Ryder v. JPMorgan Chase Bank, National Assn.

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Ryder v. JPMorgan Chase Bank, National Assn.

GARY RYDER v. JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION
(AC 46128)
Bright, C. J., and Alvord and Cradle, Js.

Syllabus

The plaintiff appealed from the judgment of the trial court, rendered after
a jury trial, for the defendant bank. Following certain litigation over
two mortgages on the plaintiff’s property, the parties executed a settle-
ment and release agreement and a loan modification agreement. After
the defendant commenced a foreclosure action against the plaintiff,
claiming that he had defaulted on the modified loan, the plaintiff initiated
the underlying action against the defendant, claiming, inter alia, breach
of the loan modification agreement and settlement agreement, to which
the defendant asserted the special defense of setoff. The jury returned
its verdict, pursuant to which it found for the plaintiff on the count of his
complaint alleging breach of the settlement agreement, and it awarded
damages in the amount of $350,000. The jury also found that the defen-
dant had proven that, due to the plaintiff’s ongoing default in his loan
obligations, the plaintiff was indebted to the defendant for more than
$4 million. The jury subtracted the amount of the indebtedness from
the damages award on the interrogatories form. The jury, however,
returned a verdict for the plaintiff. Following clarifying instructions from
the court, the jury returned a defendant’s verdict on all counts of the
complaint consistent with its responses to the interrogatories. The plain-
tiff filed various postverdict motions, which the court denied. Held:
1. This court declined to review the plaintiff’s claims that the trial court
improperly denied his motions to set aside the verdict and for judgment
notwithstanding the verdict as those claims were unpreserved: the plain-
tiff never sought to challenge the legal sufficiency of the defendant’s
setoff defense by filing a motion to strike in accordance with the rules
of practice and failed to distinctly raise his claim that the setoff defense
was invalid prior to the submission of the case to the jury; moreover,
the plaintiff failed to preserve his claim that the defendant’s material
breach of the settlement agreement necessarily discharged his obliga-
tions under the loan modification agreement by failing to submit a
written request to charge or proposed jury interrogatories on the issue
and by agreeing to the submission of interrogatories to the jury that
plainly allowed it to find both that the defendant materially breached
the settlement agreement and that the plaintiff was indebted to the
defendant pursuant to his loan obligations; furthermore, because the
plaintiff’s trial counsel neither objected to questions about the debt
posed by the defendant’s counsel nor moved to strike the plaintiff’s
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Ryder v. JPMorgan Chase Bank, National Assn.
responses as to the amount of the debt, his claim that the court improp-
erly concluded that his testimony as to the amount he owed the defen-
dant was a judicial admission was unreviewable.
2. This court declined to review the plaintiff’s unpreserved claim that the
trial court improperly precluded him from presenting evidence relevant
to the damages he incurred after he transferred title to the property to
a trust; the record did not reflect that the plaintiff distinctly raised
this claim in opposition to the defendant’s motion in limine seeking to
preclude the plaintiff from presenting evidence of such damages or at
any other point during the trial.
3. The trial court did not abuse its discretion in denying the plaintiff’s motions
to set aside the verdict as inadequate and for additur; because there
was a reasonable basis in the evidence for the jury’s verdict and there
was no evidence of mistakes or partiality, this court deferred to the
jury’s judgment.
4. The plaintiff could not prevail on his claim that the trial court improperly
denied his postverdict motion to consolidate the underlying action with
the defendant’s related foreclosure action against him: after the defen-
dant initiated the foreclosure action, the plaintiff initiated the underlying
action instead of asserting his breach of contract claims in a counter-
claim in the foreclosure action; moreover, the court properly considered
the belated nature of the plaintiff’s motion to consolidate as well as the
futility of doing so after a verdict had been returned and after the
plaintiff’s motion for a new trial had been denied.

Argued March 12—officially released August 6, 2024

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk, and
tried to the jury before Clark, J.; verdict for the defen-
dant; thereafter, the court Clark, J., denied the plain-
tiff’s motions to set aside the verdict, for judgment
notwithstanding the verdict, and for additur; judgment
for the defendant; subsequently, the court, Genuario,
J., denied the plaintiff’s motion to consolidate, and the
plaintiff appealed to this court. Affirmed.
Ridgely Whitmore Brown, for the appellant (plain-
tiff).
Brian D. Rich, for the appellee (defendant).
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Ryder v. JPMorgan Chase Bank, National Assn.

Opinion

BRIGHT, C. J. The plaintiff, Gary Ryder, appeals from
the judgment of the trial court, rendered after a jury
trial, in favor of the defendant, JPMorgan Chase Bank,
National Association. On appeal, the plaintiff claims
that the court improperly (1) denied his motions to set
aside the jury’s verdict and for judgment notwithstand-
ing the verdict ‘‘to the extent that the verdict awarded
no damages to the plaintiff,’’ (2) precluded the plaintiff
from presenting evidence relevant to the damages
incurred after November, 2014, when he transferred
title to the property to a trust, (3) denied his motions
to set aside the verdict as inadequate and for additur,
and (4) denied his postjudgment motion to consolidate
the underlying action with the defendant’s related fore-
closure action against the plaintiff. We disagree and,
accordingly, affirm the judgment of the trial court.
The following facts, as the jury reasonably could have
found them, and procedural history are relevant to the
plaintiff’s claims on appeal. In January, 2003, the plain-
tiff executed a mortgage on his property in Greenwich
(property) in favor of Washington Mutual Bank, FA
(Washington Mutual) to secure an adjustable rate note
in the principal amount of $2.45 million (first mortgage).
In March, 2003, the plaintiff executed a mortgage in
favor of the defendant to secure future advances pursu-
ant to a home equity line of credit agreement and disclo-
sure statement with a $300,000 limit (second mortgage).
Thereafter, the plaintiff filed two lawsuits related to
the loans, one against Washington Mutual in the United
States District Court for the District of Connecticut and
the other against the defendant in the United States
District Court for the District of Columbia. In the Con-
necticut action, Washington Mutual filed a counterclaim
to foreclose the first mortgage. The defendant subse-
quently acquired the first mortgage from Washington
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Mutual and was substituted as the defendant and coun-
terclaim plaintiff in the Connecticut action.
In November, 2011, the parties executed a settlement
and release agreement along with a loan modification
agreement. Pursuant to the settlement agreement, the
parties released all of their respective claims in the
federal actions, the plaintiff agreed to withdraw both
actions by December 15, 2011, and the defendant agreed
to release the second mortgage on the property. Pursu-
ant to the loan modification, the maturity date of the
note is November 1, 2051, the new principal balance
was $2.9 million, with interest beginning to accrue as
of November 1, 2011, at the rate of 1 percent until
November 1, 2014, when the rate increased to 5.1 per-
cent (modified loan). Although the plaintiff performed
his obligations under the settlement agreement, the
defendant did not release the second mortgage on the
plaintiff’s property until April 21, 2014. On November
3, 2014, the plaintiff conveyed the property to SFK Trust,
LTD (SFK Trust) by virtue of a deed recorded in the
Greenwich land records.
In October, 2018, the defendant commenced a fore-
closure action against the plaintiff, claiming that he had
defaulted on the modified loan. In February, 2019, the
plaintiff initiated the underlying action against the
defendant. In the operative seven count complaint, the
third amended complaint, the plaintiff alleged that the
defendant: (1) breached the loan modification agree-
ment by failing to pay the real estate taxes to the town
of Greenwich in a timely manner (first count); (2)
breached the settlement agreement by (a) failing to
release the lis pendens in a timely manner (second
count), (b) failing to release the second mortgage until
April 21, 2014 (third count), (c) attempting to enforce
the second mortgage in violation of General Statutes
§ 36a-648 (fourth count), (d) improperly increasing his
monthly mortgage payment, principal, interest, and
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taxes (fifth count), and (e) claiming that his outstanding
debt was greater than $2.9 million (sixth count); and
(3) improperly induced him to execute the settlement
agreement by falsely representing that his outstanding
debt was $2.9 million even though it since has claimed
that his outstanding debt is greater than $2.9 million
(seventh count).
The defendant denied the material allegations in the
complaint and asserted, as a special defense, that ‘‘[a]ny
and all damages to which the plaintiff would otherwise
be entitled must be offset by the debt owed to the
defendant related to the ongoing default in his loan
obligations.’’ The plaintiff filed a reply in which he, inter
alia, denied the allegations in the defendant’s special
defense of setoff.1 The defendant subsequently filed a
motion in limine, seeking to preclude evidence of any
damages claimed by the plaintiff after he conveyed the
subject property to the SFK Trust in November, 2014,
as he was no longer the owner of the subject property.
The court granted the motion in limine, without preju-
dice, on May 20, 2022.
Thereafter, the case was tried to a jury over the course
of several days in June and July, 2022, with the court,
Clark, J., presiding. At trial, the plaintiff was repre-
sented by Attorneys Richard P. Silverstein and John
Ferranti. On June 28, 2022, the first day of evidence, the
court addressed certain preliminary matters, indicating
that, if necessary, it would revisit its ruling concerning
the time period for which evidence of damages could
We note that the parties used ‘‘setoff’’ and ‘‘offset’’ interchangeably in
1

their pleadings and during the proceedings before the trial court in reference
to the defendant’s special defense. Although we refer to that defense as a
‘‘setoff’’ in this opinion, there is no meaningful distinction between the two
terms. See, e.g., Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 18,
116 S. Ct. 286, 133 L. Ed. 2d 258 (1995) (‘‘[t]he right of setoff (also called
offset) allows entities that owe each other money to apply their mutual
debts against each other, thereby avoiding the absurdity of making A pay
B when B owes A’’ (internal quotation marks omitted)).
