Cornfield Associates Ltd. Partnership v. Cummings , 148 Conn. App. 70 ( 2014 )

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CORNFIELD ASSOCIATES LIMITED PARTNERSHIP
v. DAVID W. CUMMINGS
(AC 34264)
DiPentima, C. J., and Robinson and Mihalakos, Js.*
Argued November 13, 2013—officially released February 4, 2014
(Appeal from Superior Court, judicial district of
Hartford, Complex Litigation Docket, Berger, J.)
David W. Cummings, self-represented, the appel-
lant (defendant).
Robert W. Chesson, with whom, on the brief, were
G. Adam Schweickert and Joseph C. Abraham, for the
appellee (plaintiff).
Opinion
PER CURIAM. In this summary process action, the
self-represented defendant, David Cummings,1 appeals
from the judgment of the trial court denying his motion
to open the stipulated judgment he entered into with
the plaintiff, Cornfield Associates Limited Partnership.
The defendant claims that the court erred by finding
that the stipulated judgment was not obtained by duress
or mistake.2 We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The defendant
leased property from the plaintiff. On or about April
16, 2008, the plaintiff served the defendant with a notice
to quit possession. The defendant failed to comply. On
April 28, 2008, the plaintiff filed the underlying summary
process action, alleging that the defendant had failed
to pay in a timely manner his rent that was due on April
1, 2008. The defendant filed a motion to dismiss the
complaint, claiming that the court lacked subject matter
jurisdiction because the plaintiff accepted a late pay-
ment. While the motion to dismiss was still pending,
the court, Hiller, J., transferred the case to the complex
litigation docket. In December, 2010, the court, Berger,
J., denied the defendant’s motion to dismiss after find-
ing that, although the plaintiff had deposited the checks
given by the defendant after the service of the notice
to quit, the plaintiff put the defendant on notice that
any such payments would be for use and occupancy
only and would not create a new tenancy. The defendant
filed an answer and special defenses to the complaint,
and the plaintiff denied the allegations of the special
defenses.
The parties were scheduled to begin trial before
Judge Berger, but the defendant requested mediation.
On May 27, 2011, the parties participated in mediation
facilitated by Judge Oliver. With the help of Judge Oli-
ver, the parties reached a tentative agreement, but the
defendant requested more time to consider it. Judge
Oliver ordered them to return to court on June 1, 2011,
to accept the agreement or to begin the trial.
On May 31, 2011, the defendant filed a motion for a
continuance, stating that he was ill but that the court
could reach him by telephone. The court, Berger, J.,
denied the defendant’s motion for a continuance, and
the matter proceeded as scheduled. The plaintiff
appeared on June 1, 2011, and accepted the proposed
agreement in front of Judge Oliver. The court attempted
to call the defendant by telephone several times, but
was unable to reach him.3 Judge Oliver then issued an
order on June 1, 2011, requiring the defendant to fax
his acceptance of the proposed agreement to the court-
house by June 2, 2011, or the trial would be scheduled
to begin. The order also stated that if the defendant
accepted the proposed agreement, the matter would be
scheduled for a court canvass of the defendant.
The defendant responded by facsimile that he
accepted the proposed agreement, and on June 3, 2011,
the court, Berger, J., rendered a stipulated judgment
pursuant to the parties’ agreement.4 The agreement pro-
vided that the judgment would enter on the basis of
‘‘[l]apse of [t]ime,’’ that there would be a final stay
of execution until September 30, 2011, and that the
defendant would vacate no later than September 30,
2011.
On June 6, 2011, the defendant filed a motion
requesting that the court schedule a court canvass of
the defendant pursuant to Judge Oliver’s June 1, 2011
order. That same day, the court, Oliver, J., denied the
defendant’s request for a court canvass after finding that
‘‘the written agreement contained language sufficient to
establish the knowing and voluntary acceptance of the
agreement by both parties.’’ On June 9, 2011, the defen-
dant filed a motion to reargue the stipulated judgment
and the June 6, 2011 order, and again requested that
the court schedule a court canvass of the defendant.
The court, Berger, J., denied the defendant’s motion to
reargue on June 10, 2011.
On June 16, 2011, the defendant filed an appeal from
the stipulated judgment and the denial of his motion
to reargue. On August 8, 2011, the plaintiff filed a motion
to dismiss the defendant’s appeal. While his appeal was
still pending, the defendant filed a motion to open the
stipulated judgment on September 30, 2011. He claimed
that the judgment entered due to mistake, stress and
duress. On October 13, 2011, we dismissed the defen-
dant’s appeal. On January 27, 2012, the court, Berger,
J., found that the judgment was not obtained through
duress or mistake, and denied the defendant’s motion
to open.
