Indoor Billboard Northwest, Inc. v. M2 Systems Corp.

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INDOOR BILLBOARD NORTHWEST, INC., ET AL.
v. M2 SYSTEMS CORPORATION
(AC 39890)
(AC 40558)
Keller, Elgo and Bright, Js.*
Syllabus
The plaintiff investors sought to recover damages from the defendant soft-
ware developer for the wrongful transfer by J, their investment manager,
of funds from their custodial accounts at a bank that were used to pay
the defendant’s loan obligation to S, who also held a custodial investment
account at the bank. The plaintiffs and S had entered into investment-
management agreements with T Co., which was managed by J. In 2006,
J used funds from S’s account as a source of the $2,050,000 loan that
J had negotiated with M, the defendant’s chief executive officer. The
defendant obtained the loan to assist another company, I Co., of which
M was president, in obtaining computer equipment. M, on behalf of the
defendant, issued a promissory note to J that named S as the payee.
The promissory note was secured by shares of stock in I Co. In 2007,
the defendant ceased the services offered by I Co., which resulted in a
decline in the defendant’s business. M then negotiated with J an exten-
sion of the promissory note to 2010. The amendment to the promissory
note was not signed. M testified at his deposition that he had never
seen the document that amended the promissory note and was unaware
that it had been amended. J thereafter directed the bank to wire funds
from the plaintiffs’ accounts to an escrow account that was maintained
by T Co.’s attorney as payment for the defendant’s assignment of sub-
notes that J created and the bank recorded in the plaintiffs’ accounts
in amounts equal to the funds taken from those accounts. The plaintiffs
paid $1,848,000 for the subnotes. The defendant did not thereafter pay
the plaintiffs. J was later convicted of various federal charges, including
investor advisement fraud, in connection with certain accounts at the
bank but not as to the defendant’s subnotes. The plaintiffs thereafter
brought this action in which they sought to recover, as assignees of the
promissory note or under a theory of unjust enrichment, the amount
that was removed from their accounts. The trial court rendered judgment
for the plaintiffs on their unjust enrichment claim. The court credited
deposition testimony by J that his use of the plaintiffs’ funds had satisfied
the defendant’s obligation to S. The court rejected the plaintiffs’ assign-
ment theory of liability, reasoning that the documents at issue had been
created for and signed solely by J, and that the assignment claim was
based on J’s veracity and the reliability of records he kept while he was
committing financial fraud. The court also rendered judgment for L,
who was not a plaintiff but who had a custody account agreement with
a different bank and held a subnote in his favor that J had executed on
behalf of T Co. The court thereafter denied the plaintiffs’ motion for
attorney’s fees and expenses, and the defendant and the plaintiffs filed
separate appeals with this court. Held:
1. The trial court improperly rendered judgment for L, as the plaintiffs’
complaint did not allege that L had assigned to a plaintiff his interest
in the subnote that J executed in his favor: the court denied the plaintiffs’
pretrial motion to amend their complaint to reflect L’s assignment and
precluded evidence at trial of any claims related to L on the ground
that he was not a party, which the defendant did not dispute, and,
although there was some evidence concerning L before the court, such
evidence did not confer jurisdiction on the court to render an enforceable
judgment for L; accordingly, the portion of the court’s judgment rendered
in L’s favor was vacated.
2. The defendant could not prevail on its claim that the trial court improperly
rejected its special defense that it was entitled to a setoff for funds the
plaintiffs received from collateral sources; although the defendant’s
claim for a setoff was intertwined with a motion for sanctions it had
filed concerning its attempt to determine from the plaintiffs’ tax returns
if they had written off losses or received funds in connection with the
subnotes at issue, the defendant did not challenge the court’s decision
not to award it sanctions or its ruling that it could apply postjudgment
for review of the tax returns of plaintiffs who received a monetary
award; moreover, the defendant’s assertion, which was not raised at
trial, that the court could not properly consider the setoff issue without
first permitting the defendant to review the tax returns, was unavailing,
as the court was not persuaded that the defendant was entitled to
unfettered access to the tax returns, the defendant failed to present
evidence in support of its defense of setoff, none of the plaintiffs who
testified at trial stated that they had recovered from a collateral source,
and the defendant did not demonstrate that application to examine the
plaintiffs’ tax returns postjudgment was inadequate or that it pursued
that potential relief.
3. The trial court did not abuse its discretion in rejecting the defendant’s
special defense of unclean hands, which was based on the defendant’s
assertions that the plaintiffs were tainted by J’s fraud and had taken a
different position in prior lawsuits they brought against the bank by
challenging the validity of the assignments and subnotes: the claim
that the plaintiffs took an inconsistent position with respect to the
assignments and subnotes logically and legally pertained to their
assignee cause of action, which the court rejected, and the defendant
did not suggest, and the court did not find, that the defendant was a
party in the prior lawsuits, in which the plaintiffs did not state claims
against the defendant.
4. The trial court’s factual finding that the promissory note had been amended
was not clearly erroneous, there having been no basis to presume that
the court improperly relied on an exhibit from M’s deposition that had
been precluded from evidence when the amendment to the note had
been admitted into evidence as an exhibit from J’s deposition; J’s testi-
mony that M both negotiated the amendment with him and at some
point executed it provided an evidentiary basis for the court’s finding,
and, even if the finding was improper, the defendant could not demon-
strate that it was harmful, as it was not integral to the court’s analysis
under a theory of unjust enrichment; moreover, to the extent that the
defendant’s payment obligations were relevant to a determination that
it was aware of the note’s existence and the defendant’s obligations
thereunder, there was evidence before the court that M was aware of
the note and had written in an e-mail to J that the defendant would
not default.
5. The defendant failed to demonstrate that the evidence did not support
the trial court’s finding that the plaintiffs were entitled to recover under
a theory of unjust enrichment: contrary to the defendant’s assertion that
it was not benefited by the disbursement of the plaintiffs’ funds because
the plaintiffs lacked knowledge of how the funds were used and pro-
duced no evidence that S received payments from the plaintiffs, J testi-
fied that S had been repaid in full, and M testified that the defendant
benefited when it used the loan proceeds to purchase hardware for I
Co.; moreover, despite the defendant’s claim that the plaintiffs failed to
prove that it unjustly did not pay them for the benefit it received, which
was based on its assertion that the plaintiffs did not justly obtain an
interest in the promissory note and that the subnotes were mere IOU’s
from T Co. that obligated the defendant to pay T Co. rather than the
plaintiffs, the court did not award the plaintiffs a remedy as legal assign-
ees and subrogees but under the unjust enrichment doctrine; further-
more, the defendant’s claim that the plaintiffs did not prove that the
failure of payment to them was to their detriment was undermined by
J’s testimony that the proceeds of the promissory note plus interest
were repaid to S in part by virtue of the funds that were deducted from
the plaintiffs’ accounts, over which T Co. exercised control.
6. This court declined to reach the merits of the defendant’s inadequately
briefed claim that the trial court erred in finding that the defendant was
unjustly enriched as a result of J’s cross-trading of subnotes in and
among the plaintiffs’ accounts; the defendant did not demonstrate that
the cross-trading undermined the court’s finding that funds removed
from the plaintiffs’ accounts were used to repay the defendant’s debt
to S, as the defendant’s one sentence conclusory statement of its claim
in its brief was unsupported by analysis or citation to authority.
7. The trial court’s finding that the defendant’s loan obligation to S was
satisfied in part with the use of the plaintiffs’ funds was not clearly
erroneous: despite the defendant’s claims of technical defects in the
manner in which J’s telephonic deposition occurred, J’s deposition testi-
mony, which supported the court’s finding, was admitted into evidence
without limitation, and the defendant did not demonstrate that the court
misconstrued or drew improper inferences from it, as the court’s finding
was not inconsistent with its decision not to credit J’s version of the
events at issue and to reject the defendant’s claim that the plaintiffs
were assignees of the subnotes; moreover, the court was free to reject
the portions of J’s testimony that would have supported the defendant’s
assignee claim while relying on J’s testimony that supported the plain-
tiffs’ claim for equitable relief, as the plaintiffs, to be entitled to equitable
relief, did not need to prove the legal validity of the instruments at
issue but, rather, that their funds had been used to partially satisfy the
defendant’s debt to S.
8. The defendant could not prevail on its claim that the trial court erred in
finding that the plaintiffs satisfied the defendant’s debt to S despite their
failure to produce evidence of a written discharge of the promissory
note; the defendant did not cite authority to show that the plaintiffs
had the burden of proving that their repayment of the debt thereafter
caused S to discharge the note in writing, the evidence supported the
court’s finding that the plaintiffs funds were used to pay the defendant’s
debt to S, and the plaintiffs’ lack of satisfaction of the note’s technical
requirements was of no consequence as to whether funds removed from
their accounts benefited the defendant.
9. The trial court properly denied the plaintiffs’ postjudgment motion for
attorney’s fees and expenses, the plaintiffs having failed to demonstrate
that, as a matter of law, they had a right to attorney’s fees because they
prevailed under the equitable theory of unjust enrichment and stood in
the shoes of S as equitable subrogees with respect to S’s right to recover
attorney’s fees under the promissory note: although the plaintiffs could
have sought to enforce the note’s provision for attorney’s fees had the
court found that they were assignees of the note, the court did not find
that they obtained contractual or quasi-contractual rights to enforce the
note against the defendant and properly distinguished between finding
that the elements of unjust enrichment had been proven and that the
plaintiffs had stepped into S’s shoes as a result of their partial payment
of the defendant’s debt to S; moreover, the plaintiffs provided no binding
authority in support of their claim that attorney’s fees are a necessary
component of an award in which a party has unjustly enriched another
by payment of a debt.
Argued December 9, 2019—officially released January 12, 2021
Procedural History
Action to recover on a promissory note, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the court, Bellis, J., denied the
plaintiffs’ motion to add a plaintiff and to amend the
complaint; thereafter, the matter was tried to the court,
Hon. George N. Thim, judge trial referee; subsequently,
the court, Hon. George N. Thim, judge trial referee,
denied the defendant’s motion for sanctions; judgment
in part for the plaintiffs, from which the defendant
appealed to this court; thereafter, the court, Hon.
George N. Thim, judge trial referee, denied the plain-
tiffs’ motion for attorney’s fees, and the plaintiffs
appealed to this court. Affirmed in part; reversed in
part; judgment directed.
Bradley A. Bell, pro hac vice, with whom were Scott
M. Harrington and, on the brief, Philip A. Beach, pro
hac vice, for the appellant in Docket No. AC 39890 and
the appellee in Docket No. AC 40558 (defendant).
Arden E. Shenker, pro hac vice, with whom was John
Robacynski, for the appellees in Docket No. AC 39890
and the appellants in Docket No. AC 40558 (plaintiffs).
Opinion
KELLER, J. The action underlying these appeals was
brought by twenty-three plaintiffs who are the victims
of a fraudulent loan scheme that was created and car-
ried out by the former manager of their custodial invest-
ment accounts.1 The plaintiffs sought to recover from
the defendant, M2 Systems Corporation, the funds
wrongfully transferred from their accounts by the man-
ager of the accounts. They sought to recover either by
virtue of their rights as partial assignees of a promissory
note that had been executed by the defendant in favor
of a third party or under a theory of unjust enrichment.
Following a trial to the court that lasted five days, the
court rejected the plaintiffs’ attempt to recover damages
as assignees of the note at issue but agreed with the
plaintiffs that they were entitled to recover damages
under a theory of unjust enrichment. The court awarded
the plaintiffs $2,494,800, which included the amount
wrongfully transferred from each plaintiff’s investment
account, as well as prejudgment interest.2
In Docket No. AC 39890, the defendant appeals from
the judgment of the trial court with respect to the unjust
enrichment cause of action brought by the plaintiffs.
The defendant claims that the court erred in the follow-
ing ways: (1) by awarding damages to a person who
was neither a plaintiff in the underlying action nor a
nonparty who had assigned his interest to a plaintiff
in the underlying action; (2) by determining that the
defendant was not entitled to a setoff; (3) by rejecting
its special defense of judicial estoppel; (4) by finding
that the note executed by the defendant in favor of a
third party had been amended; (5) by finding that the
defendant had been unjustly enriched as a result of
the plaintiffs’ funds; (6) by finding that cross-traded
subnotes, which had been exchanged between some
of the plaintiffs’ accounts, had unjustly enriched the
defendant; (7) by finding that the defendant’s loan obli-
gation to a third party was satisfied in part with the
use of the plaintiffs’ funds; and (8) by finding that the
plaintiffs had satisfied in part the defendant’s debt obli-
gation to a third party despite the fact that the debt
was not discharged pursuant to the terms of the note
at issue.
Docket No. AC 40558 is the plaintiffs’ appeal from
the court’s decision denying their postverdict motion
for attorney’s fees. In their appeal, the plaintiffs claim
that the court erred by denying their motion for attor-
ney’s fees and expenses after rendering judgment in
their favor with respect to their unjust enrichment cause
of action. We agree with the first claim raised by the
defendant in Docket No. AC 39890 and, consequently,
reverse the portion of the judgment that is the subject
of that claim. With respect to the remainder of the
claims raised by the defendant in Docket No. AC 39890
and the claim raised by the plaintiffs in Docket No. AC
40558, we affirm the judgment and the decision of the
trial court.
In its memorandum of decision filed November 23,
2016, the court aptly summarized the relevant proce-
dural history of the case, including the nature of the
plaintiffs’ causes of action and the defendant’s defenses,
and set forth the facts and legal bases of its decision.
The court began its decision as follows: ‘‘The plaintiffs
contend [that] they are partial assignees of a promissory
note issued by [the] defendant . . . and seek to recover
$3,848,000 from [the defendant] under the terms of the
note. In the alternative, should the plaintiffs’ claims as
assignees fail, the plaintiffs seek to recover from [the
defendant] on an unjust enrichment theory. They claim
[that] their funds were used to pay [the defendant’s]
loan obligation. The defendant . . . contends [that] the
plaintiffs have failed to prove their claims. [The defen-
dant] posits [that] the plaintiffs are victims of their
financial advisor’s fraudulent conduct. [The defendant]
raises various special defenses. For the reasons stated
[in this memorandum of decision], this court [renders]
judgment for the plaintiffs.’’
The court next set forth the following findings: ‘‘There
are twenty-three plaintiffs in this lawsuit. Each held
investments in custodial accounts that were maintained
with the wealth and services division of [the] State
Street Bank and Trust Company [bank].3 Each plaintiff
entered into an account agreement with the bank that
stated [that] Tauris Advisory Group, LLC (TAG), was
the account owner’s agent and authorized investment
manager. Each plaintiff also entered into investment-
management agreements with TAG. The TAG agree-
ments stated that TAG was the plaintiffs’ agent and
authorized investment manager.