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be introduced. The court also noted the defendant’s
request to charge the jury as to its setoff defense and
stated that, at that time, it did not believe that it would
be appropriate to instruct the jury as to the defendant’s
claimed setoff, as the foreclosure case was a separate
action, and it could be prejudicial to combine the claims
made therein with those in the plaintiff’s case. The
plaintiff’s counsel agreed.
Despite the court’s initial concerns, however, it per-
mitted the plaintiff’s alleged default on the modified
loan and the issue of setoff to be raised at trial. During
trial, the plaintiff testified that he stopped making pay-
ments as required under the loan modification agree-
ment in 2014 because he believed ‘‘there was no agree-
ment anymore because it had been breached in so many
different ways . . . .’’ Nevertheless, on cross-examina-
tion, he admitted that he owed the defendant approxi-
mately $3 million for the principal amount of the loan
and for the property taxes that the defendant paid to
the town of Greenwich.
At the conclusion of the plaintiff’s case on July 1,
2022, which was a Friday, the defendant moved for a
directed verdict, arguing, among other things, that the
plaintiff’s admission of his indebtedness had estab-
lished the defendant’s setoff defense. The trial court
deferred ruling on the motion for a directed verdict and
briefly discussed the charging conference scheduled
for the following week. The court invited counsel to
submit any revised requests to charge or proposed ver-
dict forms, noting that the ‘‘plaintiff’s request was very
basic, [while the] defense’s request was robust. And,
obviously, now we have some evidence.’’ The court
issued a written order that same day, which stated:
‘‘Consistent with the discussion on the record during
the trial on July 1, 2022 . . . [t]he parties shall review
the working draft of the court’s jury charge that was
presented to counsel at the beginning of evidence and
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which has since been emailed to counsel by caseflow.
Counsel shall submit any proposed edits to the draft
charge by Tuesday, July 5, 2022, at 1:00 p.m. . . . The
parties shall be prepared to engage in a charging confer-
ence on Wednesday, July 6, 2022, with the court.’’
At the beginning of the day on July 6, 2022, the court
explained that the parties had provided the court with
proposed edits to the charge, and that the court would
defer any ruling on the defendant’s motion for a directed
verdict until the conclusion of the case or after a verdict.
Thereafter, the defendant presented a single witness,
and the plaintiff offered no rebuttal.
After releasing the jury, the court held a charging
conference. After reviewing several of the parties’ sug-
gested edits, the following exchange occurred between
the court and the parties’ counsel:
‘‘The Court: I think that goes through all of the edits.
I know we didn’t solve all of them. But you noted,
Attorney Ferranti, you thought you might have some
other—a couple other—some other points that we
might not have touched on there.
‘‘[Attorney Ferranti]: No, I—we touched on them,
thank you—
‘‘The Court: Okay.
‘‘[Attorney Ferranti]: —for asking, Your Honor.
‘‘[The Defendant’s Counsel]: Your Honor, I don’t
believe we addressed the offset edit. . . .
‘‘The Court: Oh, the offset, I’m sorry. So, the offset,
yes, there was an effort to add in, I . . . think given
the evidence that some instruction on the offset is
appropriate. . . . I took the liberty of taking the lan-
guage proffered by [the defendant] and making some
softening. . . . So, I’ll pass . . . that out to . . .
counsel. I do think given the evidence that the special
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defense is appropriate and that the offset—charge as
to the offset is appropriate . . . . So, I . . . think it’s
something like that and then, you know, it’s a matter
of whether the jury finds that there is evidence.
‘‘[Attorney Silverstein]: Isn’t this a subject of different
litigation currently pending?
‘‘The Court: I’m sorry?
‘‘[Attorney Silverstein]: Isn’t that three million the
subject of litigation currently pending in this court-
house?
‘‘The Court: The—I think there certainly is an active
foreclosure case.
‘‘[Attorney Silverstein]: Right, which claims that my
client is three million in arrears. How does that, which
is a separate and distinct action, get to be argued in
this court and then again in the other case?
‘‘The Court: Well, there’s a variety of ways that it can,
and it still could be, and either way, could end up being
relevant to that case. But I think in this case, there is
a—it is a special defense that was claimed. There is
evidence associated with a potential offset and there-
fore, I believe, it’s appropriate for the jury to consider
whether or not one should apply to any verdict that
they would issue. There is no counterclaim in this case,
so we don’t have the foreclosure case, and this case is
one claim. So, what the offset would potentially do here
could be, depending upon whatever damages there are,
it could reduce or eliminate them for sure, but I don’t
think that forecloses any action or defenses associated
with the foreclosure action.
‘‘[Attorney Ferranti]: Your Honor, I do have—
‘‘The Court: Yeah.
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‘‘[Attorney Ferranti]: —concerns on the fourth para-
graph—I’m sorry, the third paragraph, halfway down.
‘Importantly, before you consider any setoff that the
defendant may be entitled to, the plaintiff must prove
all of his damages claims by a preponderance of the
evidence.’ It seems a little confusing. It seems to me
somebody might read this—the jury might read this and
say, he’s gotta prove count one, count two, count three,
count four.
‘‘The Court: Uh-huh.
‘‘[Attorney Ferranti]: Certainly, the plaintiff must
prove damages. I’m not sure about ‘all [of] his damages
claims.’ They might read that as all the counts.
‘‘The Court: Right. Well, part of the practical nature
of this, which goes to the verdict forms, which is how
this is—where does this appear and how does it apply,
and is it to the macro or is it to each count. You know,
because there could be certainly some confusion in the
calculation—the question.
‘‘[Attorney Silverstein]: Your Honor, it would seem
to me that if you’re going to allow them, and I know
they [pleaded] offsets setoff, to have this charge, again,
I’m wondering why it is that what my client gave up is
not damages. It’s as if you’re—you’re removing what
he did from the contract and focusing only on what
[the defendant’s] responsibilities were. My client under
the contract had responsibilities that he fulfilled to his
detriment. In other words, he couldn’t revive those law-
suits, but yet you’re telling us that those aren’t damages.
I just can’t understand the logic of how a contract where
one party—
‘‘The Court: Okay. Attorney Silverstein, we’re not
going to keep arguing that same point. This—to the
extent—let’s assume you can’t understand, okay.
‘‘[Attorney Silverstein]: I can’t understand it.
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‘‘The Court: And we’ll just move on. The issue of
the offset in this case, among many other pieces of
evidence, comes from the fact that there was an obliga-
tion on your client to pay the mortgage and apparently
from his testimony and corroboration, there—pay-
ments have not been made since 2014. So, if he hasn’t
made the payments, and I understand his position is
there was no longer a contract, which sort of begs the
question of, well then how are you seeking to enforce
a contract, but I’ll leave that aside for the moment. How
is that not a potential offset? So, he didn’t do—you said
he did everything he was supposed to do. The evidence
does not appear to be so in that regard. So, if he didn’t
pay the mortgage, and how is that not a potential offset
to his damages attempting to assert the damages associ-
ated with the enforcement of the mortgage.
‘‘[Attorney Silverstein]: Can I answer that?
‘‘The Court: So, that has nothing to do with the fore-
closure of the prior settlement agreement or evidence
that doesn’t exist in this case of the negotiation, what
the parties actually valued it as, et cetera. It goes to,
from alleged breach forward, what were the actions,
and are there any offsets to those actions, which in this
case, a lack of payment of a mortgage for eight years
strikes me as something the jury could value.
‘‘[Attorney Silverstein]: . . . [W]ell, then what Your
Honor is saying is that when my client became aware
of the breach, that he still had to fulfill all the obligations
even in light of the fact that [he] was aware that they
had breached the contract. Once he becomes aware of
that, from my understanding of contracts law, years
ago, that’s just not the case. His . . . responsibilities
don’t go on under that breached contract forever. It
just—that’s not how it works. Once he—
‘‘The Court: Okay, thank you.
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‘‘[The Defendant’s Counsel]: Your Honor, even if that
legal interpretation or proposition was correct—
‘‘[Attorney Silverstein]: It is correct.
‘‘[The Defendant’s Counsel]: —[The plaintiff] sat on
the stand and said he owes [the defendant] at least
three million dollars. So, even if Attorney Silverstein’s
comments are legally correct, which I think there’s
some—I don’t think they’re correct. [The plaintiff] has
testified, and the jury has heard, that he owes [the
defendant] at least three million dollars, plus, by the
way, the unpaid taxes, which I didn’t even include in
my draft language here. So, that’s the evidence before
the jury, and I understand Your Honor’s softening of
my proposed language and the reasons behind it. But
the plaintiff in this case testified quite explicitly that
he owes the defendant at least three million dollars.
So, I think there’s a compelling argument to be made
that the jury should be affirmatively charged that it
must offset the damages based on his testimony, which
Your Honor’s revised draft is a little short of that, but
that’s what I believe is appropriate in this case based
on his undisputed testimony.
‘‘The Court: Anything further, Attorney Ferranti?
‘‘[Attorney Ferranti]: Not on that subject. Thank you,
Your Honor.’’ The court then briefly discussed the inter-
rogatories and verdict form before adjourning for the
day.
