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VILLAGE MORTGAGE COMPANY v.
JAMES VENEZIANO
(AC 40701)
Prescott, Suarez and DiPentima, Js.
Syllabus
The plaintiff mortgage company sought declaratory relief related to the
defendant’s failure to comply with its corporate bylaws, which required
the defendant to satisfy state and federal licensing requirements related
to the plaintiff’s mortgage loan business. The defendant was a founding
shareholder and former employee, officer, and director of the plaintiff.
The trial court, relying on a stipulation entered into by the parties,
ordered the defendant to satisfy the licensing requirements by a certain
date, or, in accordance with the plaintiff’s bylaws, his stock in the
plaintiff would be surrendered. After finding that the defendant had
failed to comply with its order, the court rendered judgment ordering
the defendant’s shares to be surrendered to the plaintiff, from which
the defendant appealed to this court. On appeal, the defendant claimed,
inter alia, that the court erred in its interpretation of the parties’ stipula-
tion. The plaintiff subsequently filed a motion to dismiss the appeal on
the ground that this court lacked subject matter jurisdiction over the
appeal because the defendant’s claims were moot. The plaintiff argued
that during the pendency of the present appeal, it had taken the defen-
dant’s stock in satisfaction of a judgment rendered in certain prior
litigation between the parties, and, therefore, the defendant was unable
to demonstrate that he was entitled to any practical relief. Held that
this court lacked subject matter jurisdiction, and, therefore, the appeal
was dismissed: there did not appear to be any dispute between the
parties that this court was unable to afford the defendant any direct,
practical relief from the reversal of the judgment from which he appealed
as the subject of the judgment in the present action was the defendant’s
stock in the plaintiff, which, during the pendency of the appeal, the
plaintiff has taken in satisfaction of the judgment rendered in a prior
action; despite the defendant’s claim that this court may afford him
practical relief because the issue of when the plaintiff took the stock
in satisfaction of the judgment rendered in the prior action would affect
its value, the defendant did not offer any explanation of how a reversal
of the trial court’s judgment in the present action would affect the value
of the stock, and the court in the present action did not make any
findings concerning the valuation of the stock or when the plaintiff
acquired it, and, although the defendant argued before this court that
the outcome of the present action had collateral estoppel and res judicata
effects as to when the plaintiff took his stock, he contradicted these
arguments before the trial court in the prior action, claiming that the
value of the stock taken by the plaintiff satisfied the entire judgment;
moreover, despite the defendant’s argument that his ability to bring an
action for vexatious litigation in the future against the plaintiff was
dependent on this appeal being heard on its merits, because the plaintiff
prevailed in the present action, the defendant was unable to demonstrate
that probable cause was lacking, and, thus, there was no possibility that
this court’s resolution of the claims raised in the appeal would have the
effect of imposing liability on the plaintiff for commencing the present
action; furthermore, the defendant’s claim that the present appeal could
affect a future action against the plaintiff for fraud was unavailing, the
scope of the underlying action was narrow, there were no claims of
fraud before the court, and, as a result of the defendant’s conclusory
analysis of this issue in his objection to the plaintiff’s motion to dismiss
the appeal, the factual basis of any future cause of action sounding in
fraud was unknown to this court; accordingly, the defendant did not
demonstrate what was reasonably possible in the future, and, therefore,
this court was not persuaded that the collateral consequences on which
the defendant relied were reasonably possible.
Argued October 5, 2020—officially released March 9, 2021
Procedural History
Action seeking, inter alia, a declaratory judgment
with respect to the ownership of certain shares of the
plaintiff corporation, brought to the Superior Court in
the judicial district of Hartford, where the matter was
tried to the court, Scholl, J.; judgment for the plaintiff,
from which the defendant appealed to this court; subse-
quently, the court, Scholl, J., denied the defendant’s
motion to open, and the defendant filed an amended
appeal. Appeal dismissed.
Gregory T. Nolan, with whom, on the brief, was Patsy
M. Renzullo, for the appellant (defendant).
Richard P. Weinstein, with whom, on the brief, was
Sarah Black Lingenheld, for the appellee (plaintiff).