‘‘TAG, as well as its successor, TAG Virgin Islands,
Inc., was managed by James Tagliaferri, who was a
principal in the two financial service companies. TAG
at one time maintained offices in Stamford . . . . The
effect of the plaintiffs’ agreements with [the bank] and
TAG was to give Tagliaferri carte blanche authority
over the plaintiffs’ investment accounts at [the bank].
‘‘Tagliaferri had other clients who are not parties to
this lawsuit. One of those clients was Matthew J. Szulik.
Szulik maintained a custodial account with [the bank].
His agreement with the bank, like the plaintiffs’ agree-
ments, provided that Tagliaferri was his agent. Szulik’s
investment-management agreement with TAG, like the
plaintiffs’ agreements, provided that TAG was his
authorized investment agent.
‘‘In July of 2006, Tagliaferri arranged for Szulik’s
investment account with [the bank] to be used as a
source of a loan to [the] defendant . . . . Tagliaferri
negotiated the loan over the telephone with the chief
executive officer of [the defendant], Michael Muscato.
Szulik did not participate in the telephonic negotiations.
‘‘[The defendant] develops and sells software that
integrates computer systems. At the time of the loan
to [the defendant] . . . Muscato, in addition to his posi-
tion as chief executive officer of [the defendant], was
president of another company, IQ-Ludorum, Plc (IQL).
[The defendant] obtained the loan so that it could assist
IQL in obtaining computer equipment. IQL was pursuing
a business venture that involved providing ‘offshore’
services to gamblers. [The defendant] designed IQL’s
computer system and provided maintenance and sup-
port services at IQL’s data center in Antigua. IQL’s stock
was traded on a stock exchange in London, England.
‘‘The loan to [the defendant] was evidenced by a
promissory note for $2,050,000 signed on behalf of [the
defendant] by . . . Muscato. The note is dated July 25,
2006. In the document, [the defendant] promises to pay
. . . Szulik, payee, on April 24, 2007, the principal
amount of $2,050,000. The note provides for the pre-
payment of interest at a rate of 12 percent per annum.
The interest prepayment amounted to $184,500 and was
deducted from the loan amount. Thus, $1,865,500 was
advanced from Szulik’s account. The note was secured
by shares of IQL stock and an equipment lease with
J.P. Morgan Electronic Financial Services, Inc. At [the
defendant’s] direction, the loan proceeds ($1,865,500)
were forwarded to an escrow account and thereafter
distributed in accordance with the terms of the note
and a security agreement.
‘‘The records for Szulik’s custodial account with [the
bank] indicate that in 2006, Szulik held a note desig-
nated as ‘Prom NTM2 Sys Corp 12% 4/27/07 valued at
$2,050,000 USD.’ The bank’s records further indicate
that, on February 26, 2009, the note, using the bank’s
term, was ‘distributed’ from Szulik’s account.
‘‘In 2007, according to Muscato, Congress passed a
law banning United States citizens from using the gam-
bling services that IQL was offering. [The defendant]
decided to stop its gambling venture, which decision
put [the defendant’s] business ‘on the skids.’ Muscato
negotiated with Tagliaferri for an extension of the note.
In August of 2007, the note was extended to February 23,
2010. [The defendant] paid an extension fee of $205,000
and, in addition, paid $45,000 for interest that had
accrued between the original due date, April 24, 2007,
and the date of the fee payment.
‘‘According to Tagliaferri, the [defendant’s] note was
amended by a document dated April 24, 2007. The pur-
ported amendment changed the section . . . [of the
original note that pertained to] interest and repayment
of principal. The purported amendment requires [the
defendant] to ‘pay [i]nterest on the [p]rincipal accruing
on and after April 24, 2007, on the first full day of each
month commencing on July 1, 2007 until the [o]bliga-
tions are paid in full.’ The typed document has lines
for the signatures for . . . Muscato on behalf of [the
defendant] and . . . Tagliaferri on behalf of TAG as
agent for Szulik. The copy in evidence is not signed.
. . . Muscato, as of the date of his deposition on August
14, 2015, had never seen the document amending the
note and was not aware the note had been amended.
‘‘Tagliaferri, in 2009 and 2010, directed [the bank] to
wire funds from the plaintiffs’ . . . accounts [at the
bank] to an escrow account maintained by TAG’s attor-
ney. TAG advised the bank that the funds were being
used as payment for . . . corporate notes or subnotes
[of the defendant]. These transactions were described
by [the bank] in the plaintiffs’ statements as ‘cash dis-
bursement . . . for assignment of M-2 Note’ or ‘cash
disbursement . . . wire for M2 Note.’ The bank’s state-
ments further recorded assets received in exchange for
these funds as ‘M2 Systems Corp Notes 12% 2/23/10’ or
‘M2 Systems Corp 12% Sub Nt.’ The bank recorded asset
values in each account for [the defendant’s] notes or
subnotes in an amount equal to the amount transferred
from the accounts at Tagliaferri’s direction. Some
accounts had more than one transaction with respect
to the [defendant’s] notes. A review of the transactions
also indicates that there was some cross-trading of the
‘subnotes’ between the plaintiffs’ accounts.
‘‘In February of 2011, one of the plaintiffs asked Tagli-
aferri by way of e-mail, ‘Can you explain what is going
on with the M2 System notes I hold in my personal
portfolio . . . ?’ Tagliaferri replied, ‘Expect to get
paid.’
‘‘In June of 2012, [the bank], in response to requests
made by individual plaintiffs, mailed to the plaintiffs
documents that purported to represent their ownership
interests in the [defendant’s] note. These documents are
titled ‘M2 SYSTEMS CORPORATION 12% SECURED
SUBNOTE.’ In the body of each document, TAG prom-
ises to pay a specified amount ‘upon payment by M2
. . . of the note . . . .’ Many of the documents do not
name the person or entity TAG promises to pay but
contain a space where a name has been redacted. [The
bank], in its June letters to individual plaintiffs, pro-
vided a copy of a ‘subnote’ and specified the respective
plaintiff’s ‘portion’ of the subnote. For example, exhibit
14 is a letter to [the] plaintiff Geoffrey W. Holmes.
Attached to the letter is a ‘subnote’ for $725,000. The
name of the payee is redacted. In its letter, the bank
reports that [Geoffrey W. Holmes’] ‘portion’ of the note
is $125,000. The subnotes were drafted by TAG or TAG’s
attorney. They are signed by Tagliaferri as agent for
TAG. No one else’s signature appears on the documents.
‘‘The plaintiffs as a group paid TAG $1,848,000 for
what was represented by Tagliaferri to be for [the defen-
dant’s] ‘subnotes.’ The plaintiffs seek to recover from
[the defendant] the amount removed from their bank
accounts together with interest, computed at 12 percent
from November 6, 2009, to August 19, 2016, for a grand
total of $3,335,968. [The defendant] acknowledges that
it has not made any payments on the note since April
of 2007.’’ (Citation omitted; footnote added.)
The court then summarized what it deemed to be
relevant prior litigation related to the conduct at issue
in the plaintiffs’ causes of action. The court stated:
‘‘Many of the plaintiffs, starting in 2012, sued [the bank]
and . . . Tagliaferri in connection with the subnotes
issued by Tagliaferri. . . .
‘‘On May 1, 2012, Donald J. Handal, a plaintiff in
the present lawsuit, filed a consolidated class action
complaint in the United States District Court, District
of Massachusetts, against [the bank]. Handal alleges,
inter alia, [that] ‘[t]he subordinated notes for TAG are
fake on their face. The subordinated notes are no more
than IOUs issued by TAG to plaintiffs and class mem-
bers. They are fake and entirely unsubstantiated repre-
sentations of an investment in notes of the company.
In short, they were created out of whole cloth . . . .
Copies of several of these fake subordinated notes are
attached hereto as exhibit A.’ Attached to the complaint
as part of exhibit A is a copy of the subnote that . . .
Handal is attempting to enforce in the present litigation.
It is representative of the notes that the other plaintiffs
are attempting to enforce. . . .
‘‘On October 24, 2012, Alan [Wolff] and Nadine Wolff,
plaintiffs in the present lawsuit, filed an action for fraud
against [the bank] and . . . Tagliaferri in the United
States District Court, District of Massachusetts. They
allege in paragraph 40 of their complaint, inter alia,
[that] ‘[i]n December, 2009, Tagliaferri instructed [the
bank] to wire $100,000 out of [the] plaintiffs’ account
. . . for the purchase of an ‘‘M2 Sys Corp Note 12% 2/
23/10.’’ The account entry . . . led the plaintiffs to
believe that . . . [the note] was issued by [the defen-
dant] . . . as the obligor . . . . [The defendant]
wasn’t the obligor on the note. Tagliaferri as the presi-
dent of TAG, was the sole obligor, and he promised to
pay the $100,000 in question to his own customer as
soon as Tagliaferri was paid back the amount by [the
defendant].’ The plaintiffs allege in paragraph 117 of the
complaint that TAG ‘was engaging in extensive cross-
trading in the same securities in the accounts of [bank]
customers, which necessarily sacrificed one [bank] cus-
tomer’s interest in favor of another [bank] customer
. . . .’
‘‘On October 24, 2012, Michael Wolff, a plaintiff in
the present lawsuit, filed an action for fraud against
[the bank] and . . . Tagliaferri. Michael Wolff made
similar allegations to those quoted in the [previous]
paragraph. . . .
‘‘On November 9, 2012, Catherine E. Cox, a plaintiff
in the present lawsuit, filed a complaint against [the
bank] and . . . Tagliaferri alleging fraud and other mis-
conduct. She, like Alan [Wolff] and Nadine Wolff,
alleged a misrepresentation as to the obligor on a note
listed in her account as ‘M2 Sys Corp Notes 12% 2/23/
10.’ She further alleged, in paragraph 125 of her com-
plaint, that ‘[the] [p]laintiff’s reliance upon Tagliaferri’s
fraudulent representations and conduct permitted Tag-
liaferri and/or TAG to continue with their activities and
to carry out their frauds resulting in most of the securi-
ties held in [the] [p]laintiff’s [bank] account to become
totally worthless.’ . . .
‘‘On June 5, 2013, Kay M. Kazmaier, a plaintiff in the
present lawsuit, filed a complaint against [the bank]
and . . . Tagliaferri in the United States District Court,
District of Massachusetts. Kazmaier, like the [pre-
viously mentioned] plaintiffs, alleged that Tagliaferri,
as the president of TAG, was the sole obligor on a note
labeled ‘M2 Sys Corp Notes 12% 2/23/10’ and that he
promises to pay the sum in question to his own cus-
tomer as soon as Tagliaferri was paid back by [the
defendant]. She also alleged that Tagliaferri engaged in
extensive cross-trading in the same stocks in customer
accounts. . . .
‘‘On August 15, 2013, the Handal lawsuit was settled.
The settlement agreement encompassed the owners of
fifty-one custodial accounts. The account owners
included some of the plaintiffs in the present lawsuit.
On December 6, 2013, the A. Wolff lawsuit, M. Wolff
lawsuit, Kazmaier lawsuit and Cox lawsuit were settled.
The settlement agreement encompassed lawsuits and
claims made by the owners of forty-seven custodial
accounts. The participants included some plaintiffs
involved in the present lawsuit.
‘‘[Steven Goldin and Rochelle Goldin, who are] plain-
tiffs in the present lawsuit, filed a complaint in the
Supreme Court of the state of New York, county of
New York, alleging investor fraud and other misconduct
against TAG Virgin Islands, Inc. . . . Tagliaferri, his
wife, Patricia Cornell, and others. In an amended com-
plaint filed on October 22, 2014, the Goldins allege in
paragraph 69 [that], ‘[i]n mid-2007, Cornell and Tagliaf-
erri, through TAG, began defrauding [the] plaintiffs by
liquidating their conservative investments and transfer-
ring [the] plaintiffs’ funds to TAG-affiliated companies
under the pretense of convertible note instruments.
These notes were an illusory fiction designed by Cornell
and Tagliaferri to defraud the plaintiffs, and other cus-
tomers.’ In paragraph 70 of their amended complaint,
they refer to the notes as ‘sham notes.’ . . .
‘‘On July 24, 2012, the plaintiffs in the present lawsuit
filed a lawsuit against [the defendant] in the United
States District Court, District of Oregon, Portland Divi-
sion. The case was dismissed on the ground that it was
brought in the wrong venue. The [defendant’s] note
provides that suit must be brought in Connecticut. The
plaintiffs in 2013 initiated the lawsuit that is presently
before this court.
‘‘[Szulik], who is not a party in the present lawsuit,
sued Tagliaferri for $60 million in damages. There is no
evidence that Szulik’s lawsuit against Tagliaferri
involved the [defendant’s] note. The suit was settled
without any payment by Tagliaferri to Szulik or payment
by Szulik to Tagliaferri on the latter’s counterclaim.’’
The court also described an earlier federal criminal
prosecution that had been brought against Tagliaferri.
The court stated: ‘‘On February 19, 2013 . . . Tagliaf-
erri was indicted in the United States District Court,
Southern District of New York. The federal criminal
trial concerned, in part, Tagliaferri’s misconduct with
his clients’ . . . accounts [at the bank]. While the fed-
eral indictment did not contain allegations concerning
the [defendant’s] ‘subnotes,’ a plaintiff in the present
lawsuit . . . Handal, testified at the criminal trial about
the M2 ‘subnotes.’ A jury found Tagliaferri guilty on
twelve counts involving allegations of investment advi-
sor fraud, securities fraud, wire fraud, and violation of
the Travel Act, 18 U.S.C. 1952 (2012). On February 13,
2015, Tagliaferri was sentenced to imprisonment for a
term of seventy-two months.’’
The court began its analysis of the plaintiffs’ two
causes of action as follows: ‘‘The plaintiffs’ claims are
dependent on documents prepared by TAG’s attorney
and signed by Tagliaferri. These documents are the
‘subnotes,’ discussed [previously], two ‘assignment’
documents, and Tagliaferri’s account records. One of
the ‘assignment’ documents is dated February 24, 2009,
and is titled ‘Assignment of Note.’ The other is dated
November 6, 2009, and is titled ‘Note Assignment Agree-
ment.’ Tagliaferri is the only person who signed these
documents. He signed in two capacities: as agent on
behalf of the assignor, Szulik, and as agent on behalf
of unnamed assignees. . . .
