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VILLAGE MORTGAGE COMPANY v. RONALD
GARBUS ET AL.
(AC 42667)
Bright, C. J., and Lavine and Cradle, Js.*
Syllabus
The plaintiff, M Co., a mortgage company, sought a declaratory judgment
to determine whether the defendants were lawful owners of shares of
stock in M Co. In 1998, the defendants purchased 300 shares of stock
in M Co. but, thereafter, they returned the certificate of stock and M
Co. reimbursed the defendants their investment. M Co. alleged that in
2011, the stock certificate was returned to the defendants by V, the
cofounder of M Co., and that the defendants’ stock was improperly
reissued or returned to them, without proper corporate authorization
and for less than the fair value of the stock. The trial court determined
that the defendants were not lawful shareholders of M Co. because,
although they were listed as original shareholders, their ownership inter-
est was relinquished soon thereafter, and V had no actual or apparent
authority to issue shares in M Co. to the defendants. On appeal, the
defendants claimed that M Co. alleged a claim of tortious financial
misconduct and, therefore, the trial court improperly concluded that
the declaratory judgment action was not barred by the applicable statute
of limitations (§ 52-577). Held that the trial court correctly determined
that no statute of limitations applied to bar M Co.’s declaratory judgment
action, rather, that the special defense of laches applied and that the
defendants failed to prove that special defense: the trial court correctly
interpreted that the allegations in M Co.’s complaint were not predicated
on a note or agreement and that, despite the defendants’ claim to the
contrary, M Co. did not plead the elements of fraud, statutory theft, or
conspiracy, and the defendants failed to identify those allegations in
the complaint, M Co. did not seek damages but, rather, a judicial determi-
nation as to whether the defendants were legally shareholders, and the
determination of who had the superior claim was inherently an equitable
one, particularly where there was no claim or finding that any of the
parties engaged in tortious financial misconduct or breached a contract;
moreover, the trial court’s decision to take judicial notice of a related
proceeding, in which V was found to have engaged in various acts of
financial misconduct, related to the defendants’ laches special defense,
in that the trial court had an evidentiary basis on which to find facts
that explained how the shares of stock were returned to the defendants
in 2011 and how M Co. learned of V’s misconduct, and the trial court
in the present case did not find or imply that either of the defendants
participated in any of V’s misconduct.
Argued September 14—officially released December 22, 2020
Procedural History
Action for a declaratory judgment to determine
whether the defendants were lawful stockholders of the
plaintiff, brought to the Superior Court in the judicial
district of Hartford and tried to the court, Hon. Robert
B. Shapiro, judge trial referee; judgment declaring that
the defendants are not lawful shareholders of the plain-
tiff, from which the defendants appealed to this
court. Affirmed.
Gregory T. Nolan, with whom, on the brief, was Patsy
M. Renzullo, for the appellants (defendants).
Richard P. Weinstein, with whom, on the brief, was
Sarah Black Lingenheld, for the appellee (plaintiff).
Opinion
LAVINE, J. In this declaratory judgment action, the
defendants, Ronald Garbus and Georganne Garbus,
appeal from the judgment of the trial court, declaring
that the defendants are not lawful stockholders of the
plaintiff, Village Mortgage Company. The defendants
claim that the court improperly concluded that the
plaintiff’s cause of action is akin to an equitable claim
for injunctive relief subject to the doctrine of laches,
rather than a legal claim for tortious financial miscon-
duct subject to the statute of limitations, specifically
General Statutes § 52-577. We affirm the judgment of
the trial court.
The following facts are relevant to our resolution of
the defendants’ appellate claim. The plaintiff com-
menced the present action on March 17, 2016. On Sep-
tember 27, 2016, the plaintiff filed an amended com-
plaint (complaint), alleging in relevant part that it is a
corporation existing under the laws of this state since
at least 1998. In 1998, the defendants were original
stockholders of the plaintiff, having received 300 shares
of stock, Certificate No. 2, for an investment of $30,000.
That same year, the defendants returned Certificate No.
2 and were reimbursed $30,000, apparently as a result
of issues involving the defendants’ third-party creditors.
The plaintiff alleged that the defendants’ return of Cer-
tificate No. 2 and the plaintiff’s reimbursement to them
of the invested sum amounted to a rescission of the
defendants’ acquisition of stock in the plaintiff. The
plaintiff further alleged that in June, 2011, Certificate
No. 2 apparently was returned to the defendants in
exchange for $30,000, without proper corporate author-
ity. Moreover, the stock was transferred to the defen-
dants for substantially less than the fair value of the
stock in June, 2011.