On January 31, 2012, the defendant filed the present
appeal from the court’s denial of his motion to open
the stipulated judgment. On March 26, 2012, the plaintiff
filed a motion to dismiss the appeal, claiming, inter
alia, that the defendant’s appeal was duplicative, and,
therefore, the issues in the second appeal were moot.
This court, on May 23, 2012, granted the plaintiff’s
motion to dismiss to the extent that the plaintiff sub-
stantively challenged the stipulated judgment, and lim-
ited the appeal to the court’s decision regarding the
denial of the motion to open.
We begin with the pertinent legal principles and stan-
dard of review relevant to our review of the defendant’s
claim. ‘‘[O]ur courts have inherent power to open, cor-
rect and modify judgments, but that authority is
restricted by statute and the rules of practice. . . . A
motion to open a judgment is governed by General
Statutes § 52-212a and Practice Book § 17-4. Section 52-
212a provides in relevant part: Unless otherwise pro-
vided by law and except in such cases in which the
court has continuing jurisdiction, a civil judgment or
decree rendered in the Superior Court may not be
opened or set aside unless a motion to open or set aside
is filed within four months following the date on which
it was rendered or passed.’’ (Citation omitted; internal
quotation marks omitted.) Richards v. Richards, 78
Conn. App. 734, 739–40, 829 A.2d 60, cert. denied, 266
Conn. 922, 835 A.2d 473 (2003). Practice Book § 17-4
states essentially the same rule. ‘‘Whether proceeding
under the common law or a statute, the action of a trial
court in granting or refusing an application to open a
judgment is, generally, within the judicial discretion of
such court, and its action will not be disturbed on appeal
unless it clearly appears that the trial court has abused
its discretion.’’ (Internal quotation marks omitted.) Nel-
son v. Charlesworth, 82 Conn. App. 710, 713, 846 A.2d
923 (2004).
‘‘In determining whether the trial court abused its
discretion, this court must make every reasonable pre-
sumption in favor of its action. . . . The manner in
which [this] discretion is exercised will not be disturbed
so long as the court could reasonably conclude as it
did. . . . Questions of fact are subject to the clearly
erroneous standard of review. . . . 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. . . . Because it is
the trial court’s function to weigh the evidence . . . we
give great deference to its findings.’’ (Citation omitted;
internal quotation marks omitted.) Reiner, Reiner &
Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d
58 (2006).
‘‘A motion to open a stipulated judgment, when
grounded on mistake or duress, necessarily requires
the court to make a factual determination before it can
exercise its discretion to grant or deny the motion
. . . . In making its factual determination whether a
stipulated judgment should be opened, the court must
inquire into whether the decree itself was obtained by
fraud, duress, accident or mistake. . . . A stipulated
judgment . . . is not voidable on the ground that it was
accepted with reluctance, so long as its procurement
was not the result of fraud, duress, or mistake.’’ (Cita-
tions omitted; internal quotation marks omitted.) Jenks
v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995).
The defendant first claims that the court erred by
finding that the stipulated judgment was not obtained by
duress. He argues that, at the mediation, he expressed to
Judge Oliver that he was under a great amount of stress
and was taking Percocet to alleviate back pain from a
lumbar spine injury. The defendant further argues that,
at the time he accepted the proposed agreement, he
was sick with a virus; was facing potential criminal
charges due to an alleged false report filed by the plain-
tiff’s attorney, Robert W. Chesson; had received inade-
quate disability accommodations during the mediation;
and had been denied a copy of the audiotapes and
transcript of the mediation session, which, the defen-
dant argues, he was required to receive as an accommo-
dation of his disability. We are not persuaded.
‘‘To conclude that a stipulated judgment resulted
from duress, the finder of fact must determine that the
misconduct of one party induced the party seeking to
avoid the stipulated judgment to manifest assent
thereto, not as an exercise of that party’s free will but
because that party had no reasonable alternative in light
of the circumstances as that party perceived them to
be. . . . For a party to demonstrate duress, it must
prove [1] a wrongful act or threat [2] that left the victim
no reasonable alternative, and [3] to which the victim
in fact acceded, and that [4] the resulting transaction
was unfair to the victim. . . . The wrongful conduct
at issue could take virtually any form, but must induce
a fearful state of mind in the other party, which makes
it impossible for [the party] to exercise his own free
will.’’ (Citation omitted; internal quotation marks omit-
ted.) Cox v. Burdick, 98 Conn. App. 167, 177–78, 907
A.2d 1282, cert. denied, 280 Conn. 951, 912 A.2d 482(2006).
The defendant argues that he was under a great deal
of stress when he accepted the stipulated agreement
because of his disability, the alleged inadequacy of the
accommodations provided to him, the pain medication
he was taking and the stressful nature of the litigation.
Our case law states, however, that in order for a court
to make a finding of duress, ‘‘one party must engage in
misconduct to induce the other party to assent to the
judgment . . . [and that the] defendant’s mental condi-
tion alone, therefore, cannot support a claim of duress.’’
