onthank, self-repre-
sented, the appellants, with whom, on the brief, was
John B. Kaiser (defendants).
John B. Onthank, self-represented, the appellee
(plaintiff).
Opinion
MOLL, J. The self-represented defendants, Pierce
Onthank and Susan Onthank,1 appeal from the judgment
of the trial court, rendered following a bench trial, in
favor of the self-represented plaintiff, John B. Onthank,
on count one of his second revised complaint asserting
a breach of contract claim.2 On appeal, the defendants
claim that the court erred in (1) rejecting their special
defense asserting that the contract at issue—a promis-
sory note—was unenforceable because the plaintiff did
not provide them with a notice of default in strict com-
pliance with the terms of the note and, thus, failed
to satisfy a condition precedent to the enforcement
thereof, and (2) awarding the plaintiff damages on the
breach of contract claim because the court improperly
declined to credit them $120,000 to account for the
purported value of one million shares of stock trans-
ferred to the plaintiff. We disagree and, accordingly,
affirm the judgment of the trial court.
The trial court found the following facts. In June,
2009, the defendants executed several documents,
including a loan agreement and a promissory note, relat-
ing to a $300,000 loan from the plaintiff to the defen-
dants. The one year fixed term loan was made to assist
the defendants in purchasing a home in Wilton. The
loan agreement required, inter alia, the execution of a
mortgage on the Wilton property in favor of the plaintiff.
Although the defendants made payments to the plaintiff
between 2009 and 2016, the defendants still owed the
plaintiff a substantial amount on the loan in September,
2016, around which time it was discovered that a valid
mortgage in favor of the plaintiff had not been recorded
on the Wilton land records.
On November 18, 2017, the plaintiff commenced this
action. On September 20, 2018, the plaintiff filed a sec-
ond revised complaint (i.e., the operative complaint).
The plaintiff’s four count second revised complaint
asserted the following claims against the defendants:
(1) breach of contract (count one); (2) unjust enrich-
ment (count two); (3) statutory theft (count three); and
(4) fraud (count four). In support of his claims, the
plaintiff alleged, inter alia, that the defendants had failed
to repay him the $300,000, plus interest, that he had
loaned to them. On March 21, 2019, the defendants filed
an answer and special defenses. Relevant to this appeal,
the sixth special defense directed to the breach of con-
tract claim asserted in general terms that the plaintiff
neither alleged nor established that he had fulfilled
every condition precedent to suing on the promissory
note. In their answer, the defendants admitted to having
borrowed the money from the plaintiff, but generally
denied the substantive allegations of wrongdoing.3 On
April 3, 2019, the plaintiff filed a reply to the defendants’
special defenses.
The matter was tried to the trial court, Hon. Kenneth
B. Povodator, judge trial referee, on August 1 and 2,
2019. During trial, the plaintiff withdrew count four of
his second revised complaint sounding in fraud. There-
after, the parties submitted posttrial briefs.
On January 30, 2020, the court issued its forty-six
page memorandum of decision. With respect to the
plaintiff’s breach of contract claim, the court concluded
that the promissory note was ‘‘prima facie enforceable’’
and that the defendants breached the note by nonpay-
ment of the full principal amount as of the one year
anniversary of the loan (i.e., the maturity date). The
court proceeded to reject all of the defendants’ special
defenses to the breach of contract claim,4 including the
sixth special defense, which the court construed as
alleging that the plaintiff failed to comply with a condi-
tion precedent to the enforcement of the note by not
providing the defendants with a notice of default in
strict compliance with the terms of the note. The court
found in favor of the plaintiff on count one and awarded
the plaintiff $388,530.76 in compensatory damages, with
per diem interest of $61.64.
With respect to the plaintiff’s unjust enrichment
claim, because the plaintiff prevailed on the breach of
contract claim, the court rendered judgment for the
defendants on the unjust enrichment claim on the
ground that it was a legally inconsistent, alternative
theory of liability. The court further concluded that, in
the event that its judgment in the plaintiff’s favor on the
breach of contract claim was later reversed, judgment
should enter in favor of the plaintiff on count two.5
With respect to the plaintiff’s claim of statutory theft,
the court rendered judgment in the defendants’ favor.