In addition, the plaintiff alleged that the circum-
stances involving the defendants and the stock recently
had come to light as a result of the plaintiff’s litigation
against the cofounder of the corporation,1 who surrepti-
tiously was involved in the 1998 stock rescission and
the 2011 return of stock to the defendants. On February
2, 2016, the plaintiff demanded a detailed explanation
from the defendants with respect to the rescission and
return of stock, but the defendants neglected and failed
to respond to the demand. The plaintiff alleged that to
the extent that the defendants’ stock was improperly
reissued or returned to the defendants in June, 2011,
without proper corporate authorization and for less
than the fair value of the stock, it contested whether
the defendants are lawfully stockholders with rights to
own, to possess, and to vote the shares of stock. Finally,
the plaintiff alleged that a bona fide dispute exists with
regard to the defendants’ ownership of the shares for
which there is no adequate remedy at law and which
requires a judicial determination as to whether the
defendants are lawfully shareholders of the plaintiff.
The plaintiff claimed no damages.
In their answer to the complaint, the defendants
admitted that the plaintiff is a corporation having been
in existence since at least 1998. They denied the
remaining allegations of the complaint and alleged three
special defenses, essentially that the plaintiff’s cause
of action is barred by (1) the statute of limitations2 or
(2) laches,3 and that (3) James Veneziano, the plaintiff’s
cofounder, acted with apparent authority.4
The plaintiff denied each of the defendants’ special
defenses and pleaded the following by way of avoid-
ance. ‘‘Upon information and belief, the defendants con-
spired with . . . Veneziano to avoid disclosure of the
defendants’ purported stock interest in [the plaintiff]
in order to conceal same from creditors and particularly
the [Federal Deposit Insurance Company] and/or con-
ceal same from the bankruptcy court in connection
with a certain bankruptcy petition filed by one or more
of the defendants. As a result of the aforesaid, the defen-
dants are legally and equitably estopped from asserting
the defenses raised in the instant action, especially in
that . . . Veneziano concealed the facts in regard to
the circumstances surrounding the transfers of the
stock and any such action taken by . . . Veneziano
was without corporate authority, apparent or other-
wise, constituted [an] ultra vires act and an act which
would have been in violation of civil if not criminal law.
In order to invoke equitable considerations such as
laches, the defendants themselves [have] unclean hands
and are precluded from relying upon said doctrine.’’
The case was tried to the court. Counsel for the par-
ties presented evidence concerning ownership of the
shares of stock at issue on October 17, 2018,5 and there-
after submitted briefs on December 3, 2018. The court
issued its memorandum of decision on January 29, 2019.
In its decision, the court first reviewed the allegations
of the complaint, the defendants’ special defenses, and
the plaintiff’s reply to the special defenses and by way
of avoidance.
The court noted that, in a case tried to the court, the
judge is ‘‘the trier of fact, is the sole arbiter of the
credibility of witnesses and the weight to be given to
their testimony.’’ (Internal quotation marks omitted.)
Taylor v. Commissioner of Correction, 324 Conn. 631,
637, 153 A.3d 1264 (2017). It thereafter reviewed the
law regarding an action for declaratory judgment.
General Statutes § 52-29 (a) provides: ‘‘The Superior
Court in any action or proceeding may declare rights
and other legal relations on request for such a declara-
tion, whether or not further relief is or could be claimed.
The declaration shall have the force of a final judg-
ment.’’ See also Practice Book § 17-55.6
‘‘The purpose of a declaratory judgment action, as
authorized by . . . § 52-29 and Practice Book § [17-
55], is to secure an adjudication of rights [when] there
is a substantial question in dispute or a substantial
uncertainty of legal relations between the parties. . . .
Subdivisions (1) and (2) of Practice Book § 17-55
respectively require that the plaintiff in a declaratory
judgment action have an interest, legal or equitable, by
reason of danger of loss or of uncertainty as to the
party’s rights or other jural relations and that there be
an actual bona fide and substantial question or issue
in dispute or substantial uncertainty of legal relations
which requires settlement between the parties . . . .’’
(Citation omitted; internal quotation marks omitted.)
New London County Mutual Ins. Co. v. Nantes, 303
Conn. 737, 747, 36 A.3d 224 (2012); see id., 740 (declara-
tory judgment action to determine whether claimed
injuries were covered by subject insurance policy).
