Village Mortgage Co. v. Veneziano , 175 Conn. App. 59 ( 2017 )

 VILLAGE MORTGAGE COMPANY v. JAMES
VENEZIANO
(AC 38824)
Alvord, Mullins and Beach, Js.
Syllabus
The plaintiff corporation brought this action against the defendant, who
previously was a founding member, shareholder, officer and director
of the plaintiff, seeking an injunction to preclude the defendant from
accessing the plaintiff’s premises and money damages for the defendant’s
alleged misappropriation of corporate funds through conversion, statu-
tory theft, and embezzlement from January, 2004 through June, 2014.
The defendant filed a counterclaim, which claimed, in relevant part,
that the funds alleged to have been taken by him were funds owed to
him for back pay, as well as funds he had invested in the plaintiff. The
defendant also claimed, by way of special defense, that the plaintiff’s
causes of action for conversion, statutory theft, and embezzlement were
barred by the applicable three year statute of limitations (§ 52-577).
Following a trial to the court, the court rendered judgment in part for
the plaintiff on the complaint and for the plaintiff on the defendant’s
counterclaim, from which the defendant appealed and the plaintiff cross
appealed to this court. Held:
1. The trial court’s factual findings rejecting the amount of claimed contribu-
tions made by the defendant to the plaintiff and finding that the advances
and withdrawals made by the defendant were unauthorized were sup-
ported by the testimony and exhibits in the record and were not clearly
erroneous: although the defendant contended that the trial court mistak-
enly relied on a forensic accountant’s report in concluding that the
defendant had misappropriated funds and in determining the amount
of those funds, the trial court found the forensic accountant’s report
credible, and this court deferred to the trial court’s credibility determina-
tions; furthermore, the trial court also found the report of the plaintiff’s
chief financial officer accurate and reliable, and relied heavily on the
chief financial officer’s report and testimony at trial in reaching its
determinations concerning the defendant’s misappropriation of the
plaintiff’s funds, and the defendant did not raise a claim on appeal
concerning the court’s reliance on that report.
2. The defendant’s challenges to certain of the trial court’s discovery rulings
were not reviewable, the defendant having failed to meet his burden of
providing this court with an adequate record from which the alleged
claims of error could be reviewed, and having failed to brief one of his
claims adequately; moreover, although the defendant claimed that the
trial court, in denying his motion for discovery of information, improp-
erly accepted the representations of the plaintiff’s counsel concerning
compliance and made credibility determinations without a hearing, the
court expressly stated that if the defendant disagreed with the plaintiff’s
representation, he should file a motion to compel to bring the matter
properly before the court, which he failed to do, and, therefore, the
defendant was not deprived of an opportunity to seek compliance and
he presented no evidence demonstrating that he was harmed by the
court’s ruling.
3. This court declined to review the defendant’s claims that the trial court
improperly failed to conclude that the plaintiff intentionally spoliated
evidence or engaged in discovery misconduct, the defendant having
failed to raise either claim before the trial court or in his posttrial brief.
4. The trial court properly concluded that the three year statute of limitations
under § 52-577 was not tolled, pursuant to statute (§ 52-595), by the
defendant’s fraudulent concealment of his misconduct, and that the
plaintiff, therefore, was precluded from recovering damages that accrued
prior to October, 2009, which was three years before the commencement
of this action; although the plaintiff claimed that it was unaware of the
defendant’s misappropriations until an investigation was done in 2012
and that, prior to 2012, the defendant had exclusive control over the
plaintiff’s finances and used that control to manipulate the accounting
records to conceal his activities, the trial court found that there were
other employees in the plaintiff’s financial department who were
inputting entries at the request of the defendant, that, since 2004, the
employees were aware of the defendant’s misappropriations, which were
transparent, open and notorious, and, thus, that the knowledge of the
bookkeepers and other financial employees of the defendant’s activities
could be imputed to the plaintiff, and the plaintiff cited no legal authority
for the proposition that knowledge of a corporation can only be imputed
through its board of directors.
Argued April 12—officially released July 25, 2017
Procedural History
Action for, inter alia, an injunction precluding the
defendant from accessing the plaintiff’s premises, and
for other relief, brought to the Superior Court in the
judicial district of Hartford and transferred to the judi-
cial district of Litchfield, where the defendant filed a
counterclaim; thereafter, the court, Pickard, J., sus-
tained the plaintiff’s objections to the defendant’s
request for production; subsequently, the court, J.
Moore, J., denied the defendant’s motion for order;
thereafter, the court, J. Moore, J., denied in part the
defendant’s motions to compel and for sanctions; subse-
quently, the matter was tried to the court, J. Moore, J.;
thereafter, the court, J. Moore, J., granted the plaintiff’s
motion for a temporary injunction; subsequently, the
court, J. Moore, J., rendered judgment in part for the
plaintiff on the complaint and for the plaintiff on the
counterclaim; thereafter, the court, J. Moore, J., denied
the plaintiff’s motion for reconsideration and issued an
amended memorandum of decision, and the defendant
appealed and the plaintiff cross appealed to this
court. Affirmed.