Opinion
SUAREZ, J. The defendant, James Veneziano, was a
founding shareholder and former employee, officer, and
director of the plaintiff, Village Mortgage Company. The
plaintiff brought the civil action underlying this appeal
seeking relief related to the defendant’s failure to com-
ply with its corporate bylaws, which required the defen-
dant to satisfy state and federal licensing requirements
pertaining to its mortgage loan business. During the
course of the underlying litigation, the trial court, rely-
ing on a stipulation entered into by the parties, ordered
the defendant to satisfy the licensing requirements at
issue by a certain date or, in accordance with the pen-
alty for his noncompliance set forth in the plaintiff’s
bylaws, his stock in the plaintiff would be surrendered
to the plaintiff. Subsequently, after finding that the
defendant had failed to comply with its order, the court
rendered judgment ordering the defendant’s shares to
be surrendered to the plaintiff.
From this judgment, the defendant appeals. The
defendant claims that the court erred (1) in its interpre-
tation of the parties’ stipulation, (2) by failing to apply
the doctrines of substantial performance, waiver, and
estoppel in its analysis of whether he satisfied the
court’s order, (3) in finding that the plaintiff did not
breach the covenant of good faith and fair dealing, and
(4) by denying his motion to open the judgment without
holding a preliminary hearing related to the motion.
The plaintiff argues that this court lacks subject matter
jurisdiction over the appeal because the defendant’s
claims are moot. We agree with the plaintiff’s jurisdic-
tional argument. Accordingly, we dismiss the appeal.
The following facts, as found by the court, and proce-
dural history are relevant to our analysis. The plaintiff
commenced the underlying action in February, 2016.
In its revised complaint dated March 29, 2016, it alleged
in count one that it was in the business of originating
residential mortgage loans and was regulated by the
federal government and the New England states in
which it was licensed. The plaintiff alleged that regula-
tions require ‘‘those who have [a 10 percent] or more
ownership interest in . . . mortgage companies to
[submit] to background checks, fingerprinting, credit
checks, net worth compliance, surety bonds, and man-
datory and timely record management and reporting
on the [National Mortgage Licensing System, the system
of licensure for mortgage companies and individuals
seeking licensing by state and federal mortgage licens-
ing authorities] . . . .’’ The plaintiff alleged that the
defendant owned more than 10 percent of its stock and
that his license and records ‘‘are inexorably linked to
the [plaintiff’s] . . . records.’’
The plaintiff alleged that, despite its request, the
defendant had failed to comply with the regulatory
requirements and his ‘‘continued failure to comply with
such regulatory requirements has made it impossible
for the plaintiff to meet its mandatory regulatory and
reporting obligations . . . which puts [the] plaintiff at
risk of potential administrative action and suspension
of the plaintiff’s license by respective state regulators.’’
The plaintiff alleged that its bylaws ‘‘address the recalci-
trance of the defendant and anyone else who may own
[10 percent of its shares] but fails and refuses to comply
with regulatory requirements,’’ in that it may demand
that such shareholder surrender his or her shares. The
plaintiff alleged that, despite making such demand, the
defendant refused to surrender his shares.
The plaintiff alleged that, pursuant to a prejudgment
remedy in a prior action that it brought against the
defendant, a state marshal was in possession of the
defendant’s stock.1 Nonetheless, the plaintiff alleged
that ‘‘it is necessary for a court to adjudicate the rights
of the plaintiff in regard to said shares and the determi-
nation ordering the surrender of same for their fair
value.’’
In count two, the plaintiff, relying on its allegations
in count one, alleged that its bylaws were enacted to
protect its ‘‘federal and state licensing . . . .’’ The
plaintiff also alleged that the bylaws should be enforced
and it sought specific performance related thereto.
The parties entered into a stipulation that was
reflected in an order issued by the court, Dubay, J., on
March 28, 2016. The order provided: ‘‘By stipulation,
[the defendant’s] stock is deemed to be surrendered to
the [plaintiff] corporation pursuant to the bylaw provi-
sion requiring compliance with state and federal licens-
ing authorities and shall be turned over by the marshal
to the corporation unless the defendant fully and com-
pletely satisfies all federal and state regulatory licensing
requirements for shareholders of [10 percent] or more
stock in the plaintiff corporation on or before April
11, 2016.’’
