Opinion
No. FA 05 4002343
November 27, 2007
MEMORANDUM OF DECISION
This action commenced as a complaint for a new trial following a contested dissolution of marriage action. This Court rendered judgment in that prior action on April 4, 2005. (Docket No. FA-02-0079940-S).
Following an appeal by the plaintiff which affirmed the judgment ( Szegda v. Szegda, 97 Conn.App. 426 (2006), and denial of certification by the Supreme Court ( Szegda v. Szegda), 280 Conn. 932 (2006), the plaintiff commenced this complaint for a new trial alleging newly discovered evidence relevant to the value of the real property as justification to set aside the judgment and to have a new trial.
The defendant moved for summary judgment in the present action, however on the date scheduled to hear the motion for summary judgment (October 30, 2006), the parties, both of whom were represented by counsel, entered into a stipulated judgment which would purportedly settle the issues in the case.
On March 15, 2007, this Court granted the plaintiff's motion to open and vacate the stipulated judgment after the parties disagreed on how to implement its terms. On September 12, 2007, the plaintiff filed a motion to open and vacate the dissolution pursuant to General Statutes § 52-212a and the rules of practice § 17-4 on the grounds of fraud and newly discovered evidence. The motion was accompanied by her affidavit and a memorandum of law. On October 15, 2007, the defendant filed a motion to strike the plaintiff's motion to open judgment dated April 4, 2005, also accompanied by a memorandum of law.
Practice Book § 25-16, which governs procedure in family matters, provides in relevant part that: "(a) [w]henever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint or cross complaint, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any claim for relief in any such complaint or cross complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." In the present case, the defendant filed a motion to strike the plaintiff's motion to open and vacate the judgment entered on April 4, 2005. Since the defendant's motion does not fall within the purview of § 25-16, it is not the appropriate procedural vehicle to object to the plaintiff's motion to open and vacate. Instead, the appropriate vehicle would be to file a memorandum of law in opposition to the plaintiff's motion to open and vacate. The Superior Court has stated that: "Because there is no explicit authority for a motion to strike another motion in family cases, the court will treat the defendant's motion as simply an objection to the plaintiff's motion." Heise v. D'Amico, Superior Court, judicial district of Tolland, Docket No. FA 98 0067946 (October 16, 2007, Schuman, J.) [44 Conn. L. Rptr. 233]. Therefore, the court will treat the defendant's motion to strike as a memorandum of law in opposition to the plaintiff's motion to open and vacate the judgment.
In her memorandum in support of the motion to open, the plaintiff argues that at the dissolution hearing the property known as the Szegda Farm was valued by the plaintiff's expert, Leslie Lewis, as "raw land" on which the court relied when instead it should have been valued at its highest and best use; that her expert did not have knowledge of the existing professional soil testing and site development information that had been completed for a proposed subdivision by Towne Engineering, Inc. prior to the dissolution hearing, and which would have allowed Lewis to appraise a substantial portion of the property at its highest and best use; that the judgment should be opened based on the newly discovered evidence pursuant to General Statutes § 52-270 and that the defendant fraudulently concealed and failed to disclose that this professional testing for a proposed subdivision had been done on the property.
General Statutes § 52-270 provides in relevant part that: "(a) [t]he Superior Court may grant a new trial of any action that may come before it, for . . . the discovery of new evidence."
In his memorandum of law, the defendant counters that the plaintiff cites no case law for her proposition that any alleged error on the part of the court's valuation of the land is a valid reason to open a judgment; that the plaintiff's motion is actually for anew trial and, therefore, fails to meet the three pronged test for granting a new trial based on newly discovered evidence; and that the plaintiff fails to allege facts to support a finding that any fraud has occurred.
Sections 17-4 and 52-212a set forth the procedure to open a civil judgment. These sections provide that a judgment may not be opened unless a motion to do so is filed within four months of the judgment. An exception of the general rule applies "if it is shown that the judgment was obtained by fraud . . ." Hill v. Hill, 25 Conn.App. 452, 454-55, CT Page 20323 594 A.2d 1041 (1991). "[I]t is a well-established general rule that even a judgment rendered by the court upon the consent of the parties, which is in the nature of a contract to which the court has given its approval, can subsequently be opened [after the four month limitation] . . . if it is shown that the stipulation, and hence the judgment, was obtained by fraud, in the actual absence of consent, or by mutual mistake." (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 106, 733 A.2d 809 (1996).
Section 25-38 of the Practice Book provides that the provisions of § 17-4 shall apply to family matters.
"Motions . . . to open judgment may be based on newly discovered evidence not previously discovered or discoverable." 50 Day Street Associates Ltd. Partnership v. Norwalk Housing Authority, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 02 0191396 (January 23, 2006, Adams, J.). "The decision to reopen . . . testimony rests within the sound discretion of the trial court . . . The criteria for a court to open a judgment is analogous to the conditions needed for a petition for a new trial [based] on grounds of newly discovered evidence." (Citations omitted; internal quotation marks omitted.) McIver v. Warden, 28 Conn.App. 195, 208, 612 A.2d 103 (1992). Since the criteria to open a judgment corresponds to the conditions required for a new trial, this court will use those criteria to determine whether the present motion to open and vacate should be granted.