Gregory T. Nolan, with whom, on the brief, was Patsy
M. Renzullo, for the appellant-appellee (defendant).
Richard P. Weinstein, with whom, on the brief, was
Sarah Black Lingenheld, for the appellee-appellant
(plaintiff).
Opinion
ALVORD, J. The defendant, James Veneziano, appeals
from the judgment of the trial court rendered in favor
of the plaintiff, Village Mortgage Company (company),
after a trial to the court, awarding the plaintiff
$2,080,185.09 in damages for the defendant’s misappro-
priation of corporate funds through conversion, statu-
tory theft, and embezzlement. On appeal, the defendant
claims that (1) the court’s factual findings regarding
statutory theft were clearly erroneous, (2) the court’s
discovery rulings on October 27, 2014, December 9,
2014, and January 16, 2015, ‘‘constitute reversible
error,’’ and (3) the court improperly failed to conclude
that the plaintiff intentionally spoliated evidence or
engaged in discovery misconduct. The plaintiff cross
appeals from the judgment, claiming that the court
improperly ruled in favor of the defendant on his statute
of limitations special defense and barred its recovery
for damages that occurred prior to October 16, 2009.
Specifically, the plaintiff argues that the court improp-
erly failed to conclude that the defendant’s fraudulent
concealment of his misconduct tolled the applicable
statute of limitations. We affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to the defendant’s appeal and the plaintiff’s cross
appeal. The plaintiff is a closely held stock corporation
engaged in the mortgage origination business for resi-
dential properties. The defendant was a founding mem-
ber, shareholder, officer and director of the plaintiff,
which was incorporated on July 1, 1998. He has a bache-
lor’s degree in business science and extensive experi-
ence in banking. Because of his financial services
background, he directed, supervised, and controlled all
of the financial aspects of the plaintiff from its inception
until his retirement in mid to late 2010. The defendant
had served as the plaintiff’s vice president and trea-
surer, and he continued to assert his influence over
financial matters until his removal from the board of
directors in 2012. The plaintiff’s cofounder, Laurel Calie-
ndo, initially was the corporate secretary and subse-
quently became the plaintiff’s president in 2000. She
handled the processing, closing, funding, delivery, and
servicing of the loans, as well as the selling of the loans
in the secondary market.
At least as early as 2004, the defendant and Caliendo
withdrew moneys from the plaintiff’s corporate funds.
These purported advances and loans were taken with-
out approval from the board of directors. Sometime in
2012, following the defendant’s retirement and contin-
ued involvement in the plaintiff’s financial matters, the
plaintiff promoted Justin Girolimon to the position of
chief financial officer. Girolimon had worked for the
plaintiff sporadically while he was in high school and
college. Beginning in 2009, until he was named the chief
financial officer, Girolimon had reported to the defen-
dant in the plaintiff’s accounting and financial depart-
ment. Girolimon had expressed concerns in 2010 about
certain journal entries that the defendant had directed
him to make. Sometime in 2012, after the defendant
left the company, Girolimon performed a detailed inves-
tigation of the defendant’s withdrawals from corporate
funds. According to the plaintiff, it first became aware
of the defendant’s misappropriations at the time of Giro-
limon’s 2012 investigation. The plaintiff filed the com-
plaint in the present action on October 16, 2012.
The plaintiff’s two count complaint sought injunctive
relief1 and damages for conversion, statutory theft, and
embezzlement. The defendant filed an answer with four
special defenses and a ten count counterclaim. The
gravamen of the defendant’s defenses and claims was
that the funds alleged to have been taken by him were
funds owed to him for back pay and funds he had
invested in the company. The defendant also claimed
that the plaintiff’s cause of action was barred by the
applicable three year statute of limitations, General
Statutes § 52-577.2
During a twelve day trial, the court heard testimony
from several witnesses and admitted 113 exhibits. The
exhibits included, inter alia, a report by Richard Finkel,
a forensic accountant; the plaintiff’s yearly audited
financial statements; copies of bank checks and with-
drawal slips; and the defendant’s personal financial
statements. Following trial, the parties submitted exten-
sive posttrial briefs summarizing their respective posi-
tions. On December 23, 2015, the court issued a
memorandum of decision in which it rendered judgment
for the plaintiff on the second count of its complaint
and on the defendant’s ten count counterclaim. The
court amended its memorandum of decision on Decem-
ber 31, 2015. The plaintiff filed a motion for reconsidera-
tion on January 7, 2016, which it amended on January
12, 2016. On January 27, 2016, the court issued a second
amended memorandum of decision, ninety-four pages
in length, in which it vacated all prior memoranda of
decision. The court also issued a separate memorandum
of decision on January 27, 2016, addressed to the plain-
tiff’s motion for reconsideration.
