Opinion
No. CV 08 5003917
December 4, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE PETITION FOR NEW TRIAL
The plaintiff, Peter Ertel, filed a second revised petition for a new trial against the defendants, Arthur Rocque and Towbin, in their official and individual capacities as employees of the Department of Environmental Protection (DEP), on April 16, 2009, in which the plaintiff alleges the facts hereinafter articulated. The plaintiff owned land abutting the Connecticut River in Old Saybrook, Connecticut in 1981. The prior owner of the plaintiff's property obtained a permit to construct a dock, and did in fact construct a 155-foot dock. In the 1960's Oak Leaf Marina acquired land to the north and south of the plaintiff's property. In 1982 the Commissioner of Environmental Protection granted the plaintiff a permit to add a sixty-foot extension to the dock, and the permit granted Mr. Ertel until June 3, 1985 to complete construction. In August of 1985 Oak Leaf complained to the DEP for the first time that the Plaintiff's completed dock was not in compliance with his permit. Oak Leaf stood to reap a significant benefit if the plaintiff were forced to remove his dock. For three years the DEP took no action with respect to Oak Leaf's objections.
In 1988 the plaintiff objected to construction that Oak Leaf Marina had begun without obtaining the necessary permit. On September 28, 1988, fifteen days after the plaintiff objected to the construction being performed at Oak Leaf Marina, and four days after the Army Corps of Engineers had threatened Oak Leaf Marina with legal action, DEP employees Rocque and Towbin, revoked the permit issued to the plaintiff in 1982 to extend his dock, and ordered him to remove his dock. Contemporaneously while enforcement actions were being taken, Rocque urged the Army Corps of Engineers to take no action against the owners of Oak Leaf Marina despite their violations of the law, about which the plaintiff had complained. The actions of the defendants forced the plaintiff to remove his entire dock structure in July of 2000, at his expense and without compensation.
On February 5, 2003, the plaintiff brought suit against the defendants, as well as David K. Leff the Deputy Commissioner of Environmental Protection. The suit alleged that the defendants, in both their official and individual capacities, had violated the plaintiff's state and federal rights to equal protection, freedom of speech, freedom to petition for the redress of grievances, procedural and substantive due process, and his right against the taking of his property without just compensation. The plaintiff based his complaint on the First and Fourteenth Amendments to the United States Constitution, and Article First §§ 4, 5, 11, 14, and 20 of the Constitution of the State of Connecticut, seeking injunctive relief and money damages. The plaintiff based his equal protection claims upon the theory of selective enforcement, in that the defendants had singled him out for permit revocation because he complained about Oak Leaf Marina.
On August 27, 2003, the trial court granted the DEP's motion to dismiss the claims against Leff pursuant to the doctrine of judicial immunity. On January 21, 2005, the trial court granted the DEP's motion to dismiss the claims against the remaining defendants pursuant to the doctrine of sovereign immunity. The Appellate Court affirmed the trial court's dismissal of Petitioner's suit on May 28, 2008. The Supreme Court denied certification on September 25, 2005.
The plaintiff further alleges the following facts related to the newly discovered evidence which serves as the basis for his petition for a new trial. On or about December 18, 2006, the plaintiff discovered two copies of a Personal Services Agreement among the files of former DEP Commissioner Carothers in the state archives. The copies of the Personal Services Agreement were dated July 7, 1988 and July 12, 1988. The Personal Services Agreement was a contract between the DEP and the Connecticut Marine Trades Association, Inc. (CMTA). In it the DEP agreed to pay $10,000 to the CMTA in exchange for the CMTA conducting a study to assess the economic impact of recreational boating on the State of Connecticut. At all times relevant to this petition, the CMTA was directly linked to Oak Leaf Marina. The Personal Services Agreement reveals that: 1) at the time the defendants ordered the plaintiff to remove his entire dock and ignored Oak Leaf Marina's violations, the defendants had an undisclosed mutually beneficial relationship with Oak Leaf Marina, and that Oak Leaf Marina derived a direct and substantial benefit from the defendants' actions; 2) six days after the attorney general approved the financial arrangement entered into between the defendants and Oak Leaf Marina, defendant Rocque moved forward with the enforcement action against the plaintiff in direct contradiction to the DEP's policy of giving low priority to such violations; 3) one month after the attorney general approved the financial arrangement entered into between the defendants and Oak Leaf Marina, and without providing the plaintiff the legally required opportunity to achieve compliance, defendant Rocque summarily revoked the plaintiff's extension permit and ordered the removal of the plaintiff's entire dock.