The next morning, the court began by noting that it
had given counsel updated copies of the draft verdict
forms and the jury charge and that they had discussed
the jury interrogatories prior to opening court. Follow-
ing closing arguments, the court took a recess before
reviewing the verdict form, interrogatories and charge
with the parties. At that time, Attorney Ferranti com-
mented on the interrogatories pertaining to the setoff
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defense as to the first count of the plaintiff’s complaint,
which provided: ‘‘Subtract the amount entered in
response to question 6 [‘What is the amount plaintiff
owes the defendant due to his ongoing default in his
loan obligations?’] from the amount entered in response
to question 4 [‘Calculate the total amount of damages,
if any, entered in response to 3a-3d above’]. If the differ-
ence is a positive number, enter it below, and you may
enter a verdict for the plaintiff in this amount. If the
difference is zero or a negative number, you must enter
a verdict in favor of the Defendant.’’ (Emphasis omit-
ted.) Attorney Ferranti, reading from the interrogato-
ries, stated: ‘‘If the difference is zero, you must enter
a verdict . . . in favor of the defendant, is fine. I do
believe a negative number would still be valid because
it would be a setoff even though it doesn’t [rise] above
what is owed, that number should be subtracted from
what is owed. So, I would take exception to that. I think
it should [read], ‘[I]f the difference is zero, then you
must enter a verdict in favor of the defendant.’ If not,
I think we’re stuck with what that number is.’’ The court
acknowledged that point and proceeded to bring in
the jury.
The court charged the jury regarding the plaintiff’s
claims and the defendant’s special defense of setoff.
The court provided the agreed upon interrogatories that
required the jury to answer whether the defendant had
proven that the plaintiff owed it moneys ‘‘due to his
ongoing default in his loan obligations,’’ and, if so, to
determine the amount of that debt. The interrogatories
also directed the jury to subtract the debt amount from
any award of damages to the plaintiff and, if the differ-
ence was zero or a negative number, to enter a verdict
in favor of the defendant.
As to the defendant’s setoff special defense, the court
instructed the jury as follows: ‘‘To the extent you find
that the plaintiff has proven liability and damages for
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any of his claims, you must then consider whether any
amount to which you have decided the plaintiff is enti-
tled must be offset by any debt that you may [find] is
owed to [the defendant] related to the plaintiff’s ongoing
loan obligations. As I mentioned earlier, [the defendant]
has affirmatively asserted this as a special defense. As
I have mentioned, [the defendant] has the burden of
proving its special defense by a fair preponderance of
the evidence. The plaintiff does not have to disprove
it. In Connecticut, a setoff may be legal in nature. A
party may be entitled to a setoff to enforce the simple
but clear natural equity in a given case. In this case, [the
defendant] is claiming a setoff relating to [the plaintiff’s]
alleged ongoing default of his loan obligations, which
are the subject of this case.
‘‘As applied to here, if you determine that [the defen-
dant] is entitled to recover any moneys unpaid by [the
plaintiff], but due and owing to [the defendant], then
any possible award of damages that you feel has been
sufficiently proven by the plaintiff may be reduced by
this amount. Importantly, before you consider any set-
off that the defendant may be entitled to, the plaintiff
must prove all of his damages claims by a preponder-
ance of the evidence. Once you have determined, what,
if any damages have been sufficiently established, you
must determine whether the defendant is entitled to a
setoff which will reduce any potential award of damages
to the plaintiff. . . .
‘‘In this case you have heard other evidence related
to the mortgage payment status and the taxes paid on
the property in question. It is for you to determine the
ultimate value of any setoff, if applicable, and then to
apply such setoff [in] the amount that you find is proven
to exist in this case. Therefore, to the extent that you
enter any verdict in favor of the plaintiff, I direct you
to offset such amount by the amount, if any, that you
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find applicable to this case based on the facts as you
find them.’’
As to the plaintiff’s damages, the court instructed the
jury in relevant part that, ‘‘if you determine that the
plaintiff has proven both liability and damages by a
preponderance of the evidence in this action, then you
may only award amounts for damages incurred related
to the property while [the plaintiff] was actually in title
of the property, i.e., before November 3, 2014, and may
not award damages for any alternate time period.’’
After the jury exited the courtroom, the court
inquired of counsel, ‘‘Exceptions, objections, con-
cerns?’’ Although the defendant’s counsel took some
exceptions to the charge, Attorney Ferranti simply
responded, ‘‘No, Your Honor. Thank you.’’
On July 11, 2022, the jury returned a verdict along
with answers to the interrogatories, which the court-
room clerk read for the record. Pursuant to the interrog-
atories, the jury found in favor of the plaintiff on the
third count of his complaint but for the defendant on
the remaining counts. Specifically, the jury found that
the defendant had breached the settlement agreement
by failing to release the second mortgage until April,
2014, and that the plaintiff had proven that the defen-
dant’s material breach had caused him to suffer dam-
ages in the amount of $350,000 due to the inability to
refinance the loan and the loss of a potential sale of
the property. The jury also found that the defendant
had proven that, due to his ongoing default in his loan
obligations, the plaintiff is indebted to the defendant in
the amount of $4,023,338.21 ‘‘per [Defendant’s] Exhibit
GG,’’ which was a payoff statement for the plaintiff’s
loan obligations under the modified loan agreement,
and that it had subtracted that amount from the
$350,000 damages award on the interrogatories form.
On the verdict form, however, the jury found for the
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plaintiff in the amount of $350,000. After the clerk read
the verdict and the answers to the jury interrogatories,
all of which the jury confirmed, the following exchange
occurred between the court and the jury foreperson:
‘‘The Court: . . . I just want to note, I did not hear
when the clerk was reading the interrogatories the
response to number seven in the damages. . . . I did
not hear number seven, it says subtract the amount
entered in response to question six from the amount
entered in response to question four. If the difference
is a positive number, enter it below. And . . . you may
enter a verdict for the plaintiff in this amount. If the
difference is zero or a negative number, you must enter
a verdict in favor of the defendant. And there is an
amount there and that amount is negative
[$3,673,338.21]. I did not hear that amount referenced
when you read the interrogatory previously, Mr. Clerk,
and I just want to ask the jury, did you answer number
seven in section three to that amount, that the negative
number of [$3,673,338.21]?
‘‘[The Jury Foreperson]: We did enter that amount.
‘‘The Court: Thank you. And with that confirmation,
what I’d like to do is just ask you to just step into the
jury room for a minute and so I can clarify this with
counsel and then just bring you right back out. Okay.
So, it’ll just be a minute, folks.’’
After the jury exited the courtroom, the court dis-
cussed the apparent inconsistency between the clear
instructions on the interrogatories and the verdict form
with respect to count three. Specifically, the court’s
review of the forms determined that the jury had failed
to properly follow the instruction for the third count.
As such, the acceptance of the verdict was halted, and
the court engaged in a discussion on the record with
counsel outside the presence of the jury.
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‘‘The Court: So the problem . . . is the instruction
was if they came to zero or negative to issue that as a
defendant[’s] verdict. . . . Right, wrong, or indifferent,
that was the instruction. So, in their verdict they carried
over the [$350,000] and do not appear to have applied
the setoff. So, my thought given that is that . . . I need
to—and they did not sign the interrogatories, which we
have to address too. But I believe I may need to give
them an instruction to reread that section and to recon-
sider what, if any, number they’re going to put in the
verdict to count three in the verdict form. Because I
think their verdict, at this point, is inconsistent with
what they wrote in the interrogatories. Attorney Fer-
ranti.
‘‘[Attorney Ferranti]: I don’t necessarily disagree,
Your Honor.
‘‘The Court: Attorney Rich?
‘‘[The Defendant’s Counsel]: I agree entirely, Your
Honor. It is inconsistent upon its terms and that it needs
to be corrected.
‘‘The Court: Okay. Of course, like every other day in
this case, now we approach a witching hour so we’re
right at one. I think we could accomplish this relatively
quickly. I could give them instruction to review it again,
to sign it again, to make any correction in the verdict
form that needs to be made, and we’ll see if the problem
is then absent waiving it, [the clerk] has—would have
to read it all again.
***
‘‘So why don’t we do this, why don’t I bring them
back, let [them] know that I have to give them—I’m
going to give them the quick instruction, and then I
want them to take lunch, come back, review, sign off on
everything, check their math and so forth, and correct
it as needed to the extent [there are] any [changes to]
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the verdict form, you just initial where he makes the
correction, and we’ll take it up at two.’’

At that point, the jury returned, and the court
instructed them as follows. ‘‘Based upon the interroga-
tories you answered and the verdict you gave, there’s
an inconsistency, and I need you to correct that, how-
ever you choose to correct it, and then we’ll deal with
that. . . . In other words, there’s no damages if it’s
zero or a negative number. That was the instruction.
On the verdict, you still had it with a plaintiff’s verdict
of $350,000, which appears to conflict with the math
on the interrogatory which would appear to have been
a negative number. So, what I’m going to ask you to do
is two things. One, you—to review the interrogatories,
specifically, that one, number seven, in—in—in subsec-
tion three. And, to the extent that is . . . a positive
number and you need—there was some other error you
need to correct, make that correction, and then you fill
out the verdict form accordingly. To the extent it is
. . . a negative number or zero, then there would . . .
be a defendant[’s] verdict, not the [$350,000]. So, you’d
correct that on the jury form, initial that correction,
and then hit the right box. . . . So, what I’m going to
have the clerk do is give you back the verdict forms,
you make whatever corrections you need to based upon
that instruction and based upon your findings, write
them out, sign the interrogatories. If there’s any change
to the numbers that currently exist in here, cross it out,
initial and put the new number in.’’

Thereafter, the jury submitted two questions to the
court: (1) ‘‘As a jury, we are unclear why the verdict
flips in favor of the defendant even though we found
. . . breaches per the interrogatories’’ and (2) ‘‘[i]f the
verdict [on the third count] is changed to be in favor
of the defendant, will [the plaintiff] still receive an offset
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of the damages amount we indicated in the interrogato-
ries (currently showing $350k), from the amount owed
to [the] defendant[?]’’