Our Supreme Court has observed that ‘‘our declara-
tory judgment statute provides a valuable tool by which
litigants may resolve uncertainty of legal obligation.’’
(Internal quotation marks omitted.) Id., 747–48. The
court also has recognized that ‘‘our declaratory judg-
ment statute is unusually liberal. An action for declara-
tory judgment . . . is a statutory action as broad as it
well could be made.’’ (Internal quotation marks omit-
ted.) Id., 748. The statute ‘‘is broader in scope than . . .
the statutes in most, if not all, other jurisdictions . . .
and [w]e have consistently construed our statute and
the rules under it in a liberal spirit, in the belief that
they serve a sound social purpose. . . . [Although] the
declaratory judgment procedure may not be utilized
merely to secure advice on the law . . . it may be
employed in a justiciable controversy where the inter-
ests are adverse, where there is an actual bona fide and
substantial question or issue in dispute or substantial
uncertainty of legal relations which requires settlement,
and where all persons having an interest in the subject
matter of the complaint are parties to the action or
have reasonable notice thereof.’’ Id.
In the present case, the trial court found that the
issue to be decided was whether the defendants are
shareholders of the plaintiff, and that the issue presents
a justiciable controversy where the interests are
adverse, where there is an actual bona fide and substan-
tial question or issue in dispute, and is properly the
subject of a claim for declaratory relief. Furthermore,
all parties having an interest in the subject matter of
the action are parties.
The court made the following findings of fact on the
basis of the evidence it credited. The court credited the
testimony of Veneziano’s former wife, Donna McGuire,
that the defendants are friends of Veneziano and that,
for many years, she personally had possession of the
original Certificate No. 2 on which the defendants’
names appear. Certificate No. 2 for 300 shares is dated
May 1, 1998, and was placed into evidence. Although
Certificate No. 2 is dated May 1, 1998, it was not issued
until 2000. Veneziano gave McGuire Certificate No. 2
in the early 2000s and asked her to put it in her safe
deposit box. McGuire held the certificate for quite a
few years. The court found that Veneziano used McGu-
ire’s safe deposit box to hide the certificate there.
McGuire eventually gave Certificate No. 2 to Venezi-
ano or to Justin Giroliman, an employee of the plaintiff.
Giroliman later became the plaintiff’s chief financial
officer and senior vice president. Giroliman credibly
testified that he possessed the certificate from 2010 to
2011, and that, at Veneziano’s direction, kept it in his
desk at the plaintiff’s offices.
In addition to the evidence demonstrating that the
defendants either relinquished or never possessed Cer-
tificate No. 2, in reaching its conclusion that the defen-
dants were not shareholders of the plaintiff as of April,
1999, the court also relied on the fact that Ronald Gar-
bus did not list an ownership interest in the plaintiff
on Schedule B of his bankruptcy petition dated April
8, 1999. The court found that Ronald Garbus’ deposition
testimony in the present case and presented at trial was
vague. He could not even recall when he filed a petition
in bankruptcy. The court did not credit Ronald Garbus’
testimony about being a shareholder. By contrast, the
court found that Laurel Caliendo, the plaintiff’s presi-
dent, credibly testified that, as of November, 2007, the
defendants were not shareholders of the plaintiff. Con-
sequently, the court concluded that, although the defen-
dants were listed as original shareholders of the plain-
tiff, their ownership interest was relinquished soon
thereafter. The court also found that by asking his then
wife to put Certificate No. 2 in her personal safe deposit
box, and later by having Giroliman keep it in his desk,
Veneziano kept the certificate secreted away for his
later personal use.
The court was unpersuaded by the defendants’ argu-
ment that they never relinquished their stock in
exchange for their initial investment, but instead had
received a $30,000 loan from the plaintiff, that they had
executed a note and made payments to the plaintiff
that are reflected in its records, and that all of this was
authorized by Veneziano. Rather, the court found that
Veneziano engaged in unauthorized conduct with the
defendants in order to procure money for himself. The
court concluded that any payments the defendants
made did not establish that they were legitimate share-
holders of the plaintiff.