The plaintiff alleges that the Personal Services Agreement constitutes evidence demonstrating the defendants' malicious motivation for treating him differently than similarly situated Oak Leaf Marina. He alleges further that the defendants never provided copies of the Personal Services Agreement to him, or otherwise indicated that such a document existed; that he could not have discovered the Personal Services Agreement earlier by exercise of due diligence, and; had the Personal Services Agreement been available prior to the trial court's dismissal of his complaint, it is likely that the evidence would have produced a different result.
Lastly, the plaintiff alleges that a new trial is warranted because the newly discovered evidence establishes that the defendants took actions to the detriment of the plaintiff in order to provide Oak Leaf Marina, with whom the defendants had an undisclosed mutually beneficial relationship, a substantial benefit, thereby violating the plaintiff's right to equal protection under both the federal and state constitutions.
On June 16, 2009, DEP defendants Rocque and Towbin filed a motion to strike the plaintiff's second revised petition for a new trial. The defendant moves to strike the petition for a new trial on the ground that the facts alleged are legally insufficient and fail to state a claim upon which relief can be granted because 1) the plaintiff has not met his burden to show that he exercised due diligence to obtain the evidence on which he now relies; 2) the plaintiff has not met his burden to show that the new evidence would be material; and 3) the plaintiff has not met his burden to establish that the newly discovered evidence is likely to produce a different result. The parties have submitted memorandum of law in support of their respective positions.
Legal Standard
A motion to strike properly addresses the legal sufficiency of a petition for a new trial. See Thomas v. State, Superior Court, judicial district of Hartford, Docket No. CV 07-5014849 (March 17, 2009, Mulcahy, J.). "[T]he purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint for failure to state a claim on which relief can be granted." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 562, 979 A.2d 1055 (2009). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). In addition "the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Id., 588. "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
"[A] court is justified in granting a petition for a new trial when it is satisfied 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." Shabazz v. State, 259 Conn. 811, 820-21, 792 A.2d 797 (2002).
A. Due Diligence
The defendants assert that the petition is insufficient because the plaintiff failed to show that he exercised due diligence to obtain the evidence on which he now relies, the defendants argue that because the plaintiff admits to having found the evidence in December of 2006, but waited to file the petition for a new trial until January of 2008, and provides no explanation for the delay, that this precludes a finding that he exercised due diligence. The plaintiff contends that although the setting aside of a judgment on the basis of fraud will only be granted if there was no laches or unreasonable delay by the injured party after the fraud was discovered, there is no such inquiry when a plaintiff asserts a newly discovered evidence claim. It is true that laches or unreasonable delay after the fraud was discovered will prevent a plaintiff from being successful on a motion to open. However, such an analysis is not pertinent to whether or not the plaintiff has shown due diligence on a petition for a new trial based on newly discovered evidence. Indeed, the correct analysis is whether the plaintiff has demonstrated that "the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence." (Emphasis omitted.) Terracino v. Fairway Asset Mangement, Inc., 75 Conn.App. 63, 73, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003). The amount of time the plaintiff took to bring its petition for a new trial after finding the evidence is not relevant to whether there was due diligence prior to trial or during pretrial discovery.
