Johnson v. Raffy's Café I, LLC , 173 Conn. App. 193 ( 2017 )

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LUBECCA JOHNSON, ADMINISTRATRIX (ESTATE
OF WILLIE BROWN, JR.) v. RAFFY’S
CAFE´ I, LLC, ET AL.
(AC 38268)
Alvord, Mullins and Norcott, Js.
Argued January 19—officially released May 16, 2017
(Appeal from Superior Court, judicial district of New
Haven at Meriden, Fischer, J. [motion to open the
default; motion to reargue; motion for articulation;
motion to dismiss; motion to reargue; judgment; motion
for a new trial]; Cronan, J. [motion for waiver of fees])
Erick Bennett, self-represented, the appellant
(defendant).
Jeremiah J. O’Connor, for the appellee (plaintiff).
Opinion
MULLINS, J. In this wrongful death action, the self-
represented defendant, Erick Bennett,1 appeals from
the judgment of the trial court rendered in favor of the
plaintiff, Lubecca Johnson, administratrix of the estate
of Willie Brown, Jr. On appeal, the defendant claims
that the court improperly (1) denied his motion to dis-
miss for lack of subject matter jurisdiction,2 (2) denied
his motion to set aside a default for failure to plead,
and (3) denied his motion for a new trial. We affirm
the judgment of the trial court.
The following facts and procedural history are rele-
vant to our consideration of the defendant’s claims on
appeal. The plaintiff commenced this action against the
defendant, Raffy’s Cafe´ I, LLC, doing business as Raffy’s
Cafe´ (Raffy’s Cafe´), and Rafael Robles on July 8, 2010.
In her complaint, the plaintiff alleged that the defendant
fatally stabbed Willie Brown, Jr. during an altercation
at Raffy’s Cafe´ in Meriden on July 10, 2009. The first
two counts of the four count complaint were directed
at Raffy’s Cafe´ and its proprietor, Robles. The first count
sounded in dram shop liability, and the second sounded
in common-law recklessness.3
The last two counts of the complaint were directed
at the defendant. The third count sought recovery on
the theory that the defendant’s intentional conduct
wrongfully caused Brown’s death. The fourth count
alleged that the defendant’s negligence wrongfully
caused Brown’s death.
On August 30, 2010, the defendant filed an appear-
ance, representing himself. The defendant also had been
arrested and charged with murder as a result of the
stabbing incident. Consequently, this civil matter and
the defendant’s criminal case were occurring simultane-
ously. However, the criminal matter concluded on
August 26, 2011, when the trial court rendered a judg-
ment of conviction and sentenced the defendant to fifty
years of incarceration in accordance with the jury’s
guilty verdict. At no point during the duration of the
criminal proceedings did the defendant file a responsive
pleading in this civil matter.
Even after the criminal matter concluded, the defen-
dant neglected to file any responsive pleading to the
plaintiff’s complaint. Accordingly, on October 13, 2011,
nearly two months after the conclusion of the criminal
case, the plaintiff filed a motion for default for failure
to plead. On October 20, 2011, the clerk granted that
motion.
Three years later, on November 21, 2014, the plaintiff
filed a certificate of closed pleadings and requested a
hearing in damages. In the three year period between
the entering of the default and the closing of the plead-
ings, the defendant neither filed a responsive pleading
nor sought to set aside the default. However, the defen-
dant filed his first motion to dismiss during that period,
on May 7, 2014. The plaintiff objected to the defendant’s
first motion to dismiss on June 4, 2014, and the court
sustained the objection on June 23, 2014. The defendant
has not challenged the court’s ruling with respect to
the first motion to dismiss.
On December 8, 2014, after the plaintiff already had
filed a certificate of closed pleadings, the defendant
filed a motion to set aside the default. The court denied
that motion on December 22, 2014.
Subsequently, on December 26, 2014, the defendant
filed a second motion to dismiss. In that motion, he
argued that the court lacked subject matter jurisdiction.
On February 5, 2015, the defendant, who was incarcer-
ated, filed an application for a writ of habeas corpus
ad testificandum4 seeking permission to attend court
for a hearing on this motion. The court granted the
application. Thereafter, on February 9, 2015, the defen-
dant attended the hearing on the motion. Following the
hearing, on April 6, 2015, the court issued a memoran-
dum of decision denying the motion. The defendant has
challenged the court’s denial of his second motion to
dismiss in this appeal.