This appeal followed.6 Additional facts and procedural
history will be set forth as necessary.
I
The defendants first claim that the trial court erred
in concluding that they breached their contract with
the plaintiff. Specifically, the defendants contend that
the court improperly rejected their sixth special defense
asserting that the plaintiff did not strictly comply with
the notice of default provision of the promissory note,
thereby failing to satisfy a condition precedent to its
enforcement. They contend that the court improperly
construed the notice provision and found it satisfied
under the circumstances of this case. The plaintiff
claims, inter alia, that the trial court properly concluded
that he substantially complied with the notice provision.
We agree with the plaintiff.
We begin our analysis by setting forth the relevant
standard of review and applicable legal principles. ‘‘A
promissory note is nothing more than a written contract
for the payment of money, and, as such, contract law
applies.’’ (Internal quotation marks omitted.) Fidelity
Bank v. Krenisky, 72 Conn. App. 700, 707, 807 A.2d
968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).
‘‘In construing a contract, the controlling factor is nor-
mally the intent expressed in the contract, not the intent
which the parties may have had or which the court
believes they ought to have had. . . . Where . . .
there is clear and definitive contract language, the scope
and meaning of that language is not a question of fact
but a question of law. . . . In such a situation our scope
of review is plenary . . . .’’ (Internal quotation marks
omitted.) Aurora Loan Services, LLC v. Condron, 181
Conn. App. 248, 265, 186 A.3d 708 (2018). ‘‘Under the
plenary standard of review, we must decide whether
the court’s conclusions are legally and logically correct
and supported by the facts in the record.’’ (Internal
quotation marks omitted.) Estela v. Bristol Hospital,
Inc., 179 Conn. App. 196, 207–208, 180 A.3d 595 (2018).
The following additional facts, as found by the trial
court, and procedural history are relevant to our consid-
eration of the defendants’ claim. The loan agreement
required the defendants to execute a mortgage in favor
of the plaintiff on the Wilton property. The defendants
attempted to comply with this requirement by filing a
copy of the loan agreement and the note on the land
records, but the filing lacked even a property descrip-
tion and did not constitute a mortgage in favor of the
plaintiff. Furthermore, a number of liens subsequently
were placed on the Wilton property, including by the
Internal Revenue Service (IRS) with respect to tax liabil-
ities. Accordingly, any subsequently filed encumbrance
would be behind the IRS lien and the first mortgage,
leaving the plaintiff with little or no protection.
Although the defendants made payments to the plain-
tiff totaling $148,678 between 2009 and 2016, the defen-
dants still owed the plaintiff a substantial amount on
the loan in September, 2016, at which time the plaintiff
declared a default. By way of background, the parties’
promissory note provided that certain enumerated
events of default ‘‘shall not occur until [the defendants]
are first sent a notice of the default or deficiency by
certified mail, postage prepaid or personal delivery,
whereupon [the defendants] shall have the opportunity
to cure the default or deficiency within five (5) days of
the date of the notice. For purposes hereof, the date
of the notice shall be deemed to be the earlier of the
date of the receipt of the notice of default by [the defen-
dants] and the date which is the third business day after
the date the notice is deposited, postage prepaid, in
the United States Mail addressed to [the defendants],
whether or not said notice is received.’’ (Emphasis
added.)
On September 9, 2016, Susan sent an e-mail to the
plaintiff explaining that she had seen a spreadsheet
that he had sent calculating the amount owed on the
promissory note and that she and Pierce ‘‘clearly ha[d]
no other choice but to give [the plaintiff] the [Wilton]
house.’’ In that e-mail, Susan also asked the plaintiff to
‘‘move forward and send the certified letter.’’
In a letter dated September 12, 2016, the plaintiff
explicitly declared a default (default notice). The plain-
tiff wrote in relevant part that ‘‘[a]s I have exhausted
my efforts to contact either of you by phone or resolve
this via [e-mail], I am exercising my rights under our
agreement and am declaring this loan in ‘Default’ under
the [terms of the promissory note] . . . .’’ In the default
notice, the plaintiff further explained that he was send-
ing it because the promissory note was ‘‘in breach and
not being met or upheld in the spirit of’’ the parties’
agreement. The court found that the defendants actually
had received the default notice.
