Opinion
No. CV10-5033492 S
May 16, 2011
MEMORANDUM OF DECISION
FACTS
The plaintiff, Jesus Ruiz, commenced this action by service of process on the defendant, the State of Connecticut, on September 8, 2010, and on the defendant, Brian Sibley, on September 9, 2010. In his amended petition for a new trial, dated October 4, 2010, the plaintiff alleges the following facts. The plaintiff was convicted at an earlier trial for sexual assault. In count one of his petition for a new trial, the plaintiff claims that Sibley, the prosecutor at trial, knew or should have known that the alleged victim committed perjury when she stated that the plaintiff sexually assaulted her. He also avers that Sibley hid this information with the specific intent of convicting the petitioner of a crime or crimes which had no basis in fact. In count two, the plaintiff alleges that he received a notarized statement from the alleged victim's family members stating that the victim attempted to commit suicide because she perjured herself and caused the plaintiff to be incarcerated for a crime that did not occur. The plaintiff also claims in count two that Sibley "knew that she was [lying] but continued to back her up while committing perjury."
On December 3, 2010, the defendants filed a motion to strike the plaintiff's amended petition for a new trial on the ground that he failed to allege facts to satisfy the requirements set forth in General Statutes § 52-270(a), which governs claims for a new trial. The defendants filed a memorandum of law in support of the motion. On January 6, 2011, the plaintiff filed a memorandum in opposition to the motion to strike. On January 26, 2011, the defendants filed a reply to the plaintiff's memorandum in opposition. The court heard oral argument on February 14, 2011.
General Statutes § 52-270(a) provides: "The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action."
DISCUSSION
"[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "A motion to strike properly addresses the legal sufficiency of a petition for a new trial." Ertel v. Rocque, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 08 5003917 (December 4, 2009, Clarance, J.). "We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). The court, however, is "limited to the facts alleged in the complaint." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
I
THE MOTION TO STRIKE MAY BE CONSIDERED
The plaintiff argues in his objection to the motion that the defendants waived their right to file a motion to strike by failing to comply with the required order of pleadings set forth in Practice Book § 10-6. The defendants concede that the answer is docketed above the motion to strike. They argue, however, that this occurred as a "quirk of modern e-filing," as they filed a motion to strike on the same date that the answer was filed. They further assert that this did not constitute waiver pursuant to Practice Book § 10-7, and that § 10-7 does not provide that the filing of an answer waives a party's right to have a motion to strike decided.
Practice Book § 10-6, which governs the order of pleadings, provides that a motion to strike should be pleaded and ruled on before an answer is filed. Burke v. Avitabile, 32 Conn.App. 765, 769, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993). Practice Book § 10-7 provides: "In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by [§ 10-6] will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." (Emphasis added.)
Practice Book § 10-6 provides: "The order of pleading shall be as follows:
(1) The plaintiff's complaint.
(2) The defendant's motion to dismiss the complaint.
(3) The defendant's request to revise the complaint.
(4) The defendant's motion to strike the complaint.
(5) The defendant's answer (including any special defenses) to the complaint.
(6) The plaintiff's request to revise the defendant's answer.
(7) The plaintiff's motion to strike the defendant's answer.
(8) The plaintiff's reply to any special defenses.
The plaintiff cites to several cases in support of the proposition that, by filing their answer before their motion to strike, the defendants waived their right to a ruling on a motion to strike. See, e.g., Cole v. Jerman, 77 Conn. 374, 382, 59 A.2d 425 (1904); Lovejoy v. Isbell, 73 Conn. 368, 372, 47 A.2d 682 (1900); Gage v. Drazen, Superior Court, judicial district of New Haven, Docket No. CV 03 0482741 (September 15, 2004, Arnold, J.); Waldo v. R.H.M. Properties, Superior Court, judicial district of New London, Docket No. 557367 (March 28, 2002, Hurley, J.T.R.) [ 31 Conn. L. Rptr. 657]. "By operation of Practice Book § [10-7], the filing of [an] answer to [an] amended complaint acts as a waiver of the right to file a motion to strike the amended complaint." Wilson v. Hryniewicz, 38 Conn.App. 715, 719, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995).
