Opinion
No. FA 07-4006738-S
June 3, 2011
MEMORANDUM OF DECISION
This post-judgment matter comes to court on a motion to open judgment filed by the defendant pursuant to Connecticut General Statutes Section 52-212a and Connecticut Practice Book Section 17-4. The defendant seeks to open a judgment of dissolution entered on March 19, 2008, and prays the court order the plaintiff to execute the necessary documents to reconfigure the real property conveyed to the defendant pursuant to the judgment. The defendant claims that the judgment must be opened to correct the parties' mutual mistake or to correct fraudulent nondisclosure of conditions known to the plaintiff at the time of judgment so as to provide the defendant with a legally conforming building lot. A contested hearing was held on January 4, 2011 and continued to January 5, 2011. Simultaneous briefs were filed on February 7, 2011. The court makes the following findings.
FACTS
The parties were married on June 23, 1990, in Middletown, Connecticut. The parties jointly owned a marital residence located at 80 Blodgett Road, Stafford, Connecticut. On March 15, 2006, the parties obtained title to two separate parcels of land, Lot 7.2 and Lot 6.01, abutting the marital residence. Lot 7.2 is a 32-acre parcel of land located behind and adjacent to the 80 Blodgett Road property. Lot 7.2 does not have road frontage. Lot 6.01 is a 1.22-acre parcel of land located on the west side of 80 Blodgett Road. Lot 6.01 is a 50 X 1,065 foot strip of land and runs from Blodgett Road back to the larger parcel and along the southern boundary for 414 feet. Lot 6.01 provides access from Blodgett Road to lot 7.2. Lots 6.01 and 7.2 are commonly referred to as flag lots. Title to Lot 7.2 and Lot 6.01 was obtained via a Warranty Deed from Mark E. Fox. The parties purchased the two separate parcels of land for $175,000.00.
On February 27, 2007, the plaintiff, Robert Winstanley, commenced a dissolution action against the defendant, Charlotte Winstanley. On March 19, 2008, the court entered judgment dissolving the parties' marriage. The judgment incorporated by reference a written agreement dated March 18, 2008, (hereinafter, "Agreement"). The Agreement was drafted by the defendant's attorney. The plaintiff was self-represented.
Sections 3(a) and (b) of the Agreement provides for the distribution of the parties' real property. Section 3(a) provides that:
[t]he Husband shall quit-claim to the Wife his interest in the jointly owned property known as Lots 7.2 and 6.01 Blodgett Road, Stafford, Connecticut. The Wife shall assume and pay any and all mortgages upon said property and hold the Husband harmless, except that the Husband within sixty (60) days of the date of Judgment, shall pay to the Wife the sum of Twelve Thousand ($12,000.00) Dollars representing the portion of the HELOC on said property reflecting the debt to purchase the Husband's motor vehicle. The Husband shall also reimburse the Wife within sixty (60) days of the date of Judgment the sum of $512.00 representing the payments on his car loan ($64.00 per month) she has made from August 2007, through and including March 2008. The Wife shall remove the Husband's name from said mortgage within sixty (60) days.
Section 3(b) of the Agreement provides that: "[t]he Wife shall quit-claim to the Husband her interest in the jointly owned property at 80 Blodgett Road, Stafford, Connecticut. The Husband shall assume all encumbrances thereon and hold the Wife harmless. The Husband shall remove the Wife's name from said mortgage within sixty (60) days."
At the time the dissolution judgment entered, there was a $168,793.00 mortgage on the two lots.
The Agreement also included a paragraph on discovery. Paragraph 8 of the Agreement stated that:
a) The parties have been advised of their right to have accountants, appraisers and others investigate, appraise or evaluate the other's property. Each party has waived these rights, and they have instructed his or her attorney to take no further steps themselves, or through others, in connection with discovery, inspection, investigation, appraisal or evaluation of the other's property.
Prior to judgment, the defendant obtained two separate real estate appraisals for Lots 7.2 and 6.01. The first appraisal was performed by Laura Callahan, a Certified Residential Real Estate Appraiser. On July 25, 2007, Ms. Callahan submitted to the defendant a report, (hereinafter the "Callahan Report"), where she valued the property at $225,000 as of March 7, 2007. The Callahan Report was prepared reflecting the property in its present state as of the date of the report. The Callahan Report described the property as "consisting of a total of 38.22 acres of wooded, vacant raw land." (Callahan Report, cover page.) The Callahan Report further described the property as; comprising "of two parcels of land — Parcel 7.2 is a 37 acre vacant land-locked piece of land while Parcel 6.01 is a 1.22 acre adjacent piece of land which has 50.06 feet of road frontage. The property includes a recorded Access Easement over the [sic] the property known as 64 Blodgett Road for ingress/egress to the land-locked parce [sic]." (Callahan Report at 3). The Callahan Report indicated that the property was zoned AAA single-family. The Callahan Report included a "Dimensional regulations" chart. The chart indicates that there is a minimum dimensions requirement of 200 feet of lot frontage for a AAA zoned single-family district. The Callahan Report is silent as to whether the lots are buildable or not.
