Opinion
No. CV 05 4002820 S
October 24, 2007
MEMORANDUM OF DECISION RE REQUEST FOR REBUTTAL WITNESSES
This is an action on a promissory note. The plaintiff is intent on collecting a sum due on a sale of property to the defendant. The defendant has essentially denied the plaintiffs' claims for payment and has interposed special defenses and a counterclaim. The original counterclaim, #107 was filed on November 17, 2005 and seeks to invoke a condition subsequent in the Purchase Agreement between the parties which would serve to vitiate the sale and require the plaintiff to accept a re-conveyance of the property back to the plaintiff. The Purchase Agreement contemplated that the subject property could be subdivided into two approved building lots. Once this approval from the Town of Thompson was received and the first of the two lots sold, the balance remaining under the Purchase Agreement would be due and payable to the plaintiff under the terms of the Purchase Agreement. This agreement also contemplates a return of the property by deed to the sellers should the conditioned subdivision not occur. The Purchase Agreement was signed dated July 3, 2001. On October 12, 2001 the Town of Thompson acting through its Planning and Zoning Commission, upon acceptance of the opinion of its health official, Northeast District Department of Health (NDDH) refused the requested subdivision of the property and further found that the lot was not buildable at all due to the inability of the soils to support a subsurface septic disposal system.
The defendant claims in her counterclaim that she attempted to exercise the condition subsequent contained in the Purchase Agreement and return the property to the plaintiffs but that the plaintiffs essentially refused to accept the return.
The defendant drafted the Purchase Agreement. Neither party acted through counsel. The usual manner of accomplishing such a transaction would be by an option contract or a condition precedent. The present situation of the defendant owning the property and attempting to return it to the plaintiffs by deed is somewhat unusual. Generally, the terms of a contract for the sale of land are merged into the deed; the terms of the deed are considered the final agreement of the transaction. See Knight v. Breckheimer, 3 Conn.App. 487 (1985). Although the deed was never entered into evidence it would appear from the testimony received that the parties did not intend that the condition subsequent be incorporated into the deed. See, generally, Covey v. Covey, 46 Conn.App. 46 (1997).
The present dispute is with regard to the ability of the plaintiffs to present rebuttal witnesses to dispute the defendant's claim that the lot was neither buildable nor sub dividable. The defendant presented evidence in this regard during the trial. The plaintiffs now request the ability to present rebuttal evidence to the effect that the lot is in fact buildable. These experts will apparently need to perform testing in order to reach this determination. Perhaps they will also opine that the lot is sub dividable. Unfortunately, the testing involved should have been done long ago. The plaintiffs were clearly on notice that the defendant intended to present proof with regard to the claims she made in the Special Defenses (November 30, 2005) as well as in the Counterclaim (November 17, 2005) and Revised Counterclaim (November 30, 2005). That notice was sufficiently far in advance of the actual trial of the case — April 13, 2007 and May 11, 2007 — for the plaintiffs to have prepared evidence in order to sustain their defense with regard to these pleadings. The plaintiffs filed a Reply to Special Defenses and Answer to Revised Counterclaim (#112) dated November 9, 2006. Issue was therefore, reached at this time. It was the expectation of the court that all evidence with regard to issues raised in the pleadings would be presented at trial. Rebuttal does not afford the plaintiff a second opportunity to present evidence that should have been included in the case-in-chief. DiMaio v. Panico, 115 Conn. 295, 298 (1932). Parties may not offer evidence as to part of the case and then reserve the residue for a later time. Rogers v. Northeast Utilities, 2 Conn.Ops. 15 (J.D. New Haven, Dec. 25, 1995/Jan. 1, 1996). The plaintiffs here were defendants on the counterclaim. The defendant must then bring forward all of the evidence upon which he relies to meet the claim on the part of the plaintiff. State v. Wyant, 4 Conn. Cir. 407, 410 (1967).
Further, the trial court must consider countervailing interests, such as the reasonableness of the request, whether it might be dilatory, the relevance of the witness' anticipated testimony, the diligence of counsel's efforts to produce the witness or ascertain when the witness may be available, judicial economy and the court's need to control its docket.
State v. Mendez, 45 Conn.App. 282, 286 (1997); State v. Williams, CT Page 18091 200 Conn. 310, 320-21 (1986). The extent to which rebuttal testimony may be carried is within the discretion of the court. See, generally, James v. Commissioner of Correction, 74 Conn.App. 13 and cases cited therein.
In the instant matter the court has significant concerns with the practicality as much as with the legality of what is being requested. The plaintiffs apparently envision experts being able to go to the property and perform testing in order to properly prepare an opinion. Even if they were to reach a conclusion that the property is, in 2007, perhaps buildable and perhaps subdivideable, how is this relevant to a contract contingent upon this condition in 2001. Technology may well have changed, experts may also typically reach differing conclusions with regard to such matters. Even if the plaintiffs found an expert or experts to support their position, how would this be binding upon the NDDH, which advises the Town of Thompson on such matters or the Planning and Zoning Commission of the Town of Thompson which is the only authority which can approve lots for subdivision, or upon the building department with regard to an acceptable perc test?
Clearly the plaintiffs should have had all of their evidence, including experts, marshaled for trial prior to the commencement of same. The court finds that a request for rebuttal witnesses at this time is dilatory and inappropriate for the reasons set forth herein. Said request is, therefore, denied.