Opinion
No. NNH CV06 4017921
March 24, 2006
MEMORANDUM OF DECISION ON PETITION FOR NEW TRIAL
The plaintiff Ralph Natrillo brings this action for a new trial against the defendant Jill Mongero. He alleges that a judgment in an earlier action between the parties, tried in 1998, ought to be vacated. For reasons stated herein, the court finds the plaintiff's claims to be without merit and denies his petition.
Jill Mongero filed a small claims action against her next door neighbor Ralph Natrillo on November 4, 1994. Handling the case pro se, Mongero alleged that Natrillo had destroyed plants in her garden and had removed a fence and a trellis structure and had damaged certain personal property. She alleged that the total damage amounted to $3,450. However she claimed damages of only $2,000, which was the jurisdictional limit for small claims matters in 1994. Compare PA. 89-53 with P.A. 95-36.
Natrillo retained counsel and transferred the case to the regular docket of the Superior Court, NNHCV94 0368743, Jill Mongero v. Ralph Natrillo, judicial district of New Haven. In so doing, the defendant eliminated the jurisdictional limit of $2,000, exposing himself to greater damages than $2,000 should Mongero prevail. Also as a result of the transfer to the regular docket, Natrillo exposed himself to the risk of being liable for costs and attorney fees incurred by Mongero should judgment enter in her favor against him. Conn. Gen. Stat. § 52-251a.
Mongero retained counsel and filed a Motion for Prejudgment Attachment, requesting a prejudgment remedy in the amount of $25,000. In her affidavit in support of the application, Mongero alleged that Natrillo had threatened her, that he continued to trespass on her property, and that his conduct had caused her emotional distress. Mongero did not proceed on the prejudgment remedy application; rather the pleadings were closed and, after a considerable period of time, the matter appeared on the trial list and was scheduled for trial.
By that time Natrillo was residing in Florida. On April 2, 1998, Attorney Einhorn, who was Natrillo's attorney throughout the property damage case and is also his attorney in this petition for new trial, sent Natrillo a letter that reads as follows:
This case is down for court trial on April 24, 1998 at 9:30 a.m. Considering that you are in Florida and apparently have no assets this is probably not worth the trip back up for Court. However, if you decide to return for this purpose, please give me a call.
The trial was thereafter continued to June 11, 1998, a fact of which Mongero's lawyer and Natrillo's lawyer were both aware. On June 11, 1998, trial proceeded before Anthony DeMayo, Judge Trial Referee. Neither Natrillo nor his attorney attended. The court entered a default against the defendant for failure to appear for trial and proceeded to hear the plaintiff's evidence. The court found for the plaintiff and awarded damages in the amount of $30,371.94, plus taxable costs. Notice of the judgment was promptly mailed to all counsel, including to Attorney Einhorn, who admits having timely received it.
On or about July 2, 1998, the appeal period expired. On or about October 11, 1998, the four-month period within which a court may open a judgment expired. On June 11, 2001, the usual three-year time limit within which to petition for a new trial expired. Conn. Gen. Stat. § 52-582. From the date of judgment to the time of the filing of this petition for new trial, Natrillo and his lawyer took no action whatsoever in the Connecticut courts to disturb this judgment.
In Natrillo's affidavit subscribed on November 22, 1994, in support of his Motion to Transfer the small claims matter to the regular docket, he stated that a reason for his desire to transfer the case to the regular docket of the Superior Court was to preserve his right to appeal.
Nonetheless Natrillo now seeks a new trial on the grounds that the original trial judge committed error during the trial. The petitioner claims that the trial court erred in allowing Mongero to amend her complaint during trial to seek a larger amount of damages than was specified in the original complaint. The petitioner also claims that the trial court allowed the admission of evidence in support of the greater damage amount, in particular the testimony of Mongero as to Natrillo's statements to her and conduct toward her after she complained to him about his destruction of her property. In support of the claim that the trial court committed error, Natrillo has submitted without objection an unofficial transcript of the trial. In it, Natrillo draws this court's attention to two items in particular. The first is the claim by Mongero's attorney to Judge DeMayo that the court should consider awarding additional damages under the "spite fence" statute, Conn. Gen. Stat. § 52-570. The second is the finding by the court of the ultimate amount of damages. The court's award was as follows:
Conn. Gen. Stat. Sec. 52-570 states: "An action may be maintained by the proprietor of any land against the owner or lessee of land adjacent, who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land."