After the court read the jury’s questions, Attorney
Ferranti stated: ‘‘That was the exact reason for my
exception to jury interrogatory Roman numeral three,
six and seven, and it is further compounded by the
jury’s confusion. It appears that the [plaintiff] wouldn’t
be able to realize the jury’s verdict finding of $350,000
in damages if there is a verdict for the defendant. While
the foreclosure action subject of the mortgage and set-
tlement agreement here is a separate action, I don’t
believe it is a distinct and separate action, Your Honor.
The verdict form finding in favor of the defendant would
appear to bar the recovery of the $350,000 as a setoff
in the foreclosure action. If the jury finds on one hand
for $350,000 in damages but is directed to find in favor
of the defendant . . . on the verdict form, then the
$350,000 seems to be rendered immaterial. It doesn’t
make sense to me. Is he going to realize—be able to
realize that $350,000 in the foreclosure action? And it
would appear by the verdict form that he wouldn’t, so
that would render their—the damages irrelevant.’’
The court then allowed the defendant’s counsel to
respond, and the following exchange occurred:
‘‘[The Defendant’s Counsel]: If the defendant has
proven its offset defense, then the funds have to be
offset against any finding in favor of the plaintiff. That
appears to be what the jury has done in response to
their interrogatories and, you know, I think that the
jury should either be directed accordingly or, in light of
. . . some possible confusion the jury is having about
following Your Honor’s instructions, perhaps, Your
Honor needs to issue a ruling yourself.
‘‘The Court: Yeah, I think the two, perhaps, pieces of
confusion are, are there damages once you do the off-
set? And—and I think ultimately—so that’s number one.
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And then number two, if an offset brings it to zero or
a negative number, does that necessarily mean it’s a
defendant’s verdict? In other words, we started the
interrogatories and found the plaintiff’s verdict and as
we worked all the way through we get to a defendant’s
verdict, how does . . . that work is the way I’m kind
of reading it. And, I think the answer is that’s because
I’m telling you how that—that’s how it works. So, if
you go through the interrogatories and you find that
applicable offset that does flip it, essentially, to there
being no award of damages and thus a defendant’s
verdict.
‘‘So, I understand your exception to the, you know,
how is this, but I think there is a distinction to be drawn
that’s been drawn a number of times in this [case], but
this is this case.
‘‘[Attorney Ferranti]: Correct.
‘‘The Court: So, I don’t believe there’s—this necessar-
ily is something that [the defendant] can run into the
foreclosure [court] and say, hey, we proved an offset
of 4 . . . million dollars, give us that in the foreclosure.
I mean, [the defendant has] got to prove his foreclosure
case. And I think you can’t go to the foreclosure case
and say, hey, we proved to a jury in a different case
that there’s a value of $350,000 somewhere here that
needs to be credited, you’d have to prove that in the
foreclosure case.2
2
Although not at issue in the present case, we disagree with the trial
court’s assessment of the import of the jury’s findings regarding the $350,000
in damages. ‘‘The concept of setoff allows [parties] that owe each other
money to apply their mutual debts against each other, thus avoiding the
absurdity of making A pay B when B in fact owes A.’’ (Internal quotation
marks omitted.) Mariculture Products Ltd. v. Those Certain Underwriters
at Lloyd’s of London, 84 Conn. App. 688, 703, 854 A.2d 1100, cert. denied,
272 Conn. 905, 863 A.2d 698 (2004). Given that the defendant utilized the
outstanding mortgage debt as a setoff to negate the plaintiff’s award in the
present case, that setoff necessarily reduced the amount of the plaintiff’s
outstanding debt to the defendant by the $350,000 that the defendant did
not have to pay to the plaintiff. Although the setoff avoids ‘‘the absurdity
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‘‘[Attorney Ferranti]: I disagree, but . . . . It is a sep-
arate action, but it’s not distinct. We are talking about
the same mortgage, the same settlement agreement,
there should be an—an effect, a realization of the
$350,000 in damages in the foreclosure because, again,
it’s separate, but it’s not distinct. We’re talking—
‘‘The Court: Right. Either party could have chose—
tried to consolidate, that didn’t happen in this case. . . .
‘‘[The Defendant’s Counsel]: Well, Your Honor, just
in response to that comment, I think Attorney Ferranti
and I agree to some extent that all of these issues are
fertile ground in the foreclosure case. . . . But back
to this case, I mean, the interrogatories are very clear,
if you find this, you must enter a verdict in the favor of—
in favor of the defendant. And based on their responses,
that’s what they found. And I think the jury has to be
directed to find in favor of the defendant based on their
responses.
‘‘The Court: Any[thing] further, Mr. Ferranti?
‘‘[Attorney Ferranti]: No, Your Honor. . . .
‘‘The Court: So, just to recap, my intention would
be to answer the first question, basically, that, as I
instructed you, once you apply the offset, it is possible
that . . . any damages found [can], in fact, be entirely
offset as appears to be the case here. And, you know,
as I told them before, they are to follow my instructions
on the law and this is one of those, they have to follow
my instructions with respect to how to apply the offset.
In number two, my answer would be the verdict has
not changed, the verdict is a result of you going all the
of making’’ the defendant pay the plaintiff $350,000 when the plaintiff in
fact owes the defendant more than $3 million, the plaintiff still is entitled
to realize the practical effect of that setoff, most likely by reducing the
amount of the debt due in the foreclosure case, assuming that the doctrines
of collateral estoppel or res judicata apply to this issue in that case—a
question on which we express no opinion.
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way through the interrogatories. And, per my instruc-
tion on the law, if you go all the way through the inter-
rogatories and, after they answered number seven, you
come to a zero or a negative number, I’m directing you,
as a matter of law, to find a defendant’s verdict. So,
that I would send them back in and direct them to
correct their verdict with respect to count number three
consistent with my charge.
‘‘[Attorney Ferranti]: With all due respect, I—I dis-
agree with that, Your Honor. I—I would suggest that
the court strike answer seven from Roman numeral
three on the jury interrogatory and the corresponding
and the same question on the verdict form in favor of
the defendant.
‘‘[The Defendant’s Counsel]: Your Honor, we’ve
already been through this. Of course, we went through
the charging conference, we can’t change the jury inter-
rogatories now after we’ve already directed the jury
that way. Even if it was merited, I don’t think that would
be appropriate, but it’s not merited in this particular
case, there’s just simply no basis to do that, to undo
what Your Honor has already told the jury it must do
in this case.
‘‘[Attorney Ferranti]: Perhaps it’s a mistrial on that
count.
‘‘The Court: Okay. That motion is denied, and we
will complete our process. So, let’s bring in the jury.’’
(Footnote added.)
When the jury returned, the court answered the jury’s
questions as follows: ‘‘[I]n this case, there is a special
defense of offset. So, I’ve instructed you how to apply
the offset if you found an offset . . . . So, from the
clarity standpoint in the interrogatories it walks you
through if you find damages then you go to the offset,
if you find an offset you do the math. If the math is a
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zero or a negative number it then must be, must be, a
defendant’s verdict. And that is the application of the
law as I’ve given it to you. . . . So, you must apply
that offset how it works. With respect to your second
question with respect to [the change], my answer to
you is it doesn’t change anything. If you go all the way
through [the interrogatories] it either is or it isn’t a
plaintiff’s verdict. If you apply an offset and it’s zero or
negative it isn’t [a plaintiff’s verdict], it is a defendant’s
verdict. So, it’s not changing anything, it’s just going all
the way through the interrogatories. So, what I’m going
to do at this point based upon what you put in the
interrogatories and these questions, to avoid any confu-
sion, I’m going to instruct you to apply the offset as
you have and to do the math as you have, and in doing
so to render a verdict for the defendant [on] that count.
‘‘So, you would just make the correction and essen-
tially cross off the [$350,000] and make that a defen-
dant’s verdict there, sign the . . . interrogatories forms
that’s still fine because you have the—the negative num-
ber, you’ve done that properly. Just sign the interrogato-
ries form. All you have to do is make the correction on
the verdict form, just initial that. But that would be as
I’m instructing you on the law, that’s how you apply
the offset in this case. Okay. So, I’m instructing you to
go back and do that. If you have any other questions or
that wasn’t clear, we’ll be waiting here for your knock.’’
After the jury exited the courtroom, the court asked
counsel whether they had any comments or concerns
based on its instruction, and Attorney Ferranti
responded, ‘‘Nothing that hasn’t already been stated,
Your Honor.’’ Shortly thereafter, the jury returned a
defendant’s verdict on all counts of the complaint con-
sistent with their responses to the interrogatories, and
the court accepted the jury’s verdict.
The defendant renewed its oral motion for a directed
verdict by filing a written motion and supplemental
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brief in support of its motion for a directed verdict,
seeking to eliminate the jury’s award of $350,000 on
the ground that there was insufficient evidence to sup-
port it. The plaintiff filed a motion to set aside the
verdict and for judgment notwithstanding the verdict,
in which he claimed that, as a matter of law, the
$4,023,338.21 setoff against the $350,000 damages
award was improper because (1) the defendant’s mate-
rial breaches of the settlement agreement discharged
his obligations under the modified loan agreement, (2)
it did not arise out of a debt that was ‘‘independent’’
of the plaintiff’s claim under the settlement agreement
and should have been raised in a counterclaim, and (3)
pursuant to JPMorgan Chase Bank, National Assn. v.
