Raymond Stewart v. Colleen King et al. (2013)

MEMORANDUM OF DECISION

The plaintiff has brought a petition for new trial pursuant to General Statutes § 52–582 based upon an allegation of newly discovered evidence.   For the reasons which follow, the court grants the defendants' motion for summary judgment based upon the statutes of limitations contained in General Statutes § 52–582 and § 52–577.

The plaintiff initially brought an action against the defendants in case styled Raymond Stewart v. Colleen King and Cecil King, Superior Court, judicial district of New Haven at New Haven, Docket No. CV–07–5008439 (the “first action”).   In the first action, the plaintiff brought a seven-count complaint against the defendants, claiming a resulting trust was created when the defendant Colleen King purchased real property in Bethany, Connecticut.   The plaintiff claimed that he had a verbal agreement with Colleen King (his mother), that he would build a house on the property in question, and that they would each pay the construction expenses.   The plaintiff claimed there was an agreement that the house would be transferred to the plaintiff upon his mother's death.   The parties later had a falling out in 2006, apparently based upon the plaintiff's failure to pay the property taxes on the property.   The defendant mother brought a summary process action against the plaintiff, and the first action was then commenced by the plaintiff.  (See Judge Zoarski's decision in the first action dated September 17, 2008, attached as Exhibit 2 to defendants' memorandum in support of motion for summary judgment.)

The first action was fully tried to the court, and judgment was entered against the plaintiff by Judge Zoarski on September 17, 2008.  (See Complaint, par. 1.) Judge Zoarski's decision was affirmed on appeal.  (See Stewart v. King, 121 Conn.App. 64, 994 A.2d 308 (2010).)   The present action was served on the defendants on October 11, 2012, and was returned to court on November 14, 2012.

Although the plaintiff never cites General Statutes § 52–582 in his complaint, counsel stated at oral argument that this action is a petition for a new trial pursuant to said statute.   The present motion for summary judgment was argued at short calendar on September 3, 2013.   The plaintiff concedes that the statute of limitations contained in General Statutes § 52–582 applies.   Section 52–582 provides in relevant part that:  “No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of ․ “ (Emphasis added.)

“The primary test for determining whether a new trial should be granted because of newly discovered evidence is whether an injustice was done and whether it is probable that on a new trial a different result be reached.”   (Internal quotation marks omitted.)  Summerville v. Warden, 229 Conn. 397, 425–26, 641 A.2d 1356 (1994).  “This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final, and should not be disturbed by posttrial motions except for a compelling reason.”  (Internal quotation marks omitted.)  Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987).  “A petition for a new trial is addressed to the discretion of the trial court and will never be granted except upon substantial grounds.”  (Internal quotation marks omitted.)  Kubeck v. Foremost Foods Co., 190 Conn. 667, 669, 461 A.2d 1380 (1983).  “A critical limitation on the exercise of the trial court's discretion in passing upon ․ a petition for a new trial ․ is the statute of limitations [in § 52–582].”  Summerville, supra, 426.

In the first action, judgment of the trial court entered on September 17, 2008.   An appeal from that decision was made by the plaintiff.   However:  “ ‘[a]n appeal does not vacate a judgment;  it serves only to stay enforcement of the rights acquired by the successful litigant ․ In other words, the judgment [of the trial court] was final unless set aside by [the Supreme or Appellate] court ․’ Under Connecticut law, therefore, where the trial court's judgment is sustained, the ‘rendition of judgment’ referred to in § 52–582 is the judgment of the trial court.”  (Emphasis added.)  Varley v. Varley, 181 Conn. 58, 60–61, 434 A.2d 312 (1980).   Thus, in Varley, the court held that:  “The [trial] court did not err in ruling that General Statutes § 52–582 barred the action because the petition for a new trial was filed more than three years after the trial court's judgment was rendered and because the earlier appeal therefrom was sustained.”  (Emphasis added.)  Id.

In the case at bar, the date of Judge Zoarski's “rendition of judgment” was September 17, 2008.   As stated above, the defendants were served with process in this action on October 11, 2012, and the writ was returned to court on November 14, 2012.   Neither of these dates is within the three-year statute of limitations provided in General Statutes § 52–582.

To avoid the three-year statute of limitations, the plaintiff claims that the defendant Colleen King fraudulently concealed evidence in the first action.   In support of this claim, the plaintiff alleges that critical evidence supporting his claim in the first action was fraudulently withheld from him by the defendant Colleen King. The plaintiff asserts in his affidavit in support of his petition for a new trial, that after Judge Zoarski's September 17, 2008 judgment, these critical documents were “left in a nike (sic) shoe box on [his] doorstep.”   He goes on to state in his affidavit that:  “I believe the documents were left there by my brother Charles Esposito (now deceased)” ․ and that “[m]y deceased brother had access to the Defendant's home on many occasions and that enabled him to retrieve the documents.”  (See plaintiff's affidavit dated September 28, 2012.)   The plaintiff claims that these documents would have helped verify and prove that he contributed to the building of the home in Bethany, Connecticut, and that he would likely have prevailed in that case had these documents not been withheld from him.