In support of their sixth special defense, the defen-
dants maintained that the plaintiff failed to comply with
the provision that a notice of default be sent ‘‘by certi-
fied mail, postage prepaid or personal delivery,’’ focus-
ing specifically on the lack of evidence as to any certi-
fied mailing. As an initial matter, in rejecting the
defendants’ sixth special defense, the court construed
the notice provision and concluded that the phrase ‘‘per-
sonal delivery’’ was satisfied by actual delivery, even
by noncertified mail.7 In this regard, the court found
that the plaintiff had strictly complied with the notice
provision. In the alternative, the court deemed ‘‘delivery
and actual receipt’’ to constitute substantial compliance
with the notice provision. Because the court determined
that the plaintiff had complied, either strictly or sub-
stantially, with the notice requirement of the note, it
concluded that there was no material failure to comply
with a condition precedent.
The defendants claim that the court erred in analyzing
‘‘what ‘personal delivery’ [as that phrase is used in the
notice provision] could or might mean’’ because ‘‘[t]he
plain meaning [of the notice provision] is the plain
meaning.’’ In essence, the defendants contend that the
court improperly construed the notice provision to per-
mit actual delivery, even by means of noncertified mail.8
Because we affirm the court’s conclusion that the plain-
tiff substantially complied with the notice provision,
we need not address the defendants’ claim that the
court improperly construed the ‘‘personal delivery’’ lan-
guage in the notice provision to mean ‘‘actual’’ delivery
under a strict compliance standard.
‘‘On several occasions, this court has considered the
role of substantial performance in the enforcement of
contract obligations. The concept is not a novel one.
Although the doctrine was most eloquently articulated
in the celebrated case of Jacob & Youngs, Inc. v. Kent,
230 N.Y. 239, 129 N.E. 889 (1921), in the context of
building contracts, it has long been recognized to have
application as well to the enforcement of ‘contracts of
all kinds . . . .’ 8 A. Corbin, Contracts (Rev. Ed. 1999)
§ 36.2, p. 336. At issue in a claim of substantial perfor-
mance is whether partial performance by one party
is so ‘nearly equivalent to that for which the parties
bargained’ that it will ‘protect him from having his
defaults considered as breaches’ sufficient ‘to justify
the other party in refusing’ to comply with its own
contractual obligations. 15 S. Williston, Contracts (4th
Ed. Lord 2000) § 44:54, pp. 227–28.
‘‘ ‘There is no simple test for determining whether
substantial performance has been rendered’; Hadden
v. Consolidated Edison Co., 34 N.Y.2d 88, 96, 312 N.E.2d
445, 356 N.Y.S.2d 249 (1974); but among the factors to
be considered is ‘the degree to which the purpose
behind the contract has been frustrated . . . .’ Id.’’
Mortgage Electronic Registration Systems, Inc. v.
Goduto, 110 Conn. App. 367, 373, 955 A.2d 544, cert.
denied, 289 Conn. 956, 961 A.2d 420 (2008). ‘‘The doc-
trine of substantial compliance is closely intertwined
with the doctrine of substantial performance. . . . The
doctrine of substantial performance shields contracting
parties from the harsh effects of being held to the letter
of their agreements. Pursuant to the doctrine of sub-
stantial performance, a technical breach of the terms
of a contract is excused, not because compliance with
the terms is objectively impossible, but because actual
performance is so similar to the required performance
that any breach that may have been committed is imma-
terial.’’ (Citation omitted; internal quotation marks
omitted.) Pack 2000, Inc. v. Cushman, 311 Conn. 662,
675, 89 A.3d 869 (2014). ‘‘[T]he proper application of
the doctrine of substantial performance requires a
determination as to whether the contractual breach is
material in nature. . . . [T]he doctrine of substantial
performance applies only where performance of a
nonessential condition is lacking, so that the benefits
received by a party are far greater than the injury done
to him by the breach of the other party.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) 21st Century North America Ins. Co. v. Perez,