Specifically, the court found that by the beginning
of 2010, the defendants had paid $40,000, by personal
checks, to the plaintiff, $10,000 of which was returned
to the defendants. Although one of the checks the defen-
dants sent to the plaintiff contained the words ‘‘loan
repayment,’’ the court found that Giroliman credibly
testified that the plaintiff had made no loan to the defen-
dants. According to Giroliman, Veneziano directed him
to record payments from the defendants initially as
‘‘Paid in Capital.’’ Subsequently, at Veneziano’s direc-
tion, Giroliman diverted the defendants’ payments to
Veneziano’s personal account. By e-mail on December
30, 2011, Veneziano directed Giroliman that the defen-
dants’ payments should be posted: ‘‘against my
advances 4 now.’’ The court found that Veneziano’s
efforts to take the defendants’ payments for himself
also undermines the defendants’ claims that they are
lawful shareholders of the plaintiff.
In addition, the court found that the credibility of
the defendants’ claim of stock ownership was further
undermined by Ronald Garbus’ deposition testimony
that he had a demand note with the plaintiff. The court
found no credible evidence that a demand note ever
existed, and that Ronald Garbus testified that he had
no records with respect to the supposed demand note.
The court also found no evidence of an agreement
between Veneziano and the defendants concerning their
purchase of shares in the plaintiff in 2010–2011 or after-
ward, or that Veneziano had actual authority to engage
in such a transaction. ‘‘Actual authority exists when [an
agent’s] action [is] expressly authorized . . . or . . .
although not authorized, [is] subsequently ratified by
the [principal].’’ (Internal quotation marks omitted.)
Ackerman v. Sobol Family Partnership, LLP, 298 Conn.
495, 508, 4 A.3d 288 (2010).
The court credited Caliendo’s testimony that the
plaintiff had not authorized the sale of shares to the
defendants during the relevant time period. The court
found no evidence that the plaintiff’s board of directors
expressly or impliedly authorized Veneziano to issue
shares to the defendants during that period of time or
that the board of directors ratified such an action. The
court concluded that there is no credible evidence that
Veneziano had actual authority to issue shares of the
plaintiff to the defendants during that time.
Although the plaintiff’s allegation in paragraph 3 of
its complaint that Certificate No. 2 apparently was
returned to the defendants in June, 2011, amounts to
an admission,7 the court found no credible evidence
that the defendants possessed Certificate No. 2 at the
time of trial. The court found the clear explanation for
the payments that the defendants made to the plaintiff
to be that ‘‘Veneziano, either alone or in concert with
the defendants, engaged in unauthorized conduct to get
money from the defendants in exchange for providing
[Certificate No. 2] to the defendants in order for them
to appear to be legitimate stockholders.’’
At trial, the defendants argued in the alternative that
Veneziano acted with the apparent authority of the
plaintiff. In addressing this argument, the court first
set forth the law of apparent authority. ‘‘[A]pparent
authority is that semblance of authority which a princi-
pal, through his own acts or inadvertences, causes or
allows third persons to believe his agent possesses.
. . . Consequently, apparent authority is to be deter-
mined, not by the agent’s own acts, but by the acts of
the agent’s principal. . . . The issue of apparent
authority is one of fact to be determined based on two
criteria. . . . First, it must appear from the principal’s
conduct that the principal held the agent out as pos-
sessing sufficient authority to embrace the act in ques-
tion, or knowingly permitted [the agent] to act as having
such authority. . . . Second, the party dealing with the
agent must have, acting in good faith, reasonably
believed, under all the circumstances, that the agent
had the necessary authority to bind the principal to
the agent permitted [the agent] to act as having such
authority to the agent’s action.’’ (Internal quotation
marks omitted.) Ackerman v. Sobol Family Partner-
ship, LLP, supra, 298 Conn. 508–509.
The trial court then found the defendants’ apparent
authority argument unpersuasive for several reasons.
First, there was no evidence of a specific agreement
between the defendants and Veneziano to either lend
funds or to sell shares to the defendants in 2010–2011.
In the absence of an agreement, the contention that
Veneziano had apparent authority to make an agree-
ment on behalf of the plaintiff is unavailing.
Second, the court found that the defendants failed
to prove that Veneziano was acting with apparent
authority to provide shares to them. Although there is
evidence that Veneziano was listed as a ‘‘control per-
son’’ of the plaintiff, that fact does not show that he
apparently was authorized by the plaintiff to engage in
stock transactions or to issue shares of stock. Third,
the court found that there was no evidence showing
that the defendants, acting in good faith, reasonably
believed, under all of the circumstances, that Veneziano
had the authority necessary to bind the plaintiff. Thus,
the court concluded, the defendants had failed to prove
their special defense concerning apparent authority,
namely, that Veneziano had the apparent authority to
execute a contract on the plaintiff’s behalf concerning
shares of stock in the plaintiff.