In its comprehensive memorandum of decision, the
court meticulously evaluated the evidence with respect
to each of the parties’ claims. With respect to the issues
on appeal and cross appeal, the court made the follow-
ing relevant findings and conclusions: (1) the defendant
owed fiduciary duties to the plaintiff; (2) the defendant
‘‘offered virtually no resistance to the allegations’’ of
the plaintiff’s complaint; (3) the defendant claimed that
the plaintiff improperly withheld documents that would
have proven the financial investments he had made in
the company, but the court gave ‘‘no credit’’ to that
argument;3 (4) Caliendo testified credibly that she had
acknowledged her inappropriate withdrawal of corpo-
rate funds after Girolimon’s investigation and that she
had entered into an agreement with the board of direc-
tors for the repayment of those funds; (5) ‘‘the defen-
dant’s credibility was impeached multiple times
throughout the trial and in regard to almost every issue
in this case’’; (6) ‘‘the record is rife with examples of the
defendant trying to categorize the [plaintiff’s] financial
records in dishonest fashion so as to mislead the direc-
tors, shareholders, or outside auditors’’; (7) the defen-
dant had the ultimate responsibility for the
characterization of transactions and accounting entries,
and he was responsible for working with the auditors
and reviewing the plaintiff’s audited financial state-
ments; (8) except for one deposit made in 1998, the
defendant failed to prove his claimed investments in the
company; (9) the plaintiff’s claim that it was unaware
of the defendant’s misappropriations until Girolimon’s
investigation in 2012 was not credible; (10) Girolimon
credibly explained, in his testimony and in his written
investigative report, how the defendant misappropri-
ated the plaintiff’s funds and the amount that he had
misappropriated; (11) because the defendant lacked
computer ability, the plaintiff’s bookkeepers and other
financial employees input the defendant’s handwritten
notes into the QuickBooks system, and they had actual
knowledge of the defendant’s inappropriate advances
and withdrawals of company funds, beginning in 2004;
(12) prior to 2004, when the plaintiff began to employ
the QuickBooks system, the plaintiff’s accounting
records were handwritten; (13) the plaintiff submitted
pre-2004 audited financial statements at trial that pro-
vided a baseline for its analysis, and none of those
statements showed any amount due from the plaintiff
to the defendant; (14) Girolimon’s written investigative
report, which was admitted as a full exhibit, most accu-
rately detailed the defendant’s misappropriations from
2004 through 2014; (15) the defendant provided no cred-
ible evidence to contradict the conclusions in the
reports submitted by Finkel and Girolimon; (16) the
evidence ‘‘incontrovertibly established’’ that the defen-
dant breached his fiduciary duty to the plaintiff ‘‘by
engaging in self-dealing by taking [the plaintiff’s] funds
for his own personal use at his sole discretion without
any regard to [the plaintiff] or its shareholders’’; (17)
the defendant did not produce any evidence that would
establish fair dealing in those transactions; (18) the
plaintiff sustained its burden of proving that the defen-
dant committed conversion, statutory theft and embez-
zlement; (19) with respect to the defendant’s special
defense regarding the statute of limitations, § 52-577
was not tolled by the fraudulent concealment doctrine
as claimed by the plaintiff; (20) the knowledge of the
plaintiff’s bookkeepers and other financial employees,
with respect to the defendant’s misappropriations, was
imputed to the plaintiff, thereby limiting its recovery
of damages to a three year period prior to the com-
mencement of this action; (21) pursuant to General
Statutes § 52-564,4 the court trebled the damages that
occurred subsequent to October 16, 2009; and (22) the
defendant provided ‘‘no credible evidence’’ to support
the allegations in his ten count counterclaim. Accord-
ingly, the court rendered judgment in favor of the plain-
tiff with respect to its claims of conversion, statutory
theft and embezzlement, and against the defendant on
his ten count counterclaim. The court awarded the
plaintiff $2,080,185.09 in damages.
In the court’s memorandum of decision on the plain-
tiff’s motion for reconsideration, the court responded
to the plaintiff’s request to reconsider its determination
that the doctrine of fraudulent concealment did not
operate to toll the statute of limitations. After citing
the fraudulent concealment statute; General Statutes
§ 52-595;5 and applicable case law, the court acknowl-
edged that it had found numerous examples of the
defendant ‘‘trying to camouflage, conceal, and even
cover up inappropriate withdrawals of company funds.’’
Nevertheless, the court concluded that the doctrine of
fraudulent concealment did not apply under the circum-
stances of this case: ‘‘Under any burden of proof . . .
and even if the burden were to be shifted to the defen-
dant to disprove fraudulent concealment [as argued by
the plaintiff], the court finds that the defendant openly
and notoriously took company money, and therefore,
could not have fraudulently concealed his wrongdoing.’’
