Sean O'Kane A.I.A. Architect, P.C. v. Puljic , 148 Conn. App. 728 ( 2014 )

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SEAN O’KANE A.I.A. ARCHITECT, P.C. v. GORAN
PULJIC ET AL.
(AC 35245)
Beach, Sheldon and Keller, Js.
Argued October 29, 2013—officially released March 18, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Kevin Tierney, judge trial
referee.)
Alan R. Spirer, for the appellant (plaintiff).
Michael V. Pepe, with whom were Justin Garcia and,
on the brief, Raymond A. Garcia, for the appellees
(defendants).
Opinion
BEACH, J. The plaintiff, Sean O’Kane A.I.A. Architect,
P.C.,1 appeals from the judgment of the trial court in
favor of the defendants, Goran Puljic and Melinda Pul-
jic. The plaintiff claims that the court erred in (1) con-
cluding that his breach of contract claim was barred
by the statute of limitations; (2) finding that the parties
did not enter into a ‘‘standstill’’ agreement, thus tolling
the statute of limitations; and (3) concluding that the
count of his complaint alleging unjust enrichment was
barred by the doctrine of laches. We affirm in part and
reverse in part the judgment of the trial court.
The action was commenced by service of process
on June 29, 2010. The plaintiff later filed an amended
complaint alleging (1) breach of contract for failure to
pay for architectural services, and (2) unjust enrich-
ment. By way of special defenses, the defendants
alleged that the breach of contract claim was barred
by the applicable statute of limitations, General Statutes
§ 52-576, and that the unjust enrichment claim was
barred by the doctrine of laches. In the plaintiff’s reply
to the defendants’ special defense asserting the statute
of limitations, the plaintiff alleged, as a ‘‘matter in avoid-
ance,’’ that the parties had agreed not to ‘‘bring claims
against one another’’ until after arbitration proceedings
involving the builder, a third party, were concluded,
and thus the statute of limitations had been tolled.
The parties entered into a stipulation agreeing to
bifurcate the trial, under which the facts and issues
relating to the defendants’ special defenses would be
decided prior to the adjudication of the other facts
and issues in this case. Accordingly, the court, in its
November 28, 2012 decision, addressed only the special
defenses alleging that any recovery was barred by the
statute of limitations and laches.
The following facts were found by the trial court. In
December, 2000, the plaintiff and Melinda Puljic exe-
cuted a contract for architectural services (contract).
The contract was addressed to: ‘‘Mr. & Mrs. G. Puljic.’’
Both defendants were the owners of a house in Darien.
Pursuant to the contract, the plaintiff was to perform
restoration and alteration work on ‘‘two adjacent
houses built almost 200 years ago, improved with addi-
tions and alterations joining the two houses into one
building.’’ On October 10, 2001, both defendants and E.
M. Rose Builders, Inc. (Rose), entered into a construc-
tion contract (construction contract) pursuant to which
Rose commenced work. The plaintiff was not a party
to the construction contract. The goal of the project
was to complete the house by December, 2002.
The plaintiff submitted twenty-three serially num-
bered invoices to the defendants for architectural ser-
vices. The defendants paid invoices one through
seventeen, but failed to pay invoices eighteen through
twenty-three. The total of the unpaid invoices was
$92,201.35, which the plaintiff claimed in damages in his
complaint. The unpaid invoices were for work allegedly
done during the period from July through December,
2002. No invoices were submitted into evidence for
architectural services rendered after December 31,
2002, and there was no testimony that any such invoices
were prepared. All invoices were addressed and billed
to both defendants.
The court found that the breach of contract claim
was barred by § 52-576, and that the unjust enrichment
claim was barred by the doctrine of laches. This
appeal followed.
I
The plaintiff first claims that the court erred in con-
cluding that the breach of contract claim was barred
by the six year statute of limitations set forth in § 52-576.