Essaghof, 336 Conn. 633, 249 A.3d 327 (2020), the
amount of debt owed could only be finally determined
within the context of the foreclosure action. The plain-
tiff also argued that the trial court erred in not permit-
ting evidence of his damages after he conveyed legal
title to the subject property to the SFK Trust in Novem-
ber, 2014.
In addition, the plaintiff filed a motion for additur
‘‘to add the amount of $350,000 to the jury’s verdict
. . . .’’ In his memorandum of law in support of the
motion, he argued that ‘‘the jury verdict of zero for the
plaintiff on the verdict for material breaches of the
settlement agreement [was] based on a mistake of law
as to the effect of the defendant’s claimed right of setoff.
The defendant had no such rights because the defense
of setoff could not be asserted in this action because
it is not an independent action, and because any obliga-
tion to pay the defendant per the terms of the settlement
agreement was discharged by the defendant’s material
breaches.’’
The defendant objected to each of the plaintiff’s post-
trial motions, arguing that the plaintiff waived any claim
regarding its setoff special defense because he neither
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challenged the legal sufficiency of that defense nor took
exception to the jury charge. The plaintiff filed a
response, arguing that he had not waived his challenge
to the setoff special defense because he (1) denied the
setoff in his reply to the defendant’s special defenses,
(2) agreed with the trial court on the first day of trial,
when the court indicated that it did not believe the
setoff defense was proper, and (3) argued against a
setoff when objecting to the defendant’s oral motion
for a directed verdict. The plaintiff also argued that any
exception to the jury charge on setoff was unnecessary
because the issue of whether it was a valid defense is
a question of law for the court, not one of fact for
the jury.
After filing reply memoranda to the defendant’s
objections, the plaintiff filed a ‘‘Motion for Equitable
Relief and Consolidation with the Foreclosure Case’’
(motion to consolidate), which provided in relevant
part: ‘‘This motion is made in the alternative to the
pending motions for mistrial, to set aside, etc. The two
cases should be consolidated so that the equitable and
legal relief may be considered together [in the foreclo-
sure action]. . . . In fact, a counterclaim was just filed
last week (October 19, 2022) in the foreclosure case
. . . .’’ The defendant filed an objection, arguing that
the plaintiff’s ‘‘request would create procedural chaos
by consolidating two duplicative sets of claims by [the
plaintiff] into one case, with a jury having already adju-
dicated one of them.’’
The court held a hearing on the parties’ motions on
November 7, 2022, and it issued a memorandum of
decision denying both parties’ motions on December
9, 2022. The court held that the plaintiff had waived
any claim that a setoff was improper and, alternatively,
that the jury had properly applied the setoff based upon
the evidence. Specifically, the court reasoned that ‘‘the
special defense of setoff was not the subject of a motion
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to strike or some other timely challenge or exception
either before or during the trial. Also, after discussions
about the special defenses, the charge, the interrogato-
ries, and the verdict forms on the record and in a charg-
ing conference, this is not a defense which was
unknown to the plaintiff. . . . Thus, by not raising an
exception to the charge on the record or objections to
the special defense of setoff until these posttrial
motions, such claims have been waived.
‘‘Further, beyond the issue of waiver, as to the sub-
stance of the claims in the plaintiff’s motions, there are
no grounds to set aside or otherwise reject the verdict.
The plaintiff himself testified on the record and freely
admitted to the fact that he owes the defendant on the
outstanding loan. The jury appears to have accepted
the plaintiff’s admission/concession that he still owes
money [to the defendant] while also accepting the plain-
tiff’s testimony that the gap in time where the second
mortgage was not released and that damages resulted
to the plaintiff from that breach of the settlement agree-
ment.
‘‘The plaintiff’s complaint did not allege or seek to
be absolved from the mortgage as a remedy. In fact,
both parties through their arguments on various
motions were quite aware of the pending foreclosure
action . . . . That case is a separate and distinct case
that the parties are actively litigating. The defendant
has made no claim in this case to seek collection on
the foreclosure case either. The plaintiff’s argument
that the setoff special defense is improper is inconsis-
tent with the law, the facts of the case, and the evidence
presented.
‘‘The defendant properly asserted a defense of setoff
based on the debt owed to it by the plaintiff, a debt
that the plaintiff conceded to in open court, on the
record. . . . While it is true that the jury did assign
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some damages to count three, the same jury also con-
cluded a specific amount applicable to a setoff consis-
tent with the jury instructions related to the special
defense of the defendant. This was not some random
or invented number that the jury pulled out of thin air.
Rather, the jury took the time to cite the source of the
number in the evidence, exhibit GG. This deliberative
process is not to be ignored. . . .
‘‘The court did not find its own facts or tell the jury
to find facts or make its own calculation of damages
or even engage in any math . . . rather, the court used
the findings made by the jury in their interrogatories.
The court simply reminded the jury to confirm their
calculation and the math and to follow the instruction
of how to transfer their result to the verdict form with
respect to the damages figure and any setoff figure
found. If the result of that math was a zero or negative
number, the jury was to follow the instructions as to
how to apply that result to the verdict form. Once the
jury returned to their deliberations and reviewed the
calculation, they reasonably and logically concluded
that the math result of their findings was a negative
number. This is reflected in their own hand where they
had written the negative number on the interrogatories
form. The jury applied the setoff that it found to apply
based on the evidence they found in a manner consis-
tent with the instructions and the charge that had been
vetted with the parties in advance and returned a
defense verdict as to count three, along with a defense
verdict on the other six counts. That verdict was
accepted by the court.
‘‘The verdict does not shock the conscience, it is not
unreasonable. The jury listened to the evidence and
chose to credit the testimony and evidence presented
by the plaintiff with respect to the second mortgage
breach and the plaintiff’s lost opportunities to refinance
or sell the property. . . . They then assigned a specific
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amount of damages that they found proven. Given the
dates, figures, and testimonial evidence submitted, the
court cannot determine that these findings are unrea-
sonable to require the verdict be directed or set aside.
‘‘Considering the unchallenged special defense plead-
ing of setoff, the various discussions on the record and
the evidence presented at trial, including admissions/
concessions by the plaintiff and various financial docu-
ments submitted as full exhibits, it is entirely logical and
understandable that the jury would consider a potential
setoff. The jury appears to have paid extremely close
attention to the evidence in this regard, even citing an
exhibit in their interrogatories as the source of their
offset amount. . . .
‘‘[T]he totality of the verdict and the answers to inter-
rogatories reflect an appropriate and thoughtful review
of the evidence presented and a following of the law
given through the charge. . . . By finding certain
breaches of the settlement agreement without any dam-
ages as well as other breaches with specific damages,
the jury did exactly what the parties asked them to
do. . . .
‘‘At this juncture, it appears that these experienced
litigators and parties seek to undo the result of the
litigation that they collectively framed and presented
simply because they are displeased with certain aspects
of the results. The parties presented their respective
cases and made their arguments to the jury. The jury
applied the law to the facts found. The jury exhibited
a fidelity to their oath that is laudable and there is no
basis for their work and their verdict to be undone by
this court. As such, the defendant’s motions for directed
verdict . . . and the plaintiff’s motions to set aside the
verdict and for judgment notwithstanding the verdict
are denied . . . .
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‘‘The court finds that the jury made no mistake in
the calculation of their final verdict and that the jury
applied the setoff, that they found to have been proven,
appropriately. As such, there [are] no grounds for the
court to grant the plaintiff’s motion for additur, and it
is denied.
‘‘The court does not consider the motion [to consoli-
date] to be an appropriate remedy . . . to the . . .
motions as suggested by the plaintiff. . . . Retroac-
tively moving to consolidate postverdict and seeking
to apply a portion of the verdict as opposed to the entire
verdict to another pending case does a disservice to
this jury and their complete verdict. As such, the court
will decline the invitation to incorporate [the motion
to consolidate] into its remedies or rulings on these
motions. Rather, that motion . . . will stand alone and
be referred to the presiding civil judge for due consider-
ation.’’ (Citations omitted; footnote omitted.)
The court, Genuario, J., held a remote hearing on
the plaintiff’s motion to consolidate on December 19,
2022. That same day, the court issued a written order
denying the motion ‘‘for several reasons,’’ though pri-
marily because the motion was ‘‘untimely.’’ This appeal
followed.3
I
On appeal, the plaintiff claims that the trial court
erred in denying his motion to set aside the verdict and
motion for judgment notwithstanding the verdict ‘‘to
the extent that the verdict awarded no damages to the
plaintiff.’’ More specifically, the plaintiff claims that the
court improperly concluded that (1) ‘‘the defendant’s
3
After filing the appeal, the plaintiff filed a motion for articulation, which
Judge Clark denied on March 7, 2023, without comment. The plaintiff filed
a motion for review, requesting that this court order the trial court to
articulate the bases of its decision denying his posttrial motions. This court
granted review but denied the relief requested therein.
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claimed setoff could properly be plead[ed] and prose-
cuted as a defense,’’ (2) the defendant’s material breach
of the settlement agreement did not discharge the plain-
tiff from his obligations under the settlement agree-
ment, and (3) ‘‘the plaintiff’s testimony that he owed
the defendant an amount of money on the loan was
a judicial admission.’’ We conclude that the plaintiff’s
claims are unpreserved and, therefore, decline to
review them.
Practice Book § 16-20 provides in relevant part: ‘‘An
appellate court shall not be bound to consider error as
to the giving of, or the failure to give, an instruction
unless the matter is covered by a written request to
charge or exception has been taken by the party appeal-
ing immediately after the charge is delivered. Counsel
taking the exception shall state distinctly the matter
objected to and the ground of objection. . . .’’ Accord-
ingly, ‘‘a party may preserve for appeal a claim that an
instruction . . . was . . . defective either by: (1) sub-
mitting a written request to charge covering the matter;
or (2) taking an exception to the charge as given. . . .