177 Conn. App. 802, 815, 173 A.3d 64 (2017), cert. denied,
327 Conn. 995, 175 A.3d 1246 (2018).
This court repeatedly has applied the substantial per-
formance doctrine in determining whether a contrac-
tual notice requirement has been satisfied in a given
case, generally with respect to the contents of the notice
itself. See, e.g., Mortgage Electronic Registration Sys-
tems, Inc. v. Goduto, supra, 110 Conn. App. 373–76; id.,
375 (‘‘[a]lthough generally contracts should be enforced
as written, we will not require mechanistic compliance
with the letter of notice provisions if the particular
circumstances of a case show that the actual notice
received resulted in no prejudice and fairly apprised
the noticed party of its contractual rights’’ (internal
quotation marks omitted)); Fidelity Bank v. Krenisky,
supra, 72 Conn. App. 713–15 (concluding that notice of
default substantially complied with notice provision in
mortgage because defendants were sufficiently
apprised of their rights); see also Wells Fargo Bank,
N.A. v. Fitzpatrick, 190 Conn. App. 231, 241–43, 210
A.3d 88 (applying substantial compliance doctrine to
mortgage deed’s notice requirements), cert. denied, 332
Conn. 912, 209 A.3d 1232 (2019); Twenty-Four Merrill
Street Condominium Assn., Inc. v. Murray, 96 Conn.
App. 616, 620–25, 902 A.2d 24 (2006) (declining to
require strict compliance with notice requirement in
bylaws where delay in notice resulted in no prejudice
to defendant under circumstances of case). The present
case gives us the occasion to consider, and affirm, the
court’s application of the substantial compliance doc-
trine to the method of mailing identified in the contrac-
tual notice provision.
Applying the foregoing principles to the present case,
we conclude that, even assuming arguendo that the
method of delivery of the default letter did not mecha-
nistically comply with the contractual notice provision,
‘‘literal enforcement . . . would serve no purpose’’;
Fidelity Bank v. Krenisky, supra, 72 Conn. App. 712;
because, as found by the trial court, the defendants
had actual notice of the declaration of their default—
a finding that they do not challenge on appeal. We
therefore affirm the trial court’s judgment as to count
one on the ground that the plaintiff substantially com-
plied with the notice requirement of the promissory
note under the circumstances of this case, namely,
where there is no contractual requirement of proof of
actual delivery, actual delivery is not contested, and
any noncompliance with the requisite method of deliv-
ery did not result in any prejudice to the defendants.
Cf. Aurora Loan Services, LLC v. Condron, supra, 181
Conn. App. 276 (‘‘we decline to apply the doctrine [of
substantial performance] where there is a contractual
provision requiring proof of actual delivery for a notice
of default sent by certified mail, return receipt
requested, and there is no evidence that the defendants
actually received the notice of default’’).
II
The defendants next claim that the trial court erred
in its calculation of damages awarded to the plaintiff.
Specifically, the defendants assert that the damages
award should have been reduced by a credit of $120,000,
representing the purported value of one million shares
of stock provided to the plaintiff as security. We are
not persuaded.
‘‘Our Supreme Court has held that [t]he trial court
has broad discretion in determining damages. . . . The
determination of damages involves a question of fact
that will not be overturned unless it is clearly erroneous.
. . . In a case tried before a court, the trial judge is the
sole arbiter of the credibility of the witnesses and the
weight to be given specific testimony. . . . On appeal,
we will give the evidence the most favorable reasonable
construction in support of the verdict to which it is
entitled. . . . In other words, we are constrained to
accord substantial deference to the fact finder on the
issue of damages. . . . Under the clearly erroneous
standard, we will overturn a factual finding only if there
is no evidence in the record to support it . . . or [if]
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Citations omitted; internal quotation marks omitted.)
Northeast Builders Supply & Home Centers, LLC v.
RMM Consulting, LLC, 202 Conn. App. 315, 353, 245
A.3d 804, cert. denied, 336 Conn. 933, 248 A.3d 709
(2021).
The following additional facts, as found by the trial
court, are relevant to our consideration of the defen-
dants’ claim. The loan agreement between the plaintiff
and the defendants required the defendants to provide,
inter alia, 1.1 million shares of American Energy Group
Ltd. (AEG)9 stock to the plaintiff as collateral. The
defendants argued that because (1) they transferred
one million shares of AEG stock to the plaintiff on
December 11, 2015, and (2) on that date, the shares
were valued at $0.12 per share, they were entitled to
a credit in the amount of $120,000 (i.e., one million
multiplied by 0.12) in connection with any damages
awarded to the plaintiff.
