Vincent Savalle v. John Hilzinger (2014)

MEMORANDUM OF DECISION

This vigorously contested matter comes to this court as a petition for a new trial pursuant to the provisions of Section 52–270 of the General Statutes (the law) and outlined in the Fourth Revised Complaint of the plaintiff dated December 2, 2013.   The defendant filed an Answer to the same on December 5, 2013.

BACKGROUND

There is no dispute as to the existence of the prior judgment for the defendant in the prior matter entered by the court on July 21, 2009 [48 Conn. L. Rptr. 282].   That matter (docket number CV 08–5007481S) was a case in which the plaintiffs, Vincent Savalle and Teri J. Davis, sought a declaration from the court that Perry Road in Lebanon, Connecticut, was statutorily discontinued in 2002 and they, as abutting owners, acquired a right of way over the same to give them access to their property which was otherwise landlocked.   The defendant owns land on the north, east and south of plaintiffs' property as well as on the other side of Perry Road. The defendant in that case denied the plaintiffs' claim with the assertion that the road was discontinued in 1937 under a law which did not provide for such a right of way.

The case proceeded on a stipulation of facts.   Suffice it to say that the court entered judgment for the defendant.   The plaintiff appealed that decision to the Appellate Court which affirmed the same.  Savalle v. Hilzinger, 123 Conn.App. 174 (2010).

In their complaint in this case the plaintiffs claim the benefit of that part of the law which permits a court to grant a new trial for the “discovery of new evidence.”   The defendant disputes that claim and asserts that the additional evidence was available prior to the original trial, would have been discovered upon due diligence, and is therefore not “new evidence.”

FACTS

The hearing on the petition was held in this court on January 8, 2014 and January 23, 2014 which both parties appeared and were well represented by counsel.   Based upon the evidence and the reasonable and logical inferences from the same and taking into account the court's evaluation of the credibility of the witnesses, the following facts are found.

The plaintiffs offered considerable evidence as to the actions of the Town of Lebanon as to Perry Road and other roads claimed to be relating to when and if Perry Road was abandoned and/or discontinued.   However, as claimed by the defendant, it is found that all of the evidence relied upon by the plaintiffs in this action was available in public records available to anyone in the exercise of due diligence in preparation for a trial as in this case.

“To entitle a party to a new trial for newly discovered evidence it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial;  and if the new evidence relied upon could have been known with reasonable diligence a new trial will not be granted.”  City of Meriden v. Rogers, 111 Conn. 115, 149 A.2d 406 (1930);  citing, Hall v. Tice, 86 Conn. 684, 688, 86 A.2d 560, 561 [1913];  White v. Avery, 81 Conn. 325, 328, 70 A.2d 1065 [1908];  Travelers' Ins. Co. v. Fannie Savage, 43 Conn. 187, 191 [1875].   Moreover, a new trial will not be granted save for strong reasons, upon which a court acting reasonably, would feel bound to act.  Wildman v. Wildman, 72 Conn. 262, 270, 44 A.2d 224 [1899].

“The question which must be answered [in making a determination regarding due diligence] is not what evidence might have been discovered, but rather what evidence would have been discovered by a reasonable plaintiff by persevering application, [and] untiring efforts in good earnest.”  (Internal quotation marks omitted.)  Terracino v. Fairway Asset Management, Inc., 75 Conn.App. 63, 79, 815 A.2d 157, 166–67 (2003) (emphasis added), citing, Kubeck v. Foremost Foods Co., 190 Conn. 667, 672, 461 A.2d 1380 (1983).

Moreover, the plaintiffs have offered the testimony of an expert witness, Gerald J. Stefon, of Preston, Connecticut, a surveyor and land title searcher, who appeared well qualified to the court in the area of ancient highways and roads.   This witness of the plaintiffs testified that Perry Road was deeded to the Town in 1769 and had not been abandoned or discontinued.

It is found by the court that as of 2013 the Town still owned the road in question.

This testimony of the expert puts in question the basis of the claim of the plaintiffs.   So much so that in their brief to this court, in the Conclusion, they themselves raise doubts that a new trial can give them the relief they seek, saying:  “A new trial, as such, may or may not be necessary, but vacating the prior judgment is vital to them.”

The plaintiffs appealed the prior judgment.   That appeal was unsuccessful.   This Section 52–270 action cannot be used as a method of vacating that judgment.

CONCLUSION

But, even if it could, the court finds that there is not the requisite “new evidence” to satisfy the law since it is found that all that evidence relied upon by the plaintiffs was in fact available in the public records in the Lebanon town hall prior to the trial and available upon the exercise of due diligence.

Judgment may enter for the defendant against the plaintiffs together with costs.

Robert C. Leuba, JTR

Leuba, Robert C., J.T.R.