Opinion
No. CV 06 5007157
March 18, 2009
MEMORANDUM OF DECISION
This unusual case was initiated by Writ, Summons and Complaint returnable on April 25, 2006. In the complaint the plaintiff, Town of Preston, claimed that by way of fraud and misrepresentation the defendant, Bruce Morris, failed to pay a required open space fee to the town in connection with a subdivision approval he obtained. The allegation was that he did this by claiming the benefit of an exception to the requirement of a fee if the lots created in the subdivision were to be conveyed to certain specified relatives. The complaint alleged that the lots were not conveyed to relatives.
The defendant, who had been represented by counsel, filed various pleadings and eventually, on April 17, 2008, filed an Amended Answer as a pro-se which while difficult to interpret suggests among other things that this suit is retaliatory because of some prior litigation and that even though the conveyances were not made to family members the proceeds of the conveyances were for the benefit of family members.
The case was assigned for trial and several continuances were given the defendant for various reasons until February 11, 2009, when it was assigned again for trial. The plaintiff appeared with witnesses ready to proceed but the defendant failed to appear or obtain a further continuance.
A default was entered against the defendant on motion of the plaintiff for failure to appear at trial and the court went on to hear evidence presented by the plaintiff pursuant to Practice Book Section 17-33a which permits evidence to be introduced upon default for failure to appear at trial without notice to the Defendant.
The plaintiff presented Kathy Warzecha, Preston Town Planner, as a witness regarding the subdivision application process, the regulations concerning open space fees, the computation of the fees as well as the particular application at issue, including the fact that Mr. Morris provided a letter indicating that the proposed lots would be conveyed to family members and that he again stated this at the public hearing. She also testified that based on his representations, the re-subdivision was approved without the imposition of open space fees. The lots were subsequently conveyed to non-family members for consideration. (Plaintiff's Exhibits 8, 9 and 10.)
Mrs. Charlette Frease also testified to such a conveyance. (Plaintiff's Exhibit 10.)
James Blair testified that his appraisal of the land in an undeveloped state as of July 1, 2004 was $157,000.00 for the three vacant lots and $250,000.00 for all the lots in an undeveloped condition without the house included. A copy of his appraisal report was made an exhibit. (Plaintiff's Exhibit 13.)
Plaintiff's Exhibit 14 was introduced as a copy of the attorneys fees incurred by the Town of Preston in connection with this matter in the amount of $3,076.92
From the evidence the court finds that the plaintiff has proven by clear and satisfactory evidence that the defendant represented that he would be conveying the subdivision lots to the relatives provided for in the subdivision regulation for the purpose of claiming an exemption from the required open space fee with the intent to defraud the town of Preston of the said fee. The regulations provided for a fee of 10% of the value of the land in its undeveloped condition. The Planning and Zoning Commission of the town of Preston did in fact allow him an exemption from that requirement based on that fraudulent representation. See Plaintiff's Exhibits 2, 3 and 7.
In an action for fraud, the standard of proof is by "clear and satisfactory" evidence. Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981). It has also been expressed as "clear, precise and unequivocal." Puro v. Henry, 188 Conn. 301, 308, 449 A.2d 176 (1982).
Here, the court finds the evidence met that standard. The evidence shows that Mr. Morris provided a letter dated May 27, 2004 to the Commission that "I will be conveying the new building lots to family members." (Plaintiff's Exhibit 2.)
He also stated at the public hearing on July 6, 2004 the same intention. He promptly transferred the three parcels out to non-family members on October 22, 2004, December 1, 2004 and June 3, 2005. (Plaintiff's Exhibits 8, 9 and 10.) He never contacted the town nor paid an open space fee.
Plaintiff's Exhibit 3 shows the subdivision was approved and "No open space fees will be collected as Mr. Morris has provided the Commission (sic) stating that all lots are intended for family members."
The evidence is clear and unmistakable that the defendant obtained the subdivision without collection of open space fees based upon his misrepresentation of his intention to convey to family members.