‘‘In the present lawsuit, the plaintiffs, after setting
forth background allegations of fact in part A of their
complaint, set forth in parts B and C [of their complaint]
their theories of recovery. Part B is titled ‘Collection
Allegations.’ Part C is titled ‘Unjust Enrichment Allega-
tions.’ To the extent [that] the plaintiffs rely on the
contention [that] they are assignees of the [promissory
note that the defendant executed in favor of Szulik],
this court finds the issues in favor of [the] defendant
. . . . The assignment claims are dependent on the
veracity of Tagliaferri and the reliability of records kept
by him while he was committing financial fraud. The
‘assignment’ documents were created for and signed
solely by Tagliaferri. Tagliaferri, as discussed [pre-
viously], was recently convicted of felonies involving
such a degree of turpitude in their commission that one
cannot readily accept his version of events. Indeed,
some of the plaintiffs, in recent lawsuits, attacked his
veracity and described the transactions in their
accounts as fake and created out of whole cloth.
‘‘To the extent [that] the plaintiffs rely on an unjust
enrichment claim, this court finds the issues in favor
of the plaintiffs. The evidence, including a part of Tagli-
aferri’s deposition testimony that this court credits, is
that [the defendant’s] obligation to Szulik was satisfied
with Tagliaferri’s use of the plaintiffs’ funds. The plain-
tiffs, as a group, paid $1,848,000 on [the defendant’s]
obligation to Szulik.4 Each plaintiff’s contribution or
payment is set forth . . . [in detail] in this memoran-
dum [of decision]. Despite demand, as evidenced by
the plaintiffs’ lawsuit filed in Oregon on July 24, 2012,
[the] defendant . . . has failed to pay the plaintiffs, to
their detriment.’’5 (Footnote added.)
Having determined that the plaintiffs were entitled
to relief with respect to their unjust enrichment cause
of action, the court addressed the defendant’s special
defenses: ‘‘[The defendant] filed special defenses on
August 20, 2014 . . . . On May 24, 2016, [the defen-
dant] moved to amend its special defenses . . . . [The
defendant’s] motion to amend was denied after the
plaintiffs objected. The governing document . . . con-
tains sixteen special defenses. [The defendant] now
relies on the third, sixth, tenth, fourteenth, and fifteenth
special defenses. It has abandoned the other special
defenses.
‘‘In the third special defense, [the defendant] alleges
[that] the note may not be enforced because the original
payee and his assigns, and the escrow agent, breached
the escrow agreement. In a posttrial brief, [the defen-
dant] argues that the IQL shares were not retained. The
evidence does not support this claim. Moreover . . .
Muscato, chief executive officer of [the defendant], tes-
tified by way of deposition that the shares had become
worthless. He had no knowledge of facts that would
support this defense.
‘‘In the sixth special defense, [the defendant] alleges
[that] the original payee of the note, and his agents
and assigns, failed to maximize the collateral. Muscato
testified that IQL went out of business and [that] the
computer equipment soon became out-of-date and
worthless. The evidence does not support this claim.
‘‘In the tenth special defense, [the defendant] alleges
[that] the plaintiffs’ claims must be barred on the theory
[that] the plaintiffs are tainted by Tagliaferri’s fraud.
[The defendant] further argues that the plaintiffs must
be barred because they asserted in other lawsuits that
the ‘subnotes’ were invalid. Neither Tagliaferri’s fraud
nor the plaintiffs’ claims in other lawsuits invalidates
or bars the plaintiffs’ present claims.
‘‘In the fourteenth special defense, [the defendant]
alleges [that] ‘the attempted assignment of the subject
note . . . does not comply with the requirements of a
valid assignment.’ In the fifteenth special defense, [the
defendant] alleges [that] ‘the attempted assignment
. . . is unenforceable, as the purported assignor had
no authority to assign the subject note at the time of
the assignment.’ These defenses are inapplicable since
the court is awarding damages on an unjust enrichment
theory, not on a contract theory.’’6 (Citations omitted.)
Having rejected the special defenses on which the
defendant relied, the court turned to its award of dam-
ages. The court stated: ‘‘Based on the foregoing, the
court concludes that the plaintiffs should be awarded,
collectively, $1,848,000. The court further concludes
that an award of prejudgment interest at the annual
rate of 8 percent per year is fair and equitable. Since
[the] defendant . . . was clearly put on notice of the
plaintiffs’ claims at the time [that] the plaintiffs filed
their Oregon lawsuit on July 24, 2012, this court con-
cludes [that] this date is appropriate for the commence-
ment of the period for computing prejudgment interest.
Interest is computed from that date to the date of judg-
ment, November 23, 2016. The court finds that each
plaintiff contributed toward the payment of [the defen-
dant’s] obligation to Szulik . . . . Each plaintiff is
awarded that amount together with prejudgment inter-
est.’’ The total award, consisting of principal and inter-
est, was $2,494,800.7 From this judgment, the defendant
brought the appeal in Docket No. AC 39890. Thereafter,
the plaintiffs filed a motion for attorney’s fees and
expenses, which the court denied.8 From the judgment
denying their motion for attorney’s fees and expenses,
the plaintiffs brought the appeal in Docket No. AC
40558. Additional facts and procedural history will be
set forth as necessary.
I
THE DEFENDANT’S APPEAL
A
The defendant’s first claim is that the court erred
by awarding damages to a person who was neither a
plaintiff in the underlying action nor a nonparty who
had assigned his interest to a plaintiff in the underlying
action. We agree.
As explained previously in this opinion, the court
awarded Douglas Lamm $100,000 in damages as well
as $35,000 in prejudgment interest. See footnotes 2 and
7 of this opinion. The court noted that this was an
‘‘Assigned Claim’’ of the named plaintiff, Indoor Bill-
board Northwest, Inc. Id. In its November 23, 2016 mem-
orandum of decision, the court did not address sepa-
rately the basis of its award in favor of Lamm. The
defendant, however, subsequently sought articulation
with respect to the legal and factual basis of the award.
Although the court denied the motion for articulation,
this court later granted the defendant’s motion for
review of the trial court’s denial and ordered the trial
court to articulate with respect to the award in Lamm’s
favor. In its articulation, the court summarily stated the
basis for its award as follows: ‘‘Exhibit 8—Tabs 97,
105–106, 111; Exhibit 9, Tab 113.’’
Our review of the record reflects that exhibit 8, at
tab 97, reflects a ‘‘Custody Account Agreement,’’ dated
January 30, 2001, that was entered into between Lamm
and Chase Manhattan Bank. Exhibit 8, at tabs 105–106,
reflects bank account statements for Lamm from the
bank in November and December, 2009. The court
referred, as well, to exhibit 9, which was an exhibit
marked for identification and, thus, not part of the evi-
dence. Exhibit 9, at tab 113, reflects a subnote executed
by Tagliaferri on behalf of TAG in favor of Lamm in
the amount of $100,000. The record reflects that the
defendant objected to the admission of exhibit 9 on
relevancy grounds, specifically, by arguing that Lamm
was not a plaintiff in this case and [that] the court
previously had not permitted the plaintiffs to amend
their complaint for the purpose of alleging that Lamm
had assigned his claim to Indoor Billboard Northwest,
Inc. The court sustained the defendant’s objection.
The record reflects that Lamm was not a party to the
underlying action. By motion filed February 3, 2016,
the plaintiffs sought to add an additional plaintiff, Karen
Taragano, to the action, and sought permission for leave
to amend the substituted complaint, pursuant to Prac-
tice Book § 10-60 (a) (3), so as to add ‘‘an assignment by
Douglas Lamm to plaintiff Indoor Billboard Northwest,
Inc., of his interest in a subnote. His subnote is similar
to the ones purchased by the existing plaintiffs. The
issues involved in regard to his subnote are the same
as exist in regard to the subnotes of the existing plain-
tiffs.’’ The defendant objected to the motion. The court,
Bellis, J., denied the plaintiffs’ motion to amend their
substituted complaint to reflect that Indoor Billboard
Northwest, Inc., had been assigned Lamm’s interest in
one of the subnotes at issue in the underlying action.
Also, the record reflects that, during the trial, the
court generally precluded evidence related to any
claims related to Lamm. During the plaintiffs’ examina-
tion of Mel Shulevitz, the president of Indoor Billboard
Northwest, Inc., the plaintiffs’ attorney inquired about
payments that were made to Lamm. The defendant
objected, in part, on the ground that Lamm was not
a plaintiff. After the court sustained the defendant’s
objection, the plaintiffs elicited testimony that Lamm
had assigned his claim to Indoor Billboard Northwest,
Inc., and that he had not received any payment related
to the subnotes at issue in this case. The defendant’s
attorney once more objected to the inquiry on the
ground that Lamm was not a plaintiff. The plaintiffs’
attorney responded that, although Lamm was not a
plaintiff, he was ‘‘an assignor of the claim.’’ After the
defendant’s attorney advised the court that such facts
were not alleged in the substituted complaint, the opera-
tive pleading, the court sustained the objection, and the
plaintiffs’ attorney ended the inquiry.
Although the defendant frames the claim as war-
ranting review under the clearly erroneous standard of
review, the claim implicates the jurisdiction of the trial
court and presents a question of law. ‘‘A challenge to
the jurisdiction of the trial court presents a question of
law over which our review is plenary. . . . The jurisdic-
tion of the trial court is limited to those parties expressly
named in the action coming before it.’’ (Citation omit-
ted; emphasis in original; internal quotation marks omit-
ted.) Selby v. Building Group, Inc., 129 Conn. App. 599,
603, 19 A.3d 1289 (2011). ‘‘[A] court has no jurisdiction
over persons who have not been made parties to the
action before it.’’ (Internal quotation marks omitted.)
Windels v. Environmental Protection Commission,
284 Conn. 268, 280, 933 A.2d 256 (2007).
The record reflects, and the parties do not dispute,
that Lamm was not expressly named in the action before
it. The plaintiffs argue that because, without objection,
they introduced some evidence pertaining to Lamm, the
court properly rendered judgment in his favor. Simply
put, such evidence did not confer jurisdiction on the
trial court to render an enforceable judgment in favor
of a nonparty, Lamm, against the defendant. Because
the judgment is not enforceable, the remedy to which
the defendant is entitled is that we vacate that portion
of the judgment.
The plaintiffs argue, as well, that the court properly
rendered judgment in favor of Lamm because he had
assigned his claim to a party, Indoor Billboard North-
west, Inc., which presented the claim at trial. The plain-
tiffs, however, were limited to the allegations set forth
in their substituted complaint, which is devoid of any
reference to Lamm’s claim or to an assignment related
thereto. ‘‘Pleadings have an essential purpose in the
judicial process. . . . For instance, [t]he purpose of
the complaint is to put the defendants on notice of the
claims made, to limit the issues to be decided, and to
prevent surprise. . . . [T]he concept of notice con-
cerns notions of fundamental fairness, affording parties
the opportunity to be apprised when their interests are
implicated in a given matter. . . . Whether a complaint
gives sufficient notice is determined in each case with
reference to the character of the wrong complained of
and the underlying purpose of the rule which is to
prevent surprise upon the defendant. . . .
‘‘[I]t is imperative that the court and opposing counsel
be able to rely on the statement of issues as set forth
in the pleadings. . . . [A]ny judgment should conform
to the pleadings, the issues and the prayers for relief.
. . . [A] plaintiff may not allege one cause of action
and recover upon another. . . . The requirement that
claims be raised timely and distinctly . . . recognizes
that counsel should not have the opportunity to surprise
an opponent by interjecting a claim when opposing
counsel is no longer in a position to present evidence
against such a claim. . . .
‘‘[G]enerally . . . the allegations of the complaint
provide the measure of recovery, and . . . the judg-
ment cannot exceed the claims pleaded, including the
prayer for relief. . . . These requirements . . . are
based on the principle that a pleading must provide
adequate notice of the facts claimed and the issues to be
tried. . . . The fundamental purpose of these pleading
requirements is to prevent surprise of the defendant.
. . . The purpose of these general pleading require-
ments is consistent with the notion that the purpose of
specific pleading requirements . . . is to promote the
identification, narrowing and resolution of issues
before the court. . . .
‘‘[A]n equitable proceeding does not provide a trial
court with unfettered discretion. The court cannot
ignore the issues as framed in the pleadings.’’ (Citations
omitted; internal quotation marks omitted.) Lynn v.
Bosco, 182 Conn. App. 200, 214–16, 189 A.3d 601 (2018);
see also Watson Real Estate, LLC v. Woodland Ridge,
LLC, 187 Conn. App. 282, 298, 202 A.3d 1033 (2019).
Here, the pleadings, on which the defendant had a right
to rely, did not set forth a claim or an assigned claim
related to Lamm. As we have observed, the court, Bellis,
J., expressly disallowed an amendment to the complaint
to raise such a claim.
Moreover, as we have explained previously, the court
expressly sustained the defendant’s objections to cer-
tain evidence concerning Lamm on the ground that
Lamm was not a party. As the defendant argues, to
the extent that there was some evidence or testimony
concerning Lamm before the court, it did not challenge
such evidence because it did not have notice of the
claim or information concerning the claim during the
discovery process.
In light of the foregoing, it was improper for the court
to have rendered judgment in favor of Lamm. Moreover,
the plaintiffs have not demonstrated that the court prop-
erly considered the claim to have been pursued on
Lamm’s behalf by Indoor Billboard Northwest, Inc.
Accordingly, the defendant is entitled to a remedy, and
the portion of the judgment rendered in Lamm’s favor
is ordered vacated.
B
The defendant’s next claim is that the court erred in
determining that it was not entitled to a setoff. We
disagree.
The following additional facts are relevant to this
claim. As the court observed in its articulation dated
September 27, 2017, the defendant, by way of its nine-
teenth special defense, claimed a right to a setoff for
funds received from any collateral source. The defen-
dant alleged: ‘‘[The] defendant is entitled to a setoff to
the extent [of] all moneys received by or on behalf of
[the] plaintiffs from any collateral source, including but
not limited to, any settlement or court-ordered criminal
restitution.’’ The court rejected the defense on the
ground that there was ‘‘no evidence that any settlement
funds received in connection with other lawsuits were
allocated to the [defendant’s] subnotes.’’
On appeal, the defendant does not argue that the
court’s finding with respect to settlement funds is
clearly erroneous. Indeed, our review of the evidence
supports the court’s finding that none of the plaintiffs
received any funds from any collateral source in con-
nection with the moneys withdrawn from their accounts
related to the notes or subnotes at issue in this case.
The basis of the defendant’s claim is that, under the
circumstances of the present case, it would be unjust
for this court ‘‘not to remand this issue for further
proceedings to allow [the defendant] to properly prove
its affirmative defense of setoff.’’ At the heart of this
claim of error is a discovery dispute. In its analysis of
the claim, the defendant correctly observes that, on the
first day of trial, the defendant’s attorney informed the
court that there was an outstanding motion for sanc-
tions related to a discovery issue that had not been
resolved between the parties. The defendant’s attorney
stated that, pursuant to settlement agreements, the
bank had already paid the plaintiffs ‘‘in the neighbor-
hood of four and a half million dollars.’’ The defendant’s
attorney stated that the defendant attempted through
discovery to obtain information concerning the plain-
tiffs’ tax returns, specifically, whether the plaintiffs had
written off losses in connection with the notes or sub-
notes at issue in the present case as bad investments
and whether they had received any settlement funds
from the bank related to such notes or subnotes. The
defendant’s attorney observed that the issue concerning
tax returns had been raised before the court, Hon. Wil-
liam B. Rush, judge trial referee, several weeks earlier.