On March 31, 2016, the defendant filed a notice of
compliance with Judge Dubay’s March 28, 2016 order.
The following day, the plaintiff objected to the notice
of compliance on the grounds that neither the plaintiff
nor the applicable regulatory authorities had reviewed
the filings purportedly made by the defendant or
deemed them to be satisfactory. Ultimately, the matter
was scheduled for a trial before the court, Scholl, J.,
on February 3, 2017. Prior to the trial, the defendant
filed an offer of proof in which he requested to elicit
testimony from one or more of the plaintiff’s attorneys
with respect to the meaning of the parties’ stipulation.
The plaintiff objected to the defendant’s request and
offer of proof. The court denied the defendant’s request,
noting that its order was clear and unambiguous, and
that its focus at the trial would be on whether the
defendant had complied with the order. Following the
trial, the parties submitted briefs to the court.
After the date of the trial, but before the court issued
its decision, the defendant filed a motion to open the
evidence, which the court denied on May 8, 2017. In a
subsequent articulation of its denial of this motion, the
court explained: ‘‘The evidence proffered in the motion
was not relevant to the issue before the court. The sole
issue before the court was whether the defendant had
complied with the court order entered pursuant to the
parties’ stipulation.’’
In its June 6, 2017 memorandum of decision, the
court stated in relevant part: ‘‘The plaintiff is a mortgage
lender licensed by state regulators. It does business in
a number of states. [Haley Rice, the plaintiff’s chief
compliance officer and general counsel] oversees
licensing requirements for the plaintiff. On March 31,
2016, Rice received the defendant’s alleged compliance.
It was not sufficient to submit to the regulators because
[the defendant’s] financial statement was filled out in
pencil and the representations and warranties section
on the last page, in which the signatory represents that
the information provided is true, correct, and complete
was crossed out. A notarized document submitted was
[incorrectly] dated [March 30, 1948]. Although the plain-
tiff did receive new financials from the defendant, other
deficiencies in his package persisted. A copy of the
notarized document was resubmitted which was an
altered form of the original document. Rice never
received a complete set of forms from [the defendant]
sufficient to submit to the appropriate regulatory
authorities. [The defendant] did not request a back-
ground check as the regulatory form required. Nor did
he fully explain the ‘yes’ answer on the forms, as
required, in particular, and explanation of ‘yes’ to the
question: ‘Q. Have you ever voluntarily resigned, been
discharged, or permitted to resign after allegations were
made that accused you of . . . fraud, dishonesty, theft,
or the wrongful taking of property?’ To another ‘yes’
question the defendant provided inaccurate informa-
tion. No package of forms acceptable to be submitted
to the regulators was received from [the defendant] by
the plaintiff on or before April 11, 2016.
‘‘The defendant claims that the plaintiff breached the
stipulation by not submitting the defendant’s package
of materials to regulators. Yet the court agrees that the
plaintiff had no obligation to submit to the regulators
materials that were in pencil, appeared to have been
altered, or were inaccurate or incomplete.
‘‘The defendant also claims that the parties’ stipula-
tion was not a fully integrated agreement, but included
the requirements set forth [in an exhibit submitted to
the court]. . . . Here, the court’s order, based on the
parties’ stipulation, is complete in itself as to its terms.
In any event, even if the court was to consider the
instructions in [the exhibit] as part of the stipulation
on which the order was based, the defendant did not
comply with those instructions. For example, [the
exhibit] required that the defendant request a back-
ground check, which he did not.
‘‘Lastly, the defendant has not substantially complied
with the stipulation and order as he claims. . . . Here,
based on the facts found by the court, the defendant
did not comply with the terms of the stipulation and
his breach was not immaterial.
‘‘Therefore, the court finds that the defendant . . .
did not comply with the court’s March 28, 2016 order
and judgment shall enter in favor of the plaintiff . . .
that the defendant’s stock is deemed surrendered to
the [plaintiff] pursuant to the bylaw provision requiring
compliance with state and federal licensing authorities
and shall be turned over by the marshal to the [plain-
tiff].’’ (Citations omitted.) Thereafter, the defendant
filed a motion to reargue, to which the plaintiff objected.