The court recounted the testimony of the plaintiff’s two
former bookkeepers, one employed from 2003 to 2005,
and the other employed from August, 2007, through
January, 2009, who testified as to the inappropriate
entries made at the defendant’s insistence and his
request for company checks to purchase personal
items. The court also noted that ‘‘the defendant relied
upon others in the plaintiff’s financial department to
input the defendant’s handwritten ledger sheets and
financial notes into the QuickBooks system,’’ beginning
in 2004, and continuing thereafter. Consequently, the
court imputed this knowledge of the bookkeepers and
other employees in the financial department to the
plaintiff and limited its recovery to damages for the
defendant’s misconduct that occurred after October 16,
2009. This appeal and cross appeal followed.
I
DEFENDANT’S APPEAL
In his appeal, the defendant claims that (1) the court’s
factual findings regarding statutory theft were clearly
erroneous, (2) the court’s discovery rulings on October
27, 2014, December 9, 2014, and January 16, 2015, ‘‘con-
stitute reversible error,’’ and (3) the court improperly
failed to conclude that the plaintiff intentionally spoli-
ated evidence or engaged in discovery misconduct.
A
Factual Findings
The defendant’s first claim is that the court’s factual
findings, rejecting the amount of claimed contributions
made by the defendant to the company and finding
that the advances and withdrawals made by him were
unauthorized, were clearly erroneous. The defendant
argues that these erroneous factual findings led to the
court’s improper conclusion that the defendant commit-
ted statutory theft.
In particular, the defendant argues that the court
mistakenly relied on Finkel’s report in concluding that
the defendant misappropriated funds and in determin-
ing the amount of those funds. The defendant claims
that Finkel’s report was ‘‘slanted’’ and ‘‘defective.’’ He
also argues that the court did not properly interpret the
plaintiff’s audited financial statements, failed to con-
sider transactions dating back to the plaintiff’s corpo-
rate formation, and failed to examine the plaintiff’s
standard practices with respect to payments of salaries
and capital transactions involving corporate officers.
We are not persuaded.
In a case tried before the court, the trial judge is the
sole arbiter of the credibility of witnesses and the
weight to be afforded to specific testimony. R.T. Vand-
erbilt Co. v. Hartford Accident & Indemnity Co., 171
Conn. App. 61, 166, 156 A.3d 539 (2017). ‘‘[When] the
factual basis of the court’s decision is challenged we
must determine whether the facts set out in the memo-
randum of decision are supported by the evidence or
whether, in light of the evidence and the pleadings in
the whole record, those facts are clearly erroneous.
. . . In other words, to the extent that the trial court has
made findings of fact, our review is limited to deciding
whether those findings were clearly erroneous. . . . A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . In making this determination, every reasonable
presumption must be given in favor of the trial court’s
ruling.’’ (Internal quotation marks omitted.) BTS, USA,
Inc. v. Executive Perspectives, LLC, 166 Conn. App.
474, 493–94, 142 A.3d 342, cert. denied, 323 Conn. 919,
150 A.3d 1149 (2016).
‘‘Where there is conflicting evidence . . . we do not
retry the facts or pass upon the credibility of the wit-
nesses. . . . The probative force of conflicting evi-
dence is for the trier to determine. . . . It is well
established that a reviewing court is not in the position
to make credibility determinations. . . . This court
does not retry the case or evaluate the credibility of
the witnesses. . . . Rather, we must defer to the [trier
of fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude.’’ (Internal quotation marks
omitted.) Jones v. Dept. of Children & Families, 172
Conn. App. 14, 33, 158 A.3d 356 (2017). ‘‘[T]he trial court
is privileged to adopt whatever testimony [it] reason-
ably believes to be credible.’’ (Internal quotation marks
omitted.) Powers v. Olson, 252 Conn. 98, 105, 742 A.2d
799 (2000). Thus, while we review the court’s underlying
factual determinations under the clearly erroneous
standard, our standard of review requires us to defer
to the court’s evaluation of the credibility of the parties
and witnesses. See Emerick v. Emerick, 170 Conn. App.
368, 379, 154 A.3d 1069 (2017).
