Opinion
No. CV 03 0100647
December 4, 2009
MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT BASED UPON ALLEGATION OF FRAUD
On February 5, 2003, the plaintiff, Peter Ertel, filed an eight-count complaint against the defendants, Arthur Rocque, commissioner of environmental protection; David Leff, deputy commissioner of environmental protection; and Rachel Towbin, an employee of the Department of Environmental Protection, in their official and individual capacities. The essential allegations are hereinafter articulated.
On June 3, 1982, the plaintiff was granted a permit by the Department of Environmental Protection to add an extension to his dock at 230 Ferry Street in Old Saybrook located on the Connecticut River. After the plaintiff began construction on his dock in 1983, the nearby owners of Oak Leaf Marina objected to his actions. The plaintiff thereafter complained to the department that unapproved construction was being conducted at Oak Leaf Marina. Thereafter, Rocque, with the assistance of Towbin, summarily revoked the plaintiff's construction permit ordering him to remove a preexisting dock without first issuing a compliance order, or affording him an opportunity to correct any defects. On April 8, 2000, Leff issued an order requiring the plaintiff to remove all docks, pilings, floats, piers, riprap, fill and all other structures seaward of the high tide line and to restore the dock to its preexisting formation at his own expense. The plaintiff alleged that he was unfairly subjected to harsh treatment by the defendants in retaliation for filing a complaint against Oak Leaf Marina. The complaint alleged violations of Ertel's equal protection rights, first and fourth amendment rights, substantive and procedural due process rights, and a taking of his property. The complaint was brought under both the federal and state constitutions.
Subsequently, the defendants filed two motions to dismiss for lack of subject matter jurisdiction. Leff filed the initial motion to dismiss based on judicial immunity, which was granted by the court, Gordon, J., on August 23, 2003 [ 35 Conn. L. Rptr. 298]. Thereafter the plaintiff amended his complaint by removing his claims against Leff.
On January 21, 2005, the Court, Aurigemma, J., granted a second motion to dismiss filed by the remaining defendants, Rocque and Towbin. The plaintiff appealed both decisions of the court, which were upheld. Ertel v. Rocque, 108 Conn.App. 48, 946 A.2d 1251, cert. denied, 289 Conn. 926, 958 A.2d 158 (2008) (the plaintiff's arguments on appeal that the trial court improperly dismissed his selective enforcement claims and that the trial court improperly dismissed the claims against Leff were not reviewed by the appellate court because those claims were not adequately briefed by the plaintiff).
On November 9, 2007, the plaintiff, filed this motion to open judgment. Self-represented at the time of filing the motion, the plaintiff moved to open judgment on the grounds that newly discovered material evidence exists. Specifically, the plaintiff points to the discovery of two documents, both entitled "Personal Services Agreement" (PSAs), which would establish that over a period of time encompassing July 7, 1988 to August 25, 1988, the Department of Environmental Protection and the Connecticut Marine Trades Association (CMTA) formed a contract which prompted the defendants to take the actions that caused the plaintiffs harm and that those actions were taken to provide a benefit to Oak Leaf Marina, Inc., and its owners, Scott Masse and Sherry Masse (whom the plaintiff avers to have been the second vice president of the CMTA at the time). In his memorandum of law in support of the motion to open judgment, the plaintiff argues that: 1) the judgment was fraudulently obtained because the defendants failed to reveal the newly discovered evidence with the intent of preventing the plaintiff from putting forth his strongest claims and that the defendants should have had an affirmative duty to disclose the newly discovered evidence; 2) had he been aware of the evidence, he would have alleged that the defendants revoked his permit and ordered the removal of his dock with the intent of providing Oak Leaf with a particular benefit.
On November 9, 2007 the plaintiff filed his memorandum in support of the motion and attached twenty-eight documents in evidentiary support. On September 2, 2008, the defendants filed their memorandum of law in opposition to the motion. The matter was heard on the short calendar on August 17, 2009.