Additionally, the defendants assert that the plaintiff's allegation that he "could not have discovered the Personal Services Agreement earlier by exercise of due diligence," is conclusory, particularly because the document upon which he relies obviously existed long before the plaintiff filed his initial action in 2003, and there is no indication as to why the plaintiff could not have obtained these documents during that time. In opposition, the plaintiff asserts that the petition sets forth reasons why the Public Services Contracts could not have been discovered earlier by due diligence, including 1) that the copies of the Agreement were discovered buried in the State Archives, among the files of Leslie Carothers, the former DEP Commissioner, not the defendant Arthur Rocque; and 2) that the trial court granted the defendants' motion to dismiss in the plaintiff's initial action before any fact finding hearings regarding the merits of the plaintiff's claims could be made. As the Appellate Court has explained, "[t]he 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 quotations marks omitted.) Terracino v. Fairway Asset Management, Inc., supra, 75 Conn.App. 79. In Terracino, the Appellate Court held that the plaintiffs could "hardly argue that the underlying facts show that they employed `persevering application [and] untiring efforts' . . . to discover the [evidence] at issue." (Internal quotation marks omitted.) Id. Similarly they stated that "[w]hether the plaintiffs fulfilled their obligation to do all that was reasonable to discover the evidence prior to trial is not to be informed by [anyone else's] conduct . . . It is the conduct of the plaintiffs that is subject to scrutiny, since he who claims equity must do equity." (Citation omitted; internal quotation marks omitted.) Id., 76.
In the present case the plaintiff makes only the conclusory allegation that the newly discovered evidence would not have been discovered despite due diligence, however he does not make any allegations that due diligence was in fact performed, or allege anything similar from which such a conclusion can be inferred. The plaintiff's arguments relating to where the evidence was found are vague in that it is unclear what conclusion the court is supposed to draw from the allegation that the evidence was found in the state archives of Leslie Carothers. If the court is to conclude from those allegations that the documents were incorrectly filed, such a conclusion is irrelevant until the plaintiff has demonstrated that due diligence was carried out on his part. Also, the plaintiff's attempt to distinguish the cases where a lack of due diligence was determined from the present case based on a lack of a hearing and opportunity to develop evidence is inapposite. Although the petition alleges that no trial ever occurred, it cannot necessarily be inferred that the plaintiff had no opportunity before judgment entered against them to develop evidence in discovery. Moreover it appears that no such allegation can be made. According to the case management scheduling order the exchange of written discovery requests was to occur on, or before November 30, 2004 and Judge Aurigemma's decision was not entered until January 21, 2005. However, no requests for discovery were ever made by the plaintiff.
B. Materiality of the New Evidence
The defendants' second argument is that the plaintiff has not met his burden to show that the new evidence would be material because his petition fails to allege the requirements of a selective enforcement claim as described in Cadlerock Properties J.V., L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 671, 757 A.2d 1, cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2000). In Cadlerock, the Supreme Court stated: "A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Id.
Specifically, the defendants contend that the 1988 Agreement between the DEP and the Connecticut Maritime Trades Association, Inc. in which the DEP agreed to pay $10,000 to the CMTA in exchange for the CMTA conducting a study to assess the economic impact of recreational boating on the State of Connecticut is immaterial to the issue of proving the defendants' malicious motivation for treating the plaintiff differently than similarly situated Oak Leaf Marina. The plaintiff counters that the Personal Services Agreement would have provided the support for his claims because it constitutes evidence that the defendants had an undisclosed, mutually beneficial financial relationship with the party that received preferential treatment at the expense of the plaintiff, therefore it has a logical connection to the allegations made in the plaintiff's amended revised complaint.