With respect to the first statute of limitations special
defense pleaded by the defendants, § 52-577, the court
found that the defendants appeared to base the special
defense on the erroneous premise that the plaintiff’s
declaratory judgment action was, in fact, an action to
collect on a note or one asserting fraud or statutory
theft, or a civil conspiracy between Veneziano and the
defendants for the defendants to acquire shares in the
plaintiff for less than full value. The defendants con-
tended that, because fraud and statutory theft are gov-
erned by the three year limitation period of § 52-577,8
the plaintiff’s action was time barred. The defendants
pleaded other statutes of limitations, such as General
Statutes § 52-576, which provides a six year period for
actions founded on contract.
The court recited: ‘‘[I]n analyzing whether a declara-
tory judgment action is barred by a particular statutory
period of limitations, a court must examine the underly-
ing claim or right on which the declaratory action is
based.’’9 Wilson v. Kelley, 224 Conn. 110, 116, 617 A.2d
433 (1992); id., 121–22 (declaratory judgment action
challenging manner in which taxable real property was
assessed was barred by statute of limitations). ‘‘[I]f a
statute of limitations would have barred a claim
asserted in an action for relief other than a declaratory
judgment, then the same limitation period will bar the
same claim asserted in a declaratory judgment action.’’
Id., 116.
In contrast, the court explained that ‘‘an action for
a declaratory judgment in this state should be subject to
equitable defenses such as laches when the underlying
cause of action on which it is based sounds in equity.’’
Caminis v. Troy, 112 Conn. App. 546, 559–60, 963 A.2d
701 (2009), aff’d on other grounds, 300 Conn. 297, 12
A.3d 984 (2011); id., 548 (declaratory judgment action
regarding littoral rights and property boundaries). In
Caminis, this court cited with approval to Plymouth
v. Church-Dlugokenski, 48 Conn. Supp. 481, 488 n.7,
852 A.2d 882 (2003), a declaratory judgment action to
determine whether a bond referendum was valid, in
which the Superior Court ‘‘determined that the defen-
dant’s counterclaim for a declaratory judgment was
subject to laches because the ultimate remedy . . .
sought, namely, to declare the referendum and approval
of the bond issue void, was akin to that of an injunction
and was quasi-equitable in nature.’’ (Internal quotation
marks omitted.) Caminis v. Troy, supra, 560.
The court in the present case found that the relief
sought in the plaintiff’s complaint is akin to that of an
injunction, in that it seeks to prevent the defendants
from acting as shareholders of the plaintiff with rights
to own, to possess, and to vote the shares at issue. The
court found that the complaint is not predicated on a
note or a contract or on a conspiracy and does not
plead the elements of fraud or statutory theft. The court,
therefore, concluded that because the remedy the plain-
tiff sought is equitable in nature, the claim is subject
to equitable defenses, but is not barred by the limitation
periods set forth in § 52-577 and the other statutes of
limitation alleged in the defendants’ first special
defense.
The court also addressed the defendants’ remaining
special defenses and found that they were unavailing.10
Having found against the defendants with respect to
the remainder of their special defenses, the court stated
that it need not consider the legal issues raised by the
plaintiff by way of avoidance and turned its attention
to the plaintiff’s remedy.11
Noting again that a trial court has ‘‘wide discretion
to render a declaratory judgment unless another form
of action clearly affords a speedy remedy as effective,
convenient, appropriate and complete’’; England v.
Coventry, 183 Conn. 362, 365, 439 A.2d 372 (1981); the
court found that a declaratory judgment was warranted,
as the plaintiff had proved that the defendants are not
legitimate shareholders of the corporation.12 The court
concluded that a declaratory judgment is warranted, as
no other remedy would be as effective, convenient,
appropriate and complete. The court, therefore, ren-
dered judgment declaring that the defendants are not
lawfully shareholders of the plaintiff.13 The defen-
dants appealed.
The defendants’ only claim on appeal is that the plain-
tiff alleged a claim of tortious financial misconduct and,
therefore, the trial court improperly concluded that the
declaratory judgment action was not barred by § 52-
577.14 We disagree.
‘‘As an appellate court, our review of trial court deci-
sions is limited to determining whether their legal con-
clusions are legally and logically correct, [and] sup-
ported by facts set out in the memorandum of decision.’’
(Internal quotation marks omitted.) New England Rock
Services, Inc. v. Empire Paving, Inc., 53 Conn. App.
