Tatiana Panchenkova v. Shalva Chigirinsky (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE SPECIAL DEFENSES (# 139)

Preliminary Statement

The plaintiff brings this action to enforce a Russian judgment pursuant to Conn. Gen.Stat. § 50–30 et seq., Connecticut's enactment of the Uniform Foreign Money–Judgments Recognition Act (the Act).   The defendant has asserted multiple special defenses.   The third and fifth special defenses claim that the judgment is unenforceable because it was procured through fraudulent misrepresentation and a fraudulent failure to disclose information in the tribunal which entered the judgment.   The eighth special defense avers that the Act does not apply to the judgment sought to be enforced.   The plaintiff filed a motion to strike these three special defenses.   As to the fraud special defenses, she argues, inter alia, that the fraud alleged is “intrinsic fraud” and therefore not a basis upon which to collaterally attack the judgment.   As to the eighth special defense, she argues that the court (Tierney, J.) previously found that the Act applies to this judgment and that such a determination should be given “law of the case” deference.   Alternatively, she argues that as a substantive matter, the Act applies.

For the reasons set forth below, the motion to strike the fraud special defenses is GRANTED.   The motion to strike the eighth special defense is DENIED.

Standard of Review

The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading.  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994).   The court must “examine the [pleading] construed in favor of the [pleading party] to determine whether the [pleading party has] stated a legally sufficient cause of action,” or in this case, special defense.  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).

Factual Allegations

The plaintiff and the defendant were once married.   They were divorced in Russia.   In connection with the divorce proceedings, the court entered a judgment which provided for the payment of certain monies to the plaintiff.   The plaintiff alleges that the defendant has failed to make those payments and seeks to enforce the Russian judgment in Connecticut pursuant to the Act. The defendant responds that the judgment is unenforceable insofar as it was procured through fraud (the third and fifth special defenses) and further that the judgment which the plaintiff seeks to enforce is not a ‘judgment” as defined under the Act and therefore cannot be enforced thereunder.

Discussion

The Third and Fifth Special Defenses

Plaintiff asserts that the third and fifth special defenses allege “intrinsic” as opposed to “extrinsic” fraud in connection with the Russian judgment and that “intrinsic” fraud is not a basis upon which a foreign judgment may be collaterally attacked under the Act.

Under the Act, foreign judgments ¹ are given the same status as judgments from sister states which are entitled to full faith and credit.  Conn. Gen.Stat. § 50a–33 (“The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit).   Although there is a dearth of Connecticut case law discussing or interpreting the Act, there is jurisprudence on the principles of full faith and credit with respect to judgments entered in sister states.   Given the statutory directive, this case law serves as a guide to the interpretation and application of the Act to matters in which a plaintiff seeks to enforce a foreign judgment pursuant to the Act.

“As a matter of federal law, the full faith and credit clause requires a state court to accord to the judgment of another state the same credit, validity and effect as the state that rendered the judgment.”  Packer Plastics v. Laundon, 214 Conn. 52, 56 (1990).   However, a judgment, whether from a sister state or a foreign tribunal, need not be enforced if it is procured through fraud.   See, e.g. Segal v. Segal, 86 Conn.App. 617, 639 (2004);  Conn. Gen.Stat. § 50a–34(b)(2).  “The fraud, however, must be concerned in some manner with the question of [the] jurisdiction [of the rendering court].”   Towne v. Towne, 8 Conn.Sup. 12 (1940).   A judgment may not be attacked on the grounds that it was procured through the use of false testimony.  Id., 14.

In his work on Conflict of Laws (Vol. 2 [1935] § 440.4), Beale makes note of the distinction which is drawn by the authorities between extrinsic and intrinsic fraud.   The latter, he observes, is that which goes to the existence of a cause of action and cannot be employed for the purpose of impeaching a foreign decree.  ‘The fraud,’ he says, ‘which will be available to a defendant in his attack upon a foreign judgment, in the main, is fraud which has deprived him of the opportunity to make a full and fair defense.   There are many varieties of such fraud.   Thus, where the defendant failed to present his case because the plaintiff agreed to drop the suit [citing, Pearce v. Olney, 20 Conn. 544] or to compromise the case [citing, Davis v. Headley, 22 N.J. Eq. 115], or notified the defendant that the proceeding had been dismissed [citing, Duringer v. Moschino, 93 Ind. 495], or by any other agreement or promise lulled the defendant into a false security [citing, U.S. v. Throckmorton, 98 U.S. 61], the judgment may be attacked by the defendant.’

