Savalle v. Hilzinger ( 2015 )

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VINCENT T. SAVALLE ET AL. v. JOHN R.
HILZINGER ET AL.
(AC 36637)
DiPentima, C. J., and Gruendel and Lavery, Js.
Argued May 13—officially released July 28, 2015
(Appeal from Superior Court, judicial district of New
London, Hon. Robert C. Leuba, judge trial referee.)
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).
Opinion
GRUENDEL, J. General Statutes § 52-270 authorizes
a trial court to grant a new trial under limited circum-
stances. Black v. Universal C. I. T. Credit Corp., 150
Conn. 188, 192, 187 A.2d 243 (1962). One such circum-
stance involves the discovery of new evidence. The
plaintiffs, Vincent T. Savalle and Teri J. Davis, cross
appealed1 from the judgment of the trial court denying
their petition for a new trial pursuant to § 52-270.2 On
their appeal, the plaintiffs claim that the court improp-
erly concluded that the following did not constitute
‘‘newly discovered evidence’’: (1) public record docu-
ments of town meetings and (2) expert testimony from
a surveyor and title searcher.3 The defendant John R.
Hilzinger4 claims that the plaintiffs failed to meet their
burden of proving that they exercised reasonable dili-
gence in the original trial and thus cannot establish that
the evidence was newly discovered under the statute.
We agree with the defendant and affirm the judgment
of the trial court.
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’ predeces-
sors 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 select-
men of the town of Lebanon, was issued by the select-
men, 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
to see if the Town will vote to accept or reopen and
maintain Perry Road for a distance of eight tenths of
one mile from Taylor Bridge Road, which was seconded.
After proposals for amendments and considerable dis-
cussion, the question was defeated by a hand count of 17
in favor and 80 opposed. On December 9, 2002, another
special town meeting was held in Lebanon. The legal
notice announcing the town meeting stated that one of
the items on the agenda was to consider and act upon
the discontinuance of Perry Road. The minutes of that
meeting state that a motion was made and seconded,
and that [l]engthy discussion followed regarding the
other property owners along this road. Motion made
and seconded to call the question. CARRIED. Vote taken
by a show of hands 45 in favor . . . and 20 against.
Motion CARRIED.
‘‘On April 10, 2008, the plaintiffs filed the . . . com-
plaint, seeking a declaratory judgment that entitles
them to rights as property owners whose property
bounded a discontinued or abandoned highway pursu-
ant to [General Statutes] § 13a-55.5 On April 28, 2008,
the defendant filed an answer and special defenses to
the operative complaint, claiming as the third special
defense that [a]ny claims of the [p]laintiffs as asserted
under the provisions or operation of [General Statutes]
§ 13a-55 are invalid and inapplicable, as the so-called
Perry Road was discontinued by the actions of the Town
of Lebanon in 1937 pursuant to the provisions of [Gen-
eral Statutes] § 13a-49, or that version thereof in effect
at that time. On July 21, 2009, after the parties filed
joint stipulations of facts, claims of law and exhibits,
the court issued a memorandum of decision, finding
that Perry Road was discontinued on or about July 28,
1937, and rendered judgment in favor of the defendant.’’
(Footnote added; internal quotation marks omitted.)
Id., 176–78.
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 § 13a-55 was not enacted until 1959, and there-
fore not in effect at the time that Perry Road was discon-
tinued . . . the [trial] court properly rendered
judgment in favor of the defendant.’’ Id.
Thereafter, the plaintiffs filed a petition for a new
trial, pursuant to § 52-270, on the ground that they had
acquired newly discovered evidence. The claimed
newly discovered evidence comprised of documentary
evidence from town meeting minutes from the 1920s
and 1930s, as well as an expert witness who was a
land surveyor and title searcher. With regard to the
documentary evidence, the plaintiffs argued that the
documents established that during that period of time,
the town’s officials carefully distinguished between
‘‘closing’’ and ‘‘discontinuing’’ a road and would not
have used the term ‘‘closed’’ if they had intended to
discontinue Perry Road. In support of this proposition,
the plaintiffs submitted exhibits from town meeting
records of six roads that had been ‘‘closed’’ and were
later reopened and records of three roads that were
‘‘discontinued’’ where the town officials signed a certifi-
cate of discontinuance.6
The plaintiffs also argued that the testimony of Gerald
Stefon, an expert witness who was qualified as a sur-
veyor and title searcher, was newly discovered evi-
dence. 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 Connecti-
cut 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 litiga-
tion, and so almost the entirety of [his] work is predi-
cated 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’ peti-
tion 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 § 52-270. The
plaintiffs appeal from this judgment.