On April 27, 2015, the court held a hearing in damages.
As with the hearing on his second motion to dismiss, the
defendant was incarcerated at the time of the hearing in
damages. However, unlike the hearing on his second
motion to dismiss, the defendant did not file an applica-
tion for a writ of habeas corpus ad testificandum. Con-
sequently, the defendant did not appear at the hearing in
damages. As a result of the hearing, the court rendered
judgment in favor of the plaintiff, awarding $9217.74 in
economic damages and $1,292,200 in noneconomic
damages.
On June 15, 2015, the defendant filed a motion for a
new trial, to which the plaintiff objected on June 23,
2015. The court sustained the plaintiff’s objection on
July 7, 2015. This appeal followed.
I
MOTION TO DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION
The defendant claims that the trial court erred in
denying his motion to dismiss for lack of subject matter
jurisdiction. Specifically, the defendant argues that the
court improperly rejected the following five attacks on
the court’s subject matter jurisdiction: (1) the plaintiff’s
probate certificate authorizing her to bring this lawsuit
as administratrix was invalid because it lacked the valid
raised seal of the Probate Court; (2) the probate certifi-
cate itself did not authorize the plaintiff to bring this
suit; (3) the defendant was entitled to ‘‘sovereign immu-
nity’’ from suit; (4) principles of double jeopardy barred
this suit; and (5) by granting summary judgment for the
codefendants, Raffy’s Cafe´ and Robles, the court also
was required to dismiss the counts against the defen-
dant. The plaintiff responds that none of these grounds
deprived the court of subject matter jurisdiction. We
agree with the plaintiff.
We first set forth our standard of review. ‘‘Our stan-
dard of review of a trial court’s findings of fact and
conclusions of law in connection with a motion to dis-
miss is well settled. A finding of fact will not be dis-
turbed unless it is clearly erroneous. . . . [If] the legal
conclusions of the court are challenged, we must deter-
mine whether they are legally and logically correct and
whether they find support in the facts . . . . Thus, our
review of the trial court’s ultimate legal conclusion and
resulting [denial] of the motion to dismiss will be de
novo.’’ (Internal quotation marks omitted.) Property
Asset Management, Inc. v. Lazarte, 163 Conn. App. 737,
746, 138 A.3d 290 (2016).
The first jurisdictional defect alleged by the defen-
dant is that the plaintiff’s probate certificate ‘‘lacks the
court of probate seal impressed on the certificate, as
required by the certificate.’’ We conclude that this claim
lacks merit. The trial court found, after examining the
probate certificate, that the certificate in fact contained
the proper probate seal. The defendant has presented
nothing to show that the trial court’s finding, based on
its review of the probate certificate, was clearly
erroneous.
The defendant’s second alleged jurisdictional defect
is that the plaintiff’s probate certificate, which states
that the ‘‘fiduciary has no power to buy, sell, or with-
draw assets of the estate,’’ prohibits the plaintiff from
bringing this suit. However, the trial court found that
the probate certificate expressly authorizes the plaintiff
to bring this suit because it provides that ‘‘[t]he fiduciary
may . . . make claims on behalf of the estate.’’ More-
over, the court also concluded that ‘‘the plaintiff’s civil
action is an exercise of one of the express powers
granted to the fiduciary by General Statutes § 45a-234
(18).’’ See General Statutes § 45a-234 (18) (administra-
trix of estate has authority to ‘‘compromise, adjust,
arbitrate, sue on or defend, abandon, or otherwise deal
with and settle claims in favor of or against . . . estate
or trust as [she] shall deem advisable’’). After reviewing
the record, we conclude that the court’s determination
that the plaintiff had the authority to bring this suit is
legally correct and factually supported.
The defendant’s third attack on the trial court’s sub-
ject matter jurisdiction is that he was immune from
suit by virtue of ‘‘sovereign immunity.’’ Specifically, the
thrust of the defendant’s claim is that he is a ‘‘sovereign
in [his] own realm’’ because he is a ‘‘noncorporate
human being.’’ Consequently, according to the defen-
dant, this status as ‘‘a sovereign’’ means that he is not
subject to the jurisdiction of our courts, which are
‘‘arms’’ of ‘‘the Commercial Corporate State of Connect-
icut.’’ We agree with the trial court that the defendant
does not meet the criteria necessary to claim sover-
eign immunity.
