Opinion
No. CV02-0463204S
September 10, 2008
MEMORANDUM OF DECISION ON MOTION TO DISMISS AND MOTION TO OPEN JUDGMENT AND REMAND FOR NEW TRIAL
This case has caused distress to all parties concerned and involved with it. The town believes it is protecting important municipal interests and a stipulated judgment was entered against the defendant, an elderly woman, who adamantly believes the judgment was inappropriate. It is the court's understanding that the plaintiff has filed suit even against the attorney who represented her during the proceedings leading to the stipulated judgment.
In the judgment the parties agreed that a permanent injunction could issue against the defendant in favor of the town's zoning enforcement officer to the effect that filling and grading operations shall cease on the property until a special use permit was obtained, the defendant was to hire a civil engineer to prepare a survey of the property, submit a special use permit and comply with it and complete all work of grading, removal, and filling. The stipulated judgment was entered into and approved by the court on June 13, 2002.
Now new counsel has filed a motion to dismiss and a motion to reopen and remand the matter for trial. These motions were filed in January 2005.
A.
The motion to dismiss is based on the failure to join an indispensable party, Joseph Kopylec in the action. The argument is made that this deprived the court of subject matter jurisdiction. Somewhat inconsistent with this position is a motion to open the judgment and remand for trial. If the court had no subject matter jurisdiction there is nothing to reopen and in the context of the present case the matter cannot be remanded since the court has no jurisdiction to do anything regarding the file and only has the power to erase the matter from the court docket.
Leaving aside the jurisdictional issue a motion to reopen must be filed within four months of the date on which notice of judgment was sent. The defendant here did not file her motion within the four-month period. But such a motion can be granted beyond the four-month period where the judgment was obtained by fraud, was the result of mutual mistake, or was based on a stipulation or agreement not supported by actual consent, Kenworthy v. Kenworthy, 180 Conn. 129, 131 (1980), also Cromwell Commons Association v. Koziura, 17 Conn.App. 13, 16 (1988). There are two problems with the defendant's position as to these factors. First as to a claim of fraud, one of the requirements is that "there must have been no laches or unreasonable delay by the injured party after the fraud was discovered and "there must have been diligence in . . . in trying to discover and expose the fraud," Jucker v. Jucker, 190 Conn. 674, 677 (1983), also see Cromwell Commons Associates v. Koziura, supra. Logic would seem to require application of the same principles to a claim to reopen on grounds other than fraud. Perhaps the more important problem here is that the defendant presented no evidence of fraud, mistake, or lack of consent, cf. American Honda Finance Corp. v. Johnson, Conn.App. 164, 168 (2003).
To further complicate matters, however, another observation must be taken into account. The four-month rule of P.B. § 17-4 (§ 52-212) of the General Statutes has no bearing when lack of subject matter jurisdiction is raised because "under the common law, a trial court has inherent authority to open and modify a judgment it rendered without jurisdiction." Such a judgment is void ab initio and subject to both direct and collateral attack, Brosca v. Brosca, 181 Conn. 463, 467 (1980).
B.
The viability then of the motion to dismiss depends in part on whether the court had jurisdiction to enter a judgment in this case where there was a failure to join indispensable parties — for practical purposes here it is argued that there was a failure to join Joseph Kopylec, a one-third owner and the husband of Phyllis Kopylec.
First it is clear under our law that that failure to join an indispensable party does not deprive a court of subject matter jurisdiction, Bauer v. Souto, 277 Conn. 829, 839 (2006); Eder Bros. Inc. v. Wine Merchants of Connecticut, 275 Conn. 363, 382, N.10 (2005). But a motion to dismiss can be based in grounds other than lack of jurisdiction. On these joinder and non-joinder issues it is always helpful to start an analysis by looking at the Federal Rules of Civil Procedure; Rule 19 is the applicable rule where there is a "Required Joinder of Parties." Under that rule a person like Joseph Kopylec is a required party if
(A) in that person's absence, the court cannot accord complete relief among existing parties
(B) that person claims an interest relating to the subject of the action that disposing of the action in the person's absence may:
(I) as a practical matter impair or impede the person's ability to protect the interest, or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
In the commentary to Section 19 of the Federal Rules it says: "A person may be added as a party at any stage of the action on motion or on the court's initiative (see Rule 21) and a motion to dismiss, on the ground that a person has not been joined and justice requires that the action should not proceed in his absence, may be made as late as the trial on the merits (see Rule 12(h)(2) as amended, cf. Rule 12(b)(7) as amended," (emphasis by this court).