He specifically argues that the court erred in concluding
that the continuous representation doctrine did not
apply.2 He contends that pursuant to the architectural
contract and the construction contract, his services on
the project were to continue until the project was com-
plete—in other words, until the issuance of the certifi-
cate of occupancy and zoning compliance on September
25, 2005. He argues, therefore, that under the continu-
ous representation doctrine, the breach of contract
claim accrued on September 25, 2005, and the action
was commenced within six years of that date. We dis-
agree, and affirm the court’s holding that the breach of
contract claim is barred by the statute of limitations.3
Section 52-576 (a) provides in relevant part: ‘‘No
action for an account, or on any simple or implied
contract, or on any contract in writing, shall be brought
but within six years after the right of action accrues
. . . .’’ ‘‘[I]n an action for breach of contract . . . the
cause of action is complete at the time the breach of
contract occurs, that is, when the injury has been
inflicted. . . . While the statute of limitations normally
begins to run immediately upon the accrual of the cause
of action, some difficulty may arise in determining when
the cause or right of action is considered as having
accrued. . . . The true test for determining the appro-
priate date when a statute of limitations begins to run is
to establish the time when the plaintiff first successfully
could have maintained an action. That is, an action
cannot be maintained until a right of action is complete
and hence, the statute of limitations cannot run before
that time.’’ (Citation omitted; footnote omitted; internal
quotation marks omitted.) I. Rosenfield v. David
Marder & Associates, LLC, 110 Conn. App. 679, 685–86,
956 A.2d 581 (2008). The question of whether a party’s
claim is barred by the statute of limitations is one of
law subject to plenary review. Certain Underwriters at
Lloyd’s, London v. Cooperman, 289 Conn. 383, 407–408,
957 A.2d 836 (2008).
Several doctrines tolling the statutes of limitations
have emerged for policy reasons. The continuing course
of conduct doctrine, the continuous treatment doctrine,
and the continuous representation doctrine present
similar solutions to similar problems. The plaintiff
argues that this case is appropriately subject to the
continuous representation doctrine. That doctrine,
however, has been applied thus far only to contexts
involving attorneys, where ethical considerations
inform the preference to delay accrual, from the time
of the act or omission complained of until the attorney’s
representation has ended. ‘‘[O]ur Supreme Court [in
DeLeo v. Nusbaum, supra, 263 Conn. 596–97] adopted
a modified continuous representation doctrine for cases
of alleged legal malpractice during litigation, tolling the
statute of limitations contained in § 52-577 when a plain-
tiff can show: (1) that the defendant continued to repre-
sent him with regard to the same underlying matter;
and (2) either that the plaintiff did not know of the
alleged malpractice or that the attorney could still miti-
gate the harm allegedly caused by that malpractice dur-
ing the continued representation period. . . . The
court [in DeLeo] noted that it anticipate[d] that these
standards would be applicable to all attorney malprac-
tice cases [but] acknowledged that the implications of
tolling for attorney-client relationships in the context
of litigation may not be the same as those for other
attorney-client relationships. Accordingly, [the] holding
[was] limited to cases in which an attorney is alleged
to have committed malpractice during the course of
litigation.’’ (Citation omitted; emphasis altered; inter-
nal quotation marks omitted.) Piteo v. Gottier, 112
Conn. App. 441, 447, 963 A.2d 83 (2009); see also Rosato
v. Mascardo, 82 Conn. App. 396, 407, 844 A.2d 893 (2004)
(‘‘[T]he holding of DeLeo is quite limited. In a footnote,
the court explicitly limited its holding to ‘cases in which
an attorney is alleged to have committed malpractice
during the course of litigation.’ . . . Because the
breadth of the holding was limited even within the con-
text of legal malpractice, this court declines to read that
holding expansively and to apply it to cases involving
medical malpractice.’’).
Although he seeks to benefit from the doctrine he
labels the ‘‘continuous representation doctrine,’’ the
plaintiff relies on cases that, strictly speaking, do not
involve continuous representation, but rather hold that,
in some instances, bills are not due and owing until
after the job for which they were incurred is complete.
These cases are more apt, yet are ultimately unavailing.