The court denied the motion to reargue on July 17,
2017. Thereafter, the defendant appealed. After filing
the appeal, the defendant moved to open the judgment,
to which the plaintiff objected. On October 13, 2017,
the court denied the motion to open. On November 22,
2017, the defendant filed an amended appeal encom-
passing the judgment rendered by the court in favor of
the plaintiff, as well as the court’s denial of his motion
to open the judgment.
During the pendency of the present appeal, but prior
to the time of oral argument, the plaintiff, pursuant to
Practice Book § 66-8, filed a motion to dismiss the
appeal on the ground that it was moot.2 The plaintiff
argued in relevant part: ‘‘[T]he fundamental issue in this
action was the ownership of stock in [the] plaintiff at
one time owned by [the] defendant. However, since the
commencement of the [present] action, [the] plaintiff
has obtained a final judgment in a separate action
against [the] defendant. [The] [d]efendant’s stock had
been the subject [of] a prejudgment attachment during
the pendency of such [prior] separate action but has
now been turned over to [the] plaintiff and the value
of such stock credited toward the judgment [awarded
to the plaintiff in the prior action]. Regardless of the
outcome of the [present] appeal, [the] plaintiff is enti-
tled to [the] defendant’s stock in satisfaction of the
judgment in the [prior] action. Because [the] plaintiff
has already taken [the] defendant’s stock, there is no
practical relief that can be awarded by this court and
the appeal is moot. Therefore, [the] defendant’s appeal
should be dismissed.’’
In support of its motion to dismiss, the plaintiff
referred to the procedural history of the prior action
before the trial court, this court, and our Supreme
Court, which is not in dispute.3 In 2012, the plaintiff
brought the prior action against the defendant seeking
to, inter alia, recover damages under a theory that, for
several years, the defendant had used his control of the
plaintiff’s finances to misappropriate its funds. In July,
2014, the court, Pickard, J., granted the plaintiff a pre-
judgment remedy permitting it to attach $1,250,000
worth of the defendant’s stock in the plaintiff. In accor-
dance with this remedy, a state marshal took possession
of the defendant’s stock. In January, 2016, following a
court trial, the court, J. Moore, J., awarded the plaintiff
$2,080,185.09 in damages.
On January 26, 2016, the defendant filed an appeal
from the judgment rendered in the prior action. On
July 25, 2017, this court officially released its decision
affirming the judgment of the trial court. See Village
Mortgage Co. v. Veneziano, 175 Conn. App. 59, 167 A.3d
430 (2017). The defendant filed a petition for certifica-
tion to appeal from this court’s judgment, which our
Supreme Court denied on November 8, 2017. See Village
Mortgage Co. v. Veneziano, 327 Conn. 957, 172 A.3d
205 (2017). According to the plaintiff, it thereafter took
possession of the defendant’s stock, cancelled the
shares, and credited the value of the stock to partially
satisfy the judgment it obtained in the prior action.4
The plaintiff argued in its motion to dismiss that the
only relief it sought in the present action was the relief
that it had obtained, namely, a declaration that the
defendant’s stock in the plaintiff was deemed to be
surrendered to the plaintiff. The plaintiff relied on the
fact that the court had awarded it possession of the
defendant’s stock in the prior action. Moreover, the
plaintiff argued, during the pendency of this appeal, the
defendant not only had exhausted his right to appeal
from the judgment rendered in the prior action, but
also that the plaintiff had taken possession of the stock
in partial satisfaction of the judgment rendered in the
prior action. Thus, the plaintiff argued, the defendant is
unable to demonstrate that he is entitled to any practical
relief in connection with the present appeal. The plain-
tiff asserted that, regardless of whether the judgment
rendered in the present action was affirmed or reversed
as a result of this appeal, the judgment rendered in the
prior action provided it with an independent legal right
to the stock at issue.