The issue of malicious motive or intent does not lend itself to being decided as a matter of law. See Donovan v. Neri, Superior Court, judicial district of Waterbury, Docket No. CV 97 0140940S (April 24, 2002, Holzberg, J.) ("Whether the plaintiff acted with malice or bad faith is an issue involving the plaintiff's motive and intent which should not be resolved on a motion for summary judgment."); Harlen Associates v. Inc. Village of Mineola, 273 F.3d 494, 502 (2d Cir. 2001) ("Although the issue of whether an action was motivated by malice generally is a question of fact . . . we will uphold a grant of summary judgment if the nonmoving party adduces nothing more than mere speculation to support its claims."). In Harlen Associates the Second Circuit Court of Appeals held the plaintiff's claim of selective enforcement based on malicious motive to be too speculative where 1) the record did not reveal that the hostility was directed at the individual plaintiff as opposed to the use of his property; and; 2) any potential conflict of interest that may have been posed by the participation of a board member in the agency's decision making process did not suggest a constitutional violation as there was no claim that the board member had a financial interest in the decision, nor was his vote decisive. Id.
The plaintiff in the present case has alleged more than the plaintiff in Harlen Associates in that he has alleged that the DEP took enforcement action against him because Oak Leaf Marina stood to gain from the removal of his dock, as well as from the DEP's ignorance of the plaintiff's complaints of Oak Leaf Marina's construction. The plaintiff has also alleged that the defendants, through their contract with the CMTA, had an inappropriate relationship with Oak Leaf Marina that caused a conflict of interest in their enforcement process.
The defendants also argue that the plaintiff's petition fails to sufficiently allege the similarly situated requirement because while the plaintiff was found to have been in substantial non-compliance with his permit, the plaintiff's allegation that Oak Leaf Marina engaged in "flagrant violations of law"; is conclusory. In response the plaintiff points to his amended revised complaint in the underlying action, which alleges that while the defendants heeded the complaints of Oak Leaf Marina against the plaintiff and forced him to destroy his dock as a result of the complaints, the defendants ignored the plaintiff's complaints against Oak Leaf Marina, thereby allowing Oak Leaf to continue unpermitted construction activities in violation of the law.
The Appellate Court has held that "the requirement imposed upon [p]laintiffs claiming an equal protection violation [is that they] identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently . . ." (Emphasis in original.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection, supra, 253 Conn. 672. "Generally, a defendant is entitled to a hearing when he has initially, by his offer of proof and the allegations contained in his motion, established that others similarly situated are not prosecuted for the same type of conduct . . ." (Emphasis added.) State of Connecticut v. Anonymous, (1980-7), 36 Conn.Sup. 338, 340, 420 A.2d 910 (1982). Moreover, the Appellate Court has stated, that in relation to sovereign immunity, for a "claim made [on the basis that the state or one of its officers has violated the plaintiff's constitutional rights] we require that `[t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 721, 937 A.2d 675 (2007).
In Cadlerock Properties, supra, 253 Conn. 672-73, the Connecticut Appellate Court held that the trial court properly affirmed the hearing officer's decision that the Department of Environmental Protection did not engage in selective enforcement because "the plaintiff compared itself only to previous polluters of the site" and "did not compare itself to similarly situated current owners of the property who were not directly responsible for the pollution." (Emphasis added.) Id. Thus, because the plaintiff failed to allege that the previous polluters were not directly responsible for the pollution, as they themselves were not directly responsible, they had not alleged that their counterparts had engaged in the same type of conduct.
In the present case the plaintiff's petition alleges that the DEP issued him a permit to construct a 60-foot extension to his already existing dock; Oak Leaf Marina complained in 1985 about the plaintiff's dock for being out of compliance with his permit; that Oak Leaf Marina, the alleged similarly situated comparator, owned the land north and south of the plaintiff's property and that in 1988 the plaintiff objected to construction that Oak Leaf had begun without obtaining the necessary permit. In the plaintiff's case it appears his dock extension had been out of compliance for several years, whereas Oak Leaf Marina was conducting construction, of what type it is unknown, without a permit, for presumably a lesser amount of time. Inasmuch as the plaintiff has not identified what the violation was for Oak Leaf and how that violation was similar to that of the plaintiff, it cannot be said that the plaintiff has clearly demonstrated that Oak Leaf was not prosecuted for the same type of conduct.
