Opinion
No. DBDCV07 5002003 S
January 16, 2009
MEMORANDUM OF DECISION RE MOTION FOR A NEW TRIAL
This action concerns two parcels of land, known as 6 and 8 Packer Brook Road, Redding, Connecticut. The case arises out of a "dispute over taxes assessed on the 1994 through 1998 grand lists by the town of Redding on an unimproved, 2.0-acre parcel of real estate then known as 8 Packer Brook Road." That parcel, as well as the adjacent one, located at 6 Packer Brook Road, was purchased by Lisa Lind-Larsen in 1972. The parcel located at 6 Packer Brook Road is improved with a house and is where Lind-Larsen resides. Both parcels were foreclosed in the early 1990s and were purchased from the bank in two separate transactions in 1995 by the plaintiff, Elfire, LLC (Elfire). Lind-Larsen is the managing member of Elfire. Redding held tax liens on 6 and 8 Packer Brook Road, which it foreclosed on in October 1999. The court, Radcliffe, J., granted summary judgment in favor of Redding. Several unsuccessful motions challenging the summary judgment were filed by Elfire, as well as two appeals to the Appellate Court. The Appellate Court reversed the summary judgment on a ground not raised by Elfire in the appeal. Its ruling, however, still precluded Elfire from using the time barred defense of invalidity of the tax assessments at trial. In direct violation of the ruling of the Appellate Court, Elfire amended its answer and raised the invalidity of the tax liens as a defense. The defendant, Spray (Parcel 6) Partnership (Spray), was substituted for the town of Redding as the plaintiff in that case, to which Elfire consented.
That action was captioned Redding v. Elfire, LLC, and was assigned Docket No. CV 99 0337512.
In October 2004, the court, Axelrod, J., heard the foreclosure action on the tax liens of both parcels, now entitled, Spray (Parcel 6) Ltd. Partnership v. Elfire, LLC. Elfire's novel theory at trial was that the parcel assessed and foreclosed on was a nonexistent parcel due to the assessor's reliance on an unapproved map. Judgment was rendered in favor of Spray. Elfire subsequently filed twenty-five unsuccessful motions, appeals and collateral actions asserting the same arguments raised and rejected at trial. In many of these filings, Elfire also raised the new argument that the properties had been merged in the 1980s, which invalidated the assessments. Elfire attempted to appeal the denials no less than six times, in both state and federal court, and filed several collateral actions in its attempt to challenge the tax liability.
This does not include the current motion for a new trial.
On February 23, 2007, Elfire filed a second amended complaint in its petition for a new trial, which is presently before the court, on the ground that there is new evidence that "corroborates [the] testimony and evidence offered at trial" that it claims shows that "no discrete building lot exists which can be subject to the liens and to foreclosure." Since the initial trial, Elfire has developed an additional theory to the case, which is included in its petition for a new trial and states that the two parcels had been merged years earlier, making the assessments and foreclosure improper. One item of newly discovered evidence that the plaintiff claims necessitates a new trial is a single-page letter to the plaintiff from Redding's assessor dated March 21, 2005, which states that the deed filed by Elfire was received and processed and the two parcels known as 6 and 8 Packer Brook Road had been combined to one parcel, effective for the October 1, 2005 grand list. Elfire argues this letter is corroborative evidence that the town recognized the two parcels had been merged. In actuality, the letter acknowledges receipt of the deed and mentions nothing about the 1994 through 1998 grand lists, the liens on the property due to the unpaid taxes or any merger which predates the deed mentioned in the letter. Additionally, the recorded deed states that the conveyance was subject to this action.
Six other pieces of evidence Elfire attempts to submit as new evidence were previously admitted into evidence during the foreclosure action. This includes a 1980 map, a 1995 deed, the 1995 to 2000 assessor's map, the 1995 to 2000 field card, a 2000 map and zoning regulations. Another exhibit Elfire attempts to submit is a map, which was excluded from the trial because it was not disclosed during discovery. Elfire attempts to submit eleven other exhibits that were in Lind-Larsen's possession and the town's public records prior to trial. No new witnesses have been offered by Elfire. Both Daniel Kenny, Redding's assessor at the time of the disputed assessment, and Lind-Larsen testified at the hearing on the motion for a new trial. Both testified in the foreclosure action and neither provided any newly discovered evidence nor evidence that could affect the outcome of the initial trial.
"A new trial is not required if the evidence is merely cumulative or duplicative . . . Where essentially the same evidence is submitted with somewhat more detail, it is, ordinarily, nonetheless cumulative." (Citations omitted.) Ginsburg v. Cadle Co., 61 Conn.App. 388, 392, 764 A.2d 210, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001). Additionally, "[t]o entitle a party to a new trial for newly-discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted." (Internal quotation marks omitted.) Lacroix v. Glens Falls Ins. Co., 107 Conn.App. 332, 335, 945 A.2d 489 (2008). Our Supreme Court has repeatedly "held . . . that [a] party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result." (Citation omitted; internal quotation marks omitted.) Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983).
"The function of a court at a hearing for a new trial is to determine whether the evidence presented at the hearing considered with the evidence presented at the original trial warrants the granting of a new trial. That determination is within the sound discretion of the court." (Internal quotation marks omitted.) Lacroix v. Glens Falls Ins. Co., supra, 107 Conn.App. 334. "The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done"; (Internal quotation marks omitted.) Burr v. Lichtenheim, supra, 190 Conn. 355; "and whether it is probable that on a new trial a different result would be reached." Ginsburg v. Cadle Co., supra, 61 Conn.App. 393. "In deciding this question, the court has the exercise of a sound legal discretion, and its action cannot be disturbed unless this discretion has been abused." (Internal quotation marks omitted.) Burr v. Lichtenheim, supra, 190 Conn. 355.
The alleged newly discovered evidence can hardly satisfy the test set out by our Supreme Court. Every piece of evidence submitted by Elfire, if it is purported to be newly discovered at all, violates at least one of the four prongs of the test. The letter submitted by Elfire is not material to trial and is not likely to produce a different result in a new trial because it does not state anything other than the fact that Elfire submitted a deed for recording subsequent to the initial trial. All other evidence Elfire seeks to submit was (1) admitted as evidence in the initial trial; (2) in the possession of Elfire at the time of the initial trial; or (3) filed in the Redding land records at the time of the initial trial and could have been discovered by the exercise of due diligence. In addition, the witness testimony offered at the hearing was neither newly discovered nor could it affect the outcome of the initial trial.
The court has examined the history of this case as well as other matters related to this case and finds litigation is being conducted by plaintiff's counsel that is done for the purpose of delay and is at best frivolous. Attorneys admitted to practice in Connecticut owe the court a much higher standard than non-attorneys who self-represent themselves. Attorney Brian Lambeck should seriously consider the meritoriousness of his claims as well as the requirements of fairness to opposing parties and counsel. He also has an obligation of being candid to the tribunal. For the foregoing reasons, Elfire, LLC's motion for a new trial is denied.