In Gaylord Hospital v. Massaro, 5 Conn. App. 465,
466, 499 A.2d 1162 (1985), the plaintiff hospital provided
services to the defendant’s spouse pursuant to a con-
tract signed by the plaintiff. The action for payment
was brought more than six years after the patient was
hospitalized but less than six years after the patient
was released. Id. This court held that because the finder
of fact determined that the contract contemplated a
continuous, indivisible course of treatment, the action
did not accrue until the completion of treatment, and
thus was not barred. Id., 469. The court expressly stated:
‘‘In an action for breach of contract, the cause of action
is complete upon the occurrence of the breach, that is,
when the injury has been inflicted. . . . Where services
are continuously rendered over an extended period of
time under an express or implied contract which does
not fix the term of employment nor the time when
compensation shall be payable, many courts have
regarded the contract as an entire one, raising an
implied condition that the compensation shall not be
due until the termination of the service, so that the
statute of limitations will not begin to run against the
claim for compensation until the employment is ended.’’
(Citation omitted; emphasis added; internal quotation
marks omitted.) Id., 467–68.4
In the present case, in contrast, the contract specified
the time that periodic invoices were due. Under a sec-
tion entitled ‘‘billings and payments,’’ the contract pro-
vided that ‘‘[i]nvoices for services shall be submitted
monthly and are due upon receipt and are past due
fifteen (15) days after the invoice date.’’ Therefore,
although the contract provided that the plaintiff was to
perform services that could conceivably continue until
the completion of the project,5 the contract also divided
payment into monthly segments and provided that the
plaintiff was to bill each month for work performed
and that the invoices were to be paid within fifteen
days of the invoice date. Invoices eighteen through
twenty-three pertained to discrete services provided
during certain time frames. Hence, a breach of contract
for nonpayment of each invoice would have occurred
when the deadline for payment arrived, fifteen days
after the invoice date,6 and no payment was made.
Further, even if the contractual expectation of contin-
uous performance, as described in Gaylord Hospital,
were read by implication into the contract, relief would
be thwarted by the court’s findings that the plaintiff’s
services were complete by and the contract was termi-
nated no later than February 3, 2003. The findings are
not clearly erroneous. See Miller v. Guimaraes, 78
Conn. App. 760, 766–67, 829 A.2d 422 (2003) (‘‘With
regard to the trial court’s factual findings, the clearly
erroneous standard of review is appropriate. . . . A
factual finding is clearly erroneous when it is not sup-
ported by any evidence in the record or when there is
evidence to support it, but the reviewing court is left
with the definite and firm conviction that a mistake has
been made.’’ [Internal quotation marks omitted.]). The
‘‘scope of work’’ section of the contract7 did not specifi-
cally provide that the plaintiff would assist the defen-
dants in obtaining a certificate of occupancy. On cross-
examination, the plaintiff admitted that the tasks
detailed in the ‘‘scope of work’’ section of the contract
were completed by the end of 2002. No invoices were
submitted for architectural services rendered after
December 31, 2002. From the fact that the defendants
did not hire another architect, the court could have
inferred that the architectural services were completed.
Further, Goran Puljic stated to the plaintiff in January
or February, 2003, that ‘‘I have paid you enough,’’ and
wrote in a January, 2003 e-mail to the plaintiff that ‘‘I
don’t think we need anything from you right now.’’ From
this evidence, it was not clearly erroneous for the court
to determine that the contract was terminated in Febru-
ary, 2003. For the foregoing reasons, we conclude that
the continuous representation doctrine or similar prin-
ciples do not apply in this case,8 and therefore the plain-
tiff’s claim is without merit.
II
The plaintiff next claims that the court erred in
determining that the parties did not enter into a ‘‘stand-
still’’ agreement, under which the plaintiff agreed not
to bring an action against the defendants until the con-
clusion of a dispute between the defendants and their
contractor, Rose. As a result, the plaintiff argues, the
statute of limitations was tolled until the resolution of
the dispute in January, 2007. We disagree.
The record reveals that the defendants had filed a
counterclaim alleging, in part, that ‘‘the plaintiff and
the defendants agreed that they would not bring claims
against one another related to the project until after
the litigation between defendants and their contractor
was resolved.’’ That allegation was later withdrawn and
an amended counterclaim was filed. This withdrawn
pleading, and the plaintiff’s cursory agreement with it
at trial, constitute the sole evidentiary support for the
plaintiff’s claim. The court found that such an
agreement had not been made.
The court found that Rose called the plaintiff, on
April 27 and June 6, 2005, as a witness in its arbitration
hearing involving the defendants. The arbitration pro-
ceeding was resolved in January, 2007, in Rose’s favor.