That Mr. Morris' statement of intention to convey lots to family members supports an action for fraud is clear in Connecticut and most other jurisdictions. As stated in the Restatement (Second) of Torts, 2d. § 530:
(1) A representation of the maker's own intention to do or not to do a particular thing is fraudulent if he does not have that intention.
Connecticut recognizes and utilizes this rule as noted in Flaherty v. Scheltino, 136 Conn. 222, 70 A.2d 151 (1949); Macri v. Torello, 105 Conn. 631, 136 A. 479 (1927); and Snow v. Howard Motors, Inc., 3 Conn. Cir.Ct. 702, 223 A.2d 409, cert. dismissed, 154 Conn. 721, 223 A.2d 46 (1966).
Moreover, circumstantial evidence is the usual method of proving intent to defraud. DeLuca v. C.W. Blakeslee Sons, Inc., 174 Conn. 535, 391 A.2d 170 (1978). Although nonperformance of a promise is not by itself sufficient to prove intent to defraud; nonperformance along with other evidence can do so. Snow v. Howard Motors, Inc., supra, 3 Conn. Cir.Ct. 702.
Here, the defendant not only failed to keep his "promise" to convey to family members, he, in fact, conveyed all the lots to non-family members for substantial consideration and never told the planner or the commission of this fact or offered to pay the open space fees.
37 Am. Jar. 2d, Fraud and Deceit § 447 notes that:
An intention not to perform may be inferred from the fact that, after performance by the promisee, the promisor does not even make a pretense of carrying out his promise or evades and refuses to perform it.
The defendant never made attempts to explain his situation; he just conveyed to third parties and ignored the commission. It is also found that the conveyances came relatively quickly after approval; approval was given July 2004 and the first conveyance was in October 2004.
Under all circumstances, it is found that the plaintiff has proven the defendant's intent to defraud by clear and satisfactory evidence.
But in addition, and completely independent of the evidence, the court finds liability pursuant to the allegations of the complaint based on the default alone.
The defendant was defaulted pursuant to Practice Book § 364(a). 364(a), which provides: "If a defendant is defaulted for failure to appear for trial, evidence may be introduced and judgment rendered with notice to the defendant." The result of an entry of a default for failure to appear is that liability is conclusively presumed . . . Therefore, the plaintiff was relieved of any obligation to prove the allegations of the complaint except as to the damages. (Citation omitted.) Carothers v. Butkin Precision Mfg. Co., 37 Conn.App. 208, 209, 655 A.2d 799 (1995).
"A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant." (Citations omitted, internal quotation marks omitted.) Skyler Ltd. Partnership v. S.P. Douthett Co., 18 Conn.App. 245, 253, 557 A.2d 927, cert. denied, 212 Conn. 802, 560 A.2d 984 (1989). If the allegations of the plaintiff's complaint are sufficient on their face to make out a valid claim for the relief requested, the plaintiff, on the entry of a default against the defendant, need not offer evidence to support those allegations. Carothers v. Butkin Precision Mfg. Co., supra, 37 Conn.App. 209.
Since the defendant was defaulted for failure to appear at trial, the allegations of the complaint are deemed proved and the only issue left is damages.
The plaintiff has also requested that attorneys fees be awarded to the Town of Preston.
Since the complaint alleged an intentional tort and it has been proved (both by evidence and by operation of the default), the plaintiff is entitled to attorneys fees as requested in its prayer for relief. The law provides that punitive damages, including attorneys fees, may be awarded upon a showing of fraud. O'Leary v. Industrial Park Corp., 211 Conn. 648, 560 A.2d 968 (1989); Wedig v. Brinster, 1 Conn.App. 123, 469 A.2d 783 (1983), cert denied, 192 Conn. 803, 472 A.2d 1284 (1984).
Judgment is entered in favor of the Town of Preston against the defendant, Bruce Morris, in the amount of $25,000 together with attorneys fees of $3,076.92 and costs.