771, 775, 731 A.2d 784, cert. denied, 250 Conn. 921, 738
A.2d 658 (1999). The defendants’ claim is circumscribed
by the allegations of the plaintiff’s complaint. ‘‘Plead-
ings have an essential purpose in the judicial process.
. . . The purpose of pleadings is to apprise the court
and opposing counsel of the issues to be tried. . . .
For that reason, [i]t is imperative that the court and
opposing counsel be able to rely on the statement of
issues set forth in the pleadings.’’ (Internal quotation
marks omitted.) Kovacs Construction Corp. v. Water
Pollution & Control Authority, 120 Conn. App. 646,
659, 992 A.2d 1157, cert. denied, 297 Conn. 912, 995
A.2d 639 (2010). ‘‘Construction of pleadings is a question
of law.’’ Id. Our interpretation of a trial court’s judgment
also is a question of law subject to plenary review. See
Sosin v. Sosin, 300 Conn. 205, 217, 14 A.3d 307 (2011).
The defendants contend that the underlying claim
in the present declaratory judgment action is tortious
financial misconduct to which § 52-577 applies. The
plaintiff argues that its declaratory judgment action is
equitable, in the nature of an injunction, and that it is
not subject to or barred by a statute of limitations. We
agree with the plaintiff.
‘‘[I]n analyzing whether a declaratory judgment
action is barred by a particular statutory period of limi-
tations, a court must examine the underlying claim or
right on which the declaratory action is based. . . . It
necessarily follows that if a statute of limitations would
have barred a claim asserted in an action for relief other
than a declaratory judgment, then the same limitation
period will bar the same claim asserted in a declaratory
judgment action.’’ (Citations omitted; internal quotation
marks omitted.) Wilson v. Kelley, supra, 224 Conn. 116.
Our plenary review of the plaintiff’s complaint dis-
closes the following allegations. The defendants were
original owners of 300 shares of stock in the plaintiff
in 1998, evidenced by Certificate No. 2, and, in that same
year, they returned the certificate and were reimbursed
their $30,000 investment. In June, 2011, stock Certificate
No. 2 apparently was returned to the defendants in
exchange for $30,000, without corporate authorization.
The complaint further alleges that because the shares
of stock were returned to the defendants without corpo-
rate authorization, the plaintiff contests whether the
defendants are lawfully shareholders with rights to
own, to possess, and to vote said stock. Importantly,
the complaint does not allege that the defendants
engaged in fraud, civil conspiracy, or other tortious
financial misconduct. The complaint merely alleges that
there is a bona fide dispute as to the defendants’ owner-
ship of shares of stock in the plaintiff.
The plaintiff raised the issue of the defendants’ con-
duct by way of avoidance to the defendants’ special
defenses. By way of avoidance, the plaintiff alleged
that the defendants conspired with Veneziano to avoid
disclosure of their purported stock interest in the plain-
tiff to creditors and to the bankruptcy court in connec-
tion with a certain bankruptcy petition filed by one or
both of the defendants. As a result of the aforesaid
allegations, the plaintiff alleged that the defendants
were estopped from asserting their special defenses.
At trial, the plaintiff presented evidence in support
of its allegations in avoidance of the defendants’ special
defenses. The court, however, did not have to address
those allegations because it found that the plaintiff had
proved the allegations of its complaint and that the
defendants had failed to prove their special defenses.
As a consequence, not only did the plaintiff not allege
that the defendants engaged in any tortious financial
conduct with respect to the 300 shares of the plaintiff’s
stock, but also the trial court never found that the defen-
dants engaged in such conduct.
On appeal, the defendants have ignored the plain
language of the complaint and the court’s specific find-
ings. Rather, the defendants’ appellate claim is predi-
cated in large measure on the trial court’s having taken
judicial notice of Village Mortgage Co. v. Veneziano,
175 Conn. App. 59, 167 A.3d 430, cert. denied, 327 Conn.
957, 172 A.2d 205 (2017), in which Veneziano was found
to have engaged in various acts of financial misconduct
while he was president of the plaintiff. Id., 61. The
defendants’ reliance on the trial court’s discussion of
this court’s decision in Village Mortgage Co. is mis-
placed. Our review of the court’s memorandum of deci-
sion in the present case reveals that the court took
judicial notice of the plaintiff’s suit against Veneziano
because the facts of that case related to the defendants’
laches special defense.15 In particular, the factual find-
ings in Village Mortgage Co. explained how the plaintiff
came to learn that Certificate No. 2 was returned to
the defendants in 2011, how Veneziano acted without
actual or apparent authority to issue the plaintiff’s
stock, and why the plaintiff did not delay unreasonably
in bringing the present action. See Village Mortgage Co.