The court did not agree with the plaintiff’s argument
that the defendants were bound by a judicial admission
in their counterclaim that a standstill agreement had
been entered into. The court concluded that because
the defendants withdrew the pleading in which the
statement appeared, the statement was no longer a
binding judicial admission, but rather had become an
evidential admission that could be explained or denied
at trial.9 The court found that the plaintiff offered no
credible evidence of a standstill agreement. The court
noted that the entirety of the evidence of a standstill
agreement was, in essence, a withdrawn pleading and
the plaintiff’s affirmative answer when asked at trial if
he agreed with the allegations of the defendants’ coun-
terclaim pertaining to the existence of a standstill
agreement. No documentary evidence was offered in
support of this claim.
The plaintiff argues that the court ignored the defen-
dants’ evidence. The court found credible the testimony
of Goran Puljic that he never entered into a standstill
agreement with the plaintiff, and found the plaintiff’s
testimony regarding the existence of a standstill
agreement not to be credible. It was within the province
of the trial court to determine credibility, and it did not
err in so doing. ‘‘The sifting and weighing of evidence
is peculiarly the function of the trier [of fact]. . . .
[N]othing in our law is more elementary than that the
trier [of fact] is the final judge of the credibility of
witnesses and of the weight to be accorded to their
testimony. . . . The trier is free to accept or reject, in
whole or in part, the testimony offered by either party.
. . . That determination of credibility is a function of
the trial court.’’ (Citations omitted; internal quotation
marks omitted.) Heritage Square, LLC v. Eoanou, 61
Conn. App. 329, 333, 764 A.2d 199 (2001). Accordingly,
the plaintiff’s claim is without merit.
III
The plaintiff last claims that the court erred in con-
cluding that the count of his complaint alleging unjust
enrichment was barred by the doctrine of laches. We
remand the case for resolution of the issue of laches
by the trial court.
‘‘The equitable remedy of unjust enrichment may be
invoked when justice requires that a party be compen-
sated for . . . services rendered under a contract, and
no [legal] remedy is available by an action on the con-
tract. . . . As an equitable right, unjust enrichment is
based on the principle that in a given situation, it is
contrary to equity and good conscience for the defen-
dant to retain a benefit [that] has come to him at the
expense of the plaintiff. . . . Plaintiffs seeking recov-
ery 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.’’
(Citation omitted; internal quotation marks omitted.)
Nation Electrical Contracting, LLC v. St. Dimitrie
Romanian Orthodox Church, 144 Conn. App. 808, 815,
74 A.3d 474 (2013).
‘‘[T]he defense of laches does not apply unless there
is an unreasonable, inexcusable, and prejudicial delay
in bringing suit. . . . Delay alone is not sufficient to
bar a right; the delay in bringing suit must be unduly
prejudicial.’’ (Citations omitted; internal quotation
marks omitted.) Cummings v. Tripp, 204 Conn. 67, 88,
527 A.2d 230 (1987). ‘‘Whether the defense of laches
was applicable to [an] action . . . is a question of law.
When there is a question of law, our review of the
court’s decision is plenary.’’ Florian v. Lenge, 91 Conn.
App. 268, 281, 880 A.2d 985 (2005). Laches may be avail-
able as a defense to an equitable cause of action,
whereas the statute of limitations is applicable to legal
causes. Id., 281–82.
The court found that the seven and one-half year
delay in bringing the action was prejudicial to the defen-
dants.10 The court reasoned that the plaintiff sought
$92,201.35 in damages, a 1.5 percent monthly service
charge as provided for in the contract, plus interest.
The court assumed that the service charge would com-
mence on the date of the last bill, February 3, 2003, and
concluded that the defendants potentially were facing
a monetary claim in excess of $255,213.29. The court
computed the potential harm in delay by reference to
damages provided for in the contract.
The plaintiff contends that he properly claimed unjust
enrichment as to Goran Puljic because he was not a
party to the contract, but as joint owner of the house
in Darien, he benefited from the plaintiff’s architectural
services and did not pay for all of the services; he thus
was unjustly enriched. He argues that the court erred
in applying contract provisions in its assessment of
the prejudice necessary for application of the special
defense of laches. The defendants, on the other hand,
argue that the court’s finding regarding prejudice was
proper and, in the alternative, that Goran Puljic was in
fact a party to the contract, and, thus, the claim against
him was also subject to the statute of limitations
defense. They argue that, although only Melinda Puljic
signed the contract, both defendants were actually par-
ties to it because the contract was addressed to ‘‘Mr.
and Mrs. G. Puljic’’ and Goran Puljic testified that he
engaged the plaintiff.
