VINCENT T. SAVALLE ET AL. v. JOHN R. HILZINGER ET AL.
(AC 36637)
Appellate Court of Connecticut
July 28, 2015
DiPentima, C. J., and Gruendel and Lavery, Js.
Argued May 13
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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the
James H. Lee, for the cross appellants (plaintiffs).
Richard Bruno, with whom, on the brief, was Jeffrey J. Holley, for the cross appellee (named defendant).
GRUENDEL, J.
The relevant facts are set forth in this court‘s decision in Savalle v. Hilzinger, 123 Conn. App. 174, 1 A.3d 1098 (2010). “The plaintiffs own six acres of property abutting Perry Road, bounded on the northerly, easterly and southerly sides by land owned by the defendant, and bounded on the west by Perry Road. The defendant also is the owner of the land to the west of Perry Road, running from the Colchester-Lebanon town line in a northerly direction past the plaintiffs’ property. Perry Road previously was used by the plaintiffs’ predecessors on a regular basis to gain access to the property, which is otherwise landlocked.
“Perry Road previously was a highway owned by the town of Lebanon that was used on a regular basis by the plaintiffs’ predecessors in title and by others to access the plaintiffs’ property from Sullivan Road in Colchester. It also was used by the public to access Roger Foot Road and Taylor Bridge Road in Lebanon. On July 21, 1937, a written notice, signed by three selectmen of the town of Lebanon, was issued by the selectmen, warning a special town meeting to be held to take action on the following proposals . . . (4) [t]o see if the [t]own wishes to close the so-called Perry Road leading from the four corners near the residence of Stanley Yorczyk to the Colchester Town Line. A special town meeting for the town of Lebanon was held on July 28, 1937, and the minutes from that meeting state: Following is the order of business acted upon. . . . IV. Motion—that the Perry Road from Stanley Yorczyk‘s four corners to Colchester Town Line be closed. Seconded—Voted—Declared Carried.
“On May 8, 1978, a special town meeting was held in Lebanon. The minutes of that meeting reflect that a motion was made [t]o consider and act upon a petition
“On April 10, 2008, the plaintiffs filed the . . . complaint, seeking a declaratory judgment that entitles them to rights as property owners whose property bounded a discontinued or abandoned highway pursuant to [
On appeal, this court affirmed the judgment of the trial court, concluding that it was clear from the record that the town of Lebanon discontinued Perry Road in a 1937 town meeting. Id., 181. This court stated that “because
Thereafter, the plaintiffs filed a petition for a new trial, pursuant to
The plaintiffs also argued that the testimony of Gerald Stefon, an expert witness who was qualified as a surveyor and title searcher, was newly discovered evidence. Stefon testified at the hearing on the petition for a new trial that his practice focuses on ancient highways, turnpikes, and roads in Connecticut and that he is not aware of any other expert in eastern Connecticut with the same expertise. Stefon also testified that after being hired by the plaintiffs, he conducted research and found that Perry Road was created when three landowners dedicated the land to the town in 1769. Thus, Stefon concluded that the town of Lebanon presently held title to the underlying road bed. In regard to his availability as an expert witness, he testified that although he did advertise his services, he does not “stress the fact that [he does] historical research on roads, highways and turnpikes because [his] work comes from attorneys who are involved mostly in litigation, and so almost the entirety of [his] work is predicated on referrals from attorneys.” He also testified that he “[v]ery infrequently” receives inquiries from “regular citizens . . . .”
On April 1, 2014, the court denied the plaintiffs’ petition for a new trial. In its memorandum of decision, the court found that the purported new evidence was “in fact available in the public records in the Lebanon town hall prior to trial or otherwise available upon the exercise of due diligence.” On this basis, the court concluded that the plaintiffs’ proffered evidence was not newly discovered evidence under
As noted, the plaintiffs claim on appeal that the court erroneously concluded that the plaintiffs’ documentary evidence and expert witness testimony did not constitute newly discovered evidence under the statute. They argue that these findings were clearly erroneous given the evidence presented at the hearing. In response, the defendant argues that the court properly denied the petition on the ground that the plaintiffs chose to limit the scope of their public records research and thus cannot meet their burden of establishing that they exercised due diligence in preparation of the original trial.7 We agree with the defendant.
We begin by setting forth the proper standard of review governing a court‘s denial of a petition for a new trial. “A petition for a new trial is addressed to the discretion of the trial court and will never be granted except upon substantial grounds. As the discretion
To the extent the court‘s denial of the petition was based on factual findings, we review those findings under the clearly erroneous standard. “[A] finding of fact . . . will not be overturned unless it is clearly erroneous in light of the evidence in the whole record. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted.) Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 636, 646 A.2d 772 (1994). “It is within the province of the trial court, as the fact finder, to decide questions of credibility. . . . The [court] is free to accept or reject, in whole or in part, the testimony offered by either party. . . . That determination of credibility is a function of the trial court.” (Citation omitted; internal quotation marks omitted.) Grasso v. Grasso, 153 Conn. App. 252, 258–59, 100 A.3d 996 (2014).