For a new trial based on newly discovered evidence, "[t]he petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial." (Internal quotation marks omitted.) Seebeck v. State, 246 Conn. 514, 536, 717 A.2d 1161 (1998). In the present case, the plaintiff has merely stated what legal elements she is required to demonstrate for a new trial. The plaintiff, however, has not provided this court with any facts that the evidence she claims is newly discovered could not have been discovered earlier, that it is material, that the evidence is not merely cumulative, and that it would be likely to produce a different result at a new trial. In fact, the plaintiff attests in her affidavit that she knew "about the map showing the proposed subdivision [on the Szegda Farm property], but [she] did not know the map was the result of engineering on the property. [She] thought the map was a conceptual one and did not know that soil testing had been done on the property." The admission of these facts shows that the evidence could have been discovered earlier by the plaintiff. Therefore, she does not meet the first clement for a new trial. As a result, she cannot satisfy all four elements of newly discovered evidence and the motion to open and vacate the judgment entered on April 4, 2005, on that ground should be denied.
As to whether the judgment should be opened on the ground that the defendant fraudulently concealed and failed to disclose that there had been professional soil testing and other engineering done on the Szegda Farm property, the plaintiff has the burden of proof. Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005); see also Clapp v. Clapp, Superior Court, judicial district of Tolland, Docket No. FA 04 4000741 (June 28, 2007, Klaczak, J.T.R.) (43 Conn. L. Rptr. 680). "Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker: (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment . . . A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud." (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 685. "Fraud by nondisclosure, which expands on the first three of these four elements, involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak under circumstances in which there is a duty to speak." Wendt v. Wendt, Superior Court, judicial district of Stamford, Docket No. FA 990172598 (March 1, 2001, Shay, J.). "There are three limitations on a court's ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different." (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 685.
"Although the application to open the judgment was filed more than four months from the date of the dissolution . . . a trial court has inherent power to determine if fraud exists." (Citation omitted.) Weinstein v. Weinstein, 275 Conn. 671, 678 n. 5, 882 A.2d 53 (2005). "A court may open a judgment at any time . . . if the judgment had been obtained by fraud, duress or mutual mistake. (Citations omitted.) Mac's Car City, Inc. v. DiLoreto, 238 Conn. 172, 181 n. 9, 679 A.2d 340 (1996).
In her affidavit, the plaintiff attests that in February 2007, she "obtained several maps from Towne Engineering . . . One of the maps is `Plan of Property Prepared For Ronald Szegda Conn. Route 87 Columbia, CT' dated September 1987." In a letter dated February 12, 2007, from the plaintiff to the engineering company, she testifies that Towne Engineering completed the work for the defendant prior to her divorce, which included "a conceptual layout of a subdivision road and lots contemplated at the east end along Szegda Road including preliminary soil testing locations conducted to evaluate the feasibility of residential lots in accordance with the Town Standards in effect at that time [and] that the lots were evaluated to see if they met the building criteria established by the Health Department . . ." She further attests in her affidavit that prior to that letter from Towne Engineering, she had not known that it had conducted soil testing or other engineering on the property but had known about a map showing the proposed subdivision, but not that this map was the result of engineering work completed on the property. She further attests that she "thought the map was a conceptual one and [repeated that she] did not know that soil testing had been done on the property." Thus, the plaintiff maintains that the defendant's silence about the prior engineering work is what constitutes fraudulent concealment.
Although the plaintiff argues that the defendant remained silent about the type of prior testing done on the property, when he should have disclosed this information to her, she admits in her affidavit that she was aware of the map showing the proposed subdivision and that she agreed to have the land appraised as raw land. As a result, the duty was on her to research that information.
The plaintiff further argues that her position is supported by Billington v. Billington, 220 Conn. 212, 595 A.2d 1377, cert. denied. 224 Conn. 906, 615 A.2d 1047 (1992), and Pospisil v. Pospisil, 59 Conn.App. 446, 757 A.2d 655, cert. denied, 254 Conn. 940, 761 A.2d 762 (2000). In Billington, the defendant on his financial affidavit assigned a value to his real property lower than the amount of an offer he had actually received on the property. Id., 214. The court concluded that the defendant's silence about the offer to sell the property for more than the proposed value constituted fraud. This differs from the present case, where the property was valued by an appraiser as raw land, to which both parties agreed. In the Pospisil case, there was no provision in the parties' dissolution agreement for terminating the defendant's obligation to pay alimony to the plaintiff if the plaintiff remarried. The plaintiff remarried two months after the dissolution of the parties' marriage. The Appellate Court concluded that the trial court had properly determined that, because neither the court nor the defendant had questioned the plaintiff about her intentions to marry, the plaintiff's nondisclosure of her intention to remarry did not constitute fraud. As a result, the Appellate Court said the plaintiff had not deliberately concealed or purposely mislead them about her intentions. In the present case, again neither the court nor the plaintiff questioned the defendant about his knowledge regarding prior soil testing. Based on the case law of Pospisil, the defendant did not fraudulently or negligently conceal from the plaintiff and the court any information regarding the prior soil testing at the time of the dissolution trial. Therefore, the plaintiff has not met her burden of providing this court with evidence of fraud to open and vacate the judgment of dissolution.
For the foregoing reasons the plaintiff's motion to open and vacate the judgment is denied.