Opinion
CV146023641S
07-19-2016
Beverly Waldron-Brown v. David Fournier
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO RESTORE CASE TO DOCKET
PETER EMMETT WIESE, JUDGE.
I
Procedural History
The plaintiff, Beverly Waldron-Brown, commenced this civil action against the defendant, David Fournier, through a complaint dated January 15, 2014. The parties are abutting property owners in Bristol, Connecticut. The complaint consists of six counts.
Count One--conversion; Count Two--trespass; Count Three--trespass to chattels; Count Four--General Statutes § 52-564 theft; Count Five--intentional infliction of emotional distress; Count Six--invasion of privacy.
Briefly stated, the case arises out of a property dispute wherein the plaintiff alleges that the defendant destroyed her hemlock trees, dumped trash on her property and damaged her fence. Additionally, she alleged that the defendant's intention was to harm, assault and stalk her.
Jury selection in the case took place on September 1, 2015, and September 2, 2015.
On September 10, 2015, the first day of evidence, the case was reported settled. The plaintiff appeared in court with her attorney and was canvassed on her decision to accept a payment of $6,000 to resolve her claims. On that date, the plaintiff executed a release of claims document and her attorney filed a withdrawal action with the clerk of the court on the next day.
On November 12, 2015, the plaintiff filed a motion to restore the case to the docket, a memorandum in support, and an affidavit (nos. 148, 149, 150). The plaintiff asserted in her motion that the case should be restored to the docket because she was unduly influenced by her former attorney and involuntarily executed the release. In response to the motion, the defendant filed an objection (no. 153). On April 11, 2016, the plaintiff filed a revised affidavit.
The court conducted an evidentiary hearing on the motion on April 18, 2016. At the hearing, the plaintiff testified. The court also heard the testimony of her former trial counsel, Alfred Morrocco. The parties presented a number of exhibits. Thereafter, they filed posthearing briefs.
II
Discussion
A. Facts
From the credible evidence presented, and the court record, the court finds the following facts:
1. Beverly Waldron-Brown is 58 years of age. She lives at 221 Mechanic Street, Bristol, Connecticut. The plaintiff has lived at the address at times throughout her lifetime. She is an intelligent individual who holds a Ph.D. degree. She worked as a schoolteacher administrator. Currently, she is on social security disability.
2. The defendant, David Fournier, lives at 58 Castle Road, Bristol, Connecticut.
3. The parties' properties abut one another.
4. The plaintiff initially retained the law offices of Carlson and Dumeer, LLC, to commence this civil action. Thereafter, she retained Alfred Morrocco to represent her. The plaintiff has known Attorney Morrocco since she was seventeen years of age. He has represented her family on numerous occasions. The plaintiff had an excellent relationship with him and trusted his judgment.
5. The dispute arose between the plaintiff and the defendant. The operative complaint is dated January 15, 2014. In the complaint, the plaintiff alleges, inter alia, that the defendant destroyed her fence and hemlock trees. There is no claim for quiet title being asserted. The defendant is represented by Attorney Peter O'Keefe.
6. Jury selection took place on September 1, 2015, and September 2, 2015. Evidence was scheduled to commence on September 15, 2015.
7. On September 9, 2015, Attorney Morrocco's assistant notified the plaintiff by e-mail that the case was being called into court for discussions on September 10, 2015. (Defendant's Exhibit D.) The plaintiff responded and indicated that she would arrive early. Id. On September 10, 2015, the attorneys engaged in settlement discussions with the assistance of the court. The defendant offered to pay $6,000 to resolve the claims being made in the complaint. Attorney Morrocco discussed this offer with the plaintiff. The plaintiff accepted the settlement offer.
8. The defendant's attorney presented Attorney Morrocco with a proposed release of claims (Plaintiff's Exhibit 1). Attorney Morrocco went over the terms of the release with the plaintiff. In the proposed release, there was reference to a boundary line dispute. Attorney Morrocco objected to this language, because he believed that it might jeopardize the plaintiff's ability to bring action for quiet title. The language was redacted and the plaintiff placed her initials, " BWB, " in the margin of the document. Id.
9. The plaintiff executed and dated the release in the presence of Attorney Morrocco. The release stated in part, " I further state that I have carefully read the foregoing release and know the contents, and I sign this document of my own free will." (Plaintiff's Exhibit I.)
10. On September 10, 2015, the parties appeared in court and placed the settlement agreement on the record (Defendant's Exhibit E.) The court, Wiese, J., canvassed the plaintiff. The plaintiff was asked whether she understood what Attorney Morrocco told her, whether she was satisfied with his work, and whether she understood the agreement. Id. The plaintiff responded without hesitation in the affirmative. Id.
11. During the course of the September 10, 2015 hearing, there were discussions concerning terms and scope of the agreement. In the presence of the plaintiff, Attorney Morrocco clearly stated that the claims being released were limited to those alleged in the complaint. Those claims are not limited to damage to the fence. A withdrawal of action was filed on September 11, 2015 (nos. 146, 147).
12. The plaintiff was not unduly influenced by Attorney Morrocco and pressured to settle the civil action. She understood the terms of the settlement agreement and agreed to it of her own free will. The plaintiff understood that the $6000 payment was not being offered just to pay for repairs to the fence.