In order to establish the grounds for a new trial, “[the plaintiffs have] the burden of alleging and proving facts which would, in conformity with our settled equitable construction of the statute, entitle him to a new trial on the grounds claimed.” Black v. Universal C. I. T. Credit Corp., supra, 150 Conn. 193. “The [plaintiffs] must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial. . . . Proof that the [plaintiffs] exercised due diligence to discover the evidence prior to trial is a condition precedent to successfully prosecuting a petition for a new trial under
“Due diligence means doing everything reasonable, not everything possible. . . . The question which must be answered 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.” (Citation omitted; internal quotation marks omitted.) Kubeck v. Foremost Foods Co., supra, 190 Conn. 672. “Reasonable is a relative term which varies in the context in which it is used, and its meaning may be affected by the facts of the particular controversy. . . . It is also synonymous with [e]quitable, fair, just.” (Internal quotation marks omitted.) Jacobs v. Fazzano, 59 Conn. App. 716, 722–24, 757 A.2d 1215 (2000).
In the prior action, the defendant filed an answer to the plaintiffs’ complaint, which asserted several special defenses. One of these special defenses alleged that the plaintiffs’ claims were “invalid and inapplicable, as . . . Perry Road was discontinued by the actions of the Town of Lebanon in July, 1937 . . . .” (Internal quotation marks omitted.) This notified the plaintiffs that the defendant intended to defend the case, in part, on the theory that the town‘s actions in 1937 amounted to a discontinuation of Perry Road. Furthermore, the plaintiffs’ counsel testified that prior to the underlying trial, the plaintiffs were aware of the holding of Doolittle v. Preston, 5 Conn. App. 448, 499 A.2d 1164 (1985), in which, this court concluded that an “incantation of a legal ‘abracadabra’ is not necessary to terminate a town road. The essence of the thing accomplished controls.” Id., 452. Thus, under the applicable governing law, a party can establish that a road was discontinued, based on the actions of town officials, even if those officials did not expressly use the term “discontinued.” Given the defendant‘s position, as well as the state of the applicable law at the time, reasonable plaintiffs, exercising due diligence, would have pursued evidence of other instances where the town discontinued or abandoned its roads in preparation for the original trial. In essence, any evidence of how the town acted when it intended to close a road, rather than discontinue it, would be relevant to the plaintiffs’ efforts to refute the defendant‘s special defense.
We now turn to whether the plaintiffs established that they had performed due diligence in preparation for trial. When making such an inquiry, “[i]t is the con-
Kent D. Mawhinney, an attorney who represented the plaintiffs at the underlying trial, also testified that his research was limited to Perry Road. He stated that prior to trial, he reviewed the documents from the 1937 meeting, which used the word “closed” rather than “discontinued.” He further reviewed town meeting minutes from 2002, where town officials voted to “discontinue” Perry Road. On this basis, Mawhinney concluded that the town must not have discontinued the road in 1937 because it was still considering discontinuing the road many years later. He also testified that he found evidence that the town had continuously assessed taxes on itself for the property underlying Perry Road. At this point, he concluded that this evidence was the “the final nail in this coffin” and stopped any further research. He testified that “this was not [a case he] honestly thought . . . [he] was ever going to lose.”
In denying the petition for a new trial, the court found that “the evidence relied upon by the plaintiffs in this action was available in public records or was otherwise available to anyone in the exercise of due diligence in preparation for a trial, as in this case.” This conclusion is supported by the undisputed fact that after the original trial concluded, the plaintiffs embarked on efforts that led them to uncover the purported newly discovered evidence. The documentary evidence, although difficult to obtain, was obtained through publicly available sources when the plaintiffs began to search for it. Moreover, although the plaintiffs’ expert witness was found by chance, the plaintiffs never established how their expert, or one of similar knowledge and experience, could not have been located through reasonable diligence.9
“[T]he burden of showing due diligence [rests] solely and throughout on the plaintiff“; (internal quotation marks omitted) Terracino v. Fairway Asset Management, Inc., supra, 75 Conn. App. 75; and a determination of due diligence is what evidence could have been discovered “by persevering application, [and] untiring efforts in good earnest.” (Emphasis added;
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
“[The Defendant‘s Counsel]: Did you ever look for any other people who have been a title searcher or a land historian prior to the decision in the first case?
“[Davis]: No.
“[The Defendant‘s Counsel]: Did you ever hire a title searcher prior to 2009?
“[Davis]: No.”