v. Veneziano, supra, 65–66. The trial court in the present
case made no finding that either of the defendants par-
ticipated in any of Veneziano’s misconduct.16 Neverthe-
less, the defendants argue that the court, in its memo-
randum of decision, implied that the defendants
conspired with Veneziano. We are not persuaded. Not
only does the complaint fail to allege that the defendants
conspired with Veneziano, but also, the court, in its
memorandum of decision, does not imply that they did.
By taking judicial notice of the plaintiff’s case against
Veneziano, the court had an evidentiary basis on which
to find facts that explained how Certificate No. 2 was
returned to the defendants in 2011 and how the plaintiff
learned of Veneziano’s misconduct. Those facts also
support the testimony of Giroliman and Caliendo, which
the court credited, that Veneziano lacked actual or
apparent authority to issue shares of stock to the defen-
dants. Veneziano’s financial misconduct and lack of
authority were relevant to whether the defendants were
lawfully shareholders in the plaintiff, regardless of
whether they participated in Veneziano’s misconduct.
Having reviewed the allegations of the complaint our-
selves, we agree with the court’s interpretation that the
allegations are not predicated on a note or agreement
and that the plaintiff did not plead the elements of fraud,
statutory theft, or conspiracy. Although the defendants
claim that the complaint alleges tortious financial mis-
conduct on their part, they have not identified those
allegations. The defendants have overlooked the fact
that the complaint does not allege any wrongdoing
against them. Furthermore, the plaintiff did not seek
damages, but a judicial determination as to whether
the defendants are lawfully shareholders of the plaintiff.
The court was called on to resolve competing claims
for 300 shares of the plaintiff’s stock. The determination
of who had the superior claim is inherently an equitable
one, particularly where there is no claim or finding
that any of the parties engaged in tortious financial
misconduct or breached a contract. We therefore con-
clude that the trial court correctly determined that no
statute of limitations applies to bar the plaintiff’s declar-
atory judgment action, rather, that the special defense
of laches applies and that the defendants failed to prove
that special defense.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The cofounder was James Veneziano. See Village Mortgage Co. v. Venezi-
ano, 175 Conn. App. 59, 167 A.3d 430, cert. denied, 327 Conn. 957, 172 A.2d
205 (2017).
2
In their first special defense, the defendants alleged: ‘‘[I]n analyzing
whether a declaratory judgment action is barred by a particular statutory
period of limitations, a court must examine the underlying claim or right
on which the declaratory action is based. . . . It necessarily follows that
if a statute of limitations would have barred a claim asserted in an action
for relief other than a declaratory judgment, then the same limitation period
will bar the same claim asserted in a declaratory judgment action. (Internal
quotation marks omitted.) Interlude, Inc. v. Skurat, 253 Conn. 531, 536–37,
754 A.2d 153 (2000), quoting Wilson v. Kelley, 224 Conn. 110, 116, 617 A.2d
433 (1992).
‘‘General Statutes § 52-577 bars the plaintiff’s action.
‘‘General Statutes § 52-576 bars the plaintiff’s action.
‘‘General Statutes § 52-581 bars the plaintiff’s action.
‘‘General Statutes § 52-588 bars the plaintiff’s action.’’
3
The second special defense alleged: ‘‘1. The plaintiff’s neglect or omission
to assert [its] alleged right, taken in conjunction with lapse of time and
other circumstances, causes prejudice to the defendant[s] so as to operate
as a bar to relief in equity.
‘‘2. Important documentary evidence is unavailable, has been wrongfully
withheld or has been destroyed.
‘‘3. The plaintiff inexcusably delayed in bringing [its] claim.
‘‘4. The plaintiff’s delay prejudiced the defendant in that records are lost
or unavailable and witnesses’ memories have deteriorated with time.’’
4
The third special defense alleged: ‘‘1. Apparent authority is a doctrine
developed by the courts to protect, under certain circumstances, persons
dealing with an agent who lacks express authority.
‘‘2. Apparent authority is the authorization which a principal, through his
own acts or inadvertences, causes or allows a third person to believe his
agent possesses.
‘‘3. In the present case, the plaintiff [is] liable for its agreement with the
defendant[s] on the ground that the agent, James Veneziano, had apparent
authority to execute the contract on the plaintiff’s behalf.’’