As noted, the plaintiffs claim on appeal that the court
erroneously concluded that the plaintiffs’ documentary
evidence and expert witness testimony did not consti-
tute 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 exer-
cised 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
which the court is called upon to exercise is not an
absolute but a legal one, we will upon appeal set aside
its action when it appears that there was a misconcep-
tion on its part as to the limits of its power, that there
was error in the proceedings preliminary to the exercise
of its discretion, or that there was a clear abuse in its
exercise of its discretion.’’ (Internal quotation marks
omitted.) Kubeck v. Foremost Foods Co., 190 Conn. 667,
669–70, 461 A.2d 1380 (1983). ‘‘A petition for a new trial
under § 52-270 is a proceeding essentially equitable in
nature.’’ Black v. Universal C.I.T. Credit Corp., supra,
150 Conn. 192. ‘‘[T]he exercise of equitable authority
is vested in the discretion of the trial court and is subject
only to limited review on appeal.’’ Wilkinson v. Boats
Unlimited, Inc., 236 Conn. 78, 84, 670 A.2d 1296 (1996).
‘‘In determining whether the trial court abused its dis-
cretion, this court must make every reasonable pre-
sumption in favor of its action.’’ (Internal quotation
marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn.
799, 809, 695 A.2d 1010 (1997).
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 erro-
neous 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 testi-
mony 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 § 52-270.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Terracino v.
Fairway Asset Management, Inc., 75 Conn. App. 63,
73–74, 815 A.2d 157, cert. denied, 263 Conn. 920, 822
A.2d 245 (2003). Stated differently, the plaintiffs must
establish that they did ‘‘all that was reasonable to dis-
cover the ‘new evidence’ prior to trial. . . . It [is] not
until the plaintiffs [meet] that burden that the court
[is] authorized to exercise its authority under § 52-270 to
consider . . . [granting] a new trial.’’ (Citation omitted;
emphasis in original.) Id., 75–76.
‘‘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 con-
text 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 plain-
tiffs’ 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, exercis-
ing 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 defen-
dant’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-
duct of the plaintiffs that is subject to scrutiny, since he
who claims equity must do equity.’’ (Internal quotation
marks omitted.) Terracino v. Fairway Asset Manage-
ment, Inc., supra, 75 Conn. App. 76. In making such an
inquiry, we note that the plaintiffs admitted readily that
they never performed any research for instances of
other road discontinuances or abandonments until after
the original trial. At the hearing on the petition for a
new trial, Davis testified that her original research was
limited to ‘‘anything that was connected with Perry
Road . . . .’’ She stated that although she researched
the deeds and land records of properties along Perry
Road and town meetings involving Perry Road, she did
not pursue any research of other road closings. Davis
also testified that, prior to trial, she had not attempted
to locate a title searcher or land historian who could
testify as an expert in her case.8
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 meet-
ing, which used the word ‘‘closed’’ rather than ‘‘discon-
tinued.’’ 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 evi-
dence 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 origi-
nal trial concluded, the plaintiffs embarked on efforts
that led them to uncover the purported newly discov-
ered evidence. The documentary evidence, although
difficult to obtain, was obtained through publicly avail-
able 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 experi-
ence, 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 deter-
mination of due diligence is what evidence could have
been discovered ‘‘by persevering application, [and]
untiring efforts in good earnest.’’ (Emphasis added;
internal quotation marks omitted.) Kubeck v. Foremost
Foods Co., supra, 190 Conn. 672. Accordingly, the
court’s finding that the plaintiffs had not performed
reasonable diligence in preparation of the original trial
was properly supported by the record and, therefore,
was not clearly erroneous. Once the court made this
determination, it was required to deny the petition for
a new trial. Thus, the court did not abuse its discretion
when it denied the plaintiffs’ petition for a new trial
under § 52-270.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The appeal to this court by the defendant John R. Hilzinger was with-
drawn. This opinion concerns the plaintiffs’ cross appeal.