The plaintiff’s claim regarding laches depends, in
part, on whether Goran Puljic was a party to the con-
tract. If he was a party to the contract, then a claim
for unjust enrichment as to him would not be appro-
priate. See Feng v. Dart Hill Realty, Inc., 26 Conn. App.
380, 383, 601 A.2d 547 (‘‘[p]roof of a contract enforce-
able at law precludes the equitable remedy of unjust
enrichment’’), cert. denied, 223 Conn. 912, 612 A.2d 59(1992). If, however, Goran Puljic was not a party to the
contract, then the plaintiff could appropriately claim
unjust enrichment as to him. The court apparently
found it unnecessary to decide whether Goran Puljic
was a party to the contract, because it found that the
defense of laches barred the claim in any event. We note,
however, that the court applied an incorrect standard
regarding the prejudice component of laches. Damages
can be assessed pursuant to an unjust enrichment claim
only when no contractual relief is available. The poten-
tial assessment of contractually mandated damages,
then, cannot constitute prejudice for the purpose of
laches as a defense to unjust enrichment.
Whether Goran Puljic’s signature was required in this
case to form an enforceable contract between him and
the plaintiff or whether a contract existed between him
and the plaintiff regardless of the lack of his signature,
are questions of fact to be decided by the trial court.
See, e.g., Schwarzschild v. Martin, 191 Conn. 316, 321–
22, 464 A.2d 774 (1983) (‘‘[i]n the absence of a statute
requiring a signature . . . parties may become bound
by the terms of a contract, even though they do not sign
it, where their assent is otherwise indicated’’ [internal
quotation marks omitted]); MD Drilling & Blasting,
Inc. v. MLS Construction, LLC, 93 Conn. App. 451, 454,
889 A.2d 850 (2006) (existence of contract question of
fact to be determined by trier of fact).
Accordingly, we remand the case to the trial court
for a determination of whether Goran Puljic was a party
to the contract. If the court finds that he was not a
party, then the trial court must determine whether the
defendants’ special defense of laches bars the unjust
enrichment claim against him. If, on the other hand,
the court finds that he was a party to the contract, then
the court must render judgment in his favor on that
claim under the statute of limitations.
The judgment is reversed with respect to the unjust
enrichment count of the complaint and the case is
remanded for further proceedings in accordance with
the preceding paragraph. The judgment is affirmed in
all other respects.
In this opinion the other judges concurred.
1
The court stated that ‘‘[a]ny issue as to whether the proper plaintiff is
Sean O’Kane individually, Sean O’Kane Architect AIA or Sean O’Kane, AIA
Architect, P.C., is not relevant to either the statute of limitations or laches
defense, which are the only two issues before this court in these bifurcated
proceeding[s].’’ For the sake of clarity, references in this opinion are to
Sean O’Kane individually.’’
2
Citing authority such as Lee v. Brenner, Saltzman & Wallman, LLP, 128
Conn. App. 250, 15 A.3d 1215, cert. denied, 301 Conn. 926, 22 A.3d 1277(2011); and Fichera v. Mine Hill Corp., 207 Conn. 204, 541 A.2d 472 (1988),
the court referred specifically to the continuing course of conduct doctrine
rather than the continuous representation doctrine. The court, however,
found facts applicable to both doctrines, which are quite similar in theory
and in effect. The plaintiff claims that the facts of this case compel the
conclusion that the statute of limitations ought to be tolled. We determine,
however, that the continuous representation doctrine does not apply in the
factual context of this case.
3
The court concluded, on alternate grounds, that the plaintiff could not
prevail on his claim that the statute of limitations had been tolled by the
continuous representation doctrine because he pleaded only a standstill
agreement, and not the continuous representation doctrine, as a matter
in avoidance.