On May 13, 2016, Judge Rush stated: ‘‘As far as the tax
returns . . . [the defendant is] not entitled, and I don’t
think [it claims] to be entitled to . . . get the whole
tax returns and see what’s in them. [It is] entitled to
receive any information about funds received in settle-
ment from [the bank]. [The defendant is] also entitled
to any line items that relate to fraudulent deductions
or credit for fraudulent investments or schedules relat-
ing to that. So, they are entitled to that.’’
The plaintiffs’ attorney acknowledged before the trial
court that Judge Rush had asked him to ‘‘obtain and
review the tax returns [of the plaintiffs] to determine
if the tax returns show the amount of income received
from [the bank] and any other fraud or theft losses
taken [in connection with claims raised against the
defendant]. I did that, as an officer of the court, which
was what Judge Rush intended. I responded that the tax
returns which I reviewed have no income attributable
to [the bank]. . . .
‘‘[I]t is quite clear from looking at the tax returns, as
I did, it’s easy to look for the losses for theft or fraud
and see what was taken. Not only was there none taken
as to [the defendant], which was the request made of
me, there was simply none taken at all, and I so
reported.’’9
The plaintiffs’ attorney stated that, although the plain-
tiffs had received funds in settlement from the bank,
such funds were not related to the claims that they were
bringing against the defendant in the present action.
The plaintiffs’ attorney informed the court that he had
agreed to provide a list of such settlement funds to the
defendant and that he would make such list available
to the court, as well. The record is silent with respect
to whether the list was produced.
The defendant’s attorney asked the court to continue
the trial so as to permit the plaintiffs’ tax returns to be
reviewed by an independent third-party accountant.10
The court stated that it would not enter any order at that
time, but that, during the examination of the plaintiffs
at trial, if a relevant inquiry was made concerning his
or her tax return, such witness could review their tax
return to reply to the inquiry. The court stated, ‘‘I’m
not ordering that [the tax returns] be disclosed at this
time, but that does not mean that they will or will not
be disclosed.’’ The court noted, as well, that the case
was scheduled for trial and that this matter could have
been resolved at an earlier time.
The parties revisited the issue again on the penulti-
mate day of the trial when the defendant’s attorney
renewed his motion for sanctions related to the plain-
tiffs’ failure to disclose tax returns. The defendant’s
attorney reminded the court that the plaintiffs’ attorney
had represented that he had reviewed the plaintiffs’
tax returns and that the court had indicated that, the
plaintiffs, during their testimony, would have access to
their tax returns. The defendant’s attorney observed
that, during their testimony, many of the plaintiffs testi-
fied that they had not provided their tax returns to the
plaintiffs’ attorney. The defendant’s attorney once again
stated that the defendant was prejudiced by the fact
that it was unable to submit the tax returns to an
accountant for review.
The plaintiffs’ attorney argued that the court already
had considered the issue concerning tax returns and
that the defendant’s attempt to revisit this discovery
issue was untimely. The plaintiffs’ attorney observed
that none of the plaintiffs testified at trial that he or
she had obtained a ‘‘fraud or theft’’ tax loss related to
the defendant and that no plaintiff had testified at trial
that he or she had reported any income from the bank
on his or her tax return. The plaintiffs’ attorney also
argued that, even if a tax write-off due to theft or fraud
had been taken, a later payment would necessitate a
repayment for the write-off.
On the last day of trial, the court ruled on the issue
of the tax returns, stating: ‘‘Should a plaintiff receive a
monetary award in this case, the defendant may apply
for an examination of the plaintiff’s tax returns in order
to see if the returns shed light on the person’s having
received a recovery in another lawsuit on the so-called
[notes relating to the defendant].
‘‘And I want to note that this ruling is made in the
context of the earlier discovery in this case. There were
three hearings before Judge Rush. At the time this [dis-
covery] issue was first presented to me, which is June
29, [2016], the case had been assigned for trial by the
presiding judge, and the presiding judge is rather firm
on the trial assignment dates. This system falls apart if
the trial dates are not met. And on [June 29, 2016] I
realized that there were many witnesses in this case
and [that] the witnesses had come from various parts
of the country—the West Coast, Florida and . . . the
New York and Connecticut area.
‘‘And at that time I concluded [that] continuing the
case was not a practical resolution. So . . . that’s why
I’ve come to the resolution that I have. So, that’s the
ruling on the motion for sanctions.’’ The court did not
sanction the plaintiffs.
In its analysis of the present claim, the defendant
refers to the testimony of Mel Shulevitz and the plain-
tiffs Geoffrey M. Holmes, Lee M. Holzman, Daniel D.
Gestwick, Paige Gist, and Geoffrey W. Holmes that they
either had not provided their tax returns to the plaintiffs’
attorney in the weeks prior to the trial or that they did
not recall ever having provided their returns to him.
The defendant then asserts in relevant part: ‘‘The trial
court ruled that [the defendant] was entitled to the tax
return information so [it] could establish and prove its
affirmative defense of setoff. [The] plaintiffs’ attorney
intentionally did not provide the information and misled
the court regarding the actions taken regarding this
defense. It is clearly unjust, based upon these circum-
stances, not to remand this issue for further proceed-
ings to allow [the defendant] to properly prove its affir-
mative defense of setoff.’’
As we have stated previously, there is no factual
challenge to the court’s finding that the defendant failed
to present evidence in support of its defense of setoff.
Although the defendant’s claim is intertwined with its
motion for sanctions against the plaintiffs, it does not
challenge the court’s failure to award sanctions or the
court’s ruling to permit the defendant to apply for
review of the tax returns following the judgment in the
plaintiffs’ favor. Instead, the defendant appears to raise
a claim that was not raised at trial, namely, that the
court could not properly consider the issue of setoff
without first permitting the defendant to undertake a
review of the plaintiffs’ tax returns. And, presuming
facts that were not found by the court, the defendant
asks this court to remand the case for further proceed-
ings. Specifically, the defendant urges this court to con-
clude that the plaintiffs’ attorney intentionally misled
the court with respect to his review of the tax returns
pursuant to Judge Rush’s ruling.
The record presented to this court, however, reflects
that neither Judge Rush nor the trial court, Hon. George
N. Thim, judge trial referee, were persuaded that the
defendant was entitled to unfettered access to the tax
returns. At no time did Judge Thim determine that any-
thing improper had occurred with respect to the tax
returns. Instead, the court deemed it sufficient to permit
the defendant to ‘‘apply’’ for an examination of the tax
returns following a judgment in favor or one or more
plaintiffs. The defendant does not attempt to demon-
strate that this relief is not adequate or that it pursued
this potential relief made available to it. Moreover, the
record reflects that the defendant had an ample oppor-
tunity to examine each of the plaintiffs who testified
at trial concerning the issue of whether they had
received any recovery related to the notes and subnotes
at issue in this claim. Upon careful examination, how-
ever, no plaintiff testified that he had recovered from
a collateral source. Under the circumstances, we are
not persuaded that the court adjudicated the issue,
which was presented to it on the eve of trial, in an
unfair manner or that the defendant is entitled to the
relief sought with respect to this claim.
C
Next, the defendant claims that the court erred by
rejecting its special defense of judicial estoppel, which
was based on the doctrine of unclean hands.11 We
disagree.
In its tenth special defense as to all counts, the defen-
dant alleged: ‘‘The original payee of the note and/or
his agents and/or assignees and/or the plaintiffs have
unclean hands and, therefore, may not enforce the sub-
ject note.’’ In its posttrial brief, the defendant argued
in relevant part: ‘‘Assuming arguendo that any of the
alleged assignments are valid, [the] plaintiffs are tainted
with the fraud and misconduct of their predecessor
in interest . . . who is currently incarcerated for his
fraudulent behavior. Such behavior specifically relates
to the transactions that form the subject of this lawsuit.’’
Additionally, the defendant argued that the plaintiffs
who testified at trial that they had been involved in the
settlement of prior lawsuits that were brought against
the bank should be precluded from seeking to rely on
the subnotes as being valid because, in the previous
lawsuits, they had challenged the validity of the
subnotes.
As we stated previously, the court rejected the special
defense at issue, stating: ‘‘In the tenth special defense,
[the defendant] alleges [that] the plaintiffs’ claims must
be barred on the theory [that] the plaintiffs are tainted
by Tagliaferri’s fraud. [The defendant] further argues
that the plaintiffs must be barred because they asserted
in other lawsuits that the ‘subnotes’ were invalid. Nei-
ther Tagliaferri’s fraud nor the plaintiffs’ claims in other
lawsuits invalidates or bars the plaintiffs’ present
claims.’’
Next, we set forth some relevant principles of law.
‘‘[A]pplication of the doctrine of unclean hands rests
within the sound discretion of the trial court. . . . The
exercise of [such] equitable authority . . . is subject
only to limited review on appeal. . . . The only issue on
appeal is whether the trial court has acted unreasonably
and in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
[the trial court’s] action. . . . Whether the trial court
properly interpreted the doctrine of unclean hands,
however, is a legal question distinct from the trial
court’s discretionary decision whether to apply it. . . .
Similarly, we have stated that [t]he question of whether
the clean hands doctrine may be applied to the facts
found by the court is a question of law. . . . We must
therefore engage in a plenary review to determine
whether the court’s conclusions were legally and logi-
cally correct and whether they are supported by the
facts appearing in the record. . . . The court’s factual
findings underlying the special defense of unclean
hands, however, are reviewed pursuant to the clearly
erroneous standard.’’ (Citations omitted; internal quota-
tion marks omitted.) Monetary Funding Group, Inc. v.
Pluchino, 87 Conn. App. 401, 406, 867 A.2d 841 (2005).
‘‘It is a fundamental principle of equity jurisprudence
that for a complainant to show that he is entitled to
the benefit of equity he must establish that he comes
into court with clean hands. . . . The clean hands doc-
trine is applied not for the protection of the parties but
for the protection of the court. . . . It is applied not
by way of punishment but on considerations that make
for the advancement of right and justice. . . . The doc-
trine of unclean hands expresses the principle that
where a plaintiff seeks equitable relief, he must show
that his conduct has been fair, equitable and honest as
to the particular controversy in issue. . . . Unless the
plaintiff’s conduct is of such a character as to be con-
demned and pronounced wrongful by honest and fair-
minded people, the doctrine of unclean hands does not
apply. . . . The party seeking to invoke the clean hands
doctrine to bar equitable relief must show that his oppo-
nent engaged in wilful misconduct with regard to the
matter in litigation. . . . The trial court enjoys broad
discretion in determining whether the promotion of
public policy and the preservation of the courts’ integ-
rity dictate that the clean hands doctrine be invoked.
. . . Wilful misconduct has been defined as intentional
conduct designed to injure for which there is no just
cause or excuse. . . . [Its] characteristic element is the
design to injure either actually entertained or to be
implied from the conduct and circumstances. . . . Not
only the action producing the injury but the resulting
injury also must be intentional.’’ (Citations omitted;
internal quotation marks omitted.) U.S. Bank National
Assn. v. Eichten, 184 Conn. App. 727, 747, 196 A.3d
328 (2018).
The defendant relies heavily on Dougan v. Dougan,
301 Conn. 361, 21 A.3d 791 (2011), for the proposition
that judicial estoppel bars the plaintiffs who partici-
pated in the prior lawsuits from obtaining equitable
relief. Thus, a brief discussion of Dougan is necessary.
The plaintiff in Dougan testified at the trial for the
dissolution of his marriage to the defendant that he
considered fair and equitable the terms of a stipulation
for judgment that the parties had presented to the court.
Id., 364. The trial court found that the stipulation for
judgment was fair and equitable, and it incorporated the
stipulation for judgment by reference into its judgment
dissolving the parties’ marriage. Id., 365.
After the judgment was rendered, however, the plain-
tiff failed to comply with the judgment in that he failed
to pay the defendant interest in accordance with the
terms of the judgment. Id. At a hearing on a motion for
enforcement that had been brought by the defendant,
the plaintiff, contrary to the position he advanced at
the time of the trial, argued that the interest provisions
of the stipulated judgment were invalid and unenforce-
able as against public policy. Id., 371–72. The trial court
agreed with the plaintiff, and it did not enforce the
interest provisions. Id., 365–66. Following an appeal by
the defendant, the Appellate Court reversed the judg-
ment of the trial court and remanded the case to the
trial court for further proceedings. Id., 366–67.
Following a grant of certification to appeal from the
judgment of the Appellate Court, our Supreme Court
in Dougan affirmed the judgment of the Appellate Court
after determining that an alternative ground for
affirmance sounding in judicial estoppel supported the
enforcement of the interest provisions at issue. Id., 374.
In relevant part, the court explained, ‘‘[t]ypically, judi-
cial estoppel will apply if: [1] a party’s later position
is clearly inconsistent with its earlier position; [2] the
party’s former position has been adopted in some way
by the court in the earlier proceeding; and [3] the party
asserting the two positions would derive an unfair
advantage against the party seeking estoppel. . . . We
further limit judicial estoppel to situations where the
risk of inconsistent results with its impact on judicial
integrity is certain. . . . Thus, courts generally will not
apply the doctrine if the first statement or omission
was the result of a good faith mistake . . . or an unin-
tentional error.’’ (Internal quotation marks omitted.)
Id., 372–73. Our Supreme Court explained that, in light
of the evidence that, at the time of trial, the plaintiff
understood the interest provisions, the stipulation for
judgment was the product of lengthy negotiations
between the parties, the parties had been represented
by experienced attorneys, the parties testified that they
were familiar with and agreed with the terms in the
stipulation for judgment, and the plaintiff was ‘‘ ‘a highly
educated and financially sophisticated party’ ’’; id., 374;
the facts of the case satisfied the conditions for the
application of the doctrine of the judicial estoppel to
preclude the plaintiff from seeking to render the interest
provisions unenforceable. Id., 373–74.
In light of its reliance on Dougan, we interpret the
defendant’s claim as a challenge to the plaintiffs’ right
to recover damages against it because, in prior lawsuits,
the plaintiffs challenged the validity of the assignments
and subnotes generated by Tagliaferri during his fraudu-
lent course of conduct. As is reflected in the court’s
findings, which are unchallenged and set forth pre-
viously in this opinion, the court found that Tagliaferri
engaged in fraud in connection with the assignment of
the promissory note that had been executed in favor
of Szulik and with respect to the subnotes involving
the defendant that were recorded in the plaintiffs’
accounts at the bank. The court also made findings,
which are likewise unchallenged, concerning the nature
of the claims that the plaintiffs advanced in the prior
lawsuits on which the defendant relies in the present
claim.