B. Applicable Law
" Withdrawals are analogous to final judgments . . . Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket." (Internal quotation marks omitted.) Sicaras v. Hartford, 44 Conn.App. 771, 775-76, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). " [T]he motion to restore a case to the docket is the vehicle to open a withdrawal, while the motion to open is the vehicle to open judgments." (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 196, 884 A.2d 981 (2005).
General Statutes § 52-212a provides, in relevant part: " Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed." " [General Statutes] § 52-212a is applicable not only to the opening of a case that has proceeded to judgment but also to the restoration of a withdrawn case . . . The principles that govern motions to open or set aside a civil judgment are well established. Within four months of the date of the original judgment, Practice Book [§ 17-4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation." (Citation omitted; footnotes omitted; internal quotation marks omitted.) Banziruk v. Banziruk, 154 Conn.App. 605, 611-12, 109 A.3d 494 (2015).
As such, " [t]he question of whether a case should be restored to the docket is one of judicial discretion." (Internal quotation marks omitted.) 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn.App. 776, 791, 54 A.3d 232 (2012). " Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . Inherent in the concept of judicial discretion is the idea of choice and a determination between competing considerations . . . A court's discretion must be informed by the policies that the relevant statute is intended to advance." (Internal quotation marks omitted.) Palumbo v. Barbadimos, 163 Conn.App. 100, 110-11, 134 A.3d 696 (2016).
Here, the plaintiff asks the court to exercise its discretion and restore the case to the docket because the plaintiff was unduly influenced by her former attorney, Morrocco, in executing the release. " Our law has long been clear that a compromise agreement . . . if free from fraud, mistake or undue influence . . . is conclusive between the parties." (Internal quotation marks omitted.) Gengaro v. New Haven, 118 Conn.App. 642, 649, 984 A.2d 1133 (2009). " In Connecticut, [u]ndue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than he would do under normal control . . . It is stated generally that there are four elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence . . . Relevant factors include age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction . . . consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth . . . active solicitations and persuasions by the other party, and the relationship of the parties." (Internal quotation marks omitted.) Id., 649-50.
" Because of their similarities, the concepts of duress and undue influence are often discussed in conjunction with each other . . . Although distinctions exist between the two concepts, contracts obtained by duress or undue influence are deemed invalid because in both circumstances the free assent of one of the parties in making the contract is lacking . . . Moreover, acts of compulsion or influence by one party on another giving rise to a claim of duress or a claim of undue influence must be operative at the time the contract is entered into . . . Because both must be operative at the time the contract is entered into, it is not [always] necessary . . . that we distinguish between duress and undue influence." (Citations omitted; internal quotation marks omitted.) Id., 652-53.
Finally, because one party must engage in misconduct to induce the other party to assent to the judgment, the plaintiff's physical or mental condition, standing alone, is not sufficient to support a claim for undue influence. See Cox v. Burdick, 98 Conn.App. 167, 178, 907 A.2d 1282, cert. denied, 280 Conn. 951, 912 A.2d 482 (2006) (In the context of duress, " one party must engage in misconduct to induce the other party to assent to the judgment . . . The defendant's mental condition alone, therefore, cannot support a claim of duress." [Citation omitted.]).
C. Analysis
In the present case, the court finds the plaintiff was not unduly influenced by Attorney Morrocco and pressured to settle the action. Firstly, the plaintiff executed a release in the presence of Attorney Morrocco, which stated, in relevant part, that she has carefully read the release, and that she is signing the document of her own free will. Secondly, and more importantly, this court canvassed the plaintiff. More specifically, when the parties appeared in court to place the settlement agreement on the record, the plaintiff represented to the court that she understood what Attorney Morrocco told her, that she was satisfied with his work, and that she understood the agreement. Finally, on that same day, in the presence of the plaintiff, Attorney Morrocco clarified that the claims being released were limited to those alleged in the complaint. The claims in the complaint, however, are not limited to the damage to the fence.
The plaintiff now argues, and has testified, that when she affirmatively answered the court's question of whether she understood the agreement, she only meant that she understood what Morrocco told her about the agreement. Even if the testimony is credible, Morrocco later clarified, in front of the court and in the plaintiff's presence, that the claims being released were limited to those alleged in the complaint, and even stated: " Not only did [the plaintiff] get this money for the fence, it's for anything that was alleged in the complaint." The plaintiff had the opportunity to object or ask for an explanation, but she did not do so.
Thus, the credible evidence shows that the plaintiff understood the terms of the settlement agreement, and agreed to these terms of her own free will. In other words, the plaintiff knew that the $6,000 payment was not offered to pay only for the repairs to the fence. As such, because the plaintiff understood the terms of the agreement, and acted on her own free will, there was no undue influence by Attorney Morrocco.
The fact that the plaintiff trusted Morrocco's advice, and that she was disabled, is not sufficient to support a claim of undue influence where the plaintiff acted of her own free will and where Morrocco did not exert pressure on the plaintiff to settle the civil action.
III
Conclusion
For the reasons stated, there is no basis for restoring the case to the docket. The plaintiff's motion to restore is denied.
SO ORDERED.