Standard for Motion to Open Judgment
"A motion to open and vacate a judgment . . . is addressed to the [trial] court's discretion . . ." (Internal quotation marks omitted.) Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, CT Page 561 897 A.2d 58 (2006) [O]nce a judgment is rendered it is to be considered final . . . and it should be left undisturbed by post-trial motions except for a good and compelling reason." (Citations omitted; emphasis added.) Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983). "While . . . a motion [to open] should not be readily granted nor without strong reasons, it ought to be when there appears cause for which the court acting reasonably would feel bound in duty so to do." (Internal quotation marks omitted.) Id., 710-11. It is the moving party's burden to show "good and compelling reason" for the court to grant the motion. Hirtle v. Hirtle, 217 Conn. 394, 398, 586 A.2d 576 (1991).
The statutory authority for considering a motion to open judgment is set out in Connecticut General Statutes Section 52-212a which states in material part the following:
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.
Practice Book § 17-4 articulates essentially the same rule. However, as quoted in Dougherty v. Dougherty, 109 Conn.App. 33, 38, 950 A.2d 592 (2008) "[a] judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake." Id. (Emphasis added.)
A. Timeliness of the Plaintiff's Motion
As previously stated, the court, Aurigemma, J., rendered judgment on the second motion to dismiss on January 21, 2005. Other post-judgment motions were resolved by February 27, 2006. The plaintiff filed his motion to open judgment on November 9, 2007, over twenty months after February 27, 2006, and over thirty-three months after judgment was rendered on the motion to dismiss. The plaintiff's allegation of fraud appears to be the only possible salvation for the plaintiff's Petition for New Trial.
B. Judgment Obtained by Fraud
The plaintiff argues that the judgment of the trial court was fraudulently obtained in that the defendants failed to reveal evidence with the intent of preventing the plaintiff from putting forth his strongest claims against them, and that the defendants should have had an affirmative duty to disclose the newly discovered evidence. The defendants counter that the plaintiff's claims are without merit because 1) it is clear from the face of the plaintiff's motion and his supporting materials that he failed to exercise due diligence to obtain these materials during trial; 2) there was an unreasonable delay in bringing the motion after the plaintiff discovered the fraud; and 3) the plaintiff has not shown, and cannot show, clear proof of fraud because there was no duty on the part of the defendants to provide the plaintiff with the evidence that is the basis of this motion as those materials were never requested and there cannot be fraud in the absence of a duty.
1. Diligence to Expose the Fraud
It is true, as the defendants state, that "[w]hen a party seeks to open and vacate a judgment based on new evidence allegedly showing the judgment is tainted by fraud, he must show, inter alia, that he was diligent during trial in trying to discover and expose the fraud . . . See Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980); see also 2 Restatement (Second), Judgments § 70(2), p. 179 (1982); but see Billington v. Billington, 220 Conn. 212, 218-19, 595 A.2d 1377 (1991) (abandoning diligence requirement in context of marital dissolution actions)." Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 107, 952 A.2d 1 (2008). In Chapman Lumber, Inc., the Supreme Court, in affirming the trial court's decision to deny the defendant's motion to open, noted that "the matters counsel wished to explore had occurred years before trial and were related to proceedings to which the defendant had had complete access. Accordingly, the defendant clearly had not exercised the requisite diligence in uncovering the purported malfeasance. See Varley v. Varley, supra, 180 Conn. 4; 2 Restatement (Second), supra, § 70(2); see also Damico v. Dalton, 1 Conn.App. 186, 187-88, 469 A.2d 795 (1984) (upholding denial of motion to open based on newly discovered evidence where evidence `was just as much within the power of the defendant to produce before judgment as after')." Chapman Lumber, Inc v. Tager, supra, 108. At issue in Chapman Lumber, Inc. were bankruptcy proceedings which occurred years before the case that the defendant wanted to open was actually tried, and the file to these bankruptcy proceedings, to which the defendant had full access at all times. Id., 103-04.
In the present case, the events the plaintiff wishes to explore all occurred either around the time the DEP issued its notice of permit revocation to the plaintiff in 1988 or prior to that event. Specifically, the plaintiff looks to establish that the defendants had a policy of not pursuing any action against the plaintiff for his permit violation and that only after the formation of the contract between the CMTA and the DEP in 1988 did the defendants break that policy and prosecute the plaintiff. However, these events all occurred approximately fifteen years before the plaintiff brought the underlying action in 2003.