It is important to emphasize that the court did not
find, and the defendant does not suggest, that the defen-
dant was a party in the prior lawsuits. Moreover, we
emphasize that the court expressly rejected the plain-
tiffs’ claim in the present action that they were entitled
to damages as assignees of the notes or subnotes at
issue in the present litigation. Instead, the court pro-
vided a remedy to the plaintiffs under the equitable
theory of unjust enrichment, a cause of action that did
not depend on the existence of valid assignments to
the plaintiffs. To the extent that the defendant argues
that the plaintiffs should not recover under the claims
raised in the present action because they took inconsis-
tent legal positions in the prior lawsuits (by arguing
that the notes and subnotes were invalid) and in the
present action (by arguing that they were entitled to
recover as assignees under the notes and subnotes),
such an unclean hands defense logically and legally
pertains to the assignee cause of action that the court
expressly rejected.
On this record, the defendant is unable to demon-
strate that, with respect to the unjust enrichment claim
under which the plaintiffs recovered damages, which
is necessarily based on the theory that the defendant
unjustly benefited from the funds fraudulently taken
from them, the plaintiffs took an inconsistent legal posi-
tion in the prior lawsuits that was adopted by a court
in an earlier proceeding to the detriment of the defen-
dant. The defendant does not draw our attention to any
evidence, let alone a finding, that it was the subject of
a prior lawsuit or that the issue of its having benefited
from the plaintiffs’ funds was a subject of a prior law-
suit. Instead, as the court found, in the prior lawsuits
the plaintiffs claimed that Tagliaferri had engaged in
fraud in connection with the assignments and the sub-
notes and stated claims against the bank, not the defen-
dant, for what they claimed was misconduct on the part
of the bank. The defendant has not demonstrated that
claims of this nature either explicitly or implicitly sug-
gested that the defendant had not been unjustly
enriched by means of Tagliaferri’s fraudulent conduct
or the bank’s misconduct. Stated otherwise, the defen-
dant has failed to point to any inconsistency in the
plaintiffs’ positions in prior lawsuits and the present
action that affected the equitable claim on which
they prevailed.
In light of the foregoing, we conclude that the defen-
dant has failed to demonstrate that the court abused
its discretion in rejecting the unclean hands special
defense.
D
Next, the defendant claims that the court erred by
finding that the note executed by the defendant in favor
of Szulik had been amended. We disagree.
As we stated previously in this opinion, the court
found that in July, 2006, Tagliaferri negotiated a loan
for the defendant, the source of which was Szulik’s
investment account with the bank. Tagliaferri negoti-
ated the loan with the defendant’s chief executive offi-
cer, Muscato. Thereafter, Muscato signed a promissory
note dated July 25, 2006, the terms of which obligated
the defendant to pay Szulik the principal amount of
$2,050,000 on April 24, 2007. The note also provided for
prepayment of interest. In accordance with the terms
of the note, $1,865,500 was advanced from Szulik’s
account with the bank. At the defendant’s direction, the
loan proceeds were forwarded to an escrow account.
The court also found in relevant part: ‘‘In August of
2007, the note was extended to February 23, 2010. [The
defendant] paid an extension fee of $205,000 and, in
addition, paid $45,000 for interest that had accrued
between the original due date, April 24, 2007, and the
date of the fee payment.
amended by a document dated April 24, 2007. The pur-
ported amendment changed the section on interest and
repayment of principal. The purported amendment
requires [the defendant] to ‘pay [i]nterest on the [p]rinci-
pal accruing on and after April 24, 2007, on the first
day of each month commencing on July 1, 2007 until
the [o]bligations are paid in full.’ The typed document
has lines for the signatures for . . . Muscato on behalf
of [the defendant] and . . . Tagliaferri on behalf of
TAG as agent for Szulik. The copy in evidence is not
signed. . . . Muscato, as of the date of his deposition
on August 14, 2015, had never seen the document
amending the note and was not aware the note had
been amended.’’ (Citation omitted.) In its decision, the
court referred to the copy of the amendment in evidence
as part of trial exhibit 3, which is a transcript of Tagliaf-
erri’s deposition testimony as well as several exhibits
marked during the deposition. The court admitted
some, but not all, of the deposition exhibits that are
part of the exhibit. In this instance, the court referred to
deposition exhibit 8, which is attached to trial exhibit 3.
As the defendant correctly observes, the court’s refer-
ence to exhibit 8 from Tagliaferri’s deposition was in
error because that exhibit 8 is not the amendment at
issue. Rather, the amendment at issue was marked as
exhibit 8 during Muscato’s deposition. A transcript of
Muscato’s deposition testimony as well as several
exhibits marked during the deposition later were admit-
ted into evidence as trial exhibit 1. The court admitted
some, but not all, of the deposition exhibits that are
part of the exhibit. The defendant accurately argues
that, if the court relied on exhibit 8 from Muscato’s
deposition, however, such reliance was improper
because, although the court admitted Muscato’s deposi-
tion, it excluded some of the exhibits attached to Mus-
cato’s deposition, including exhibit 8. In the absence
of the court’s reliance on this document, which was
not part of the evidence, the defendant asserts, there
was no basis in the evidence to support the court’s
finding that the note had been amended.
‘‘[W]e will upset a factual determination of the trial
court only if it is clearly erroneous. The trial court’s
findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . We cannot retry the
facts or pass on the credibility of the witnesses. A find-
ing 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 convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Surrells v. Belinkie, 95 Conn.
App. 764, 767, 898 A.2d 232 (2006).
The defendant’s claim is not persuasive for two rea-
sons. First, although the court erroneously referred to
the written amendment as being deposition exhibit 8
from Tagliaferri’s deposition, the written amendment
at issue, in fact, was part of the evidence because it
was marked as deposition exhibit 5 from Tagliaferri’s
deposition. There is no basis to presume that the court
relied on deposition exhibit 8 from Muscato’s deposi-
tion, as the defendant suggests. Moreover, during his
deposition, Tagliaferri testified that Muscato had nego-
tiated the terms of the amendment with him and that
he believed that, at some point, it was executed by
Muscato, on behalf of the defendant, and himself, as
president of TAG Virgin Islands, Inc. Thus, there was
an evidentiary basis for the court’s factual finding con-
cerning the written amendment, and the defendant has
not demonstrated that it was clearly erroneous.
Second, even if there was no evidence to support the
court’s finding, the defendant, as the appellant, is unable
to obtain relief unless it can demonstrate that the
improper finding was harmful. ‘‘An appellant bears the
burden of demonstrating that a court’s erroneous find-
ing was harmful because it likely affected the result.’’
Bueno v. Firgeleski, 180 Conn. App. 384, 404, 183 A.3d
1176 (2018). The plaintiffs argue, and we agree, that
the court’s finding with respect to the assignment was
not integral to its analysis under a theory of unjust
enrichment. To the extent that the defendant’s attempts
to extend its payment obligations were relevant to a
determination that the defendant was aware of the exis-
tence of the note and its obligations thereunder, there
was evidence before the court that, in 2010, Muscato
was aware of the note and wrote in an e-mail to Tagliaf-
erri that the defendant would not default. Accordingly,
we reject the defendant’s claim.
E
Next, the defendant claims that the court erred by
finding that the defendant had been unjustly enriched
as a result of Tagliaferri’s use of the plaintiffs’ funds.
We disagree.
The court made many subordinate findings of fact
relevant to the funds removed from the plaintiffs’ custo-
dial investment accounts at the bank in exchange for
purported ownership interests in the promissory note
that the defendant executed in favor of Szulik in 2006.
The court also found that the defendant obtained the
loan from Szulik so that it could assist IQL in obtaining
computer equipment.12 The defendant borrowed
$2,050,000 from Szulik and, after the prepayment of
interest in accordance with the July 25, 2006 promissory
note, $1,865,500 was advanced from Szulik’s bank
account. After the defendant experienced business diffi-
culties, the note was extended to February 23, 2010.
The defendant paid an extension fee as well as accrued
interest for this extension of the note.
The court also found that, in 2009 and 2010, Tagliaf-
erri directed the bank to wire funds from the plaintiffs’
accounts at the bank to an escrow account maintained
by TAG’s attorney as payment for the defendant’s notes
or the subnotes created by Tagliaferri. Consistent with
this purpose, the bank recorded asset values in each
of the accounts at issue for notes or subnotes in an
amount equal to the funds taken from the accounts at
Tagliaferri’s direction. As a group, the plaintiffs paid
TAG $1,848,000 for the defendant’s subnotes. The defen-
dant, however, acknowledges that it has not made any
payment on the original note since April, 2007.
As we stated previously, the court found: ‘‘To the
extent [that] the plaintiffs rely on an unjust enrichment
claim, this court finds the issues in favor of the plaintiffs.
The evidence, including a portion of Tagliaferri’s depo-
sition testimony that this court credits, is that [the
defendant’s] obligation to Szulik was satisfied with Tag-
liaferri’s use of the plaintiffs’ funds. The plaintiffs, as
a group, paid $1,848,000 on [the defendant’s] obligation
to Szulik. . . . Despite demand, as evidenced by the
plaintiffs’ lawsuit filed in Oregon on July 24, 2012, [the]
defendant . . . has failed to pay the plaintiffs, to
their detriment.’’
In the present claim, the defendant argues that the
court erred in its finding that it was unjustly enriched
by the plaintiffs for several reasons. The defendant
argues that there was no evidence that the defendant
‘‘benefited by the disbursement of money from [the
plaintiffs’] accounts.’’ Also, the defendant argues that
it was not unjust for the defendant not to pay the plain-
tiffs for any benefit. According to the defendant, any
assignment of the note entered into between Szulik
and the defendant after July, 2009, was the product of
Tagliaferri’s fraud and, thus, the subject transactions
(assignment of subnotes to the plaintiffs by Tagliaferri)
were invalid. The defendant also argues that, on their
face, the subnotes required the defendant to repay funds
to TAG, not to the plaintiffs. Finally, the defendant
argues that the plaintiffs did not prove that the defen-
dant’s failure to pay on the note was to the detriment of
the plaintiffs. According to the defendant, the plaintiffs
merely proved that Tagliaferri stole the funds at issue
from their accounts but failed to prove where the funds
were directed after they were deposited in TAG’s
trust account.
Before addressing the merits of this claim, we set
forth some relevant legal principles related to unjust
enrichment. ‘‘A right of recovery under the doctrine of
unjust enrichment is essentially equitable, its basis
being that in a given situation it is contrary to equity
and good conscience for one to retain a benefit which
has come to him at the expense of another. . . . With
no other test than what, under a given set of circum-
stances, is just or unjust, equitable or inequitable, con-
scionable or unconscionable, it becomes necessary in
any case where the benefit of the doctrine is claimed,
to examine the circumstances and the conduct of the
parties and apply this standard. . . . Unjust enrich-
ment is, consistent with the principles of equity, a broad
and flexible remedy. . . . Plaintiffs seeking recovery
for unjust enrichment must prove (1) that the defen-
dants were benefited, (2) that the defendants unjustly
did not pay the plaintiffs for the benefits, and (3) that the
failure of payment was to the plaintiffs’ detriment. . . .
‘‘This doctrine is based upon the principle that one
should not be permitted unjustly to enrich himself at
the expense of another but should be required to make
restitution of or for property received, retained or
appropriated. . . . The question is: Did [the party lia-
ble], to the detriment of someone else, obtain something
of value to which [the party liable] was not entitled?
. . .
‘‘Although we ordinarily engage in a deferential
review of the trial court’s conclusion that the defendant
was unjustly enriched . . . a claim that the equitable
remedy of unjust enrichment is unavailable as a matter
of law raises a question of law subject to plenary
review.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Horner v. Bagnell, 324 Conn.
695, 707–708, 154 A.3d 975 (2017).
‘‘Unjust enrichment is a common-law doctrine that
provides restitution, or the payment of money, when
justice so requires. . . . Recovery is proper if the
defendant was [benefited], the defendant did not pay
for the benefit and the failure of payment operated to
the detriment of the plaintiff. . . . In the absence of a
benefit to the defendant, there can be no liability in
restitution; nor can the measure of liability in restitution
exceed the measure of the defendant’s enrichment.
. . . These requirements for recovery of restitution are
purely factual. . . .
‘‘Unjust enrichment is a doctrine allowing damages
for restitution, that is, the restoration to a party of
money, services or goods of which he or she was
deprived that benefited another.’’ (Citations omitted;
internal quotation marks omitted.) Piccolo v. American
Auto Sales, LLC, 195 Conn. App. 486, 494, 225 A.3d
961 (2020).
The evidence reflects, and it is not in dispute, that the
defendant, through Muscato, executed the promissory
note for $2,050,000 in Szulik’s favor. During his deposi-
tion testimony, which was admitted into evidence, Mus-
cato testified that he signed the promissory note at
issue as the chief executive officer of the defendant.
Muscato testified that the defendant planned to use the
proceeds of the note to further its business, specifically,
to purchase ‘‘hardware’’ for a data center in Antigua.
He testified that the hardware was purchased, paid for,
and used by the defendant. Muscato testified that he
assumed that, under the terms of the note, Szulik had
paid the defendant $1,865,500, but the defendant did
not make any payments on the loan.
Muscato testified that, when he became aware that
the note was due in 2007, he knew that the defendant
was unable to pay Szulik. At that time, however, he
attempted to extend the note under terms that ‘‘made
sense’’ for the defendant. Muscato testified that, after
the defendant defaulted on the loan in 2010, he did not
dispute this fact with Tagliaferri.
Tagliaferri’s deposition testimony, which was admit-
ted into evidence, shed light on the nature of the trans-
actions at issue. Tagliaferri testified with respect to his
role and the role of TAG in the note and subnotes at
issue. He testified that neither the assignments nor the
subnotes were ‘‘fictitious securities . . . .’’ Import-
antly, Tagliaferri testified that the loan proceeds that
had been paid to the defendant were repaid to Szulik
by a number of TAG clients, including the plaintiffs.
Tagliaferri testified that Muscato was aware of the fact
that Szulik had been repaid, in large part, by means of
the plaintiffs’ funds.13 Tagliaferri testified that each of
his clients, the plaintiffs, to whom he assigned portions
of the original note, had a custody account agreement
with the bank, and that the creation of the subnotes
and the transmission of the corresponding funds to
Szulik were done pursuant to each plaintiff’s investment
account agreement with TAG and their custody account
agreements with the bank. After Tagliaferro reviewed
information concerning the subnotes at issue, the plain-
tiffs’ attorney examined him as follows:
‘‘Q. . . . [D]id you have conversations with [Mus-
cato] regarding the payment of these individual sub-
notes by the various individuals who were your cli-
ents? . . .