Thus, the essence of the preservation requirement is
that fair notice be given to the trial court of the party’s
view of the governing law and of any disagreement that
the party may have had with the charge actually given.’’
(Internal quotation marks omitted.) Champeau v.
Blitzer, 157 Conn. App. 201, 207 n.5, 115 A.3d 1126,
cert. denied, 317 Conn. 909, 115 A.3d 1105 (2015).
It is well settled that ‘‘we will not permit parties
to anticipate a favorable decision, reserving a right to
impeach it or set it aside if it happens to be against
them, for a cause which was well known to them before
or during the trial. . . . This same principle requires
parties to raise an objection, if possible, when there is
still an opportunity for the trial court to correct the
proposed error.’’ (Internal quotation marks omitted.)
Tomick v. United Parcel Service, Inc., 135 Conn. App.
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589, 619, 43 A.3d 722, cert. denied, 305 Conn. 920, 47
A.3d 389 (2012), and cert. denied, 305 Conn. 920, 47
A.3d 389 (2012). ‘‘Raising that objection as an issue
for the first time in a motion to set aside the verdict,
obviously does not allow such a possibility because the
jury has been excused. When we speak of correcting
the claimed error, we mean when it is possible during
that trial, not by ordering a new trial. We do not look
with favor on parties requesting, or agreeing to, an
instruction or a procedure to be followed, and later
claiming that that act was improper.’’ Powers v. Farri-
celli, 43 Conn. App. 475, 478, 683 A.2d 740, cert. denied,
239 Conn. 954, 688 A.2d 326 (1996); see also Herrera
v. Madrak, 58 Conn. App. 320, 325, 752 A.2d 1161 (2000)
(‘‘to preserve for appeal a claimed error in the trial
court’s charge to the jury, a party must take an excep-
tion when the charge is given that distinctly states the
objection and the grounds therefor’’ (internal quotation
marks omitted)).
The plaintiff first contends that the court improperly
concluded that the setoff defense ‘‘could properly be
plead[ed] and prosecuted as a defense’’ because the
debt is contingent, and it is not independent of the
plaintiff’s claims.
In the present case, there is no dispute that the plain-
tiff was on notice of the defendant’s setoff defense
because the defendant asserted it in its initial answer
and special defenses and specifically requested an
instruction on the issue in its request to charge. The
plaintiff, however, never sought to challenge the legal
sufficiency of that defense by filing a motion to strike
in accordance with our rules of practice. Nor did the
plaintiff distinctly raise his claim that the setoff defense
was invalid because the debt is contingent and arises
from the same transaction prior to the submission of
the case to the jury.
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On the first day of evidence, although the court ini-
tially disagreed with the defendant’s request to charge
on the setoff defense, and the plaintiff’s counsel
expressed agreement with the court’s position at that
time, the court made clear that it was expressing its
preliminary thoughts only, and the defendant’s counsel
maintained that he intended to present evidence on
that defense at trial. Ultimately, when the defendant’s
request for a setoff instruction was discussed again
during the charging conference, although Attorney Sil-
verstein questioned the fairness of instructing the jury
as to setoff while not allowing the plaintiff to assert
damages arising from his release of his claims in the
two federal lawsuits against the defendant, he did not
claim that it was improper because the alleged debt
was not independent of the plaintiff’s breach of contract
claims. In fact, rather than arguing that the setoff was
invalid on the ground that it was not independent of
the plaintiff’s claims, Attorney Silverstein argued that
setoff was improper because the foreclosure action is
a separate proceeding. See, e.g., State v. Alvarez, 209
Conn. App. 250, 252 n.2, 267 A.3d 303 (2021) (when
party makes different argument on appeal than at trial,
claim is unpreserved), aff’d, 346 Conn. 530, 292 A.3d
1 (2023).
Furthermore, when discussing the interrogatories
that clearly set forth how the jury was to apply any
setoff based on their answers, the plaintiff’s counsel
again failed to object to the setoff on the ground that
it was not independent of the plaintiff’s claims. In fact,
not only did the plaintiff’s counsel not object to the
inclusion of the setoff defense in the interrogatories,
but Attorney Ferranti noted his partial agreement with
the framing of that issue when he stated: ‘‘If the differ-
ence is zero, you must enter a verdict—a verdict in
favor of the defendant, is fine. I do believe a negative
number would still be valid because it would be a setoff
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even though it doesn’t [rise] above what is owed, that
number should be subtracted from what is owed.’’
(Emphasis added.)
Accordingly, the plaintiff had every opportunity to
challenge the validity of the defendant’s setoff defense,
either by filing a motion to strike or by objecting to the
charge and interrogatories on that basis, but he failed
to do so. Instead, he waited until the jury had reached
its verdict before claiming that the defendant’s setoff
was improper because it did not arise from an indepen-
dent transaction. ‘‘Raising that objection as an issue
for the first time in a motion to set aside the verdict,
obviously does not allow [the trial court to correct the
proposed error] because the jury has been excused.’’
Powers v. Farricelli, supra, 43 Conn. App. 478.
Although the plaintiff contends that the court improp-
erly concluded that he waived his challenge to the setoff
defense, during oral argument before this court, his
appellate counsel conceded that, because the plaintiff
failed to take an exception to the inclusion of either
the setoff charge or the setoff interrogatories, his claim
challenging that defense is unpreserved. Consequently,
because the plaintiff did not preserve his challenge to
the setoff, we decline to review it on appeal. See, e.g.,
Barrese v. DeFillippo, 45 Conn. App. 102, 104, 694 A.2d
797 (1997) (‘‘Our review of the record reveals that the
defendant first raised the claim of inconsistency in his
motion to set aside the verdict. The defendant never
undertook to require the plaintiff to choose between
negligence and intentional battery and assault, did not
except to the jury charge, and, in fact, submitted jury
verdict forms and interrogatories based on the plain-
tiff’s allegations of both negligence and intentional tort.
Because the defendant’s claim was not properly pre-
served, we decline to review it.’’ (Footnote omitted.)).
Likewise, the plaintiff failed to preserve his claim
that the defendant’s material breach of the settlement
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agreement necessarily discharged his obligations under
the loan modification agreement by failing to submit a
written request to charge or proposed jury interrogato-
ries on the issue and by agreeing to the submission of
interrogatories to the jury that plainly allowed it to
find both that the defendant materially breached the
settlement agreement and that the plaintiff was
indebted to the defendant pursuant to his loan obliga-
tions. The interrogatories specifically required that the
jury determine whether the defendant’s alleged breach
of the settlement agreement was ‘‘a material breach’’
and, if the plaintiff proved his damages as to that mate-
rial breach, whether ‘‘the defendant [had] proven that
the plaintiff owes it mon[eys] due to the plaintiff’s ongo-
ing default in his loan obligations.’’ If the plaintiff
believed that the jury’s finding that the defendant’s
material breach of the settlement agreement necessarily
excused his ‘‘ongoing default in his loan obligations,’’
then he should have distinctly raised that claim by
objecting to those interrogatories. Our review of the
record reveals that the plaintiff, however, expressed no
disagreement with this portion of the interrogatories,
and ‘‘[w]e may presume from the plaintiff’s repeated
failure to object to the interrogatories that he agreed
to their content and their submission to the jury.’’
Mokonnen v. Pro Park, Inc., 113 Conn. App. 765, 770–71,
968 A.2d 916 (2009). Accordingly, we decline to review
this unpreserved claim as well.4
4
The plaintiff also claims that, ‘‘[b]y instructing the jury to mark the
damages award to zero, the court impermissibly found a fact that was within
the province of the jury because it effectively reversed the jury’s decisions
that the defendant’s breaches were material.’’ The plaintiff argues that,
‘‘although the court instructed the jury to set off the plaintiff’s damages
according to what it believed to be the legal effect of the defendant’s claim
for setoff, the actual legal effect of the material breach found by the jury
compelled the court to conclude that the plaintiff’s obligations under the
modified mortgage were discharged. By instructing the jury to the contrary,
the court effectively negated their findings as to material breaches of the
defendant.’’ Although the plaintiff briefed this subclaim separately, he simply
restates his unpreserved challenges to the court’s setoff charge and the
related interrogatories, which we decline to review.
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Finally, the plaintiff claims that the court improperly
concluded that his testimony that he owed the defen-
dant more than $3 million was a judicial admission that
supported the jury’s finding as to the defendant’s setoff
because that admission is a ‘‘legal [conclusion] which
. . . a layman could not be qualified to make.’’ The
problem, however, is that his counsel neither objected
to the questions about the debt posed by the defendant’s
counsel nor moved to strike the plaintiff’s responses
as to the amount of the debt. As a result, his claim is
unreviewable. See State v. Heriberto M., 116 Conn. App.
635, 641, 976 A.2d 804 (‘‘[t]he defendant’s failure to
object to the admission of [the] testimony [at issue]
renders his claim unpreserved and unreviewable’’), cert.
denied, 293 Conn. 936, 981 A.2d 1080 (2009).
II
Next, the plaintiff claims that the court improperly
precluded him from presenting evidence of damages
incurred after November, 2014, when he transferred
title to the property to the SFK Trust. We conclude that
the plaintiff’s evidentiary claim is not reviewable.
‘‘A trial court may entertain a motion in limine made
by either party regarding the admission or exclusion of
anticipated evidence. . . . The judicial authority may
grant the relief sought in the motion or such other relief
as it may deem appropriate, may deny the motion with
or without prejudice to its later renewal, or may reserve
decision thereon until a later time in the proceeding.