In the present case, the court’s challenged factual
findings are supported by the testimony and exhibits in
the record, and the court’s explanation of its credibility
determinations suffices under the deferential standard
of review that we accord such determinations. Although
the defendant characterizes Finkel’s report as ‘‘slanted’’
and ‘‘defective,’’ the court found Finkel’s testimony at
trial to be ‘‘credible’’ and that ‘‘his calculations were
scientifically based and objectively verifiable.’’ Signifi-
cantly, however, the court found Girolimon’s report
more ‘‘accurate’’ and ‘‘reliable,’’ and it relied heavily on
Girolimon’s report and testimony at trial in reaching its
determinations as to how the defendant misappropri-
ated the plaintiff’s funds and the amount of the funds
that were misappropriated. The defendant’s appellate
brief criticizes Finkel’s report in several respects, yet
he does not even mention the court’s reliance on Giroli-
mon’s report. The defendant has provided no persuasive
support for his argument that the court erred in its
reliance on the plaintiff’s financial reports and audited
financial statements or that it misinterpreted those
reports and statements. As stated numerous times in
the court’s ninety-four page memorandum of decision,
the defendant presented little or no documentary evi-
dence with respect to his claims, and the court found
his testimony not credible. For all of these reasons, the
defendant’s first claim fails.
B
Discovery Rulings
The defendant next claims that discovery rulings
made by the court on October 27, 2014, December 9,
2014, and January 16, 2015, ‘‘constitute reversible
error.’’ He argues that he filed timely requests for the
production of the plaintiff’s handwritten records from
1998 to 2004, and copies of the general ledger account
due to corporate officers, but that the plaintiff failed
to produce those documents and the court failed to
require compliance. The defendant maintains that the
requested documents ‘‘contain material facts that would
have made a difference in the outcome of the case,’’
and that they would have provided ‘‘supporting docu-
mentation’’ for his claims.
With respect to the October 27, 2014 ruling, the defen-
dant claims that the court, Pickard, J., erroneously
issued an order sustaining the plaintiff’s objections to
the defendant’s requests for production. A review of
the trial court file reveals that Judge Pickard did issue
an order on October 27, 2014, which provided: ‘‘Order:
Sustained. All objections are sustained.’’ There is no
further explanation of the court’s ruling. Further, the
defendant has provided no transcript of any court pro-
ceeding that addresses the particular request for pro-
duction at issue and the objections raised to that
request, or an elucidation of the court’s decision. This
court, as a reviewing court, is left with nothing to
review.
‘‘It is well settled that [t]he granting or denial of a
discovery request rests in the sound discretion of the
court. . . . A court’s discovery related orders are sub-
ject to reversal only if such an order constitutes an
abuse of that discretion. . . . [I]t is only in rare
instances that the trial court’s decision will be dis-
turbed.’’ (Citations omitted; internal quotation marks
omitted.) Deutsche Bank National Trust Co. v. Ber-
trand, 140 Conn. App. 646, 653, 59 A.3d 864, cert. denied,
309 Conn. 905, 68 A.3d 661 (2013).
As the appellant, the defendant has the burden of
providing this court with a record from which this court
can review any alleged claims of error. See Practice
Book § 61-10. ‘‘It is not an appropriate function of this
court, when presented with an inadequate record, to
speculate as to the reasoning of the trial court or to
presume error from a silent record.’’ Atelier Constantin
Popescu, LLC v. JC Corp., 134 Conn. App. 731, 758, 49
A.3d 1003 (2012). Accordingly, we decline to address
this claim.
With respect to the December 9, 2014 ruling, the
defendant claims that the court, J. Moore, J., improperly
denied his ‘‘Motion for Discovery of Information’’ that
he filed on December 1, 2014. The plaintiff filed a reply
to the defendant’s motion on December 5, 2014, in
which it stated that there already had been compliance,
as previously ordered by the court. Judge Moore issued
the following order on December 9, 2014: ‘‘Order:
Denied. [The] plaintiff indicates that it has complied
with this request. If [the] defendant disagrees, [the]
defendant must properly present a motion to compel.’’
The defendant argues that this ruling was improper
because the court failed to hold an evidentiary hearing
and thereby ‘‘violated the holding of Magana v. Wells
Fargo Bank, N.A., 164 Conn. App. 729, 138 A.3d 966
(2016).’’ This claim is without merit.
Although the defendant argues that the court
accepted the representations of plaintiff’s counsel with
respect to compliance and made a credibility determina-
tion without a hearing, we disagree with the defendant’s
interpretation of the court’s order. The court expressly
stated that if the defendant disagreed with the plaintiff’s
representation, he should file a motion to compel to
bring the matter properly before the court. The defen-
dant was not deprived of an opportunity to seek compli-
ance, and he has presented no evidence demonstrating
that he was harmed by this ruling. ‘‘The burden is on the
appellant to prove harmful error.’’ (Internal quotation
marks omitted.) Deutsche Bank National Trust Co. v.
Bertrand, supra, 140 Conn. App. 653–54.
With respect to the January 16, 2015 rulings by Judge
Moore, the defendant claims that he filed a motion to
compel and a motion for sanctions pursuant to the
court’s December 9, 2014 ruling. The plaintiff filed an
objection to the motions and, on January 16, 2015, the
court denied the motion for sanctions and denied the
motion to compel, except for requiring the plaintiff to
produce a designated disc. The defendant claims that
the rulings are improper, but, except for setting forth
this procedural history, he provides no analysis as to
why these rulings were erroneous. ‘‘It is well settled
that [w]e are not required to review claims that are
inadequately briefed. . . . We consistently have held
that [a]nalysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . [F]or this court judi-
ciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set
forth their arguments in their briefs.’’ (Internal quota-
tion marks omitted.) State v. Raffone, 163 Conn. App.