Exhibit 1.
The second appraisal was conducted by Mr. Robert Stewart, a Connecticut Certified General Appraiser. On January 24, 2008, Mr. Stewart submitted to the defendant's attorney a comprehensive appraisal report, (hereinafter the "Stewart Report"). The purpose of the appraisal was to estimate the market value in fee simple estate of the two parcels of land. The Stewart Report described the property as "two abutting parcels of record. The larger parcel is 37.0 acres, which does not have any road frontage starting 650 feet west of Blodgett Road." (Stewart Report at 1.) The Stewart Report described the smaller parcel as "1.22 acre (50 x 1,065 foot strip of land) and runs from Blodgett Road back to the lager parcel and along the southern boundary for 414 feet." Id. at 3. The Stewart Report indicated that the smaller parcel was needed to provide access from Blodgett Road to the larger rear lot. The Stewart Report appraised both lots as one.
Exhibit 2.
Like the Callahan Report, the Stewart Report found that the subject property was "zoned AAA-Rural Single Family Residence." Id. at 5. The Stewart Report indicated that for "a single family dwelling, the minimum lot size is 88,000 square feet (2.02 acres) with 200 feet of road frontage." Id. at 6. The Callahan Report indicated that the "rear lot maximum limitation of 20% in a subdivision prohibits the subject split into two rear lots." Id.
The Stewart Report concluded that the "highest and best use of the subject site is to seek Town approval as one residential building lot." Id. The Stewart Report stated that the "[d]riveway regulations require that a driveway has a clear sight line of approximately 220 feet." Id. The Stewart Report indicated that "[f]urther analysis must be done to see if this requirement can be met." Id.
In January 2010, nearly two years after the dissolution judgment, the defendant retained an experienced land use attorney, Attorney Kenneth R. Slater, Jr., to obtain the necessary town applications to get an approval for a single-family building lot on lots 7.2 and 6.01. When Attorney Slater looked at the plans the defendant showed him, he immediately discovered that the lots may not qualify as a legal building lot. Attorney Slater suggested that further investigation was necessary.
Upon further investigation, Attorney Slater discovered that the two lots were not conforming lots. Lot 7.2 is a rear lot. The Revised and Consolidated Zoning Regulations of the Town of Stafford § 3.28.5 governs rear lots. It states that: "[t]he establishment of rear lots in a subdivision or resubdivision shall be allowed and shall be limited to not more than twenty percent (20%) of the number of lots in such subdivision or resubdivision. Rear lots shall comply with all dimensional regulation standards required by Section 4.30 with the exception of lot frontage requirements." Section 3.28.5 of the Stafford Zoning Regulations further states that: "Street frontage shall be not less than twenty-five (25) feet and the width of the access strip shall average at least twenty-five (25) feet."
Attorney Slater's investigation revealed that lot 7.2 would be the third lot of the original parcel that existed and therefore, it exceeded the twenty percent (20%) requirement of the Stafford Zoning Regulations section 3.28.5. Attorney Slater concluded that the lots were not a legal lot under the zoning regulations.
There are two ways to make the parcels buildable. One is to make a legal lot. To do so, the defendant must acquire 200 feet of street frontage. With 200 feet of frontage, the lots would meet all the necessary requirements that would enable a subdivision approval. The alternative is to obtain a variance from the Town of Stafford Zoning Board of Appeals.
On April 19, 2010, Attorney Slater, on behalf of the defendant, filed a "Stafford Zoning Board of Appeals Request for Variance Application." The application requested a variance from the Revised and Consolidated Zoning Regulations of the Town of Stafford § 3.28.5, (rear lots 20% limit requirement). Attorney Slater requested approval for two separate buildable lots. On May 6, 2010, the plaintiff in this matter filed an objection to Attorney Slater's variance application. On July 19, 2010, the defendant withdrew the Stafford Zoning Board of Appeals Request for a Variance Application.
LEGAL STANDARD
"In dissolution actions, the trial court is allowed to accept stipulations crafted by the parties and incorporate them into its order or decree . . . As a result, [a] stipulated judgment is not a determination of any litigated right . . . It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction . . . the essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement." (Citations omitted; internal quotation marks omitted.) Afkari-Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384, 389-90, 985 A.2d 319 (2009).
"It is a well-established general rule that even a judgment rendered by the court upon the consent of the parties, which is in the nature of a contract to which the court has given its approval, can subsequently be opened without the assent of the parties if it is shown that the stipulation, and hence the judgment, was obtained by fraud, in the actual absence of consent, or by mutual mistake." Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). "[C]ourts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake." (Internal quotation marks omitted.) In re Salvatore P., 74 Conn.App. 23, 27, 812 A.2d 70 (2002), cert. denied, 262 Conn. 934, 815 A.2d 135 (2003).
"Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment . . . Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005). The court may only grant relief from a dissolution judgment secured by fraud if: (1) there are no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there must be a substantial likelihood that the result of the new trial will be different. Weinstein, at 685.
"[A] mutual mistake requires a mutual misunderstanding between the parties as to a material fact . . . A mutual mistake is material when it effects a result that neither [party] intended . . . whether there has been such mistake is a question of fact." (Citations omitted; internal quotation marks omitted.) Landmark Investment Group, LLC v. Chung Family Realty, 125 Conn App. 678, 687 (2010). In contrast, "a unilateral mistake will not be sufficient to open the [stipulated] judgment." Magowan v. Magowan, 73 Conn.App. 733, 741, 812 A.2d 30 (2002), cert denied, 262 Conn. 934, 815 A.2d 134 (2003).
Moreover, "[o]ne of the essential requirements for the granting of [a motion to open] is that the evidence which the party seeks to offer could not have been known and with reasonable diligence produced at trial." Corbin v. Corbin, 179 Conn. 622, 626, 427 A.2d 432 (1980). "The purpose of a motion to open is to permit the granting of a new trial when a party had a meritorious claim but did not have an opportunity to present it. It is not a device to correct a mistake that party could have, in the exercise of reasonable diligence, known about at the time of the original trial." O.J. Mann Electric Services, Inc. v. The Village at Kensington Place, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0282281 (January 9, 2006, Frazzini, J.) ( 40 Conn. L. Rptr. 555), citing Clapper v. Clapper, 3 Conn.App. 637, 638, 490 A.2d 1030 (1985).
ANALYSIS
The defendant first claims that the plaintiff made a fraudulent nondisclosure of conditions known to the plaintiff at the time of judgment. However, as outlined above, the defendant has to prove that the plaintiff made a statement to the defendant that the lots were approved as buildable lots, that the plaintiff knew the statement to be false, that the statement was made to induce the defendant to obtain the lots in the dissolution action and that the defendant relied on the statements to her detriment.
There is no evidence at all to suggest the plaintiff knew the lots were not buildable. The defendant claims she told the plaintiff that someday she would build on the lots and she might be the plaintiff's neighbor. The plaintiff responded by saying he would have to deal with that. There is, however, no evidence at all to suggest that the plaintiff made a representation to the defendant of fact that the lots were buildable and that the defendant relied on that misrepresentation to her detriment. Therefore, the defendant's claim of fraudulent misrepresentation must fail.
The defendant's claim of mutual mistake is likewise without merit. In order to prevail on a claim of mutual mistake, the defendant must prove that there was a mutual mistake and that the mistake was of a material fact.
First, the defendant fails to show that there is a mistake. The defendant claims that both parties knew that the properties were buildable because the Stewart Report claimed that the lots were buildable. However, there were two appraisals conducted before the dissolution action, the Callahan Report and the Stewart Report. Both the Callahan Report and the Stewart Report clearly outlined on numerous occasions that the frontage requirement for a building lot was 200 feet. Both appraisals stated that the property only had 50 feet of road frontage. The Stewart Report indicated that the frontage requirement needed to be further investigated. Neither the Callahan Report nor the Stewart Report concluded that the lots were approved for building. In fact, the Stewart Report concluded that the best use of the property was to seek town approvals for one building lot.
The defendant further claims that the Stewart Report mistakenly stated that the defendant only needed Town Zoning Commission approvals to obtain a building permit for the two lots. The defendant claims that Town Zoning Commission approvals are routine, administrative approvals. The defendant subsequently learned from Attorney Slater that she needed to obtain a Zoning Board of Appeals approval to get the necessary variances. A Zoning Board of Appeals is a more difficult process that is hard to obtain if there is opposition to the application. According to the defendant, the Stewart Report's mistake is a mistake of material fact that justifies opening the judgment.
The argument is without merit. The mere fact that the Stewart Report did not indicate that a Town Zoning Board of Appeals petition had to be filed is not material. The Stewart Report never stated that the lots were approved for building. The Stewart Report clearly indicates that the lots do not have the requisite road frontage. The Stewart Report further indicates that the requirement of road frontage needed to be further investigated and that town approvals were necessary.
The purpose of granting a motion to open is not to correct a mistake that could have been known at the time of the original trial. Here, the defendant was well aware, by the two certified appraisers she hired, that the lots did not have the requisite road frontage. She could have exercised her right to further investigate the necessary steps needed to obtained approvals for a building on the lots as was suggested by the Stewart Report. Those rights were clearly outlined in Paragraph 8 of the Agreement. She knowingly waived those rights. Here, the mistake, if any, is only as a result of the defendant's own self-imposed ignorance. The facts as to which she claims to have been mistaken were always within her grasp.
WHEREFORE, the defendant's motion to reopen the March 19, 2008, dissolution judgment is hereby: DENIED.