The defendants, citing Practice Book § 10-57, argue that the continuous
representation doctrine must be affirmatively pleaded in avoidance of the
defendants’ special defense of the statute of limitations. Section 10-57 pro-
vides in relevant part: ‘‘Matter in avoidance of affirmative allegations in an
answer or counterclaim shall be specially pleaded in the reply.’’ The plaintiff
argues that § 10-57 does not apply because ‘‘[a] plaintiff is required to affirma-
tively plead claims in avoidance of the statute of limitations such as facts
evidencing a tolling of the statute of limitations. . . . However, the continu-
ous representation doctrine is not a tolling doctrine . . . [it] merely deter-
mines the accrual of the right of action and does not suspend or toll an
action that has already accrued.’’ (Citation omitted.)
We do not necessarily agree. The plaintiff’s stance is premised on the
proposition that ‘‘tolling’’ must be an interruption within the prescribed
period, rather than a delay at the outset. Our case law, however, rather
clearly refers to tolling as also encompassing a delay in accrual of the cause
of action. See DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003); see
also 51 Am. Jur. 2d 546, Limitation of Actions § 148 (2000). The continuous
representation doctrine tolls the accrual of the cause of action, essentially
deferring it until representation has ended, despite the fact that the action-
able injury or harm may have already occurred. See, e.g., Deleo v. Nusbaum,
supra, 586–97 (describing continuous representation doctrine as ‘‘tolling’’
statute of limitations).
4
The plaintiff also relies on Mitchell v. Guardian Systems, Inc., 72 Conn.
App. 158, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002).
In that case, the plaintiff sought attorney’s fees, and the issue was whether
the action was barred by the statute of limitations. Id., 160–61. The services
for which the fees were charged had been performed more than six years
prior to the commencement of the action, but the finder of fact found that
the representation had terminated within six years, and the action was not
barred. Id., 161. ‘‘When the claim for attorneys’ fees is based upon continuous
legal representation, the statute of limitations does not begin to run until
the legal services are complete . . . . The statute of limitations is tolled
during the pendency of the continuous representation.’’ Id., 164. The attorney
had the ethical duty to represent the plaintiff until he was relieved of his
obligation. Id. In the present case, the court found that the ‘‘representation’’
by the plaintiff had been terminated prior to the six year period, and, in
any event, the contract specifically set the dates that payments were due.
5
The contract provides, under a section entitled ‘‘scope of work,’’ that
the plaintiff would provide the following architectural services for the proj-
ect: ‘‘Field measuring, photography, existing condition drawings, design and
construction drawings, specifications, budget estimates and consultation
for the proposed additions and alterations to the above residence. The
drawings shall consist of small scale plans and sketches at the preliminary
design stage followed by complete construction drawings, engineered fram-
ing plans, elevations, sections, details and lighting plans at appropriate scales
as necessary for the proper construction of the Work. Also included shall
be window, door and finish schedules as well as a Project Manual of specifi-
cations. Site visits shall be made at regular intervals to review the perfor-
mance and quality of the construction.’’
6
The dates for invoices eighteen through twenty-three range from August,
22, 2002 until February 3, 2003, all of which are outside the six year limita-
tion period.
7
See footnote 5 of this opinion.
8
The plaintiff makes additional arguments including the following: the
court ‘‘appears to labor under the misapprehension that the plaintiff was
engaged to render only design services’’; the court’s observation that the
plaintiff was not a signatory to the construction contract ‘‘misses the mark’’;
‘‘the court makes much’’ of the fact that the plaintiff was called to testify
as a witness by Rose but that fact ‘‘is of no moment’’; the fact that the
plaintiff did not bill the defendants for consultation services and contract
administration does not change the fact that the plaintiff continued to render
services pursuant to the contract; both parties stated at trial that the defen-
dants did not terminate the contract; and the court noted that the defendants
did not hire another architect or designate another architect pursuant to
the construction contract. None of these arguments alter our conclusion
that the continuous representation doctrine or other doctrine delaying
accrual did not toll the statute of limitations.
9
See, e.g., Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985)
(‘‘statements in withdrawn or superseded pleadings, including complaints,
may be considered as evidential admissions by the party making them’’).
10
The court found that the plaintiff had not pleaded in avoidance of the
defendants’ special defense of laches, but nevertheless addressed the claim.