As regards joinder and non-joinder, indispensable parties and the various complicated Practice Book sections and case law of our state Horton and Knox in their commentary to P.B. § 9-18 say: "The recent tendency of the Superior Courts is to ignore the specific language of these sections and follow the most analogous Federal Rule," Conn. Practice Series, Vol. 1, page 433, see CHRO ex rel, Rowley v. Ackley, 32 Conn. L. Rptr. 380, 382 (2002). Referring to the just underlined language in the commentary to Rule 19, the following common sense observation arises, not dependant on the imprimatur of the federal rule or even its commentary — why should a party like Phyllis Kopylec validly served and represented by counsel be allowed to prevail on a motion to dismiss. The co-owner Joseph Kopylec is arguably the individual who has standing to file such a motion.
Arguably a person in Phyllis Kopylec's position by analogy to subsection (A)(2) of Rule 19 could take the position that the other owners are required or necessary parties because failure to join them would leave her "subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations" because of the interests of the other co-owners. But this particular argument has not been made by Phyllis Kopylec. Perhaps more to the point how could either Joseph or Phyllis Kopylec prevail on a non-jurisdictional based motion to dismiss when judgment has already entered? The only feasible remedy would be a setting aside of the judgment and remand but this would take account of Joseph Kopylec's interest and will be discussed later.
C.
The defendant also alludes to the fact that she was not responsible for the conditions which led to the grant of injunctive relief. The court accepts this as true for this discussion. But how far does this go in resolving the issues before the court even if dismissal were appropriate after judgment has entered? Zoning regulations like environmental regulations are concerned with conditions on the land itself or with those conditions as they may effect other property. Any owner can be held responsible in most circumstances for those conditions whether he, she, or it created them or another owner did or in some cases whether a prior owner did, Maturo v. Comm. of Dept. of Environmental Protection, 45 Conn. L. Rptr. 256 (2008).
What if, for example, it was not feasible to join a co-owner of property to an action even if that co-owner was the party responsible for purported violations of the zoning laws or environmental laws — would that mean those laws or interests could not be protected though injunctive or other statutory relief? To ask the question provides the answer — no. In the non-feasibility of joinder situation dismissal is not ipso facto mandated under Federal Rule 19 — a whole series of considerations must be taken into account by the court. Similarly here, by way of analogy to the federal rule, just because an indispensable party who is a co-owner is not joined to an action such as this does not entitle the co-owner against whom an order is entered to a dismissal.
D.
In a sense the problem before the court can be examined from another perspective. In a case where judgment has entered against the co-owner Phyllis Kopylec, given the facts of this case, how can it be said that Joseph Kopylec especially and even the other co-owner are not bound by it. If that is the case, it makes no sense to dismiss the case for failure to join them as indispensable parties or consider re-opening the matter and sending it back for trial. The rules of res judicata would seem to bar such a result.
If injunctive relief were sought against Joseph Kopylec or the other co-owner collateral estoppel could be invoked against their efforts to avoid it because they were in privity with Phyllis Kopylec, Joes' Pizza Inc. v. Aetna Life Casualty Co., 236 Conn. 863, 868 (1996); Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 303 (1991); both courts acknowledge privity is hard to define but a "key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity, Joe's Pizza Inc. v. Aetna, 236 Conn. at page 868; Aetna v. Jones, 220 Conn. at page 304. There are only a handful of Connecticut Appellate cases in this area but numerous cases are cited in "Judgment" 47 Am.Jur.2d at Section 587, pp. 146-47 for the proposition that: "In determining whether privity exists, courts generally employ a functional analysis, which entails a careful examination of the circumstances of the case and the rights and interests of the parties to be held in privity. Privity ordinarily denotes a mutual or successive relationship to the same rights of property. The question of who is a privy is a factual one requiring a case-by-case examination. Literal privity is not required."
The general rule is that co-owners of property are not bound by a judgment against another co-owner, see 47 Am.Jur.2d, "Judgments," § 618, pp. 188-89; Restatement (2d) Judgments, Section 54 (Vol. 1). But the Restatement lists a variety of exceptions. Under Section 39: "A person who is not a party to an action but who controls or substantially participates in the control of the presentation on behalf of a party is bound by the determination of issues decided as though he were a party." Section 40 says that: "A person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of the agreement."