410, 417 n.6, 136 A.3d 647 (2016).
Further, we have no transcript or other documenta-
tion that discloses the court’s reasons for its rulings.
Again, without a record demonstrating that the court
abused its discretion, we are left to speculate as to
possible error. It is not our role to guess at possibilities,
and we will presume that the court acted properly. See
McCarthy v. Cadlerock Properties Joint Venture, L.P.,
132 Conn. App. 110, 118, 30 A.3d 753 (2011). Accord-
ingly, we decline to review this claim.
C
Spoliation of Evidence and Discovery Misconduct
The defendant’s final claim on appeal is that the court
improperly failed to conclude that the plaintiff inten-
tionally spoliated evidence or engaged in discovery mis-
conduct. Specifically, the defendant’s discovery
misconduct claim is based on his allegations that he
filed discovery requests at the appropriate time, that
he was diligent in pursuing those requests, that some of
the documents requested do exist, and that the plaintiff
intentionally destroyed some of those documents. The
defendant’s claim of spoliation of evidence is based on
the same allegations.
It is not necessary to set forth the legal principles
governing the claims of discovery misconduct or spolia-
tion of evidence for the reason that neither claim was
raised before the trial court. Although the defendant’s
counsel commented ‘‘isn’t it convenient’’ that certain
records were not available; see footnote 3 of this opin-
ion; there was no argument before the court that the
requested documents were intentionally destroyed or
that the plaintiff had engaged in discovery misconduct.
The defendant’s posttrial brief, which is fifty pages in
length, does not allege that the plaintiff’s conduct con-
stituted discovery misconduct or that it intentionally
spoliated evidence. There is no analysis whatsoever
with respect to those particular issues that the defen-
dant now raises on appeal.
‘‘Practice Book § 60-5 provides in relevant part: ‘The
court shall not be bound to consider a claim unless it
was distinctly raised at the trial or arose subsequent to
the trial. The court may in the interests of justice notice
plain error not brought to the attention of the trial
court. . . .’ Indeed, ‘it is the appellant’s responsibility
to present such a claim clearly to the trial court so that
the trial court may consider it and, if it is meritorious,
take appropriate action. That is the basis for the require-
ment that ordinarily [the appellant] must raise in the
trial court the issues that he intends to raise on appeal.
. . . For us [t]o review [a] claim, which has been articu-
lated for the first time on appeal and not before the
trial court, would result in a trial by ambuscade of
the trial judge.’ ’’ Jarvis v. Lieder, 117 Conn. App. 129,
140–41, 978 A.2d 106 (2009). Thus, we will not address
the defendant’s claims of discovery misconduct and
intentional spoliation of evidence.
II
PLAINTIFF’S CROSS APPEAL
In its cross appeal, the plaintiff claims that the court
improperly failed to conclude that the defendant’s
fraudulent concealment of his misconduct operated to
toll the three year statute of limitations for tort actions.
The plaintiff argues that the court erroneously limited
its recovery to the three year period prior to the com-
mencement of this action. In particular, the plaintiff
claims that it was improper to impute the knowledge
of the plaintiff’s bookkeepers and other financial
employees to the corporate plaintiff.6
‘‘The question of whether a party’s claim is barred
by the statute of limitations is a question of law, which
this court reviews de novo. . . . The factual findings
that underpin that question of law, however, will not
be disturbed unless shown to be clearly erroneous.’’
(Citation omitted; internal quotation marks omitted.)
Jarvis v. Lieder, supra, 117 Conn. App. 146. Because
the plaintiff claims that the statute of limitations was
tolled by the defendant’s fraudulent concealment of his
misconduct, we look to § 52-595, the fraudulent con-
cealment statute, and the case law interpreting that
statute.
Section 52-595 provides that ‘‘[i]f any person, liable
to an action by another, fraudulently conceals from him
the existence of the cause of such action, such cause
of action shall be deemed to accrue against such person
so liable therefor at the time when the person entitled to
sue thereon first discovers its existence.’’ Our Supreme
Court has stated that ‘‘to toll a statute of limitations by
way of our fraudulent concealment statute, a plaintiff
must present evidence that a defendant: (1) had actual
awareness, rather than imputed knowledge, of the facts
necessary to establish the [plaintiff’s] cause of action;
(2) intentionally concealed these facts from the [plain-
tiff]; and (3) concealed the facts for the purpose of
obtaining delay on the [plaintiff’s] part in filing a com-
plaint on their cause of action.’’ (Internal quotation
marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799–800,
99 A.3d 1145 (2014).
‘‘The purposes of statutes of limitation include final-
ity, repose and avoidance of stale claims and stale evi-
dence. . . . These statutes represent a legislative
judgment about the balance of equities in a situation
involving a tardy assertion of otherwise valid rights:
[t]he theory is that even if one has a just claim it is
unjust not to put the adversary on notice to defend
within the period of limitation and that the right to be
free of stale claims in time comes to prevail over the
right to prosecute them.’’ (Internal quotation marks
omitted.) Id., 806–807.