(Citation omitted.) Id., 178. The defendant did not allege
nor did he produce any evidence to support an assertion
that the plaintiff coerced him into entering the
agreement by taking unfair advantage of his mental
state. Further, although the defendant alleged that Ches-
son had made a false report to the police that caused
a criminal complaint to be filed against the defendant,
our review of the record reveals that the defendant did
not produce any evidence to support his bald assertion
that Chesson’s report was made in bad faith, nor did
he present evidence that Chesson filed the report in
order to induce the defendant to settle. See Sicaras v.
Hartford, 44 Conn. App. 771, 789, 692 A.2d 1290 (plain-
tiff not under duress where no evidence that other party
induced assent), cert. denied, 241 Conn. 916, 696 A.2d
340 (1997). The court’s finding that the defendant was
not under duress when he entered into the agreement
was not clearly erroneous.
The defendant also claims that the court erred by
finding that the stipulated agreement was not obtained
by a mistake. The defendant argues that because he
believed that the court would canvass him before enter-
ing the agreement as a final stipulated judgment, there
was a mistake and the court erred in denying his motion
to open. We do not agree.
‘‘A judgment rendered upon a stipulation of the par-
ties is in the nature of a contract and may be opened
by the court if the stipulation was entered into by mutual
mistake.’’ Inland Wetlands & Watercourses Agency v.
Landmark Investment Group, Inc., 218 Conn. 703, 707,
590 A.2d 968 (1991). A mutual mistake occurs when ‘‘in
reducing to writing an agreement made or transaction
entered into as intended by the parties thereto, through
mistake, common to both parties, the written instru-
ment fails to express the real agreement or transaction.
. . . In short, the mistake, being common to both par-
ties, effects a result which neither intended.’’ (Citations
omitted; internal quotation marks omitted.) Lopinto v.
Haines, 185 Conn. 527, 532, 441 A.2d 151 (1981).
‘‘Whether there has been such mistake is a question
of fact.’’ Inlands Wetlands & Watercourses Agency v.
Landmark Investment Group, Inc., supra, 708.
Although both parties may have believed that the
court would canvass the defendant before entering the
parties’ agreement as a final stipulated judgment, such
a mistake is not material to the agreement. See BRJM,
LLC v. Output Systems, Inc., 100 Conn. App. 143, 149,
917 A.2d 605 (trial court’s finding that there was mutual
mistake clearly erroneous when mistake was not mate-
rial to parties’ bargain), cert. denied, 282 Conn. 917,
925 A.2d 1099 (2007). The purpose of a court canvass
is to ensure that the party is entering into the agreement
knowingly and voluntarily; it does not affect the sub-
stance or terms of the underlying agreement.5 Accord-
ingly, we conclude that a mistake such as the one
claimed by the defendant is not a mutual mistake suffi-
cient to open a stipulated judgment. The court’s finding
that the agreement was not induced by mutual mistake
was not clearly erroneous. In sum, we conclude that
the court did not abuse its discretion in denying the
defendant’s motion to open.
The judgment is affirmed.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant was self-represented at both the trial and appellate levels.
2
Although the defendant raises eighty-two claims in his statement of
issues, many of which are repetitious, this court, in its May 11, 2012 order,
limited the scope of this appeal to the defendant’s claims regarding the trial
court’s denial of his motion to open in response to the plaintiff’s motion to
dismiss the appeal. Furthermore, to the extent that the defendant raises
claims challenging the adequacy of his accommodations pursuant to the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., those claims are
not properly before this court, as the defendant has failed to exhaust his
administrative remedies. See Mercer v. Rodriquez, 83 Conn. App. 251, 263–64,
849 A.2d 886 (2004).
3
The court also sent the defendant a facsimile alerting him that the court
had attempted to telephone him several times, but had not been able to
reach him. The facsimile included a typed version of the proposed agreement
for his consideration and requested that he appear in court or telephone
the court immediately.
4
The defendant’s facsimile, entitled ‘‘Response to Order Regarding [Judi-
cial Mediation],’’ stated: ‘‘The Defendant David Cummings hereby respec-
tively gives notice acceptance of proposed stipulation as was represented
in Court on May 27, 2011 before the Honorable Vernon D. Oliver.’’
5
It is within the trial court’s discretion whether a party should be can-
vassed before the court enters an agreement as a stipulated judgment.
Because we have concluded that ‘‘a settlement agreement is simply a con-
tract, and traditional principles apply’’; McCook v. Whitebirch Construction,
LLC, 117 Conn. App. 320, 333, 978 A.2d 1150 (2009), cert. denied, 294 Conn.
932, 987 A.2d 1029 (2010); this court has refused ‘‘to impose a bright line
rule requiring canvasses of parties regarding settlement agreements at the
time they are entered into.’’ Id.