The Appellate Court has also emphasized, however, that the court has discretion to allow pleadings to be filed out of order. "[G]enerally, pleadings are not to be filed out of the order specified in [Practice Book § 10-6], and the filing of a pleading listed later in the order set out by [§ 10-6] waives the right to be heard on a pleading that appears earlier on the list. The very words of [Practice Book § 10-7], `when the court does not otherwise order' indicate, however, that the court has discretion to allow the filing of pleadings out of order. [Section 1-8] of the Practice Book supports this view by allowing for the liberal interpretation of the rules where `strict adherence to them will work surprise or injustice' because the very design of the rules is `to facilitate business and advance justice.'" Sabino v. Ruffolo, 19 Conn.App. 402, 404, 562 A.2d 1134 (1989) (holding that trial court had discretion, pursuant to predecessor to Practice Book § 10-7, to consider motion to dismiss despite simultaneous filing of motion to dismiss and motion to strike); see Schoonmaker v. Lawrence Brunoli, Inc., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 96 0472829 (October 25, 1996, Handy, J.) (exercising discretion under Practice Book § 10-7 to consider defendant's motion to dismiss despite prior motion to strike).
In the present case, although the defendants' answer is docketed above the motion to strike, both the motion to strike and answer were filed on the same day. "When deciding whether to allow such alteration in filing, the courts will often consider the length of time that has passed since the filing of the previous pleading." Tersavich v. Stewart, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 98 66403 (June 17, 1999, Stengel, J.); see Fleet National Bank v. Suares, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0172858 (September 28, 2000, Hickey, J.) (exercising discretion to hear defendant's motion to strike as it was filed on the same day as its answer to plaintiff's amended complaint). This is distinguishable from cases where the court denied a motion to strike because it was filed a significant amount of time after the party filed its answer. See Kuo v. MIP Lessee, LP, Superior Court, judicial district of Waterbury, Docket No. CV 05 5001409 (March 31, 2008, Scholl, J.) [ 45 Conn. L. Rptr. 287] ("[A]llowance of the motions to strike at this late date, where the pleadings were closed almost two years ago, would prejudice the Plaintiffs and delay this matter further"); Eden Harbour Condominium Association, Inc. v. Eden Harbour, LLC, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 09 4010447 (June 22, 2010, Burgdorff, J.) (denying motion to strike as untimely where motion was filed over five months after answers were filed).
In addition, a liberal interpretation of the rules of practice pursuant to § 1-8 suggests that denying the defendants' motion to strike by strict adherence to the order of pleadings would be unjust. See AFSCME Connecticut Council 4 of the American Federation of State, County and Municipal Employees, AFL-CIO v. Andover, Superior Court, complex litigation docket at Waterbury, Docket No. CV 03 0182395 (February 21, 2006, Sheedy, J.) [ 40 Conn. L. Rptr. 796] ("The plaintiffs cannot reasonably claim such ruling works an injustice or results in unfair surprise"). Here, it would be unjust to prevent resolution of the motion to strike on the merits despite the fact that the motion to strike and the answer were filed almost simultaneously. This is especially true where the defendants filed both pleadings on the same date "in order to expedite the resolution of this case." See id. (exercising discretion to hear defendants' motions to strike even though they had previously filed an answer in part because doing so would further judicial economy).
II
The defendants move to strike the plaintiff's amended petition for a new trial on the ground that he has failed to satisfy the requirements for a new trial pursuant to General Statutes § 52-270(a). Specifically, the defendants argue that the plaintiff has not satisfied the first prong of the Asherman test; that is, he has not alleged that the proffered evidence is newly discovered such that it could not have been discovered previously despite the exercise of due diligence. The plaintiff counters that he has pleaded facts sufficient to satisfy the requirements under § 52-270.
The plaintiff argues in the alternative that instead of filing a motion to strike, the defendants could have filed a request to revise pursuant to Practice Book § 10-35 et seq., among other procedural vehicles. The Appellate Court, however, has explicitly stated that a party need not file a request to revise when a complaint is legally insufficient. See JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 130, 952 A.2d 56 (2008) (rejecting argument that plaintiff should have filed a request to revise pursuant to Practice Book § 10-35 et seq. instead of a motion to strike). As discussed above, a motion to strike is the proper procedural vehicle for attacking the legal sufficiency of a complaint.
