Opinion
No. CV04 08 58 72
December 8, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO OPEN AND SET ASIDE JUDGMENT
I. Factual Background
This case came to this court by way of an application for prejudgment remedy attachment on July 29, 2004. The parties, both of whom were represented by able and competent counsel, are commercial business entities dealing at arm's length in a commercial transaction. It is undisputed that the plaintiff supplied natural gas to the defendant in its business operation pursuant to an agreement dated July 1, 2003 (plaintiff's exhibit 3). A dispute between the parties arose as to the proper amount due to the plaintiff on or about August 2003 and between August 2003 and January 2004, the plaintiff made adjustments to the billings known as "policy adjustments" as evidenced by its billing statement (plaintiff's exhibit 4 and 5). During those periods of time there was considerable discussion and negotiation as to the amount properly due to the plaintiff but by January 2004, the customer had ceased making complaints and, in fact, the major adjustments had been made to the billing statement during October 2003.
The plaintiff commenced this action on July 29, 2004. Thereafter, the attorneys for the parties entered into further negotiations and on August 22, 2004 counsel for the plaintiff faxed to counsel for the defendant a letter and stipulation to judgment (plaintiff's exhibit 1). On said date, counsel for the defendant signed said stipulation and returned it to the plaintiff who presented it to the court on August 30, 2004 and judgment entered pursuant to said stipulation. As part of said stipulated agreement, the parties agreed that enforcement of the judgment against the defendant "shall be stayed until September 20, 2004 to permit the parties to agree to a payment schedule. If there is no agreement between the parties by that date, plaintiff may enforce the judgment against the defendant without any further notice to defendant or the court." A meeting was held by all parties on or about October 1, 2004 in an effort to reach a mutually acceptable payment schedule without success.
On November 3, 2004, the defendant filed a Motion to Open and Set Aside Judgment together with an affidavit and memorandum of law. The plaintiff filed written objections to said request on November 8 and November 10, 2004.
The parties appeared before this court (Shluger, J.) on December 6, 2004 to offer argument and testimony. Attorney William Fitzgerald withdrew as counsel for the defendant and Attorney Gray entered in lieu of Attorney Fitzgerald who became a witness on behalf of the defendant.
The law is clear that in order for the defendant to open a judgment, it must establish by a preponderance of the evidence, that a good defense existed at the time that the judgment was filed and that the judgment was obtained by fraud, duress, accident or mistake. Such a motion should not be granted freely nor without strong reasons. Ducci Electrical Contractors, Inc. v. D.O.T., 28 Conn.App. 175, 184, 611 A.2d 891 (1992).
The defendant argued that a good defense existed at the time the judgment was entered in that the defendant had been overbilled. Notwithstanding that claim however, the defendant presented insufficient evidence to substantiate that claim. There was evidence that the defendant had initially been overbilled but that those overbillings were adjusted between October 2003 and January 2004. No competent evidence has been presented to the court to show that the defendant had or has a valid defense to these billings. Moreover, the defendant is bound to show that the judgment was entered by way of fraud, duress, mistake or accident. Solomon v. Keiser, 22 Conn.App. 424, 427, 577 A.2d 1103 (1990). There was evidence that the defendant felt compelled to enter a stipulation to avoid a prejudgment remedy attachment but that does not rise to the level of duress.
There is no evidence of fraud. Fraud is commonly defined as "deceit, deception, artifice, or trickery operating prejudicially in the rights of another, and so intended, by inducing him to part with property or surrender some legal right." Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 590, CT Page 18558 573 A.2d 699 (1990). The final argument that was raised is that the judgment entered into by way of a mutual mistake as to facts. The defendant argued that it was mistaken as to the amount due and owing. The evidence showed otherwise however. Both parties, commercial entities, represented by counsel disputed the amount due for several months. There were meetings, faxes and correspondence, demands for corrections and adjustments to the bills. Thereafter, the parties reached an accord, memorialized in the stipulation. The court can reasonably find that the stipulation was the product of negotiation and compromise that resulted in the judgment.
The defendant has failed to demonstrate that the judgment should be reopened in that it proved no valid defense nor did it prove that there was fraud, duress, mistake or accident. The motion is denied. the stay of execution dated November 16, 2004 is hereby removed.
So ordered.
KENNETH SHLUGER, JUDGE