Id. Thus, although not specifically with reference to the Act, Connecticut has recognized the distinction between intrinsic and extrinsic fraud.   It has done so with respect to the enforcement of judgments from sister states, as well as in the context of an attack on a judgment rendered here.   See e.g. Segal v. Segal, 86 Conn.App. 617, 639 (2004) (“As a matter of federal constitutional law, a judgment debtor may challenge the enforcement of a foreign judgment ․ if the judgment is jurisdictionally flawed because ․ that jurisdiction resulted from an extrinsic fraud”);  Towne v. Towne, 8 Conn.Sup. 12 (1940) (Quoted and discussed above);  Francis T. Zappone Co. v. Plymouth Commons Realty Group, judicial district of Hartford, Dkt. No. CV 020820681 (October 10, 2007, Sheldon, J.), 2007 WL 3257525 (Distinguishes between extrinsic and intrinsic fraud prefatory to discussing the burden of proof to upset a judgment based upon allegations of intrinsic fraud in its procurement); ²  Paria Group v. Smith, 2004 WL 1966146, 3 (Aug. 6, 2004, Levin, J.) 37 Conn. L. Rptr. 609.(Rejecting argument that Utah judgment was unenforceable because it was procured with false and fraudulent evidence).   As Judge Levin noted in the Paria Group case:

‘[I]t is widely held that ․ perjury, whether or not couched in the language of fraud, is not sufficient to deny enforcement in one state to a default judgment of another state, at least where the falsehood was not employed to procure the jurisdiction of the foreign court.   In general, ‘a judgment of a sister state cannot be challenged on the ground that it was obtained by false testimony or perjury.’   Annot, Fraud as Defense to Action on Judgment of Sister State, 55 ALR2d 673, 702 § 13 (1957).   Indeed, in the seminal case of United States v. Throckmorton, 98 U.S. 61, 65–69, 25 L.Ed. 93 (1878), the United States Supreme Court held that perjury was not a sufficient ground on which to collaterally attack a foreign judgment.'

Paria Group v. Smith, supra.

New York state courts also recognize and apply the distinction between intrinsic and extrinsic fraud when a collateral attack on a sister state judgment is made.  “[A] sister-state decree is ․ invalid if it was obtained by extrinsic fraud.   In this regard, ‘[i]t is well-settled law that the fraud for which a judgment can be impeached must be in some matter other than the issue in controversy in the action ․ A judgment can only be set aside on the basis of extrinsic, rather than intrinsic fraud.   Fraud is extrinsic when it is collateral to the matter decided by the court and deprives the opposing party of an opportunity to present his claim or defense, as where a defendant is induced not to defend by a false promise to discontinue the action ․ Fraud is intrinsic when it relates to the very matter decided by the court, as when perjured testimony is produced ․ Unlike extrinsic fraud, intrinsic fraud cannot be attacked collaterally, and relief is available only in the original action.”  (Internal quotations omitted.   Internal citations omitted.)  Weiss v. Weiss 2010 WL 3781286, 6–7 (N.Y.Sup., 2010), 29 Misc.3d 1202(A), 958 N.Y.S.2d 311 (Table).

Similarly, other jurisdictions interpreting the Uniform Act have relied upon and applied the distinction between judgments procured through intrinsic vs. extrinsic fraud.³  See, e.g., Tonga Air Services v. Fowler, 118 Wash.2d 718, 729 (1992) (A claim of fraud, pursuant to the discretionary recognition provisions of the Uniform Act, must be premised on extrinsic, rather than intrinsic fraud.);  Society of Lloyd's v. Mullin, 255 F.Sup.2d 468, 473–74 (E.D.Pa.2003) (Rejecting claim that a settlement document was fraudulently induced, the court noted that the fraud claimed must be a fraud upon the court as opposed to matters which could have been litigated in the rendering forum).

Given Connecticut's recognition of the intrinsic/extrinsic fraud distinction when enforcing judgments from sister states, the Act's directive that the foreign judgments “are enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit,” and the decisions of other jurisdictions applying the Uniform Act, this court sees no basis upon which to deviate from the principles set forth above in this matter.⁴

The defendant's fraud special defenses allege intrinsic fraud, stemming from what the plaintiff allegedly did or did not reveal to the Russian tribunal during those proceedings.   Whether the claim is that she withheld important information or provided misleading information, the allegations is one which “relates to the very matter decided by the court” and is therefore intrinsic.   The motion to strike the third and fifth special defenses is therefore GRANTED.