In its memorandum of decision, the court found that
the $0.12 share value claimed by the defendants was
based on market transactions on December 11, 2015,
and that the evidence revealed substantial fluctuations
in the stock price over the course of years. Perhaps
most importantly, the court found that there was no
indication of value in 2016, when the plaintiff formally
declared a default and had a duty under the loan agree-
ment to look to the securities for an initial source of
repayment of the debt. The court further found that
the plaintiff had encountered problems liquidating the
shares and that, at the time that he had declared the
promissory note in default in 2016, he ‘‘was encoun-
tering issues relating to transferring the shares to his
own personal account . . . .’’ Furthermore, although
the defendants argued that they should be credited with
the value of the one million shares as of December 11,
2015, the court found that the shares were not actually
accessible in the plaintiff’s personal account until Janu-
ary, 2017.
With respect to the plaintiff’s difficulties in liquidating
the AEG shares, the court found that there were
‘‘repeated references to and evidence of the substantial
fluctuations in [the value of AEG stock] particularly
over the course of years, and the plaintiff identified the
general illiquidity’’ of the AEG shares—which the court
classified as ‘‘penny stock[s].’’ Additionally, the court
found that: (1) there was no ‘‘credible evidence as to
the value on a per share basis as of the [plaintiff’s]
declaration of default’’; and (2) there was no ‘‘documen-
tation as to time, price, or number of [AEG] shares]’’
sold beyond the actual sale of a small number of shares
sold for $13,249. Finally, the court found that ‘‘there
were continuing problems into at least 2018 concerning
the ability of the plaintiff to sell the [AEG] shares.’’
On the basis of the evidence before it, the court deter-
mined that there were ‘‘uncertainties as to [the] market-
ability and value’’ of the one million shares of AEG
stock. Accordingly, the court declined to credit the
defendants with the $120,000 they were claiming;
instead, the court credited the defendants for sales of
the shares actually ‘‘made/documented,’’ and treated
unsold shares separately. To that end, the court found
that the plaintiff had sold a number of AEG shares for
a total of $13,249, and credited the defendants accord-
ingly. Moreover, the court concluded that, to the extent
that the plaintiff had sold any of the one million AEG
shares in addition to those sold to generate the $13,249
credited as payment, ‘‘the additional amount recovered
[was] to be treated as a payment against the indebted-
ness.’’ The court further ordered the plaintiff to transfer
any unsold AEG shares in his possession back to Pierce.
The defendants claim that the court erred in failing to
deduct the $120,000 from the plaintiff’s damages award.
The defendants contend that (1) there is no dispute
that they transferred one million shares of AEG stock,
valued at $0.12 per share, to the plaintiff on December
11, 2015, and (2) the evidence in the record reveals,
contrary to the court’s finding, that the plaintiff was
able to sell those shares freely as of that date. We are
not persuaded.
As our Supreme Court has explained: ‘‘[T]he court
must have evidence by which it can calculate the dam-
ages, which is not merely subjective or speculative . . .
but which allows for some objective ascertainment of
that amount. . . . This certainly does not mean that
mathematical exactitude is a precondition to an award
of damages, but we do require that the evidence, with
such certainty as the nature of the particular case may
permit, lay a foundation [that] will enable the trier to
make a fair and reasonable estimate.’’ (Internal quota-
tion marks omitted.) American Diamond Exchange,
Inc. v. Alpert, 302 Conn. 494, 510–11, 28 A.3d 976 (2011).
Applying the clearly erroneous standard of review,
which requires that we substantially defer ‘‘to the fact
finder on the issue of damages’’; (internal quotation
marks omitted) Northeast Builders Supply & Home
Centers, LLC v. RMM Consulting, LLC, supra, 202
Conn. App. 353; we conclude that the record supports
the court’s determination that the defendants were not
entitled to the claimed $120,000 credit.