‘‘A. Yes, not each of them individually, but certainly
we discussed the repayment of the principal and the
interest on the subnotes, yes. I didn’t specifically go
over the $40,000 for this client or $100,000 for that
client. We were talking about the payment of the note,
the total amount of the note, which, I think, was
$2,050,000, and the interest due on that note, yes.
‘‘Q. Now, in your conversations with [Muscato], did
you refer . . . him to the fact that there were assign-
ments made of the original note to [Szulik]?
‘‘A. Yes. . . .
‘‘Q. And did you discuss with him whether [Szulik’s]
original obligation had been paid? . . .
‘‘A. Yes. . . .
‘‘Q. . . . In what manner was [Szulik] paid?
‘‘A. Well . . . [Muscato] was aware that . . .
[Szulik] had been paid in full, and all the accrued inter-
est had been paid [by] the assignees of the note and
that the assignees of the note were entitled to the inter-
est from a certain date plus the principal. . . . I told
him by telephone.
‘‘Q. Was there ever an occasion when [Muscato], on
behalf of [the defendant], denied that there was any
further obligation on [the defendant’s] part for the pay-
ment of the sums owing to the assignees? . . .
‘‘A. No, there was not.’’
Also, Tagliaferri testified: ‘‘The specific conversations
I had with [Muscato] took place in the first half of
2010, including, I think, by mid-2010, and during those
conversations he acknowledged that the note was due,
was outstanding, and he was going to make payment
shortly . . . . [T]o the best of my recollection, he has
not made payment.’’
Describing the effect of the assignment of the original
note and the language in the subnotes that required the
defendant to repay TAG, Tagliaferri explained: ‘‘[T]he
subnote speaks for itself. The obligation on the part of
[the defendant], the $2,050,000 note, plus it accrues
interest, is the note that [the defendant] executed in
2007. It was assigned to [the plaintiffs], and the instru-
ment that was given to all the [plaintiffs] was the sub-
note. The fact is very clear [that the defendant] owes
$2,050,000 plus accrued interest to all the assignees of
the note, whoever they might be, subnote or no
subnote.’’
Tagliaferri also testified: ‘‘I can . . . tell you with
certainty that the [loan] funds were disbursed from the
Szulik account, that is, the $1,865,500 [was] disbursed
from the Szulik account, and the Szulik account
received in its custody account at [the bank] a [note
executed by the defendant] with a principal amount of
$2,050,000. And, of course, we know that there was
payment subsequent to that made. I mean, clearly, [the
defendant] made a forbearance payment or a note
extension payment of $205,000. It also made an addi-
tional interest payment of $45,000. . . .
‘‘How do I know that the funds were disbursed and
that the note was received in the account? Because I
looked at it over and over again, and I also know that
the $205,000 note extension agreement or forbearance
payment was made. It shows up right in the schedule
there. There was an additional $45,000 in interest paid
. . . and [the defendant], by making those payments,
clearly . . . knew that it had to make these payments.
It was no question that the $1,865,500 got to [the defen-
dant]. It got there. What wasn’t paid was the $2,050,000,
and the interest wasn’t paid, and that is why they paid
the forbearance payment, and that is why they paid the
interest. That is clear.’’
It suffices to observe that, in addition to the deposi-
tion testimony of Muscato and Tagliaferri, evidence
reflecting the subnotes acquired by the plaintiffs con-
sisted of business records related to the plaintiffs’
accounts at the bank. These records, admitted as exhib-
its 4 and 8, reflect that funds left the plaintiffs’ accounts
in 2009 and 2010, as described by Tagliaferri, and that
their accounts thereafter stated their interest in the
subnotes at issue in this action.
The defendant argues that it was not benefited. In
this argument, the defendant focuses on the trial testi-
mony of several of the plaintiffs that reflected that they
lacked personal knowledge of how the funds deducted
from their accounts at the bank, at Tagliaferri’s direc-
tion, ultimately were used. According to the defendant,
‘‘no evidence was produced by [the plaintiffs] establish-
ing that Szulik received any payments from [the plain-
tiffs] whatsoever.’’ The problem with this aspect of the
defendant’s claim, however, is that it seemingly over-
looks Tagliaferri’s testimony that, at the time of the
purchase of the subnotes by the plaintiffs and others,
Szulik was repaid in full. Tagliaferri testified that this
was made clear to Muscato as well. Muscato testified
that the defendant benefited from the loan that it
obtained from Szulik in that the defendant purchased
hardware with those loan proceeds. It hardly requires
explanation that the repayment of the defendant’s loan
obligation to Szulik with the plaintiffs’ funds constituted
a benefit to the defendant.
Another argument raised by the defendant is that the
plaintiffs failed to prove that the defendant unjustly
did not pay the plaintiffs for the benefit that it received.
In this aspect of the claim, the defendant challenges
the legal validity of the assignment by which TAG
obtained an interest in the original note. The defendant
argues: ‘‘[The plaintiffs’] claims are all based on the
foundation that Tagliaferri ‘justly’ obtained an interest
in the note. The undeniable evidence is that Tagliaferri
committed fraud, the subject transactions were not
valid, and Tagliaferri is in prison for a pattern of similar
fraudulent conduct.’’ Moreover, the defendant points
to the evidence that, in prior lawsuits brought by the
plaintiffs against the bank and/or Tagliaferri, the plain-
tiffs argued that the subnotes were fraudulent. The
defendant argues that the plaintiffs did not justly obtain
an interest in the original note, the subnotes did not
obligate the defendant to make direct payment to the
plaintiffs but to TAG, and that the plaintiffs cannot rely
on the subnotes, which are ‘‘nothing more than IOU’s
from TAG,’’ to enforce the note. The defendant’s argu-
ment in this regard is not persuasive because the court
did not award the plaintiffs a remedy in this action as
legal assignees and subrogees, but under the equitable
doctrine of unjust enrichment. If we were to follow the
defendant’s logic, the result would be untenable, for it
would lead to the conclusion that an equitable remedy
is unavailable to a plaintiff who lacks a legal remedy.
The defendant also argues that the plaintiffs failed to
prove that the failure of payment was to their detriment.
According to the defendant, ‘‘[the plaintiffs] produced
no evidence whatsoever as to where any of the funds
removed from their various accounts went after either
being wired to [TAG attorney] Barry Feiner’s trust
account or being wired to other parties’ accounts. Fur-
ther, the [bank] statements of Szulik showed no funds
transferred into his account, let alone any funds in
amounts and dates alleged by Tagliaferri. In short, [the
plaintiffs] failed to show [that] their funds were any-
thing other than stolen by Tagliaferri . . . .’’ We
observe that Szulik was not called as a witness in the
present action, nor was deposition testimony from
Szulik offered into evidence. Nonetheless, in making
this argument, the defendant seemingly overlooks Tagli-
aferri’s testimony, set forth previously in this opinion,
that the proceeds of the original note, plus interest,
were repaid to Szulik, in part, by virtue of the funds
deducted from the plaintiffs’ accounts, over which TAG
exercised control.14
In light of the foregoing, we conclude that the defen-
dant has failed to demonstrate that the evidence did
not support the court’s finding that the plaintiffs were
entitled to recover under a theory of unjust enrichment.
F
Next, the defendant claims that the court erred by
finding that cross-traded subnotes, which had been
exchanged between some of the plaintiffs’ accounts,
had unjustly enriched the defendant. We decline to
reach the merits of this claim, as it is inadequately
briefed.
As set forth previously in this opinion, the court found
that, at Tagliaferri’s direction, the bank wired funds
from the plaintiffs’ accounts to an escrow account main-
tained by TAG. Bank records reflect the funds that were
removed from the plaintiffs’ accounts as well as the
fact that the funds were disbursed for subnotes of the
defendant. The court stated in relevant part: ‘‘The bank
recorded asset values in each account for [the defen-
dant’s] notes or subnotes in an amount equal to the
amount transferred from the accounts at Tagliaferri’s
direction. Some accounts had more than one transac-
tion with respect to the [defendant’s] notes. A review
of the transactions also indicates that there was some
cross-trading of the ‘subnotes’ between the plaintiffs’
accounts.’’
In the present claim, the defendant focuses on evi-
dence of Tagliaferri’s cross-trading of subnotes. The
defendant refers to bank records showing that, in
December, 2009, Tagliaferri sold $640,000 of a $725,000
subnote that was held by one of the plaintiffs, the Katz
Marital Trust, to ten other plaintiffs in this action.
ing is illegal and that ‘‘[t]here is nothing legitimate about
. . . any of these subnotes.’’ After discussing this evi-
dence, the defendant baldly states: ‘‘Accordingly, the
trial court was clearly erroneous in finding that [the
plaintiffs to whom the cross-traded subnotes were
assigned] paid any portion of [the defendant’s] obliga-
tion to Szulik.’’ In its brief, the defendant has provided
this court with a one sentence conclusory statement of
this claim that is unsupported by any analysis, let alone
any citation to authority. Insofar as the reasoning that
underlies the defendant’s claim is not readily apparent,
we observe that this court is not an advocate and will
not formulate a rationale on the defendant’s behalf. See,
e.g., LaBow v. LaBow, 85 Conn. App. 746, 751–52, 858
A.2d 882 (2004) (‘‘[a]s we have stated on occasions too
numerous to recite, mere abstract assertions, unaccom-
panied by reasoned analysis, will not suffice to apprise
a court adequately of the precise nature of a claim’’),
cert. denied, 273 Conn. 906, 868 A.2d 747 (2005). Accord-
ingly, the defendant has not demonstrated that the fact
that cross-trading occurred undermined the court’s
finding that funds removed from the plaintiffs’ accounts
at issue had been used to repay the defendant’s debt
to Szulik, as Tagliaferri so clearly testified during his
deposition. See part I E of this opinion.
G
Next, the defendant claims that the court erred by
finding that the defendant’s loan obligation to Szulik
was satisfied in part with the use of the plaintiffs’ funds.
We disagree.
The following additional facts are relevant to the
present claim. In the portion of the court’s memoran-
dum of decision rejecting the plaintiffs’ claim that they
were entitled to legal relief as assignees, the court found
in relevant part: ‘‘To the extent [that] the plaintiffs rely
on the contention that they are assignees of the [defen-
dant’s] note, this court finds the issues in favor of the
defendant . . . . The assignment claims are dependent
on the veracity of Tagliaferri and the reliability of
records kept by him while he was committing financial
fraud. The ‘assignment’ documents were created for and
signed solely by Tagliaferri. Tagliaferri, as discussed
[previously], was recently convicted of felonies involv-
ing such a degree of turpitude in their commission that
one cannot readily accept his version of events. Indeed,
some of the plaintiffs, in recent lawsuits, attacked his
veracity and described the transactions in their
accounts as fake and created out of whole cloth.’’ As
we have discussed previously in this opinion, the court,
however, awarded the plaintiffs relief with respect to
their equitable claim for relief.
The present claim of error is the defendant’s attempt
to challenge the court’s reliance on any portion of Tagli-
aferri’s deposition testimony. As we have discussed in
detail in part I E of this opinion, the testimony was
admitted into evidence and, among other things, it dem-
onstrated that Tagliaferri used the plaintiffs’ funds to
satisfy the debt that the defendant owed Szulik pursuant
to the 2006 note that the defendant executed in Szulik’s
favor. The defendant, acknowledging that Tagliaferri’s
deposition testimony was, in fact, evidence that the
plaintiffs’ funds were used to satisfy its debt to Szulik,
nonetheless urges this court to conclude that the trial
court could not rely on the testimony to reach that
finding. The defendant argues that, ‘‘after acknowledg-
ing that one cannot readily accept Tagliaferri’s version
of events, the trial court astonishingly relied on his
implausible deposition testimony to establish that [the
defendant’s] obligation to Szulik was satisfied with Tag-
liaferri’s use of the [plaintiffs’] funds.’’
We note that, in the context of this factual claim, the
defendant raises what it deems to be ‘‘technical’’ defects
in the manner in which Tagliaferri’s deposition
occurred. For instance, the defendant argues that Tagli-
aferri, who was deposed by telephone while he was
incarcerated, was not properly put under oath prior to
the start of the deposition and that nobody was present
to verify what documents he reviewed during his testi-
mony. Moreover, the defendant, drawing our attention
to excerpts from the deposition, which is 107 pages in
length, describes his testimony as ‘‘vague,’’ ‘‘inexact,’’
and ‘‘hazy,’’ thereby appearing to suggest that the testi-
mony in its entirety had no evidentiary value whatso-
ever. Despite these arguments, in this appeal, the defen-
dant has not set forth a claim of evidentiary error with
respect to the admission of Tagliaferri’s deposition and
does not analyze the claim as one of evidentiary error.15
Instead, the defendant couches its claim in terms of
factual error and, specifically, a challenge to the court’s
reliance on the evidence at issue, which, we note, was
admitted without limitation.16 At the heart of the defen-
dant’s claim is its argument that ‘‘Tagliaferri’s testimony
was simply not credible.’’
‘‘Appellate review under the clearly erroneous stan-
dard is a two-pronged inquiry: [W]e first determine
whether there is evidence to support the finding. If
not, the finding is clearly erroneous. Even if there is
evidence to support it, however, a finding is clearly
erroneous if in view of the evidence and pleadings in
the whole record [this court] is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) T & M Building
Co. v. Hastings, 194 Conn. App. 532, 539, 221 A.3d 857(2019), cert. denied, 334 Conn. 926, 224 A.3d 162 (2020).
Tagliaferri’s testimony supports the challenged find-
ing. Moreover, we are not persuaded, in view of the
evidence and pleadings in the whole record, that a mis-
take has been committed. ‘‘In a case tried before a
court, the trial judge is the sole arbiter of the credibility
of the witnesses and the weight to be given specific
testimony. . . . It is within the province of the trial
court, as the fact finder, to weigh the evidence pre-
sented and determine the credibility and effect to be
given the evidence.’’ (Internal quotation marks omit-
ted.) Schaeppi v. Unifund CCR Partners, 161 Conn.
App. 33, 43, 127 A.3d 304, cert. denied, 320 Conn. 909,
128 A.3d 953 (2015). ‘‘It is the quintessential function
of the fact finder to reject or accept certain evidence
. . . . As the trier of fact, the trial court may properly
accept or reject, in whole or in part, certain testimony
offered by a party.’’ (Citation omitted; internal quotation
marks omitted.) In re Antonio M., 56 Conn. App. 534,
540, 744 A.2d 915 (2000). The court was entitled to rely
on Tagliaferri’s deposition testimony in whole or in part.