The defendant filed an opposition to the plaintiff’s
motion to dismiss the appeal. Notably, the defendant
did not dispute the relevant facts on which the plaintiff
relied in its motion. Instead, the defendant argued that,
although this court could not provide him direct, practi-
cal relief in terms of his regaining his stock, as the
plaintiff had argued, it nonetheless could afford him
practical relief with respect to two collateral conse-
quences attendant to the judgment rendered in the pres-
ent action.5 First, he argued that ‘‘the issue of when
[the plaintiff] took [the defendant’s] stock affects the
value of the taken stock, and this issue may be subject
to preclusion based upon the June 6, 2017 decision
. . . .’’ In this respect, he argued that the judgment
from which he appeals ‘‘may preclude further litigation
of the issue of when the stock was taken by the [plain-
tiff], in 2012 or 2016. The value of [the plaintiff] changed
dramatically between these years, thereby affecting the
value of the stock taken from the [defendant] by the
[plaintiff]. The issue of the value of the stock has not
been litigated to a final judgment, so this issue remains
in contention, especially as to whether the amount of
the final judgment [awarded to the plaintiff in the prior
action] has been partially or completely satisfied.’’
Second, the defendant argued that his ability to bring
an action against the plaintiff sounding in vexatious
litigation or fraud, related to the present action, was
somehow dependent on his prevailing in the present
appeal. The defendant argued that he had ‘‘an indepen-
dent stake in obtaining a judgment in his favor for
purposes of a later lawsuit for vexatious litigation and
fraud.’’ The defendant argued that several of his appel-
late claims concerned ‘‘the illegal, fraudulent, and vexa-
tious ways the stock was taken in the present case
. . . .’’ On April 11, 2018, this court denied the motion
to dismiss the appeal. In the plaintiff’s appellate brief,
filed on May 11, 2018, the plaintiff, expressly relying on
the facts and legal grounds set forth in its motion to
dismiss the appeal, reasserted that this court lacks sub-
ject matter jurisdiction over the appeal because it is
moot.6 The defendant did not address the jurisdictional
issue in its reply brief. We observe that, despite the
fact that this court has denied the plaintiff’s motion to
dismiss, we may choose to reevaluate the jurisdictional
question at this juncture. See, e.g., Governors Grove
Condominium Assn., Inc. v. Hill Development Corp.,
187 Conn. 509, 511 and n.6, 446 A.2d 1082 (1982), over-
ruled on other grounds by Morelli v. Manpower, Inc.,
226 Conn. 831, 628 A.2d 1311 (1993); Barry v. Historic
District Commission, 108 Conn. App. 682, 687 n.2, 950
A.2d 1, cert. denied, 289 Conn. 943, 959 A.2d 1008 (2008),
and cert. denied, 289 Conn. 942, 959 A.2d 1008 (2008);
Rocque v. Sound Mfg., Inc., 76 Conn. App. 130, 132 n.3,
818 A.2d 884, cert. denied, 263 Conn. 927, 823 A.2d 1217
(2003); Groesbeck v. Sotire, 1 Conn. App. 66, 67–68, 467
A.2d 1245 (1983). In this circumstance, we are per-
suaded that it is necessary to reevaluate the jurisdic-
tional issue.
We are guided in our jurisdictional analysis by well
settled principles. ‘‘Mootness is a question of justiciabil-
ity that must be determined as a threshold matter
because it implicates this court’s subject matter juris-
diction. . . . Justiciability requires (1) that there be an
actual controversy between or among the parties to the
dispute . . . (2) that the interests of the parties be
adverse . . . (3) that the matter in controversy be
capable of being adjudicated by judicial power . . .
and (4) that the determination of the controversy will
result in practical relief to the complainant. . . . An
actual controversy must exist not only at the time the
appeal is taken, but also throughout the pendency of
the appeal. . . . When, during the pendency of an
appeal, events have occurred that preclude an appellate
court from granting any practical relief through its dis-
position of the merits, a case has become moot.’’ (Cita-
tion omitted; internal quotation marks omitted.)
Renaissance Management Co. v. Barnes, 175 Conn.
App. 681, 685–86, 168 A.3d 530 (2017).