2
General Statutes § 52-270 (a) provides: ‘‘The Superior Court may grant
a new trial of any action that may come before it, for mispleading, the
discovery of new evidence or want of actual notice of the action to any
defendant or of a reasonable opportunity to appear and defend, when a just
defense in whole or part existed, or the want of actual notice to any plaintiff
of the entry of a nonsuit for failure to appear at trial or dismissal for
failure to prosecute with reasonable diligence, or for other reasonable cause,
according to the usual rules in such cases. The judges of the Superior Court
may in addition provide by rule for the granting of new trials upon prompt
request in cases where the parties or their counsel have not adequately
protected their rights during the original trial of an action.’’
3
The plaintiffs also briefed a third claim, arguing that ‘‘Savalle v. Hilzinger,
123 Conn. App. 174 [1 A.3d 1098] (2010), was incorrectly decided, and should
be overruled.’’ In support of this claim, the plaintiffs state that they are
‘‘certainly aware that a request to overrule a prior appellate decision is
unusual.’’ The plaintiffs’ position, however, understates the well established
principle that ‘‘one panel of this court, on its own, cannot overrule the
precedent established by a previous panel’s holding.’’ (Internal quotation
marks omitted.) Cefaratti v. Aranow, 154 Conn. App. 1, 45, 105 A.3d 265
(2014), cert. granted on other grounds, 315 Conn. 919, 107 A.3d 960 (2015);
see also Samuel v. Hartford, 154 Conn. App. 138, 144, 105 A.3d 333 (2014)
(same); State v. Ortiz, 133 Conn. App. 118, 122, 33 A.3d 862 (2012) (overruling
of previous panel ‘‘may be accomplished only if the appeal is heard en banc’’
[internal quotation marks omitted]), aff’d, 312 Conn. 551, 93 A.3d 1128 (2014);
First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App.
750, 759, 966 A.2d 239 (2009) (‘‘this court’s policy dictates that one panel
should not, on its own, reverse the ruling of a previous panel’’ [internal
quotation marks omitted]). Accordingly, we are bound by this precedent
and do not consider the merits of the plaintiffs’ third claim.
4
The town of Lebanon also was named as a defendant, but the action
against it was withdrawn prior to trial. We therefore refer in this opinion
to Hilzinger as the defendant.
5
General Statutes § 13a-55 provides: ‘‘Property owners bounding a discon-
tinued or abandoned highway, or a highway any portion of which has been
discontinued or abandoned, shall have a right-of-way for all purposes for
which a public highway may be now or hereafter used over such discontinued
or abandoned highway to the nearest or most accessible highway, provided
such right-of-way has not been acquired in conjunction with a limited
access highway.’’
6
In 1937, the town officials did not sign a certificate of discontinuance
when they ‘‘closed’’ Perry Road.
7
The defendant further argues that records which are determined to be
‘‘publicly available’’ cannot form the basis of ‘‘newly discoverable evidence’’
under § 52-270. Although we affirm the decision of the trial court, we do
not decide the question of whether, under different circumstances, a record
that is considered ‘‘publicly available’’ may also qualify as a record which
reasonable diligence could not have uncovered. Certainly, we can imagine
a scenario where a public record was misplaced or misfiled and was later
discovered after trial. Such a record could conceivably be considered ‘‘newly
discovered’’ if it could not have been found through reasonable diligence.
As the plaintiffs in this case cannot meet the due diligence requirement, we
leave consideration of the defendant’s position for another day.
8
The following colloquy occurred at trial:
‘‘[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.’’
9
We further note that Stefon’s testimony was contrary to the plaintiffs’
position. At the hearing, Stefon testified that, in his opinion, the land on
which the road was built was dedicated by three landowners in 1769 to the
town. On this basis, he concluded that ‘‘the road bed itself was owned by
the Town of Lebanon . . . .’’ This testimony, however, does not support
the plaintiffs’ original position that they should be provided with a right-of-
way over the defendant’s land, as required by § 13a-55. See Fisher v. State,
33 Conn. App. 122, 124, 634 A.2d 1177 (1993) (petitioner must demonstrate
that new evidence would also be material in new trial and would be likely
produce different result in new trial).