The defendant has not demonstrated that the court
drew improper inferences from or misconstrued that
testimony.
The defendant also suggests that the court’s finding
was clearly erroneous because the court, in rejecting
the claim that the plaintiffs were assignees, stated that
it would not credit Tagliaferri’s ‘‘version of events,’’ yet
it relied on his testimony in support of the plaintiffs’
claim for relief under a theory of unjust enrichment.
We are not persuaded that any inconsistency exists. To
prove that they are legal assignees of the subnotes at
issue, the plaintiffs were bound to demonstrate the legal
validity of those instruments, which, as the court found,
were the product of Tagliaferri’s fraud. To prove that
they were entitled to equitable relief, however, the plain-
tiffs did not have to prove that the instruments at issue
had legal validity but that they were entitled to repay-
ment because their funds had been used to partially
satisfy the defendant’s debt to Szulik. The court was
free to reject the portions of Tagliaferri’s testimony that
would have supported the assignee claim while relying
on those portions of his testimony that supported the
claim for equitable relief. In light of the foregoing, the
defendant has failed to demonstrate that the court’s
findings were clearly erroneous.
H
Finally, the defendant claims that the court erred by
finding that the plaintiffs had satisfied the defendant’s
debt obligation to Szulik despite the fact that the debt
was not discharged pursuant to the terms of the note
at issue. We disagree.
The promissory note executed by Muscato, as chief
executive officer, on behalf of the defendant on July
25, 2006, provides in relevant part: ‘‘No modification or
waiver of any of the provisions of this [n]ote shall be
effective unless in writing and signed by [p]ayee and
only then to the extent set forth in such writing, or
shall any such modification or waiver be applicable
except in the specific instance for which it is given.
This [n]ote may not be discharged orally but only in
writing duly executed by [p]ayee.’’17 Relying on this
portion of the original note, the defendant argues in
relevant part: ‘‘In addition to the fact that [the plaintiffs]
produced no credible evidence establishing that Szulik
was paid any of the moneys taken from the [plaintiffs’]
accounts, [the plaintiffs] failed to produce any writing,
duly executed by Szulik, discharging [the defendant’s]
debt obligation pursuant to the note.’’ The defendant
argues that the plaintiffs failed to sustain their burden
of proof by failing to present such evidence.
As we stated previously in this opinion, ‘‘[p]laintiffs
seeking recovery for unjust enrichment must prove (1)
that the defendants were benefited, (2) that the defen-
dants unjustly did not pay the plaintiffs for the benefits,
and (3) that the failure of payment was to the plaintiffs’
detriment.’’ (Internal quotation marks omitted.) Horner
v. Bagnell, supra, 324 Conn. 708. The defendant does
not cite to any authority that stands for the proposition
that the plaintiffs bore the additional burden of proving
that the benefit that they conferred on the defendant
by means of repayment of the debt thereafter caused
Szulik to discharge the note in writing. For the reasons
already discussed in this opinion, the evidence, includ-
ing Tagliaferri’s deposition testimony, supported a find-
ing that the plaintiffs’ funds were used to pay the debt
that the defendant owed to Szulik. The fact that the
plaintiffs did not demonstrate that repayment of the
debt satisfied the technical requirements of a note to
which they were not a party is of no consequence to
our analysis of whether funds removed from their
accounts at the bank benefited the defendant. Accord-
ingly, the court did not err in finding that the plaintiffs
were entitled to recover under a theory of unjust enrich-
ment despite the failure to produce evidence of a writ-
ten discharge of the note.
II
THE PLAINTIFFS’ APPEAL
In the present appeal from the court’s denial of the
plaintiffs’ motion for attorney’s fees and expenses, the
plaintiffs claim that the court erred by denying their
motion for attorney’s fees and expenses after rendering
judgment in their favor with respect to their unjust
enrichment cause of action. We disagree.
The following additional procedural history is neces-
sary to our analysis of the present claim. In December,
2016, after the court’s judgment in favor of the plaintiffs
with respect to their unjust enrichment claim, the plain-
tiffs filed a motion in which they requested (1) an award
of attorney’s fees and expenses they incurred during
the trial, and (2) ‘‘that the consideration of the attorney’s
fees issue be bifurcated so that liability is determined
before the calculation of fees and expenses is consid-
ered.’’ With respect to their motion for attorney’s fees,
the plaintiffs argued that, under the terms of the original
promissory note that the defendant executed in Szulik’s
favor in 2006, such a remedy was available to Szulik in
the event that the defendant defaulted on the note by
failing to make payment when due. Relying on para-
graph 7 (b) of the note,18 the plaintiffs argued ‘‘that, by
purchasing interests in [the note] they paid [the defen-
dant’s] obligation under it, became equitable assignees,
subrogees, of [Szulik’s] interest in the note and were
entitled to all legal rights held by [Szulik] against [the
defendant]. As such, they were entitled to seek payment
of the note by its maker, [the defendant], plus attorney’s
fees and costs of collection.’’
The defendant objected to the plaintiffs’ motion for
attorney’s fees on the ground that, under the American
rule, attorney’s fees generally are disallowed unless
they are provided to the prevailing party by contract
or statute. The defendant argued that, although the
plaintiffs were attempting to claim a right to such fees
as assignees of the note, the court had expressly
rejected their assertion of rights as assignees of the note
and had awarded them damages under their equitable
cause of action only. The defendant argued that the
court did not find that the plaintiffs had been equitably
subrogated into ‘‘the shoes of . . . Szulik’’ with respect
to the note. Moreover, the defendant argued that the
facts of this case did not support such relief because
‘‘it is undisputed that [the] plaintiffs’ total contributions,
as a group, did not satisfy the entire debt obligation
reflected in the original [defendant’s] note.’’ The defen-
dant also argued that the plaintiffs did not rely on a
statutory ground for attorney’s fees or assert that a
departure from the American rule was warranted in the
present case.
The plaintiffs filed a reply in which they argued, in
part, that the court had not made any determinations
with respect to their rights under the doctrine of ‘‘equita-
ble subrogation’’ or ‘‘equitable assignment’’ because it
had not been asked to do so until the plaintiffs filed
the motion for attorney’s fees. Moreover, in responding
to the arguments raised by the defendant, the plaintiffs
did not dispute the defendant’s reliance on the fact that,
the funds of the plaintiffs, as a group, did not repay the
entire debt. Instead, they argued that the defendant had
failed to demonstrate that this fact was legally signifi-
cant with respect to their claim for equitable subro-
gation.
On January 25, 2017, Judge Thim issued an order
stating that he had considered the parties’ filings and
then summarily denied the plaintiffs’ motion for attor-
ney’s fees.
Thereafter, the plaintiffs filed a motion for reargu-
ment in which they reasserted their legal argument that,
because they had discharged a portion of the defen-
dant’s obligation under the note, they had been subro-
gated to the position of Szulik with respect to the note.
The plaintiffs argued that, to the extent that the defen-
dant argued that equitable subrogation was not a proper
remedy because the plaintiffs’ funds had not satisfied
the entire debt, such an argument was waived because
it was not raised at the time of trial.
The defendant filed an objection related thereto. The
defendant argued in relevant part: ‘‘In this case, there
is no guarantee, note, or any other written document
running from [the defendant] to any of the plaintiffs that
authorizes the recovery of attorney’s fees. The court
specifically found in favor of [the defendant] on the
assignment claims and only found for the plaintiffs on
the unjust enrichment claim. The decision contains no
finding whatsoever that any plaintiffs established any
claims for subrogation, and it is undisputed [that] the
plaintiffs’ contributions, as a group, did not satisfy the
entire debt obligation. Therefore, there is no basis what-
soever for [the] plaintiffs to ‘step into the shoes’ of
[Szulik] under the . . . note.’’
The plaintiffs filed a reply in which they disagreed
with the defendant’s argument that a claim for subroga-
tion was not part of the action because equitable subro-
gation claims had been stricken by the court, Sommer,
J., prior to trial. The plaintiffs argued that the argument
advanced by the defendant was flawed because, as a
matter of law, subrogation is a proper remedy for a
claim of unjust enrichment and, thus, need not have
been specifically alleged apart from its unjust enrich-
ment claim.
In its May 3, 2017 order denying the plaintiffs’ motion
for reargument, the court stated in relevant part: ‘‘This
court denies the plaintiffs’ motion to reargue their post-
judgment motion for attorney’s fees . . . . This court
initially denied the plaintiffs’ motion for attorney’s fees
on the ground [that] the defendant, in articulating its
objection to the motion, had incorrectly interpreted this
court’s memorandum of decision dated November 23,
2016, wherein this court stated the following: ‘To the
extent [that] the plaintiffs rely on the contention [that]
they are assignees of the [defendant’s] note, this court
finds the issues in favor of the defendant . . . .’ The
plaintiffs claim they have acquired by assignment or
subrogation a contractual right under the terms of the
[defendant’s] note to recover attorney’s fees. This asser-
tion is contrary to the court’s finding with respect to
the assignment claim. The plaintiffs did not obtain a
contractual or quasi-contractual right to recover attor-
ney’s fees. The ‘American rule’ is that attorney’s fees
are not allowed to the successful party absent a contrac-
tual or statutory exception. . . . There is no contrac-
tual or statutory basis for a recovery of legal fees. Fur-
thermore, there is no evidence of bad faith to justify a
deviation from the American rule.’’19 (Citations
omitted.)
In the present claim, the plaintiffs advance arguments
similar in nature to the arguments that they raised
before the trial court. Essentially, they argue that, by
virtue of the fact that they were entitled to relief under
a theory of unjust enrichment, they were entitled as a
matter of right to be awarded attorney’s fees and
expenses as equitable subrogees. They argue that, by
virtue of their funds having been used to pay the defen-
dant’s indebtedness, they stand ‘‘in the shoes’’ of Szulik
with respect to the rights set forth in the note. They
urge us to conclude that, ‘‘[o]nce unjust enrichment
has been determined, as here, the remedy of equitable
subrogation follows . . . .’’ The plaintiffs reason that,
if the defendant was obligated to pay Szulik directly,
an award of attorney’s fees and expenses would have
been Szulik’s right, and it would unjustly enrich the
defendant if it was not ordered to pay an award of
attorney’s fees and expenses to them. The plaintiffs
also argue: ‘‘As a matter of equity, the plaintiffs should
be subrogated to the Szulik right to recover attorney’s
fees and costs. The defendant should not be permitted
to choose what subrogated obligations it will pay.’’
‘‘Ordinarily, we review the trial court’s decision to
award attorney’s fees for abuse of discretion. . . . This
standard applies to the amount of fees awarded . . .
and also to the trial court’s determination of the factual
predicate justifying the award. . . . When, however, a
damages award is challenged on the basis of a question
of law, our review is plenary.’’ (Citation omitted; inter-
nal quotation marks omitted.) Chicago Title Ins. Co. v.
Accurate Title Searches, Inc., 173 Conn. App. 463, 496,
164 A.3d 682 (2017). ‘‘The trial court’s determination of
the proper legal standard in any given case is a question
of law subject to our plenary review.’’ (Internal quota-
tion marks omitted.) Total Recycling Services of Con-
necticut, Inc. v. Connecticut Oil Recycling Services,
LLC, 308 Conn. 312, 326, 63 A.3d 896 (2013). The issue
presented does not implicate an amount of attorney’s
fees awarded or whether there was a factual predicate
justifying such an award. Instead, the issue before us
is whether, as the plaintiffs argue, they were entitled
as a matter of right to be awarded attorney’s fees and
expenses as equitable subrogees. With respect to this
question of law, we will exercise plenary review.
‘‘The general rule of law known as the American
rule is that attorney’s fees and ordinary expenses and
burdens of litigation are not allowed to the successful
party absent a contractual or statutory exception. . . .
Connecticut adheres to the American rule. . . . There
are few exceptions. For example, a specific contractual
term may provide for the recovery of attorney’s fees
and costs . . . or a statute may confer such rights. . . .
This court also has recognized a bad faith exception to
the American rule, which permits a court to award
attorney’s fees to the prevailing party on the basis of
bad faith conduct of the other party or the other party’s
attorney.’’ (Internal quotation marks omitted.) ACMAT
Corp. v. Greater New York Mutual Ins. Co., 282 Conn.
576, 582, 923 A.2d 697 (2007).
To the extent that the plaintiffs suggest in their analy-
sis that, as a matter of law, a right of equitable subroga-
tion emanates from the fact that they prevailed in their
equitable cause of action sounding in unjust enrich-
ment, the plaintiffs have failed to demonstrate that the
law so requires. The plaintiffs have cited no binding
authority in support of their claim that attorney’s fees
are a necessary component of an award in which a
party has unjustly enriched another by payment of a
debt.20 ‘‘The law has recognized two types of subroga-
tion: conventional; and legal or equitable. . . . Conven-
tional subrogation can take effect only by agreement
and has been said to be synonymous with assignment.
It occurs where one having no interest or any relation
to the matter pays the debt of another, and by agreement
is entitled to the rights and securities of the creditor so
paid. . . . By contrast, [t]he right of [legal or equitable]
subrogation is not a matter of contract; it does not arise
from any contractual relationship between the parties,
but takes place as a matter of equity, with or without
an agreement to that effect. . . . The object of [legal
or equitable] subrogation is the prevention of injustice.
It is designed to promote and to accomplish justice,
and is the mode which equity adopts to compel the
ultimate payment of a debt by one who, in justice,
equity, and good conscience, should pay it. . . . As
now applied, the doctrine of [legal or] equitable subro-
gation is broad enough to include every instance in
which one person, not acting as a mere volunteer or
intruder, pays a debt for which another is primarily
liable, and which in equity and good conscience should
have been discharged by the latter.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn.
362, 370–71, 672 A.2d 939 (1996). In other words, ‘‘[a]
party advancing properly a claim of equitable subroga-
tion is stepping into the shoes of the party it paid in
order to recover the payments that it made . . . .’’
(Emphasis altered; internal quotation marks omitted.)
Warning Lights & Scaffold Service, Inc. v. O & G Indus-
tries, Inc., 102 Conn. App. 267, 275, 925 A.2d 359 (2007).
The dispositive factor in our review is that the court
expressly determined that the plaintiffs were entitled
to recover under an unjust enrichment theory, but the
court did not find that the plaintiffs were assignees of
the original note that the defendant executed in Szulik’s
favor in 2006. Had the plaintiffs been assignees of the
note, they could have sought to enforce the note, includ-
ing the provision for payment of attorney’s fees and
expenses. The court, however, clearly drew a distinc-
tion between finding that the elements of the unjust
enrichment cause of action had been proven and finding
that the plaintiffs had stepped into the shoes of Szulik
as a result of their partial payment of the defendant’s
debt. The court found that the plaintiffs were entitled
to a recovery for their payment of a portion of the debt
owed to Szulik but did not find that they had obtained
contractual or quasi-contractual rights to enforce the
terms of the note against the defendant.