A month and one-half before the stipulated agreement was entered on the record Joseph Kopylec wrote to the lawyer representing him and his wife Phyllis Kopylec in which he is obviously well aware of the various aspects of the litigation and gives directions as to how and under what circumstances the litigation will proceed. He references an agreement with "us" and his attorney to the effect that town officers would do a site inspection at the house but no one appeared to do this. In a "p.s." he says "Please advise the Town of Phyllis's signed `Power of Attorney' . . . to myself, and tell them to leave her off any letters and, or, calls pertaining to all this. She is not able to handle this." The "this" is the litigation and he obviously indicates he is able to "handle" it. The questioning before Judge Munro when the agreement was entered in the record must be read in conjunction with the letter.
At that hearing with the attorney for Phyllis Kopylec present and Joseph Kopylec present the agreement was read which said the named defendant "or her agents" must apply for a special use permit and if the defendant or her agents fail to comply a contempt order would be sought. The court asked Mr. Kopylec if he agreed with everything the town attorney said about the stipulated agreement and was asked if it is something he could comply with — he answered "it is." He could do all of these things he said as long as he was not hospitalized. The court further said "if you fail to comply, if the matter comes to the court for further findings in contempt you'll be cited in as a party and be facing contempt of court" — answer "Yeah." Of course, as defense counsel notes, he was not a party at the time of these inquiries and responses — but that is not the issue under privity and the appropriate ambit of res judicata. He obviously agreed to comply with the stipulation and if that is so, whether he was a "party," technically understood, is irrelevant to the application of res judicata or collateral estoppel.
It should be noted that the article in 47 Am.Jur.2d cites some authority for the proposition that privity can be derived from a blood or familial relationship although there is authority to the contrary, Section 589, page 148, see fn.3 and 4 but is a consideration in a common ownership situation especially one would think where the co-owners have the same lawyer representing their interests.
E.
Finally the defendant cites a series of cases for the proposition that our courts have ruled that opening a judgment and remanding for a new trial are the appropriate remedies when there is a failure to join an indispensable party, Graham v. Zimmerman, 181 Conn. 367 (1980); Fong v. Planning Zoning Bd. of Appeals, 212 Conn. 628 (1989); Stamford Ridgeway v. Bd. of Representatives, 214 Conn. 407 (1990); Levine v. Police Commission, 28 Conn.App. 344 (1992); J B Construction Contracting Services v. ZBA, 45 Conn.App. 702 (1997); Demarest v. Fire Dept., 76 Conn.App. 24 (2007); LoRicco Towers Ass'n. v. Pantini, 90 Conn.App. 43 (2005).
In Graham v. Zimmerman the plaintiff mortgagor appealed the trial court's denial of her petition for a new trial to reconsider its judgment of strict foreclosure. The court decided it need not address the plaintiff's allegation of failure to notify her of the judgment but did note that there were subsequent purchasers of the property and quoted from another case to the effect that: "No decree can be entered affecting the title to property or canceling any cloud thereon unless all of the parties interested in the title or in the particular cloud and who will be directly affected by any judgment that may be rendered are properly before the court." This case does not involve a determination of title to or interest in land but the enforcement of zoning regulations that any owner in full or in part would have to comply with and this case raises questions of privity and control and involvement in the prior litigation which the court has discussed.
Fong v. P Z, supra, is not applicable; there was no issue of privity and there the failure to allow intervention into an appeal to the Superior Court from a decision of the board to the party who had been successful before the board in its decision to deny a building permit was clearly improper. The trial court's judgment was set aside and the case was remanded for a new trial. Here Joseph Kopylec was involved in the litigation against the defendant and apparently to an extent in control of it and agreed to the very stipulation concerning whose prospective application he now complains. The Stamford Ridgeway case raises the same issues as Fong, similar is the J B Construction and Contracting Services, Inc. case, Demarest v. Fire Department, the LoRicco Towers case, and Levine v. Police Commission.
The basis of the defendant's argument seems to be summarized in Levine v. Police Commissioners at 28 Conn.App. page 350:
"Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience." Gaudio v. Gaudio, 23 Conn.App. 287, 305-06, 580 A.2d 1212, cert. denied, 217 Conn. 803, (1990). In such cases, joinder is mandated because due process principles make it "essential that [an indispensable party] be given notice and an opportunity to protect his interest by making him a party to the [action]. Fong v. Planning Zoning Board of Appeals, supra, 634."
In this case because of the matters referred to by the court, even though Joseph Kopylec was not formally made a party, how on earth are due process concerns regarding lack of notice and an opportunity to protect his interest at issue, he even directed his lawyer that various notices about the case not be sent to his wife Phyllis Kopylec.
For the foregoing reasons the defendant's motions are denied. But of course the court takes no position on the propriety or ambit of enforcement of any stipulation or judgment in this case as such actions would necessarily invoke the equitable power of the court in a somewhat unusual case.