Opinion
No. CV05 500 03 22S
September 8, 2010
MEMORANDUM OF DECISION RE MOTION TO OPEN #129
The plaintiff, Joseph Lewis, commenced this action against the defendant, Michael D'onofrio, Jr., on November 23, 2005. In the complaint, the plaintiff alleged that the defendant, who was previously his attorney, filed a federal civil rights action on his behalf in the United States District Court (the federal action), and that this action sought compensation for physical injuries allegedly inflicted upon the defendant by various individuals employed by the state of Connecticut as deputy sheriffs. The plaintiff further alleged that the defendant failed to prosecute the federal action, which resulted in the entry of a default judgment, and that the defendant then concealed the default judgment until after the claims were time barred.
On July 25, 2006, a default judgment was entered against the defendant in this action for failure to plead, and a motion to open that default judgment was denied on March 5, 2007. Subsequently, on March 30, 2007, a hearing in damages was held, at which time the court heard testimony from the plaintiff regarding the incident in which he was injured, the nature of his physical injuries, and the treatment he received for those injuries. At the conclusion of this hearing, the court awarded the plaintiff $90,000, a figure that reflected $60,000 in compensatory damages and $30,000 in punitive damages that he likely would have recovered had the federal action been prosecuted to final judgment. Nearly three years later, on February 4, 2010, the defendant filed a motion to open the judgment on the ground that the amount of damages awarded by the court was effected by a fraud perpetrated by the plaintiff. The parties presented argument and evidence to the court on May 19, 2010, and they thereafter filed post-hearing briefs, the defendant on July 1, 2010 and the plaintiff on July 9, 2010.
"Although generally a motion to open must be filed within four months of entry of the judgment; General Statutes § 52-212(a); a motion to open on the basis of fraud is not subject to this limitation but should be presented promptly after the discovery of the alleged fraud." Konefal v. Konefal, 107 Conn.App. 354, 359 n. 5, 945 A.2d 484, cert. denied, 288 Conn. 902, 952 A.2d 484 (2008).
The defendant's position is essentially that, at the hearing in damages, the plaintiff testified as to both the physical injuries he sustained as a result of the incident relevant to the federal action — including injury to his right knee — and as to a knee surgery he underwent in February of 2007, but failed to reveal he was involved in an automobile accident in 2004 that caused injury to the same knee. The defendant contends that this failure amounts to a concealment rising to the level of fraud, that the revelation of the automobile accident would have altered the amount of damages entered by the court, and that the court should now open the judgment in order to consider this evidence. The plaintiff contends that he testified honestly during the hearing in damages. He does not dispute that he sustained injury to the same knee in a subsequent automobile accident, but contends that the two injuries were to separate and distinct areas of the knee.
"A motion to open and vacate a judgment . . . is addressed to the [trial] court's discretion . . ." (Internal quotation marks omitted.) Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006). "[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." (Citations omitted.) Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983). "To prevail on a motion to open, the movant has the burden of showing that good cause exists." Brandage v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Waterbury, Docket No. CV 08 4018201 (November 19, 2009, Cutsumpas, J.).
Where the good and compelling reason articulated in a motion to open is the discovery of a fraud that influenced the judgment, the movant must make a four-part showing before the judgment may be opened. Specifically, "[i]n Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980), our Supreme Court imposed four requirements on those seeking relief from a judgment secured by fraud: (1) There must have been no laches or unreasonable delay by the injured party after fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different." (Internal quotation marks omitted.) Durat v. Department of Correction, 116 Conn.App. 758, 769, 977 A.2d 670 (2009).
This being so, even if the court were to assume, arguendo, that the plaintiff's testimony during the hearing in damages somehow amounted to a fraud, and that there is a "substantial likelihood" that the revelation of this fraud would have resulted in a different outcome, the defendant has not provided the court with evidence satisfying the first requirement of the test established in Varley. In addition, it is clear he cannot satisfy the second requirement.
With regard to the first requirement, the defendant provided no evidence of the exact date he learned of the alleged fraud, so it is impossible for this court to determine whether he waited for an unreasonable amount of time before moving this court to open the judgment. The only evidence before the court at all relevant to this issue is a copy of a certified transcript of the plaintiff's deposition, taken as part of a separate lawsuit filed by the plaintiff in 2005 that related to the automobile accident in question. This deposition, which is dated May 9, 2008, contains testimony pertaining to the health of the plaintiff's right knee prior to the accident, testimony the defendant believes contradicts the statements made by the plaintiff during the hearing in damages in this action. The defendant contends that he first learned of the accident and these contradictions when he reviewed the deposition testimony, but he has not provided any evidence as to when he obtained a copy of this deposition testimony. Without such evidence, the court cannot say the defendant filed the present motion to open in a timely manner.
With regard to the second requirement — a showing of diligence in trying to discover and expose the fraud prior to entry of the adverse judgment — the court finds that no such showing has been made, nor could it be. In the first place, the defendant was defaulted in this action for failing to file responsive pleadings. Furthermore, the court has reviewed the transcript of the hearing in damages conducted on March 30, 2007. During the hearing, the plaintiff testified as to the injury to his right knee, as well as a corrective surgery he underwent in February of 2007. The defendant was given an opportunity to cross examine the plaintiff at that time. The extent of this examination was as follows:
Q. When did you have the surgery?
A. I just had the surgery February 9, 2007.
Q. This year?
A. Yes.
Q. Two months ago or a month ago?
A. Yea, I have —
Q. Okay. When did this incident occur? Do you recall the date?
A. 1998, September 9, 1998.
Q. Okay. I don't have any other questions, Your Honor.
The defendant had an opportunity to question the plaintiff regarding any other injuries relevant to the claimed damages, but did not make such an inquiry. Nor did the defendant present any other evidence in his defense. In light of the cursory efforts made by the defendant, the court cannot say that he was diligent in trying to uncover this supposed fraud.
The defendant has not made an adequate showing in support of the motion to open. It is therefore denied.