C. Whether the Newly Discovered Evidence Produces a Different Result.
The defendants initially argue that the newly discovered evidence will not produce a different result because it will not pass the "minimum credibility" threshold, as required by Shabazz v. State, in that the conclusions the plaintiff asks the court to make, namely that the existence of the Personal Services Agreement created some malicious motive on the part of the defendants, would require superimposing "inference on inference" and is based on nothing more than speculation and conjecture. The plaintiff responds that the motion to strike is not the proper means to challenge the credibility of evidence, and that a motion to strike admits all facts well pleaded and a court adjudicating such a motion must accept as true the allegations set forth in the petition. The defendants' argument would require the court to weigh the credibility of the evidence which is procedurally inappropriate in deciding the motion to strike; see Shabazz v. State, supra, 259 Conn. 822-23 (a trial court must engage in some form of credibility analysis in order to determine whether the newly discovered evidence is likely to produce a different result at retrial, this usually requires a full hearing on the merits); nor does the issue of malicious motive or intent lend itself to being decided as a matter of law, as already discussed, supra.
The defendants also argue that the plaintiff's new evidence will not produce a different result because the claims are now barred by General Statute Section 52-577, the statute of limitations. The plaintiff's brief does not address this argument, however it seems that the plaintiff argued at short calendar that because on a motion to strike all the allegations are taken as true, they have therefore adequately alleged that the action was timely filed. "General Statutes § 52-577 provides that `[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.' The Connecticut three-year limitation period is the operative statute of limitations for tort actions based on federal constitutional and civil rights." Marion v. Marion, Superior Court, judicial district of Windham at Putnam, Docket No. CV 97 0057153 S (June 18, 1998, Potter, J.). "[F]ederal and state courts in Connecticut that have considered the question have construed section 52-577 . . . as the residual limitations statute applicable to civil rights actions . . . Section 52-577 also governs plaintiffs' claims pursuant to the Connecticut Constitution and state common law." (Citations omitted.) In re State Police Litigation, 888 F.Sup. 1235, 1249 (D.Conn. 1995), appeal dismissed, 88 F.3d 111 (2d Cir. 1996). However, the defense of statutes of limitation must be specially pleaded. Practice Book § 10-50. "[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006).
The defendants argue further that there is no doubt that any new action would result in a pre-trial ruling in their favor because in prior actions arising out of the revocation of the plaintiff's dock permit, Superior Courts have ruled that the DEP's enforcement decision was supported by the record and that the plaintiff was not entitled to review of the merits of the hearing officer's decision. Additionally the defendants argue that the plaintiff has never denied that his dock never conformed to the permit, therefore he cannot make out a claim for selective enforcement. Contrastingly, the plaintiff argues that although the Superior Court decisions cited by the defendants support the proposition that the plaintiff's dock was not in conformance with a permit, the decisions fail to address the other allegations that are the essential part of the plaintiff's constitutional claims.
Indeed, whether the plaintiff was in fact in violation of his permit is not essential to a claim of selective enforcement. What is essential to such a claim is that certain rules were enforced with respect to the plaintiff but were not enforced against others who were similarly situated. See Cadlerock Properties, J.V., L.P. v. Commissioner of Env. Protection, supra, 253 Conn. 671 ("A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person."). Accordingly, whether or not the plaintiff was in violation of his permit is not grounds for the court to conclude that the newly discovered evidence would not produce a different result.
For their last argument, the defendants contend that because of the clear evidence establishing that the defendants' actions were not motivated by malice and because the plaintiff has failed to establish a similarly situated comparator, the plaintiffs have insufficiently plead selective enforcement given Judge Aurigemma's analysis of the legal issues in the case. The Court agrees.
Conclusion
The Court finds that the plaintiff has not sufficiently alleged 1) that he exercised due diligence to obtain the new evidence; 2) that the new evidence would be material to the issue of selective enforcement because it does not establish that Oak Leaf Marina is a similarly situated comparator; and 3) that the new evidence would produce a different result.
Accordingly, the Motion to Strike is granted.