First, the court correctly found that the plaintiff did
not have an obligation to sell the shares on December
11, 2015. The loan agreement provided that in ‘‘the event
of a default . . . Lender agrees to first resort to the
Collateral Shares for repayment of the debt evidenced
by the Note, attorneys’ fees and costs through a resale
of a sufficient number of the Collateral Shares in the
open market reasonably necessary to recoup all sums
due to Lender under the Note and Pledge Agreement.’’
The court found that the plaintiff first declared a default
in his letter dated September 12, 2016. Thus, because
the plaintiff had not declared a default until September,
2016, he did not have an obligation to sell the AEG
shares on December 11, 2015.
Second, the defendants did not submit evidence to
support their claim that the AEG shares were worth
$120,000. Rather, the defendants’ own trial exhibits
showed that there were substantial fluctuations in the
value of the AEG stock. Simply put, the defendants did
not provide the trial court with sufficient evidence to
allow the court to ‘‘ ‘objective[ly] [ascertain]’ ’’ the value
of the AEG stock. American Diamond Exchange, Inc.
v. Alpert, supra, 302 Conn. 510–11.
Finally, there is evidence in the record that contra-
dicts the defendants’ claim that the plaintiff was able
to sell the AEG shares freely as of December 11, 2015.
In the plaintiff’s September 12, 2016 letter to the defen-
dants, the plaintiff explained that he was ‘‘still waiting
to receive the 1.1 [million] shares of American Energy
stock into [his] account.’’ On January 26, 2017, the plain-
tiff received an e-mail notifying him that one million
AEG shares had been transferred to his personal
account. Thus, the trial court’s finding that the shares
were not actually accessible in the plaintiff’s personal
account—and therefore not transferable—until Janu-
ary, 2017, was amply supported by the evidence.
In sum, because the record readily supports the
court’s finding that the defendants were not entitled to
a $120,000 credit for the purported value of the AEG
stock, the defendants’ claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The appeal form filed in this matter lists only Pierce Onthank as an
appellant; however, the appellants’ brief and docketing statement were filed
on behalf of both Pierce Onthank and Susan Onthank as appellants. In
light thereof, and given that their claims raised on appeal are identical, we
consider them both as the appellants, and we refer to them in this opinion
collectively as the defendants and individually by first name. See, e.g., Celen-
tano v. Rocque, 282 Conn. 645, 647 n.1, 923 A.2d 709 (2007).
2
The defendants also claim on appeal that the trial court erred in the
contingent manner in which it rendered judgment on count two of the
plaintiff’s second revised complaint asserting an unjust enrichment claim.
That is, because the plaintiff had prevailed on his breach of contract claim,
and because the plaintiff’s breach of contract and unjust enrichment claims
were mutually exclusive (i.e., legally inconsistent) theories of liability, the
court, relying on Meribear Productions, Inc. v. Frank, 328 Conn. 709, 724,
183 A.3d 1164 (2018), rendered judgment for the defendants on the unjust
enrichment claim ‘‘subject to being reinstated as the operative judgment for
the plaintiff should there be a determination that judgment improperly [was
rendered] in favor of the plaintiff on the breach of contract count.’’ In light
of our conclusion that the court properly rendered judgment for the plaintiff
on the breach of contract claim, we need not address the defendants’ chal-
lenge to the court’s disposition of the unjust enrichment claim.
3
In addition to their answer and special defenses, the defendants filed a
three count counterclaim asserting claims for negligent infliction of emo-
tional distress, intentional infliction of emotional distress, and loss of consor-
tium. During trial, the defendants abandoned their counterclaim in its
entirety.
4
During trial, the defendants withdrew their first special defense asserting
usury directed to count one. In addition, during trial, the defendants moved
to amend their special defenses to add a defense based on the statute of
limitations. The court reserved its decision on that motion. In its memoran-
dum of decision, the court rejected the statute of limitations defense as
untimely and further observed that, if considered on the merits, the defense
would have failed.
5
See footnote 2 of this opinion.
6
The plaintiff has not filed a cross appeal.
7
The court noted that the plaintiff had been living in Paris, France, and
did not have access to the United States postal system and its certified mail
form of delivery.
8
The defendants do not challenge the court’s factual finding that they
actually received the default notice. Rather, they limit their claim to the
contention that the plaintiff did not strictly comply with the notice provision
of the promissory note.
9
AEG is a business controlled by Pierce.