The problem with the plaintiff's claim is that he admits in his discovery responses that these “newly discovered” documents were obtained by him on April 2, 2009.  (See plaintiff's sworn answers to defendants' discovery No. 2, attached as Exhibit 3 to defendants' memorandum in support of motion for summary judgment.)   The plaintiff goes on to state in response to interrogatory number 3 the only “newly discovered evidence” he is claiming was that which was left in the shoe box on April 2, 2009.   The plaintiff has not submitted any evidence which refutes, contradicts or supplements his discovery responses.   It is undisputed that the present action was served on the defendants more than three years after April 2, 2009.

Both the plaintiff and defendant have also cited General Statutes § 52–577.  Section 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.”  “Section 52–577 applies to ․ actions alleging fraud ․ It is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues.”  (Internal quotation marks omitted.)  Giulietti v. Giulietti, 65 Conn.App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 96, 97 (2001).

The plaintiff claims that the statute of limitations was tolled as a result of the defendants' fraudulent concealment of the “newly discovered” evidence, which the plaintiff obtained on April 2, 2009.   It is unclear to the court why the plaintiff did not commence the present action within three years of the delivery of the “newly discovered” evidence—to wit:  April 2, 2009.   Furthermore, the plaintiff has proffered nothing to support his claim that there was a “special relationship” between himself and the defendants to support his claim of some kind of continuing duty flowing from the defendant (Colleen King) to the plaintiff.   The fact that Colleen King is the plaintiff's mother, standing alone, does not support this claim of a special relationship.   Moreover, the case at bar is not akin to other cases where the statute of limitations was tolled based upon a special relationship stemming from a fiduciary relationship like that between an attorney and his client (see, e.g., Giulietti v. Giulietti, supra, 65 Conn.App. 835) or an accountant and his client (see, e.g., Haas v. Haas, 137 Conn.App. 424, 434–35, 48 A.3d 713 (2012).   Our Supreme Court has stated that “[a] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of another.”  (Internal quotation marks omitted.)  Falls Church Group, Ltd v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 108–09, 912 A.2d 1019 (2007).  “The fact that one party trusts another is not dispositive of whether a fiduciary relationship exists ․ rather, proof of a fiduciary duty requires an evidentiary showing of a unique degree of trust and confidence between the parties such that the [defendant] undertook to act primarily for the benefit of the plaintiff.”  (Internal quotation marks omitted.)  Golek v. St. Mary's Hospital, Inc., 133 Conn.App. 182, 197, 34 A.3d 452 (2012).   Other than the bald assertion that the plaintiff and the defendant Colleen King are mother and son, the plaintiff has not submitted a scintilla of evidence to the court that there existed any kind of fiduciary or special relationship between the parties.  (“Bare assertions by the nonmovant are not enough to withstand summary judgment.”  Zeller v. Consolini, 59 Conn.App. 545, 564 (2000).)   To the contrary, the plaintiff and the defendants had been hostile since the inception of the first action.   The defendant Colleen King professed no fiduciary duty with the plaintiff, and the plaintiff has put forth no evidence in support of such a claim.   There is simply no evidence of a “special relationship” between the parties to support a continuing duty by the defendants to the plaintiff.

Finally, as stated above, the plaintiff was made fully aware of the alleged fraud by the defendant on April 2, 2009, when he received the documents in question.   The law is clear that any claimed tolling period would expire on that date.   In Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn.App. 311, 323, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000), the court stated:  “ ‘Actionable harm occurs when the plaintiff discovers ․ that he or she has been injured and that the defendant's conduct caused such injury ․'The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof.’  “ (Citation omitted.)   The court concludes that the tolling effect of “the continuing course of conduct doctrine does not apply after the plaintiff discovers the harm.”  (Emphasis added.)  Id., 332.

Since the plaintiff discovered the alleged harm on April 2, 2009, he was required under either General Statutes § 52–582 or § 52–577 to bring the present action within three years of that date.

In short, the plaintiff had all of his evidence to support his claim for a new trial on April 2, 2009.   The record is clear that the plaintiff did not commence this action within three years of April 2, 2009.   The action is therefore barred by the statutes of limitations contained in General Statutes § 52–582 and § 52–577.

Accordingly, the defendants' motion for summary judgment is granted.

Frechette, J.

Frechette, Matthew E., J.