In the present case, the plaintiff seeks to recover
damages for the defendant’s misconduct from January,
2004, the time when the plaintiff began using the
QuickBooks system, through June 15, 2014. The plaintiff
did not commence this action until October 19, 2012.
Unless the three year limitation period of § 52-577 is
tolled, the plaintiff would be precluded from recovering
damages that accrued prior to October, 2009.
The plaintiff claims that it was unaware of the defen-
dant’s misappropriations until Girolimon conducted his
investigation in 2012. Prior to 2012, the plaintiff argues
that the defendant had exclusive control over the plain-
tiff’s finances and used that control to manipulate the
accounting records to conceal his activities. According
to the plaintiff, the knowledge of its bookkeepers could
not be imputed to the company because the board of
directors was not apprised of the defendant’s miscon-
duct until 2012.
In addressing the plaintiff’s tolling claim, the court
made several determinations in both memoranda of
decision filed on January 27, 2016. In applying the rele-
vant statutes and case law to the evidence presented
at trial, the court made the following factual findings
and legal conclusions: (1) the plaintiff’s claim that it
was unaware of the defendant’s misappropriations until
Girolimon’s investigation in 2012 was not credible; (2)
because the defendant lacked computer ability, the
plaintiff’s bookkeepers and other employees input the
defendant’s handwritten notes into the QuickBooks sys-
tem, and they had actual knowledge of the defendant’s
inappropriate advances and withdrawals of company
funds, beginning in 2004; (3) the knowledge of the plain-
tiff’s bookkeepers and other financial employees, with
respect to the defendant’s misappropriations, could be
imputed to the plaintiff, thereby limiting its recovery
of damages to a three year period prior to the com-
mencement of this action; (4) the defendant ‘‘openly and
notoriously’’ took company money; (5) the defendant
‘‘transparently treated company funds as his own,’’ and
testified that when he ‘‘need[ed] some of [his] moneys,
[he] would withdraw’’ from those funds; (6) the defen-
dant’s attitude demonstrated that he was not trying to
fraudulently conceal his intentions or ‘‘bury a secret’’;
(7) two of the plaintiff’s bookkeepers had knowledge
of the defendant’s misuse of company funds long before
Girolimon’s investigation; (8) Linda Kerr, a bookkeeper
employed by the plaintiff from 2003 to 2005, testified
that the defendant would publicly, in front of other
employees, ask her to give him company checks to buy
and sell coins at large coin shows; (9) the plaintiff’s
business did not include the purchase and sale of coins;
(10) Alesia Warner, the plaintiff’s bookkeeper from
August, 2007, through January, 2009, took issue with
certain bookkeeping entries that the defendant
instructed her to make, including advances to corporate
officers; (11) Warner was so concerned about those
entries that she refused to sign financials for the plain-
tiff; (12) beginning in 2004, the defendant relied on
others in the plaintiff’s financial department to input
his handwritten ledger sheets and financial notes into
the QuickBooks system, and those entries are reflected
in Girolimon’s report; and (13) Girolimon’s report
reflects that those employees input the defendant’s
inappropriate withdrawals, including, inter alia, charges
pertaining to personal credit cards, coin purchases, per-
sonal automobile expenses, and commissions.7
For these reasons, the court found: ‘‘In reviewing
the nature and extent of these entries, the inescapable
conclusion is that, while financial employees of the
company were placing these entries onto QuickBooks,
they knew that the defendant was taking unauthorized
withdrawals from the company, treating, as he put it,
the company’s funds as ‘my moneys.’ ’’ Accordingly, the
court concluded: ‘‘Under our law and the facts of the
present case, the court finds that knowledge of the
bookkeepers and other financial employees of the
defendant’s defalcations is imputed to the plaintiff cor-
poration.’’
The plaintiff concedes ‘‘that it is not disputing the
trial court’s factual determinations that [the] plaintiff’s
bookkeepers were aware that [the] defendant was tak-
ing corporate funds for his own personal use. Instead,
[the] plaintiff disputes that such knowledge may be
imputed to the corporate plaintiff.’’ The plaintiff over-
looks the court’s factual finding that there were other
employees in the plaintiff’s financial department who
were inputting entries at the request of the defendant.