Practice Book § 42-15. This court has said that [t]he
motion in limine . . . has generally been used in Con-
necticut courts to invoke a trial judge’s inherent discre-
tionary powers to control proceedings, exclude evi-
dence, and prevent occurrences that might
unnecessarily prejudice the right of any party to a fair
trial.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Patel, 186 Conn. App. 814, 843, 201
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A.3d 459, cert. denied, 331 Conn. 906, 203 A.3d 569
(2019).
Practice Book § 60-5 provides in relevant part: ‘‘In
jury trials, where there is a motion, argument, or offer
of proof or evidence in the absence of the jury, whether
during trial or before, pertaining to an issue that later
arises in the presence of the jury, and counsel has fully
complied with the requirements for preserving any
objection or exception to the judge’s adverse ruling
thereon in the absence of the jury, the matter shall be
deemed to be distinctly raised at the trial for purposes
of this rule without a further objection or exception
provided that the grounds for such objection or excep-
tion, and the ruling thereon as previously articulated,
remain the same. . . .’’ (Emphasis added.)
Consistent with these rules of practice, it is well set-
tled that an appellate ‘‘court is not bound to consider
claims of law not made at the trial. . . . In order to
preserve an evidentiary ruling for review, trial counsel
must object properly. . . . In objecting to evidence,
counsel must properly articulate the basis of the objec-
tion so as to apprise the trial court of the precise nature
of the objection and its real purpose, in order to form
an adequate basis for a reviewable ruling. . . . Once
counsel states the authority and ground of [the] objec-
tion, any appeal will be limited to the ground asserted.
. . . [T]hese requirements are not simply formalities.
[A] party cannot present a case to the trial court on
one theory and then seek appellate relief on a different
one . . . . For this court to . . . consider [a] claim on
the basis of a specific legal ground not raised during
trial would amount to trial by ambuscade, unfair both
to the [court] and to the opposing party. . . . Thus,
because the essence of preservation is fair notice to
the trial court, the determination of whether a claim
has been properly preserved will depend on a careful
review of the record to ascertain whether the claim on
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appeal was articulated below with sufficient clarity to
place the trial court on reasonable notice of that very
same claim.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) State v. Miranda,
327 Conn. 451, 464–65, 174 A.3d 770 (2018).
As previously noted in this opinion, before trial, the
defendant filed a motion in limine seeking to preclude
the plaintiff from presenting evidence of damages he
allegedly incurred after November, 2014, when he was
no longer the owner of the subject property. The court
granted the motion in limine without prejudice on May
20, 2022. On appeal, the plaintiff claims that the court
erred in granting the defendant’s motion in limine
‘‘despite the representation of [the] plaintiff’s counsel
that the trust agreement allows the plaintiff to access
the equity in the property and therefore should be admit-
ted as an exhibit . . . [and] the plaintiff testified that
under the terms of the trust, he still had access to the
funds of the trust and received reimbursements from
the trust from the rental of the property . . . . In fact,
[the] defendant’s counsel admitted as much by eliciting
this testimony on cross examination . . . .
‘‘The plaintiff therefore did suffer damages after the
conveyance of legal title to the trust in November, 2014.
The beneficiary of a trust has an equitable interest or
title that is legally cognizable . . . . [T]he plaintiff
therefore should have been permitted to introduce evi-
dence that the damages to his credit arising from the
defendant’s failure to release the lis pendens and second
mortgage continued past the date of conveyance to the
trust and that the plaintiff’s interest in the property gave
him the ability to sell or refinance the property or rent
it. In addition, he should have been able to show evi-
dence that the damage to his credit prevented him from
obtaining gainful employment.’’ (Citations omitted.)
Initially, we note that the record is bereft of any
arguments that the plaintiff made in opposition to the
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defendant’s motion in limine because he neither filed
a written objection nor requested the May 20, 2022
transcript of the hearing on that motion for his appeal.
Accordingly, the record does not reflect that the plain-
tiff distinctly raised the claim that he now advances on
appeal in opposition to the defendant’s motion in limine.
See Practice Book § 61-10 (a) (‘‘[i]t is the responsibility
of the appellant to provide an adequate record for
review’’); Practice Book § 63-8 (a) (‘‘[w]ithin ten days
of filing an appeal, the appellant shall . . . order . . .
the transcript of the parts of the proceedings not already
on file that the appellant deems necessary for the proper
presentation of the appeal’’).
Moreover, although the plaintiff attempts to marshal
the purportedly ‘‘uncontroverted and admitted evi-
dence’’ as to the plaintiff’s alleged ‘‘beneficial owner-
ship’’ of the property to support his claim on appeal
that the court should have allowed him to present ‘‘evi-
dence of [his] rights under the trust and damages suf-
fered after the conveyance,’’ he fails to identify any
attempt to seek a definitive ruling from the court on
the basis of that evidence. Indeed, in arguing that the
court granted the motion in limine ‘‘despite the repre-
sentation of the plaintiff’s counsel’’ as to the nature of
the trust, the plaintiff relies on a representation that
was made on the first day of trial, more than one month
after the court granted the defendant’s motion in limine.
Specifically, the plaintiff directs this court’s attention
to the following exchange between the trial court and
the plaintiff’s counsel before the start of trial:
‘‘[Attorney Silverstein]: [F]rom my understanding,
you want to limit this case from 2011 when it was
breached to today because we’re claiming the breach
is ongoing. Fair enough?
‘‘The Court: Fair enough. Also understanding the
transfer of property in 2014 and that motion in limine.
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‘‘[Attorney Silverstein]: We haven’t really reached
that on—are you saying that 2012 to 2014 is where I’m—
my damages end?
‘‘The Court: There’s a line at [2014], at the moment
based upon the transfer of property based on the prior
rulings, so as we sit here right now, that is a line.
‘‘[Attorney Silverstein]: Right.
‘‘The Court: With respect to damages.
‘‘[Attorney Silverstein]: But with the understanding
that when we produce what we intend to produce, the
trust agreement which is no different than the others,
other than different characters, and if it allows him to
access the equity or sell the property on behalf of the
trust, then that’s a completely different parameter.
‘‘The Court: I’m not sure it’s a completely different
parameter, but depending on how the evidence goes—
‘‘[Attorney Silverstein]: Well—
‘‘The Court: —we may need to revisit certain dates
and time and whatnot, but based on where we are today
and based on the motions and the rulings, there was
a transfer of the property, I believe it was November
of 2014—
‘‘[The Defendant’s Counsel]: Yes.
‘‘The Court: —and so, at the moment, there is no
discussion or evidence of damages associated with the
ownership of that property by [the plaintiff] from that
transfer forward because the entity it was transferred
to is not a party to this case.
‘‘[Attorney Silverstein]: But I don’t want to run afoul
to the court’s ruling because it was my intention to
argue on opening that should you hear evidence that
the damages are ongoing after this issue of whether
the property still remained in the condition where [the
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plaintiff] could access it, that is something that you can
also consider, but only if the judge—
‘‘The Court: Well, there won’t be an opening, so we
won’t have that problem.
‘‘[Attorney Silverstein]: I’m not going to be able to
open?
‘‘The Court: No. But as we get to evidence, I think
as we discussed in the motion in limine, the—to the
extent there’s damages that occurred between breach
and the sale in 2014, that any of those damages continue
on. I think that’s fair game. But to the extent that there’s
damages associated with the property and the owner
of that property post the transfer of that property, that’s
where the cut off would be pursuant to those rulings
as we sit here right now.
‘‘[Attorney Silverstein]: Your Honor, with all due
respect, you know, I know that you are concerned that
I will deviate from your order, but I can assure you that
over lunchtime, I confined myself just to what happened
in 2011 on. I will cut it off at 2014 with just a simple
statement that the judge may instruct you that those
damages that we intend to show my client incurred
from 2011 to 2014 may in fact be ongoing. That was all
I was gonna say. . . . I think it would be helpful.’’
(Emphasis added.)
This exchange demonstrates that the plaintiff’s coun-
sel never sought ‘‘a definitive ruling [when the evidence
was offered at trial] in [compliance] with the require-
ments of our court rules of practice for preserving his
claim of error . . . .’’ (Internal quotation marks omit-
ted.) State v. Patel, supra, 186 Conn. App. 844. To the
contrary, it appears to demonstrate counsel’s acquies-
cence to the court’s preliminary ‘‘without prejudice’’
ruling on the motion in limine, as counsel ends the
exchange by stating, ‘‘I will cut it off at 2014, with just
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a simple statement that the judge may instruct you
that those damages that we intend to show my client
incurred from 2011 to 2014 may in fact be ongoing.’’
Consequently, because the record does not reflect
that the plaintiff distinctly raised his evidentiary claim
in opposing the defendant’s motion in limine before
trial or at any point during the trial, we conclude that
the plaintiff has not preserved his claim for appellate
review. See State v. Patel, supra, 186 Conn. App. 844
(‘‘[h]aving not taken advantage of the court’s offer and
having not objected at the time the evidence was
offered, the defendant has not preserved this eviden-
tiary issue for appellate review’’). Therefore, we will
not review it.
III
The plaintiff also claims that the court improperly
denied his motions to set aside the verdict as inadequate
and for additur. The plaintiff argues that ‘‘[t]he jury’s
determination that the plaintiff’s damages for breach
of the settlement agreement were only $350,000 was
clearly against the weight of the evidence’’ and that the
court ‘‘should have found the verdict to be so clearly
against the weight of the evidence in the case as to
indicate that the jury did not correctly apply the law
. . . and set aside the verdict and grant a new trial as
to any consequential and incidental damages in addition
to the $350,000 that the jury found for the plaintiff
. . . .’’ (Internal quotation marks omitted.) We con-
clude that the court did not abuse its discretion in
denying the plaintiff’s postverdict motions to set aside
the verdict as inadequate and for additur.