"Pursuant to § 52-270, a convicted criminal defendant may petition the Superior Court for a new trial on the basis of newly discovered evidence." See Practice Book § 42-55. "Under the Asherman standard, a court is justified in granting a petition for a new trial when the petitioner demonstrates that the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial." Skakel v. State, 295 Conn. 447, 466-67, 991 A.2d 414 (2010). "[A] court's decision on the petition should be guided by the more general principle that a new trial will be warranted on the basis of newly discovered evidence only where an injustice was done and whether it is probable that on a new trial a different result would be reached." (Internal quotation marks omitted.) Shabazz v. State, 259 Conn. 811, 792 A.2d 797, 821, 792 A.2d 797 (2002). "[T]he proceeding is essentially equitable in nature; the petitioner has the burden of alleging and proving facts which would, in conformity with our settled equitable construction of the statutes, entitle him to a new trial on the grounds claimed . . . A petition will never be granted except upon substantial grounds." Murphy v. Zoning Board of Appeals, 86 Conn.App. 147, 152, 860 A.2d 764 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1080 (2005).
Practice Book § 42-55 provides in relevant part: "A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270."
A
In count one of his amended petition for a new trial, the plaintiff alleges that Sibley knew or should have known that the victim was committing perjury by alleging that the plaintiff sexually assaulted her, and that Sibley hid this information from the plaintiff "with the specific [intent] of convicting the petitioner of a crime or crimes which had no basis in fact and are erroneous." The defendants argue that the plaintiff has failed to allege that the proffered evidence is newly discovered and could not have been discovered earlier by the exercise of due diligence.
"Proof that the petitioner exercised due diligence to discover the evidence prior to trial is a condition precedent to successfully prosecuting a petition for a new trial under § 52-270." Terracino v. Fairway Asset Management, Inc., 75 Conn.App. 63, 74, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003). "The question which must be answered [in making a determination regarding due diligence] is not what evidence might have been discovered, but rather what evidence would have been discovered by a reasonable plaintiff by persevering application, [and] untiring efforts in good earnest." (Internal quotation marks omitted.) Id., 79. "To 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).
The plaintiff has not alleged in count one that any proffered evidence has been newly discovered such that it could not have been discovered previously despite the exercise of due diligence. There is no allegation in count one that any actual or constructive knowledge on the part of Sibley could not have been discovered previously despite the exercise of due diligence. See Morant v. State, 68 Conn.App. 137, 146, 802 A.2d 93, cert. denied, 260 Conn. 914, 796 A.2d 558 (2002) (emphasizing that petitioner failed to explain why he could not have set forth proffered evidence prior to trial); Ertel v. Rocque, supra, Superior Court, Docket No. CV 08 5003917 (same). As a result, count one of the amended petition for a new trial fails to satisfy the first prong of the Asherman test and cannot survive a motion to strike.
B
Turning to count two of the amended petition for a new trial, the plaintiff seems to allege that he is relying on newly discovered evidence, as he claims that he "received a notarized statement from the victim's family members that the victim attempted to commit suicide because she lied [about the plaintiff] and caused him to be incarcerated for a crime that did not happen . . ." This implies that the notarized statement is newly discovered and could not have been discovered earlier through exercise of due diligence. The Supreme Court has stated that such recantation of prior testimony constitutes newly discovered evidence. Shabazz v. State, 259 Conn. 811, 827 n. 11, 792 A.2d 797 (2002).
Even if count two satisfies the first prong of the Asherman test, however, it fails to satisfy the other three criteria. The plaintiff does not allege that the evidence would be material to the issues at the new trial, is noncumulative and would be likely to result in a different result in the event of a new trial. The plaintiff also fails to set forth facts to satisfy the second through fourth prongs of the Asherman test in his memorandum in opposition to the motion to strike. Therefore, count two of the amended petition for a new trial similarly cannot survive a motion to strike.
CONCLUSION
The court grants the defendants' motion to strike the plaintiff's amended petition for a new trial.