‘‘Mootness presents a circumstance wherein the issue
before the court has been resolved or had lost its signifi-
cance because of a change in the condition of affairs
between the parties. . . . [T]he existence of an actual
controversy is an essential requisite to appellate juris-
diction; it is not the province of appellate courts to
decide moot questions, disconnected from the granting
of actual relief or from the determination of which no
practical relief can follow. . . . In determining moot-
ness, the dispositive question is whether a successful
appeal would benefit the plaintiff or defendant in any
way.’’ (Citations omitted; internal quotation marks omit-
ted.) New Image Contractors, LLC v. Village at Mari-
ner’s Point Ltd. Partnership, 86 Conn. App. 692, 698,
862 A.2d 832 (2004).
‘‘[Our Supreme Court] has recognized, however, that
a case does not necessarily become moot by virtue of
the fact that . . . due to a change in circumstances,
relief from the actual injury is unavailable. [Our
Supreme Court has] determined that a controversy con-
tinues to exist, affording the court jurisdiction, if the
actual injury suffered by the litigant potentially gives
rise to a collateral injury from which the court can grant
relief. . . . [F]or a litigant to invoke successfully the
collateral consequences doctrine, the litigant must
show that there is a reasonable possibility that prejudi-
cial collateral consequences will occur. . . . This stan-
dard provides the necessary limitations on justiciability
underlying the mootness doctrine itself. Where there is
no direct practical relief available from the reversal of
the judgment . . . the collateral consequences doc-
trine acts as a surrogate, calling for a determination
whether a decision in the case can afford the litigant
some practical relief in the future. The reviewing court
therefore determines, based upon the particular situa-
tion, whether the prejudicial collateral consequences
are reasonably possible.’’ (Citation omitted; internal
quotation marks omitted.) State v. Gomes, Conn.
, , A.3d (2021).
There does not appear to be any dispute between the
parties that this court is unable to afford the defendant
any direct, practical relief from the reversal of the judg-
ment from which he appeals. The subject of the judg-
ment in the present action was the defendant’s stock
in the plaintiff and, during the pendency of the present
appeal, the plaintiff has taken the stock in satisfaction
of the judgment rendered in the prior action. Thus, we
focus our analysis on the defendant’s argument that we
may afford him some practical relief for the two reasons
that he has articulated in his opposition to the plaintiff’s
motion to dismiss the appeal.
The defendant’s first argument is that the issue of
when the plaintiff took the stock greatly affects the
value of the stock and that ‘‘this issue may be subject
to preclusion based upon the June 6, 2017 decision [of
Judge Scholl in the underlying action] . . . .’’ We note
that, in the prior action, the defendant maintained that
the plaintiff took the stock in 2012, as a consequence
of certain regulatory filings, and not in 2016, when the
court rendered judgment in the prior action in favor of
the plaintiff. The defendant, however, does not offer
any explanation of how a reversal of the judgment in
the present action would affect the value of the stock
that was taken by the plaintiff as a consequence of the
judgment rendered in the prior action. The court in the
present action did not make any findings concerning
the valuation of the stock or when the plaintiff took it.
We also note that, although the defendant argues
before this court that ‘‘[t]he outcome of [the present
action] has collateral estoppel and res judicata effects
as to when the [plaintiff] took [his] stock,’’ he com-
pletely contradicted these arguments before the trial
court in the prior action. In the prior action, on February
13, 2018, the defendant filed a motion for a determina-
tion that the judgment had been satisfied, in which he
argued that the value of the stock taken by the plaintiff
satisfied the entire judgment.7 The plaintiff filed two
objections to this motion. In a March 13, 2018 reply, the
defendant argued in relevant part: ‘‘Claim preclusion,
or res judicata, does [not] . . . affect this stock valua-
tion. No court has determined the fair value of the
stock taken from the defendant in satisfaction of the
judgment.’’ Specifically referring to the judgment ren-
dered in the present action, the defendant stated: ‘‘Claim
preclusion does not apply, as to stock valuation, with
regard to the judgment [rendered by Judge Scholl on
June 6, 2017]. In that matter, Judge Scholl did not hear
any testimony regarding the value of the defendant’s
stock; the trial decided which party breached a stipula-
tion. There was no determination of the stock’s value,
over the defendant’s objection.’’ These representations
by the defendant in the prior action are consistent with
our assessment of the present action.