Further, other significant findings include the facts that
the employees were aware of the defendant’s misappro-
priations since 2004, and that the defendant’s activities
were ‘‘transparent’’ and ‘‘open and notorious.’’
Although the plaintiff emphasizes that the board of
directors was not aware of the defendant’s misappropri-
ations prior to 2012, it cites no legal authority for the
proposition that knowledge of a corporation can only be
imputed through its board of directors.8 The plaintiff’s
position is too restrictive to accommodate the facts of
this case. Moreover, there is case law rejecting the claim
of fraudulent concealment in situations where the
‘‘intensely public nature of [the] process’’ precludes an
evidentiary finding of an intent to conceal; Bound Brook
Assn. v. Norwalk, 198 Conn. 660, 669, 504 A.2d 1047,
cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36
(1986); and where expressed concerns would direct a
plaintiff of ordinary prudence to make reasonable
efforts to discover information leading to the discovery
of a cause of action. Mountaindale Condominium
Assn., Inc. v. Zappone, 59 Conn. App. 311, 322, 327,
757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d
903 (2000).
For all of the foregoing reasons, we conclude that,
under the circumstances of this case, the trial court
properly concluded that the three year statute of limita-
tions was not tolled by the doctrine of fraudulent con-
cealment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court denied the injunctive relief requested in count one of the
complaint, and the plaintiff has not challenged that determination in its
cross appeal.
2
The plaintiff does not dispute that § 52-577 is the applicable statute of
limitations. Section 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.’’
3
At trial, the defendant testified that all of his records, including the
original general ledgers, were kept at the company and that the plaintiff failed
to produce them when requested. During closing arguments, the defendant’s
counsel stated: ‘‘[I]sn’t it convenient . . . that the records that would exon-
erate [the defendant] or at least show moneys that he put into the corporation
are gone? Lots of documents that are in this—in the plaintiff’s exhibits do
have original ledger fingerprints. There are bits and pieces that come in
here and there. But, unfortunately, the things that we need, the things that
[the defendant] needs are gone. Water damage is what we heard, misplaced,
couldn’t verify. Isn’t it convenient?’’
The trial court responded that it understood that there had been discovery
issues that had been ‘‘thoroughly argued’’ and ruled upon by various judges
during the pendency of the action. The defendant’s counsel stated that he
had not been involved with this case at that point in time. He further
stated that he would like to file a discovery motion addressed to ‘‘discovery
violations,’’ but he realized it was a problem because the trial had concluded.
The court inquired: ‘‘I guess the point I wanted to make is there—there are,
as of right now, no written discovery motions pending?’’ The defendant’s
counsel confirmed there were no pending discovery motions, and the court
stated: ‘‘So the fact of the matter is, at the present time, [there are] no
pending discovery actions. And I guess, to—to make that argument in our
final argument, is sort of unsupported by the—by the record at the pre-
sent time.’’
4
General Statutes § 52-564 provides: ‘‘Any person who steals any property
of another, or knowingly receives and conceals stolen property, shall pay
the owner treble his damages.’’
5
General Statutes § 52-595 provides: ‘‘If any person, liable to an action
by another, fraudulently conceals from him the existence of the cause of
such action, such cause of action shall be deemed to accrue against such
person so liable therefor at the time when the person entitled to sue thereon
first discovers its existence.’’
6
Although Caliendo, a corporate officer, clearly was aware of the defen-
dant’s misconduct prior to 2009, the trial court did not determine whether
her knowledge should be imputed to the company. The plaintiff had argued
that her interest was adverse to the plaintiff at that time because she, too,
was making withdrawals from corporate funds for personal use. ‘‘The general
rule is that knowledge of an agent will not ordinarily be imputed to his
principal where the agent is acting adversely to the latter’s interest.’’ Mutual
Assurance Co. v. Norwich Savings Society, 128 Conn. 510, 513, 24 A.2d 477
(1942). Instead, the court concluded that the knowledge of the plaintiff’s
bookkeepers and other financial employees could be imputed to the
company.
7
The defendant, in his position at the company, was not entitled to collect
any commissions.
8
Although no Connecticut appellate authority is directly on point, our
Supreme Court has held that the knowledge of an agent who sold an insur-
ance policy to the insured could be imputed to the insurer: ‘‘When an agent
acting within the scope of his authority obtains knowledge of a fact relevant
to the transaction in which he is engaged, ordinarily that knowledge is
imputed to his principal.’’ Reardon v. Mutual Life Ins. Co., 138 Conn. 510,
516, 86 A.2d 570 (1952). Also, in E. Udolf, Inc. v. Aetna Casualty & Surety
Co., 214 Conn. 741, 573 A.2d 1211 (1990), our Supreme Court held that the
knowledge of a store manager and bookkeeper of an employee’s prior
misappropriations of corporate funds could be imputed to the plaintiff corpo-
ration for purposes of certain employee dishonesty insurance policies. Id.,
748-50.