Moreover, as the defendant argued both before the
trial court and this court, there is another impediment
to the plaintiffs’ argument that they are entitled to the
relief of equitable subrogation. The court found, the
evidence reflects, and the plaintiffs do not dispute, that
Tagliaferri did not use the plaintiffs’ funds to repay the
entire debt that the defendant owed Szulik. Indeed,
before this court, the plaintiffs assert that, as a group,
their funds repaid $1,848,000 of that debt.21 See footnote
4 of this opinion. As a general rule, ‘‘[e]quitable subroga-
tion requires the subrogee to discharge the entire debt
held by the original obligor.’’ (Emphasis added.) 73 Am.
Jur. 2d, Subrogation § 25 n.1 (2012). ‘‘Generally, a per-
son is not entitled to be subrogated to the rights of
another until the claim of the creditor against the debtor
has been paid in full; this antisubrogation rule is known
as the ‘made whole doctrine.’ Part payment will not
create a right of subrogation. Until the debt is paid in
full, there can be no interference with the creditor’s
rights or securities that might, even by a bare possibility,
prejudice or in any way embarrass him in the collection
of the residue of his debt.’’ (Emphasis added; footnotes
omitted.) Id., § 25. Although some evidence before the
court suggested that the entire debt was paid at the
time that Tagliaferri used the plaintiffs’ funds to satisfy
a large portion of that debt, the court’s findings, to
which we must defer unless they are successfully chal-
lenged on appeal, reflect that the funds of the plaintiffs
and Lamm satisfied $1,848,000 of the defendant’s debt
obligation; the court did not find that the entire debt
had been paid in full by the plaintiffs.
Accordingly, the court properly applied the American
rule and determined that, in the absence of a contractual
or statutory basis to award attorney’s fees, and in the
absence of an allegation of bad faith, the plaintiffs’
motion for such fees should be denied. The plaintiffs
have failed to demonstrate that the ruling was legally
erroneous.
The judgment is reversed with respect to Douglas
Lamm and the case is remanded with direction to vacate
the judgment as to Douglas Lamm only; the judgment
is affirmed in all other respects, and the denial of the
plaintiffs’ motion for attorney’s fees 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 plaintiffs are Indoor Billboard Northwest, Inc.; Catherine E. Cox;
Daniel D. Gestwick IRA R/O; Paige C. Gist; Bernice Goldin IRA by Rochelle
Goldin for Bernice Goldin Estate; Bernice Goldin IRA by Steve Goldin for
Bernice Goldin Estate; Donald J. Handal Revocable Trust U/O; Donald J.Han-
dal IRA R/O; Margot S. Handal TR U/A; Edward J. Harnett; Geoffrey M.
Holmes; Geoffrey W. Holmes; Lee M. Holzman; Becky Holzman; Marital
Trust U/W William Katz; Peggy W. Kaufmann IRA; Richard J. Kauffmann
Decedent’s Trust; Kay M. Kazmaier; Stanley A. Star; James Shulevitz; Alan
Wolff; Nadine Wolff; and Michael Wolff.
2
This amount includes damages awarded to Douglas Lamm, who was
neither a plaintiff in the underlying action nor a nonparty who had assigned
his interest to a plaintiff in the underlying action. In part I A of this opinion,
we will consider the merits of a claim brought by the defendant with respect
to this portion of the judgment.
3
The evidence reflects that the bank is headquartered in Quincy, Massa-
chusetts.
4
We emphasize that the court’s findings reflect that Tagliaferri did not
use the funds of the plaintiffs, as a group, to pay the entire debt that the
defendant owed Szulik. The court found that, after the prepayment of interest
in the amount of $184,500 was deducted from the $2,050,000 loan, $1,865,500
was advanced to the defendant from Szulik’s account in 2006. In 2007, the
defendant paid an extension fee of $205,000 and an interest payment of
$45,000, but the defendant did not make any payment on the $1,865,500
principal of the loan. The court found that the funds of the plaintiffs and
Lamm were used to pay only $1,848,000 of the unpaid debt.
5
In a subsequent articulation filed May 14, 2019, the court provided addi-
tional justification for its decision in relevant part: ‘‘The court’s award to
the plaintiffs was based on an unjust enrichment theory. As this court noted
in its memorandum of decision, ‘[the defendant’s] obligation to Szulik was
satisfied with Tagliaferri’s use of the plaintiffs’ funds.’ The court did not
accept the plaintiffs’ assignment theory. [The] plaintiffs did not obtain a
legal or equitable right to enforce the contractual provisions of the note or
other documents. The court, on this issue, chose not to rely [on] the deposi-
tion testimony of . . . Tagliaferri, a convicted felon who, at the time of
the trial in the present case, was serving a prison sentence for his having
committed financial crimes. When this court referred in its memorandum
[of decision] to the plaintiffs’ assignment claim as ‘purported’ assignment,
the court meant to convey to the reader that the court had concluded that
all the assignment claims were unproven allegations.
‘‘The court did not find that the exhibits bearing the dates February 24,
2009, and November 26, 2009, are, in fact, assignments. All of the plaintiffs’
assignment claims are based on Tagliaferri’s testimony and/or documents
created and kept by Tagliaferri while he was committing financial fraud.
As the court noted, some of the plaintiffs in this case described Tagliaferri’s
transactions as fake and created out of whole cloth.’’
6
In response to a motion for articulation brought by the defendant, the
court discussed four additional special defenses (seventeen, eighteen, nine-
teen, and twenty) that were expressly applied to all counts of the operative
complaint and which were set forth in an amended answer and special
defenses filed by the defendant on October 15, 2015, to which there was
no reply. The seventeenth special defense stated: ‘‘[The] plaintiffs’ claims
of assignment of the subject note are barred by lack of bargained for consid-
eration.’’ The eighteenth special defense stated: ‘‘[The] plaintiffs’ claims are
barred by the [fact] that no plaintiff is currently in possession of the original
subject note, and the original subject note is lost.’’ The nineteenth special
defense stated: ‘‘[The] defendant is entitled to a setoff to the extent of all
[moneys] received by or on behalf of [the] plaintiffs from any collateral
source, including but not limited to, any settlement or court-ordered criminal
restitution.’’ The twentieth special defense stated: ‘‘[The] plaintiffs’ claims
are barred to the extent [that] the subnotes upon which they rely to support
their claims are not unconditional promises to pay, are not signed by the
original payee or [the defendant] and are mere promises to pay made by
[the] plaintiffs’ purported assignor . . . Tagliaferri, on behalf of [TAG].’’
In its articulation, the court set forth its rationale for rejecting these
additional four special defenses that it did not expressly address in its
November 23, 2016 memorandum of decision. The court stated in relevant
part: ‘‘The defendant did not discuss or rely upon the seventeenth and
eighteenth special defenses in its posttrial briefs. In light of the facts set
forth in the court’s memorandum of decision, the seventeenth and eighteenth
special defenses are without merit. In the nineteenth special defense, the
defendant claims it has a right to setoff from collateral sources. There was,
however, no evidence that any settlement funds received in connection with
other lawsuits were allocated to the [defendant’s] subnotes. In the twentieth
special defense, the defendant asserts [that] the subnotes were not signed
by the original payee or [the defendant]. In light of the fact [that] this court
found the issues in favor of the plaintiffs on the unjust enrichment claim,
rather than the assignment claim, this defense is inapplicable.’’
7
The court awarded Catherine E. Cox $33,750; Daniel D. Gestwick IRA
R/O $33,750; Paige C. Gist $33,750; Bernice Goldin IRA $20,250, Donald J.
Handal Rev Trust U/O, Donald J. Handal IRA, R/O & Margot S. Handal Tr
U/A $182,250; Edward J. Hartnett $87,750; Geoffrey M. Holmes $33,750;
Geoffrey W. Holmes $168,750; Lee M. Holzman and Becky Holzman $67,500;
Indoor Billboard Northwest, Inc., $189,000; Assigned Claims of Joy S. Kertes
and Ronald Kertes $33,750, Gail N. Kuhn $101,250, and Douglas Lamm
$135,000; Marital Trust U/W William Katz $506,250; Peggy W. Kaufmann
IRA and Richard J. Kaufmann Decedent’s Trust $170,100; Kay M. Kazmaier
$27,000; James Shulevitz $135,000; Stanley A. Star $232,200; Alan Wolff and
Nadine Wolff $135,000; and Michael Wolff $168,750.
8
We will discuss the procedural history related to the plaintiffs’ motion
as well as the court’s ruling denying the motion in part II of this opinion.
9
We note that, although the defendant relies on what transpired before
Judge Rush on May 13, 2016, including the court’s ruling, it did not provide
this court with the transcript of the proceeding of that date. Instead, in the
appendix to its brief, the defendant has submitted a single page from the
transcript of the proceeding on May 13, 2016, the accuracy of which is not
disputed by the plaintiffs. To the extent that the parties disagree about the
specific manner in which Judge Rush resolved the tax return issue, we are
unable, on the basis of the record before us, to verify the substance of that
ruling beyond relying on what is set forth on the single page of the transcript
that is in the record.
10
The plaintiffs’ attorney informed the court that he had ‘‘some’’ of the
plaintiffs’ tax returns nearby.
11
In its brief, the defendant couches the present claim in terms of the
court’s having failed ‘‘to consider’’ its special defense. Because, as the defen-
dant acknowledges in its analysis of the claim, the court, in its memorandum
of decision, plainly discussed the special defense, we consider the claim to
be whether the court properly rejected the special defense.
12
The evidence was not in dispute, and the court found, that, as of the
date of the loan, Muscato, the chief executive officer of the defendant, was
the president of IQL.
13
Tagliaferri testified that, in July, 2009, Szulik began the process of termi-
nating his relationship with TAG. TAG continued to manage some of Szulik’s
assets until early 2010. Szulik’s interest in the defendant’s note was one of
the assets that Szulik asked TAG to continue to manage until Szulik fully
terminated his relationship with TAG.
14
In this portion of its claim, the defendant also suggests that the equitable
remedy of subrogation is available only if a party bringing an action can
demonstrate that an implied contract or quasi-contractual relationship exists
between itself and the party against whom the equitable remedy is sought.
The defendant argues: ‘‘There were no contractual or quasi-contractual rela-
tionships at all between [the defendant] and the plaintiffs which could
support a valid claim for recovery under an unjust enrichment theory.’’ The
defendant has not cited any authority that limits the equitable remedy in
this manner, and our review of relevant precedent does not burden a plaintiff
seeking recovery under a theory of unjust enrichment to demonstrate that
something akin to a contractual relationship exists between itself and a
defendant. As our Supreme Court has stated: ‘‘A right of recovery under
the doctrine of unjust enrichment is essentially equitable, its basis being
that in a given situation it is contrary to equity and good conscience for
one to retain a benefit which has come to him at the expense of another.
. . . With no other test than what, under a given set of circumstances, is
just or unjust, equitable or inequitable, conscionable or unconscionable, it
becomes necessary in any case where the benefit of the doctrine is claimed,
to examine the circumstances and the conduct of the parties and apply this
standard. . . . Unjust enrichment is, consistent with the principles of equity,
a broad and flexible remedy. . . . Plaintiffs seeking recovery for unjust
enrichment must prove (1) that the defendants were benefited, (2) that the
defendants unjustly did not pay the plaintiffs for the benefits, and (3) that
the failure of payment was to the plaintiffs’ detriment.’’ (Citations omitted;
internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniro-
yal Goodrich Tire Co., 231 Conn. 276, 282–83, 649 A.2d 518 (1994).
15
Accordingly, we need not address the plaintiffs’ argument that, if the
claim is viewed as one of evidentiary error, it is unreviewable on appeal
because it is unpreserved.
16
The defendant framed this claim as follows: ‘‘Did the trial court err in
finding [that] [t]he evidence, including a part of Tagliaferri’s deposition
testimony that this court credits, is that [the defendant’s] obligation to Szulik
was satisfied with Tagliaferri’s use of [the] plaintiffs’ funds?’’ (Emphasis
added; internal quotation marks omitted.)
17
In the note, Szulik was identified as the ‘‘payee.’’
18
Paragraph 7 (b) provides in relevant part: ‘‘Upon the occurrence of an
[e]vent of [d]efault . . . all [o]bligations then remaining unpaid hereunder
shall immediately become due and payable in full, plus interest on the unpaid
portion of the [o]bligations at the highest rate permitted by applicable law,
without notice to [m]aker and without presentment, demand, protest or
notice of protest, all of which are hereby waived by [m]aker together with
all reasonable costs and expenses of the collection and enforcement of this
[n]ote, including reasonable attorney’s fees and expenses, all of which shall
be added to the amount due under this [n]ote.’’
19
In a subsequent articulation filed May 14, 2019, the court provided the
following additional rationale concerning its ruling with respect to attorney’s
fees: ‘‘The plaintiffs contend [that] their claim for counsel fees was previously
ruled upon by another judge in a pretrial proceeding in this case. The law
of the case doctrine is not a limitation on a trial court’s powers. . . . This
court found that there was no privity of contract. Further, this court found
that the plaintiffs failed to show that this court should exercise equitable
powers and impose on [the defendant] an obligation to pay legal fees.’’
(Citation omitted.)
20
The plaintiffs rely on the decision of a federal District Court in Seabright
Ins. Co. v. Matson Terminals, Inc., 828 F. Supp. 2d 1177 (D. Haw. 2011),
which we do not find to be persuasive authority. It suffices to observe that
Seabright Ins. Co. is factually distinguishable in that the plaintiff in that
case, an insurer, sought to recover attorney’s fees from the defendant that
it paid on behalf of its insured in connection with a workers’ compensation
action. Id., 1179. In denying a motion for summary judgment, the court
reasoned that the claim for attorney’s fees by the plaintiff was dependent
on its ability to enforce rights codified in an insurance contract that had
been entered into by its insured. Id., 1192. In the context of a claim that an
insurer is entitled to the right of subrogation, the court observed: ‘‘The
right of subrogation is derivative. An insurer entitled to subrogation is in
the same position as an assignee of the insured’s claim, and succeeds only
to the rights of the insured. The subrogated insurer is said to stand in the
shoes of its insured, because it has no greater rights than the insured and
is subject to the same defenses assertable against the insured. Thus, an
insurer cannot acquire by subrogation anything to which the insured has
no rights, and may claim no rights which the insured does not have.’’ (Internal
quotation marks omitted.) Id.
21
This amount includes Lamm’s contribution, if any, to the payment of
the debt. As we determined in part I A of this opinion, Lamm’s interest was
not properly before the trial court.