Turning to the next collateral consequence advanced
by the defendant, he argues that his ability to bring an
action, related to the present action, against the plaintiff
in the future is dependent on this appeal being heard
on its merits. His arguments are, at times, inconsistent.
He argues that ‘‘because of the [plaintiff’s] misconduct,
as discussed in [the defendant’s appellate] brief, the
[defendant] will seek to bring a vexatious litigation
claim against the [plaintiff]. However, the [defendant]
cannot sue for vexatious litigation or fraud if the under-
lying lawsuit has not terminated fully in [the plaintiff’s]
favor. Accordingly, both parties continue to have stakes
in the outcome of this appeal . . . .’’ He also argues:
‘‘[B]ecause of the illegal, fraudulent and vexatious way
the stock was taken in the present case, which remain
issues on appeal, the case is not moot as the [defendant]
has an independent stake in obtaining a judgment in
his favor for purposes of a later lawsuit for vexatious
litigation and fraud.’’ He asserts that, if he prevails in
this appeal, ‘‘the [plaintiff] will be liable for its wrongful
conduct in litigating this matter.’’
A brief review of principles governing vexatious liti-
gation is warranted. ‘‘The cause of action for vexatious
litigation permits a party who has been wrongfully sued
to recover damages. . . . In Connecticut, the cause of
action for vexatious litigation exists both at common
law and pursuant to statute. Both the common law and
statutory causes of action [require] proof that a civil
action has been prosecuted . . . . Additionally, to
establish a claim for vexatious litigation at common
law, one must prove want of probable cause, malice
and a termination of suit in the plaintiff’s favor. . . .
The statutory cause of action for vexatious litigation
exists under [General Statutes] § 52-568, and differs
from a common-law action only in that a finding of
malice is not an essential element, but will serve as a
basis for higher damages. . . . In the context of a claim
for vexatious litigation, the defendant lacks probable
cause if he lacks a reasonable, good faith belief in the
facts alleged and the validity of the claim asserted.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Bernhard-Thomas Building Systems,
LLC v. Dunican, 286 Conn. 548, 553–54, 944 A.2d 329
(2008).
‘‘[I]f it appears in the action for . . . a vexatious suit,
that the prosecution properly ended in a judgment of
conviction, or that in the civil suit judgment was prop-
erly rendered against the defendant therein, such out-
standing judgment is, as a general rule, conclusive evi-
dence of the existence of probable cause for instituting
the prosecution, or the suit. . . . [I]f the trial court
determines that the prior action was objectively reason-
able, the plaintiff has failed to meet the threshold
requirement of demonstrating an absence of probable
cause and the defendant is entitled to prevail. . . . This
is true although it is reversed upon appeal and finally
terminated in favor of the person against whom the
proceedings were brought. . . . Likewise, a termina-
tion of civil proceedings . . . by a competent tribunal
adverse to the person initiating them is not evidence
that they were brought without probable cause.’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) Byrne v. Burke, 112 Conn. App. 262,
275–76, 962 A.2d 825, cert. denied, 290 Conn. 923, 966
A.2d 235 (2009).
The foregoing authority clearly undermines the
defendant’s argument that the present appeal may affect
the outcome of a vexatious litigation action brought
by him against the plaintiff in the future. Because the
plaintiff prevailed in the present action, the defendant is
unable to demonstrate that probable cause was lacking,
even if we were to resolve this appeal in his favor.
Contrary to the defendant’s arguments, there is no pos-
sibility that our resolution of the claims raised in the
appeal would have the effect of imposing liability on
the plaintiff for commencing the present action.
The defendant also argues that the present appeal
could affect a future action against the plaintiff sound-
ing in fraud. ‘‘The essential elements of an action in
[common-law] fraud . . . are that: (1) a false represen-
tation was made as a statement of fact; (2) it was untrue
and known to be untrue by the party making it; (3) it
was made to induce the other party to act upon it; and
(4) the other party did so act upon that false representa-
tion to his injury. . . . [T]he party to whom the false
representation was made [must claim] to have relied
on that representation and to have suffered harm as a
result of the reliance.’’ (Internal quotation marks omit-
ted.) Sturm v. Harb Development, LLC, 298 Conn. 124,
142, 2 A.3d 859 (2010).