5
The defendants did not attend the trial and did not present evidence to
support their counsel’s representation that they were not well enough to
travel to Connecticut from Florida.
6
Practice Book § 17-55 provides: ‘‘A declaratory judgment action may be
maintained if all of the following conditions have been met:
‘‘(1) The party seeking the declaratory judgment has an interest, legal or
equitable, by reason of danger of loss or of uncertainty as to the party’s
rights or other jural relations;
‘‘(2) There is an actual bona fide and substantial question or issue in
dispute or substantial uncertainty of legal relations which requires settle-
ment between the parties; and
‘‘(3) In the event that there is another form of proceeding that can provide
the party seeking the declaratory judgment immediate redress, the court is
of the opinion that such party should be allowed to proceed with the claim
for declaratory judgment despite the existence of such alternate procedure.’’
7
See Ferreira v. Pringle, 255 Conn. 330, 345, 766 A.2d 400 (2001) (factual
allegations in pleadings on which case is tried are judicial admissions and
hence irrefutable as long as they remain in case).
8
General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall
be brought but within three years from the date of the act or omission
complained of.’’
9
The purpose of a declaratory judgment action as authorized by § 52-29,
‘‘is to secure an adjudication of rights where there is a substantial question
in dispute or a substantial uncertainty of legal relations between the parties.’’
(Emphasis in original; internal quotation marks omitted.) Wilson v. Kelley,
224 Conn. 110, 115, 617 A.2d 433 (1992). ‘‘[D]eclaratory relief is a mere
procedural device by which various types of substantive claims may be
vindicated.’’ (Internal quotation marks omitted.) Id., 115–16. ‘‘Implicit in
these principles is the notion that a declaratory judgment action must rest
on some cause of action that would be cognizable in a nondeclaratory suit.’’
Id., 116.
10
Specifically, the court found that the defendants had not proven their
special defense of laches and spoliation of evidence. On appeal, the defen-
dants have not challenged the court’s findings and conclusions as to laches
and spoliation. We, therefore, need not address them.
11
We agree that it was not necessary for the trial court to address the
plaintiff’s by way of avoidance pleading.
12
The court found that Caliendo testified that the plaintiff was prepared
to refund the net $30,000 received from the defendants if the court found that
they were not lawfully shareholders. The plaintiff’s counsel acknowledged
at oral argument before this court that it is obligated to make the $30,000
payment to the defendants if the judgment of the trial court in the present
action is affirmed.
13
On February 13, 2019, the defendants filed a motion to reargue in which
they contended that the court inconsistently applied the plaintiff’s judicial
admissions and shifted the burden of proof to the defendants to disprove
the judicially admitted facts, and that the court should have applied § 52-
577 to bar the plaintiff’s claim. The plaintiff opposed the motion to reargue.
On February 28, 2019, the court issued a memorandum of decision denying
the defendants’ motion to reargue. The defendants have not claimed on
appeal that the court improperly denied their motion to reargue.
14
In their brief, the defendants make certain representations of fact and
argue that there is no support for several of the court’s factual findings or
that those findings are otherwise erroneous. The plaintiff argues that we
should not consider those claims or arguments because the defendants did
not include them in their statement of issues and they are inadequately
briefed. We agree with the plaintiff. See Practice Book § 67-4; Label Systems
Corp. v. Aghamohammadi, 270 Conn. 291, 300 n.9, 82 A.2d 703 (2004) (court
refused to consider claims not identified as issues in either preliminary
statement of issues or within statement of issues in brief); Coppola Construc-
tion Co. v. Hoffman Enterprises Ltd. Partnership, 157 Conn. App. 139, 179,
117 A.3d 876 (legal analysis rather than mere assertion required for issue
to be adequately briefed), cert. denied, 318 Conn. 902, 122 A.3d 631 (2015),
and cert. denied, 318 Conn. 902, 123 A.3d 882 (2015).
15
It is well known that a court may take judicial notice of the file in
another case, whether or not the other case is between the same parties.
See, e.g., Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003).
‘‘[J]udicial notice . . . meets the objective of establishing facts to which
the offer of evidence would normally be directed.’’ (Internal quotation marks
omitted.) Id.
16
In the plaintiff’s action against Veneziano, Veneziano was found liable
for conversion, statutory theft, and embezzlement. See Village Mortgage Co.
v. Veneziano, supra, 175 Conn. App. 61.