The Eighth Special Defense

Plaintiff seeks to strike the eighth special defense which avers that the Act is not applicable to this judgment on the basis that Judge Tierney has resolved that issue in the plaintiff's favor.   This court has reviewed the pleadings and proceedings in which the court's statements were made.   In this court's view, the substantive determination as to the applicability of the Act was not necessary to a determination of the motion then pending before Judge Tierney.   Further, the record is unclear as to whether Judge Tierney intended to decide the issue conclusively.   As such, this court does not afford his determination to be “law of the case.”   Nor is such a determination appropriate, as requested in the alternative by the plaintiff, on a motion to strike.

The motion to strike the eighth special defense is DENIED.

SO ORDERED

K. DOOLEY, J.

FOOTNOTES

FN1. A “foreign judgment” is defined as any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty or a judgment for support in matrimonial or family matters.”  Conn. Gen.Stat. § 50a–31(2)..  FN1. A “foreign judgment” is defined as any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty or a judgment for support in matrimonial or family matters.”  Conn. Gen.Stat. § 50a–31(2).

FN2. Notably, the Zappone case was a collateral attack on a judgment which was brought to the court which had rendered the judgment in the first instance.   That the rendering tribunal is the appropriate forum for such collateral attacks is paramount in the policy considerations which underlie the extrinsic/intrinsic fraud distinction with respect to enforcement of foreign judgments.   See, Restatement (Third) of Foreign Relations Law § 482, cmnt e (1987) (“The distinction between extrinsic and intrinsic fraud for purposes of recognition of foreign judgments is based on the view that a challenge on grounds of intrinsic fraud should be addressed to the rendering court”).   Indeed, though not enacted by the Connecticut legislature, the 2005 version of the Uniform Act permits non-enforcement of foreign judgments procured through extrinsic fraud only.   The commentary to the 2005 Act indicates that the specification is essentially a codification of the case law interpreting the 1962 Act, which Connecticut has adopted..  FN2. Notably, the Zappone case was a collateral attack on a judgment which was brought to the court which had rendered the judgment in the first instance.   That the rendering tribunal is the appropriate forum for such collateral attacks is paramount in the policy considerations which underlie the extrinsic/intrinsic fraud distinction with respect to enforcement of foreign judgments.   See, Restatement (Third) of Foreign Relations Law § 482, cmnt e (1987) (“The distinction between extrinsic and intrinsic fraud for purposes of recognition of foreign judgments is based on the view that a challenge on grounds of intrinsic fraud should be addressed to the rendering court”).   Indeed, though not enacted by the Connecticut legislature, the 2005 version of the Uniform Act permits non-enforcement of foreign judgments procured through extrinsic fraud only.   The commentary to the 2005 Act indicates that the specification is essentially a codification of the case law interpreting the 1962 Act, which Connecticut has adopted.

FN3. Connecticut courts routinely look to other jurisdictions in interpreting uniform acts as a means of promoting the very purpose of such an act, uniformity in its application and enforcement.   See, e.g. Evans v. GMC, 277 Conn. 496, 513–15 (2006) (Review of other jurisdictions when interpreting the Uniform Trade Secrets Act)..  FN3. Connecticut courts routinely look to other jurisdictions in interpreting uniform acts as a means of promoting the very purpose of such an act, uniformity in its application and enforcement.   See, e.g. Evans v. GMC, 277 Conn. 496, 513–15 (2006) (Review of other jurisdictions when interpreting the Uniform Trade Secrets Act).

FN4. The court recognizes that the underlying rationale for the extrinsic vs. intrinsic fraud distinction has been called into question by some courts in a variety of scenarios.   Insofar as Connecticut appears to recognize the distinction, absent some indicia from our appellate courts that the distinction is of questionable viability in this state, the court is disinclined to ignore its application here..  FN4. The court recognizes that the underlying rationale for the extrinsic vs. intrinsic fraud distinction has been called into question by some courts in a variety of scenarios.   Insofar as Connecticut appears to recognize the distinction, absent some indicia from our appellate courts that the distinction is of questionable viability in this state, the court is disinclined to ignore its application here.

Dooley, Kari A., J.