In considering a motion to set aside the verdict and
to order an additur, the trial court must view the evi-
dence in the light most favorable to sustaining the ver-
dict. See Maldonado v. Flannery, 343 Conn. 150, 166,
272 A.3d 1089 (2022). ‘‘The question for the trial court
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is not whether the jury exercised poor judgment but,
instead, whether the jury’s damages award lies outside
the range of reasonableness; mere disagreement is not
enough to warrant judicial intervention. For this reason,
[t]he ultimate test [that] must be applied to the verdict
by the trial court is whether the jury’s award falls some-
where within the necessarily uncertain limits of just
damages or whether the size of the verdict so shocks
the sense of justice as to compel the conclusion that the
jury [was] influenced by partiality, prejudice, mistake
or corruption. . . . If the verdict cannot be explained
rationally, then the trial court may presume that it is
tainted by improper considerations. . . .
‘‘We review a decision of the trial court to set aside
the jury’s verdict and to order an additur for an abuse
of discretion. . . . A trial court’s decision to set aside
a verdict and to order an additur is entitled to great
weight and every reasonable presumption should be
given in favor of its correctness. . . . The trial court,
having observed the trial and evaluated the testimony
firsthand, is better positioned than a reviewing court
to assess both the aptness of the award and whether the
jury may have been motivated by improper sympathy,
mistake, partiality, or prejudice. . . .
‘‘The action of a trial judge is no less entitled to
weight when he sets aside a verdict, than when he
refuses to set it aside; and for the same reasons. He
has seen the witnesses, heard their testimony, observed
their demeanor on the witness stand, their manner and
bearing, their intelligence, character and means of
knowledge. And if while all this is fresh in his mind he
sets aside a verdict, great weight would naturally be
given to his action. . . .
‘‘[O]ur case law involving trial court rulings on
motions to set aside a jury’s verdict and award of dam-
ages as excessive or inadequate . . . reflects a firm
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commitment to the belief that we should give great
weight to the trial court’s exercise of discretion regard-
ing the reasonableness of the jury’s verdict.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Id., 166–69.
In the present case, in returning a defendant’s verdict
on the second count of the plaintiff’s complaint, the
jury found that the defendant’s failure to release the lis
pendens until March 2, 2012, constituted a material
breach of the settlement agreement but also found that
the plaintiff failed to prove that that breach caused
him to incur damages due to ‘‘negative references with
regard to his credit and good name,’’ lost employment
opportunities, the loss of ‘‘a potential favorable refi-
nance,’’ and lost potential sale of the property. As to
the third count, the jury found that the defendant’s
failure to release the second mortgage until April 21,
2014, constituted a material breach of the settlement
agreement and that the plaintiff had proven that he
suffered $350,000 in damages due to ‘‘lost potential
favorable refinance’’ and ‘‘lost potential sale of the prop-
erty,’’ but rejected his claims for damages for negative
references to his credit and good name and for lost
employment opportunities.
In denying the defendant’s postverdict motions seek-
ing additur, the court specifically noted that ‘‘[t]he jury
listened to the evidence and chose to credit the testi-
mony and evidence presented by the plaintiff with
respect to the second mortgage breach and the plain-
tiff’s lost opportunities to refinance or sell the property.
. . . They then assigned a specific amount of damages
that they found proven. Given the dates, figures, and
testimonial evidence submitted, the court cannot deter-
mine that these findings are unreasonable to require
the verdict be directed or set aside. . . .
‘‘[T]he totality of the verdict and the answers to inter-
rogatories reflect an appropriate and thoughtful review
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of the evidence presented and a following of the law
given through the charge. . . . By finding certain
breaches of the settlement agreement without any dam-
ages as well as other breaches with specific damages,
the jury did exactly what the parties asked them to do.’’
(Citations omitted.)
On appeal, the plaintiff argues that ‘‘the principal
amount of the [modified] loan was $2.9 million, with
interest to be charged at 1 percent for the first three
years and then 5.12 percent for the remainder of the
life of the loan . . . . The monthly mortgage payments
would, therefore, rise from $7332 to $13,636 in Novem-
ber, 2014, an increase of $6304 per month, $75,648 per
year, and an increase of $2,792,672 over the 443
remaining payments under the term of the mortgage
. . . . The increase in payments that would render the
plaintiff unable to meet the monthly mortgage payments
and the fact that the failure to release the second mort-
gage prevented a refinance for a more affordable mort-
gage resulted in damage that is far greater than the
$350,000 damages that the jury found.’’ (Citations omit-
ted.) We are not persuaded.
Although the plaintiff focuses on the increase in the
mortgage payments as of November, 2014, as the pri-
mary basis for the damages he suffered, he ignores the
fact that, because he transferred the property to the
SFK Trust on November 3, 2014, the court instructed
the jury that it could ‘‘only award amounts for damages
incurred related to the property while [the plaintiff] was
actually in title of the property, i.e., before November
3, 2014 . . . .’’ Given that limited time period during
which the plaintiff suffered damages due to his inability
to refinance or sell the property, the jury’s award of
$350,000 ‘‘falls somewhere within the necessarily uncer-
tain limits of just damages’’ and, therefore, that amount
does not ‘‘compel the conclusion that the jury [was]
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influenced by partiality, prejudice, mistake or corrup-
tion.’’ (Internal quotation marks omitted.) Maldonado
v. Flannery, supra, 343 Conn. 166. We recognize that the
plaintiff believes that $350,000 ‘‘is clearly inadequate’’
to compensate him for ‘‘the millions of dollars that [he]
could have saved, as well as [for] the prevention of the
loss of his home.’’ ‘‘In the absence of evident mistakes
or partiality, however, we defer to the jury’s judgment
. . . .’’ Munn v. Hotchkiss School, 326 Conn. 540, 579,
165 A.3d 1167 (2017). In short, because there is a reason-
able basis in the evidence for the jury’s verdict, the
trial court did not abuse its discretion by denying the
plaintiff’s motions to set aside the verdict and for addi-
tur.
IV
Finally, the plaintiff claims that the court, Genuario,
J., improperly denied his motion to consolidate this
breach of contract action with the pending foreclosure
action. We disagree.
We review a court’s ruling on a motion to consolidate
under the abuse of discretion standard. See Valentine
v. LaBow, 95 Conn. App. 436, 453, 897 A.2d 624, cert.
denied, 280 Conn. 933, 909 A.2d 963 (2006). In the
absence of ‘‘a case of manifest abuse,’’ the court’s ‘‘exer-
cise of that discretion will not be reversed on appeal
. . . .’’ (Internal quotation marks omitted.) Id.
In denying the plaintiff’s motion to consolidate in the
present case, the court explained that ‘‘this case has
already been tried before a jury and a verdict has been
rendered. Postverdict motions have been filed and
decided by the trial judge. . . . Thus, the purpose of
consolidation as set forth in [Practice Book §] 9-5 (a)
cannot be achieved, since this case has already been
tried and the foreclosure action has not yet been tried.
The motion is quite untimely. The plaintiff knew of [the]
foreclosure action, at the time he chose to file this
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Ryder v. JPMorgan Chase Bank, National Assn.

action, at the time he claimed this action for the jury
on [July 16, 2021], and at the time this case was tried
in the summer of 2022. He did not move to consolidate
until after this case had been tried and postverdict
motions had been filed. The motion is therefore grossly
untimely and serves little purpose in either promoting
judicial economy or avoiding contradictory results. Any
meaningful attempt to accomplish either would have
required, at a minimum, this motion to have been filed
before trial. The court sees no purpose in consolidating
these cases at this time. Indeed, the court believes that
such belated consolidation would only promote confu-
sion in the adjudication of these cases. Finally, the court
observes that the motion to consolidate was not filed
in the foreclosure action as required by Practice Book
§ 9-5 (b). For all these reasons, the motion to consoli-
date is denied.’’ (Citation omitted.)
On appeal, the plaintiff argues that the court abused
its discretion in denying his motion to consolidate
because: ‘‘(a) the trial court mischaracterized the
motion to consolidate as a motion to consolidate the
case based on the verdict rendered and not on the basis
of a new trial that would be granted after reversal on
appeal; (b) the two cases contained the same parties;
(c) they arose out of the same transaction; (d) the ends
of substantial justice would be promoted by having the
plaintiff’s claims adjudicated in connection with the
foreclosure; and (e) judicial economy and the avoidance
of inconsistent results would be promoted by the con-
solidation of the cases.’’
The plaintiff’s arguments ring hollow given that, after
the defendant initiated the foreclosure action, the plain-
tiff initiated the underlying action instead of asserting
his breach of contract claims in a counterclaim in the
foreclosure action. Moreover, the court properly con-
sidered the belated nature of the plaintiff’s motion to
consolidate, as well as the futility of doing so after a
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verdict had been returned and after Judge Clark had
denied the plaintiff’s motion for a new trial. See Valen-
tine v. LaBow, supra, 95 Conn. App. 454 (finding no
abuse of discretion as to denial of defendant’s motion
to consolidate when ‘‘her attempt at consolidation came
at the eleventh hour of an action that ha[d] been ongoing
since 1979 and would serve only to further delay its
resolution’’). In light of the procedural history of the
case, and given Judge Clark’s denial of the plaintiff’s
postverdict motions, the court’s denial of the postver-
dict motion to consolidate was not an abuse of its dis-
cretion.
The judgment is affirmed.
In this opinion the other judges concurred.