Additionally, the plaintiff has not shown how his access to the PSAs, the evidence which serves as the primary impetus for the filing of the motion to open, was prevented or limited in any way. He has not stated that the defendants fabricated evidence or that these documents were ever requested from the defendants. In fact, in his affidavit, the plaintiff states that the PSAs were found in the state archives. The fact that he found these documents in the state archives is further evidenced by the attached certification page from the Connecticut State Librarian stating that the document "is a true copy of a record turned over to me and on deposit in the State Library in accordance with the provisions of Section 11-4c of the General Statutes . . ." Such documents in the state archives are public record. Connecticut State Library: Collection Policy for the State Archives, http://www.cslib.org/collect.htm ("Government archival records are `public records' as defined by Section 1-18a(d) of the Connecticut General Statutes."). Accordingly, the court is left to conclude that the "newly discovered" evidence was just as much within the power of the plaintiff to produce before judgment as after and he has not met the requisite showing that he was diligent during trial to discover this evidence.
2. Unreasonable Delay
Among the limitations on a court's ability to grant relief from a judgment secured by fraud is that "there must have been no laches or unreasonable delay by the injured party after the fraud was discovered . . ." Jeudy v. Jeudy, 106 Conn.App. 372, 377, 942 A.2d 476 (2008). "Laches consists of an inexcusable delay which prejudices the defendant . . . First, there must have been a delay that was inexcusable, and second, that delay must have prejudiced the defendant." Id., 378.
Although the plaintiff in this case filed the motion to open in November of 2007, approximately eleven months after discovering the new evidence, and approximately two years and ten months after the court issued its judgment on the second motion to dismiss, the defendants have not argued, or in any way placed on the record before the court anything that would support the conclusion that they were prejudiced by this delay. C.f Jeudy v. Jeudy, supra, 378 ("Because the defendant failed to justify his delay in asserting fraud, and the basis for the court's finding of delay and prejudice are supported by the record, we conclude that the court did not abuse its discretion in denying the defendant's motion to open."). Therefore the court cannot deny the motion to open on this ground.
3. Clear Proof of Fraud
After the moving party makes a proper proffer that his claim (e.g. of fraud) has substance, he should request an evidentiary hearing. See American Honda Finance Corp. v. Johnson, 80 Conn.App. 164, 168, 834 A.2d 59 (2003), citing Tyler E. Lyman, Inc. v. Lodrini, 78 Conn.App. 684, 686-89, 828 A.2d 681, cert. denied, 266 Conn. 917, 833 A.2d 468 (2003) (trial court abused discretion by denying motion to open without conducting evidentiary hearing on factual issue raised in motion to open where movant requested such a hearing). However, "[t]o be entitled to a hearing, the [party needs] to make some threshold showing that his claims had substance . . ." Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 108; see 2 Restatement (Second), supra, § 70(2)(b) (party seeking relief from judgment based on fraud must state claim "with such particularity as to indicate it is well founded."). In this case the plaintiff has not made a threshold showing of the existence of fraud, nor has he pursued an evidentiary hearing.
"Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action . . . The four essential elements of fraud are: (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment . . . Fraud by nondisclosure, which expands on the first three of these four elements, involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak, under circumstances in which there is a duty to speak." (Citations omitted; internal quotation marks omitted.) Pospisil v. Pospisil, 59 Conn.App. 446, 450, 757 A.2d 655, cert. denied, 254 Conn. 940, 761 A.2d 762 (2000). "Mere nondisclosure does not amount to fraud. To constitute fraud on that ground, there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak." Rose v. Sprocket Enterprises, LLC, Superior Court, judicial district of New London, Docket No. 07-5004208 (July 17, 2009, Purtill, J.), citing Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977).
Conclusion CT Page 565
Inasmuch as the plaintiff has not established clear proof of fraud and that he performed due diligence to discover the fraud, the court finds that the Motion to Open Judgment is untimely. Therefore, the Motion to Open Judgment is denied.