Opinion
No. SPNH 9610-48736
March 25, 1997
ORDER
The defendants move to stay these summary process proceedings, claiming that the plaintiff obtained title by way of a sale approved by the United States Bankruptcy Court by perpetrating a fraud on that court. Such a serious claim ought not be made without a showing of its validity. "In matters of substance such as this, a `showing' requires evidence, not merely assertions of counsel. Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., 196 Conn. 233, 241, 492 A.2d 159 (1985) (motion to open and set aside judgment pursuant to General Statutes § 52-212). `[R]epresentations of the plaintiffs' counsel are not "evidence" and certainly not "proof."' Cologne v. Westfarms Associates, 197 Conn. 141, 153, 496 A.2d 476 (1985); see Pet v. Department of Health Services, 207 Conn. 346, 363 n. 10, 542 A.2d 672 (1988): State v. Roman, 224 Conn. 63, 68, 616 A.2d 266 (1992); State v. Tillman, 220 Conn. 487, 496, 600 A.2d 738 (1991), cert. den., 505 U.S. 1207, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992); New Haven v. Freedom of Information Commissioner, 205 Conn. 767, 776, 535 A.2d 1297 (1988); State v. O'Brien, 29 Conn. App. 724, 732, 618 A.2d 50 (1992), cert. den., 225 Conn. 902, 621 A.2d 285 (1993); State v. Hanna, 19 Conn. App. 277, 278, 562 A.2d 549 (1989); State v. Weber, 6 Conn. App. 407, 413, 505 A.2d 1266 (1986), cert. den., 199 Conn. 810, 508 A.2d 771 (1986). `It is well settled that representations of counsel are not, legally speaking, "evidence." [Citations omitted.].' Cologne v. West Farms Associates, supra, 154; see State v. Kelly, 23 Conn. App. 160, 172, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S.Ct. 1635, 113 L.Ed.2d 731 (1991); State v. Carsetti, 12 Conn. App. 375, 379, 530 A.2d 1095 (1987), cert. den., 205 Conn. 809, 537 A.2d 77 (1985)." Mimms v. Planning Zoning Commission, Superior Court, Judicial District of Fairfield, No. 289405S (June 11, 1993).
Two cases which, on their face, appear to hold otherwise are distinguishable. In State v. Haye, 214 Conn. 476, 481-83, 572 A.2d 974 (1990), the court held that the trial court did not err in relying on a prosecutor's representations in finding that there was "good cause shown" for extending the statutory time limit for a probable cause hearing in a murder prosecution, pursuant to General Statutes 54-46a. Critical to the court's holding was that "[t]he defendant did not challenge the accuracy of the state's representations as to the reasons for its request for a continuance, but rather, objected to the continuance only in general terms. Furthermore, the defendant did not claim surprise or ask that he be given time to explore the factual basis of the state's representations. Simply, the defendant did not request an evidentiary hearing nor did he articulate any objection that would have indicated to the court the necessity for such a hearing." Id., 482. Here, however, the plaintiffs flatly deny the defendant's claim of fraud and object because the defendant's claims are made without supporting evidence. In State v. Williams, 203 Conn. 159, 163, 523 A.2d 1284 (1987), the court stated: "[A]ttorneys are officers of the court and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath." [Internal quotation marks omitted] quoting Holloway v. Arkansas, 435 U.S. 475, 486, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), quoting State v. Brazile, 226 La. 254, 266, 75 So.2d 856 (1954). In Williams the attorney's representation was made in the context of a court inquiry as to whether he, the attorney, was satisfied that his client understood that there existed a conflict of interest between himself and the client and that the client indeed wished to waive the conflict. Since the court already had inquired of the client himself, the attorney could state whether he was "satisfied" as to his client's understanding. Here, the defendant's claims of fraud rely almost exclusively on the representations of counsel.
The defendants' motion for stay is denied. without prejudice to renew, immediately after the pleadings are closed, with a proper showing that the plaintiff obtained title by defrauding the United States Bankruptcy Court.
BY THE COURT
Bruce L. Levin Judge of the Superior Court