. . . I find that this was a case that was defended without probable case with malicious intent to vex and trouble the plaintiff, and therefore, I think she's entitled to treble damages. The damages the court finds to have been proven include $5,123.98 in accordance with the statement of [property] damages. $5,000 for the aggravation, the physical abuse, and other gestures of aggression, a total of $10,123.98, treble damages that 52-568 is applied. The court notes that there are other statutes that would suggest that enhancing of damages is appropriate, but the court will adopt this one as the most expeditious way . . . a total damage of $30,371.94, plus taxable costs.
Conn. Gen. Stat. Sec. 52-568 states: "Any person who . . . asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
Natrillo claims that he had no notice that such allegations or assertions would be advanced at trial or considered by the court and that the court erred in awarding damages pursuant to these additional statutes. There are several problems with Natrillo's claim.
First, Natrillo and his counsel were well aware that the damage limit of $2,000 was removed by the transfer, at Natrillo's request, of the case to the regular docket. Natrillo and his counsel knew that the additional pleadings and motions that had been filed by both sides in the case after the transfer had resulted in substantial extra work by Mongero's counsel such that Natrillo was exposed to a larger monetary judgment than was originally claimed, due to the attorney fee shifting provision of the transfer statute alone.
Second, contrary to Natrillo's claim that he did not know that the spite fence issue or other issues involving his conduct toward Mongero would be raised at the trial of the lawsuit, Natrillo and his counsel were well aware that Mongero was advancing a claim in her court papers (#105) that one day she arrived home to find that Natrillo had erected a six-foot stockade fence that encroached over Mongero's property line and that he was "verbally abusive and threatening." Mongero Affidavit (in support of prejudgment remedy) subscribed July 19, 1995. These claims were also the subjects of a mediation session prior to trial, a mediation that unfortunately did not result in a settlement.
But even assuming that Natrillo was somehow unaware that he might be faced with a substantial money judgment against him if he failed to voluntarily appear and defend, Natrillo's grievances are all directed to issues that are the proper subject of an appeal from the judgment, a judgment that he claims is infected with error. Natrillo's counsel admits receiving notice of the judgment promptly after it was entered. In fact Natrillo and his counsel have appended to the petition for new trial a copy of the judicial notice of judgment form that was sent to Attorney Einhorn's law office in June of 1998. That notice clearly states the amount of the judgment and the fact that the judgment resulted from a trebling of damages pursuant to Conn. Gen. Stat. § 52-568. Natrillo has stated no persuasive reason for the decisions not to attend trial, not to appeal, and not to move to set aside the judgment within the four-month period provided by Conn. Gen. Stat. § 52-212.
What appears to have happened is that Natrillo took the calculated risk that (a) the judgment would either be small or else in his favor, and (b) having moved himself and all his assets to Florida, Mongero would not pursue serious collection efforts against him. He was wrong on both counts. After obtaining the judgment, Mongero hired a private investigator to locate Natrillo. She then registered the judgment in the state of Florida and retained a Florida lawyer to initiate a Florida action to collect the judgment. Case No. 05-374-CA Mongero v. Natrillo, Circuit Court for Nassau County, Florida. Natrillo testified in this case that the amount sought in the Florida enforcement of judgment action, with interest and new costs and attorney fees, is now over $60,000.
Natrillo admits that there is no newly discovered evidence that would warrant a new trial, which is the only applicable legal basis for affording someone who had notice a new trial. Conn. Gen. Stat. § 52-270. Rather Natrillo urges the court to grant him a new trial on equitable grounds. He asserts that this is actually a case of fraud because Mongero lied to Judge DeMayo about the damage done to her property and lied about Natrillo's alleged intimidation tactics. He thinks it is unfair that he may now be subjected to paying a huge sum of money over what started out as a small claims case. He wants a new trial so he can present his defense.
This argument is utterly without merit. Natrillo had an opportunity to appear, in person or by counsel, at the trial before Judge DeMayo and to present a defense. Thereafter he could have appealed the judgment if he thought the decision was in error. He could have moved to open the judgment within four months if he wished to allege that he failed to appear on account of a mistake or for some other excusable reason. Rather, he chose to ignore a valid judgment of the court for nearly eight years for no discernible reason except that he did not wish to pay it. Natrillo's request that the court afford him equitable relief after all this time is unavailing.
The 1998 Connecticut judgment is a judgment on the merits. It is a final judgment. Natrillo has failed to make a showing of any grounds on which the judgment should be vacated or set aside. The petition for a new trial is denied.