The scope of the underlying action was narrow. The
sole issue before the court was whether the defendant
had complied with its March 28, 2016 order. There were
no claims of fraud before the court and, in fact, the
conduct of the plaintiff was not the subject of the court’s
decision. As a result of the defendant’s conclusory anal-
ysis of this issue in his objection to the plaintiff’s motion
to dismiss the appeal, the factual basis of any future
cause of action sounding in fraud is unknown to this
court. In invoking the collateral consequences doctrine,
an appellant need not demonstrate what is certain in
the future, but must, through reasoned argument, dem-
onstrate to the reviewing court what is reasonably pos-
sible in the future. See State v. Gomes, supra, Conn.
. The defendant has failed to do so, and it is well
settled that ‘‘speculation and conjecture . . . have no
place in appellate review.’’ (Internal quotation marks
omitted.) New Hartford v. Connecticut Resources
Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578
(2009). Accordingly, this argument is unavailing.
For the foregoing reasons, we are not persuaded that
the collateral consequences on which the defendant
relies are reasonably possible. We dismiss the appeal
as moot and thus do not reach the merits of the claims
raised therein.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The plaintiff commenced the prior action in 2012 seeking to, inter alia,
recover damages under a theory that, for several years, the defendant had
used his control of the plaintiff’s finances to misappropriate its funds. We
will discuss the prior action in greater detail later in this opinion.
2
Practice Book § 66-8 provides in relevant part: ‘‘Any claim that an appeal
or writ of error should be dismissed, whether based on lack of jurisdiction,
failure to file papers within the time allowed or other defect, shall be made
by a motion to dismiss the appeal or writ. Any such motion must be filed
in accordance with Sections 66-2 and 66-3. A motion to dismiss an appeal or
writ of error that claims a lack of jurisdiction may be filed at any time. . . .’’
3
We may take judicial notice of the court file in the prior action. See,
e.g., McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989) (appellate
court may ‘‘take judicial notice of the court files in another suit between
the parties’’), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667
(1990); Derderian v. Derderian, 3 Conn. App. 522, 524 n.4, 490 A.2d 1108
(‘‘[a]n appellate court can take judicial notice of court files without notifying
the parties’’), cert. denied, 196 Conn. 811, 495 A.2d 279 (1985), and cert.
denied, 196 Conn. 810, 495 A.2d 279 (1985).
4
A property execution filed by the plaintiff in the prior action on January
19, 2018, reflects that, as of that date, $673,794 of the $2,080,185.09 judgment
was paid to the plaintiff in satisfaction of the judgment. In its motion to
dismiss, the plaintiff stated that the amount paid reflects the value of the
stock that was formerly held by the defendant.
5
The defendant also argued that the motion to dismiss was untimely. We
observe that the motion to dismiss, challenging the subject matter jurisdic-
tion of this court over the appeal, was brought pursuant to Practice Book
§ 66-8, which provides in relevant part: ‘‘A motion to dismiss an appeal or
writ of error that claims a lack of jurisdiction may be filed at any time.
. . .’’ (Emphasis added.) See footnote 2 of this opinion.
6
As part of the jurisdictional argument set forth in its appellate brief, the
plaintiff also relies on facts that arose subsequent to this court’s denial of
its motion to dismiss. Specifically, the plaintiff relies on a partial transcript
of an April 27, 2018 postjudgment hearing before Judge Moore in the prior
action. The plaintiff reproduced the partial transcript in the appendix to its
brief. The transcript reflects that, at the hearing, the defendant’s attorney
sought a determination as to whether the judgment rendered against the
defendant in the prior action had been satisfied in whole or in part. The
plaintiff draws our attention to the portions of the transcript in which, on
several occasions, the defendant’s attorney stated that the defendant’s stock
had been taken by the plaintiff, but that it was necessary to ascertain its value
for the purposes of determining whether the stock satisfied the judgment
7
Ultimately, Judge Moore denied the defendant’s motion, concluding that
‘‘the defendant presented wholly irrelevant materials and failed, miserably,
to sustain his burden to prove that the judgment had been satisfied.’’