Town of Killingly v. David Flanagin (2011)

MEMORANDUM OF DECISION MOTION # 111

The defendant has moved to reopen the stipulated judgment of the parties entered into on May 13, 2011 before this court on the date scheduled for commencement of the trial.

“The principles that govern motions to open or set aside a civil judgment are well established.   A motion to open and vacate a judgment ․ is addressed to the [trial] court's discretion ․ A stipulated judgment, although obtained through mutual consent of the parties, is binding to the same degree as a judgment obtained through litigation ․ It necessarily follows that if the judgment conforms to the stipulation it cannot be altered or set aside without the consent of all the parties, unless it is shown that the stipulation was obtained by fraud, accident or mistake.”  (Citations omitted;  internal quotation marks omitted.)  Labulis v. Kopylec, 128 Conn.App. 571, 579 (2011).  “[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).  “General Statutes § 52–212a and Practice Book § 326 [now § 17–4] vest discretion in the trial court to determine whether a judgment should be opened for cause.”  Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995).

“[A] stipulated judgment is not a judicial determination of any litigated right ․ [and] may be defined as a contract ․ 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 ․” (Internal quotation marks omitted.)  Labulis v. Kopylec, supra, 128 Conn.App. 580.  “[O]nce a judgment is rendered it is to be considered final ․ and should be left undisturbed by post-trial motions except for a good and compelling reason.”  (Internal quotation marks omitted.)  Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983).

“It is familiar law that a court has the inherent authority to open, correct or modify its judgments ․ The provisions of § 52–212a do not operate to strip the court of its jurisdiction over its judgments, but merely operate to limit the time period in which a court may exercise its substantive authority to adjudicate the merits of a case.”  (Citations omitted.)  Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn.App. 735, 744, 867 A.2d 851 (2005).

In the present case, the defendant argues the stipulated judgment that he entered into with the plaintiff should be opened for four reasons:  (1) he did not have sufficient time to review the assessment of the premises prepared by the plaintiff's expert and have his own expert review it before judgment was entered;  (2) he did not have sufficient time to obtain an expert report before June 13, 2011, as anticipated in the judgment;  (3) the judgment does not make a finding that the building that is subject of the judgment is unsafe or unfit for human habitation as required by the Ordinances of the Town of Killingly, § 4–164 et seq.;   and (4) the judgment does not address the procedure for demolition, including notice to the owner and opportunity for appeal as required by Ordinance § 4–165 et seq. and General Statutes §§ 29–405 and 29–406.   Nowhere in the defendant's motion does he allege fraud, duress or mutual mistake.

Taking the defendant's arguments in turn, his first argument in support of his motion to open judgment is without merit.   As stated above, the judgment was rendered against the defendant pursuant to an agreement which he entered into with the plaintiff.  “[A] stipulated judgment is not a judicial determination of any litigated right ․ [and] may be defined as a contract ․ 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 ․” (Emphasis in original;  internal quotation marks omitted.)  Labulis v. Kopylec, 128 Conn.App. 571, 580, 17 A.3d 1157 (2011).   In the present case, the defendant chose not to have his own expert review the assessment of the premises when he voluntarily entered into the agreement with the plaintiff.

The agreement entered into by the parties occurred on May 13, 2011, which was the date that the matter had been set down for trial.   The plaintiff had its various witnesses present and prepared to testify at the trial.   The court delayed the start of the trial as it was indicated that the parties were attempting to negotiate a settlement.   When the court was informed that a settlement had been reached and a stipulation for judgment entered into, court was opened, the defendant, who was self-represented, was canvassed regarding the stipulation, and the stipulation was accepted by the court and became a judgment of the court.   There was more than sufficient time for the defendant to review the assessment of the premises prepared by the plaintiff's expert.   This information was public record and was available at the pretrial of this matter held on February 4, 2011.   Further, the defendant was given thirty (30) days from May 13, 2011, the date of the stipulation, to provide the plaintiff with a complete plan for renovation or demolition of the premises.   The defendant had more than sufficient opportunity to address these issues prior to the trial date as well, but chose to take no action.   The court would not continue the trial date.   The court has the right and obligation to control its dockets.   The defendant's motion to open is, therefore, denied based upon the first of his four reasons.

The defendant's second argument in support of his motion to open judgment is that he had insufficient time to obtain a report from an architect, as anticipated in the judgment.   This argument is also without merit.   In the stipulated judgment the defendant agreed that within 30 days he would provide “a complete plan for rehabilitation or demolition of the building signed by an architect or engineer ․”

He does not argue that the parties were mutually mistaken as to the time required to do so or that he did not voluntarily agree to the time period.   “[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, 10 A.3d 61 (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).   The defendant has presented no evidence of mutual mistake as to the thirty (30) days time period.   For this reason as well as for those set forth in the preceding paragraph, the motion to open on this basis is also denied.

Finally, the defendant alleges in his third and fourth arguments that the judgment does not conform to the Killingly Town Ordinances and General Statutes.   Specifically the defendant argues that the stipulated judgment does not make a finding that the building is unfit for habitation or unsafe and does not address the procedure for demolition, which includes an opportunity to appeal.   The stipulated judgment, however, does state that “the defendant ․ acknowledges ․ that he is familiar with a certain report dated March 2011 by Michael R. Artis, P.E., which indicates that the above referenced structure needs to be either demolished or completely gutted and reconstructed.”   The judgment further states “if the defendant ․ fails to comply with this stipulation ․ then the Town of Killingly ․ [is] specifically authorized to enter upon the premises and to demolish the structure as it deems necessary to ensure the public health and safety ․ under any manner authorized by law.”   Thus, in the judgment the defendant acknowledged that the report indicated that the building needed to be demolished or gutted.   Further, the defendant agreed that if he did not comply with the judgment he would allow the Town of Killingly to demolish the building “as it deems necessary.”   This would seem to indicate any method they find appropriate for demolition.

Additionally, the final paragraph of the stipulated judgment states “the defendant ․ acknowledges that should he fail to either supply the appropriate plans acceptable to the Building Official within thirty (30) days specified herein ․ then the Town of Killingly ․ reserves its right to enter the premises and to perform the necessary demolition and this right shall not be subject to any further legal action, proceeding, or appeal, and that time is of the essence of this provision.”   Therefore, according to the stipulated judgment the defendant waived his right to an appeal or “any further legal action” if he did not supply the appropriate plans to the building official within thirty days.   The defendant consented to the demolition if these conditions were not met, therefore, notice to the owner and opportunity to appeal would not be required.

General Statutes § 29–405 states “Any person aggrieved by any order or decision of a building official may, within ten days of such order or decision, appeal therefrom to the superior court for the judicial district wherein such person resides, and such appeal shall be a privileged matter to be heard by the court as soon after the return day as is practicable.”  General Statutes § 29–406(a) states in relevant part:  “No person shall demolish any building, structure or part thereof without obtaining a permit for the particular demolition undertaking from the building official of the town, city or borough wherein such building or part thereof is located.”   These statutes clearly do not apply to the defendant's situation.  Section 29–405 states that it only applies to a decision of a building official.   The defendant entered into a stipulated agreement where no building official decision was necessary.   Further, § 29–406(a) also is not applicable to the defendant.   The statute clearly prohibits a person, not the town, from demolishing any building without obtaining a permit.

Thus, the defendant's motion to open the judgment for the reasons set forth in his third and fourth arguments is also denied.

THE COURT

RILEY, J.

Riley, Michael E., J.