‘‘[T]he fact that the state is not named as a defendant
does not conclusively establish that the action is not
within the principle which prohibits actions against the
sovereign without its consent. . . . The vital test is to
be found in the essential nature and effect of the pro-
ceeding. . . . [There are] four criteria [used in]
determin[ing] whether an action is in effect, one against
the state and cannot be maintained without its consent:
(1) a state official has been sued; (2) the suit concerns
some matter in which that official represents the state;
(3) the state is the real party against whom relief is
sought; and (4) the judgment, though nominally against
the official, will operate to control the activities of the
state or subject it to liability.’’ (Citation omitted; internal
quotation marks omitted.) Miller v. Egan, 265 Conn.
301, 308, 828 A.2d 549 (2003).
Our review of the record leads us to conclude that
the defendant’s claim is without merit because he failed
to present any factual or legal support demonstrating
(1) that he is a state official, (2) that this suit concerns
a matter in which he represents the state, (3) that the
state is the real party, and (4) that the judgment will
operate to control the activities of the state or subject
it to liability. Simply put, this suit is an action that
was brought against a private person in his individual
capacity for monetary damages arising out of private
conduct. Accordingly, we conclude that the trial court’s
rejection of the defendant’s sovereign immunity claim
was legally correct and factually supported.5
The defendant’s fourth attack on the trial court’s sub-
ject matter jurisdiction is essentially a claim that the
principles of double jeopardy bar this suit. Specifically,
the defendant argues: ‘‘[Since] the plaintiff’s appoint-
ment by the corporate state of Connecticut as admin-
istratrix makes her a[n] agent for the state, and the
plaintiff [is] [represented] by a commissioner/attorney
of the state . . . this civil suit [is] in fact the state
seeking to punish the defendant twice for the same
[conduct] as in his criminal case . . . .’’ We agree with
the trial court that the protections against double jeop-
ardy are not implicated in this case.
‘‘It is well settled that prosecutions or convictions for
double jeopardy purposes arise only from proceedings
that are essentially criminal.’’ (Emphasis added; inter-
nal quotation marks omitted.) State v. Burnell, 290
Conn. 634, 645, 966 A.2d 168 (2009). ‘‘A proceeding is
criminal for double jeopardy purposes, if it imposes a
sanction intended as punishment.’’ (Emphasis added.)
State v. Smith, 207 Conn. 152, 176, 540 A.2d 679 (1988).
The instant proceeding, which is a civil lawsuit, is not
criminal because the state is not seeking to criminally
punish the defendant. Rather, a private party is seeking
recovery of monetary damages pursuant to a civil cause
of action. Therefore, contrary to the defendant’s con-
tention, jeopardy does not attach to this civil action.
Accordingly, we conclude that the trial court’s determi-
nation that double jeopardy principles did not deprive
it of subject matter jurisdiction was legally correct and
factually supported.6
The defendant’s final challenge to the trial court’s
subject matter jurisdiction is that the court was com-
pelled to dismiss the counts against him because it
previously granted summary judgment on the counts
against Raffy’s Cafe´ and Robles. In rejecting this con-
tention, the trial court reasoned: ‘‘[T]he court’s granting
of summary judgment applied only to the dram shop
claim in count one of the complaint and the reckless
service of alcohol claim in count two. . . . [The]
counts [directed against the defendant] turn on a differ-
ent set of facts, the veracity of which are unaffected
by the granting of summary judgment in favor of Raffy’s
Cafe´ and Robles.’’ After reviewing the record, we con-
clude that this determination was legally correct and
factually supported.
Accordingly, we conclude that the court properly
denied the defendant’s motion to dismiss for lack of
subject matter jurisdiction.
II
MOTION TO SET ASIDE THE DEFAULT
FOR FAILURE TO PLEAD
The defendant next claims that the trial court abused
its discretion in denying his motion to set aside the
default for failure to plead. Specifically, the defendant
asserts that his failure to plead was justified on the
following three grounds: (1) he was exercising his fifth
amendment right against self-incrimination; (2) requir-
ing him to plead in this case while he simultaneously
was facing criminal charges placed him under duress;
and (3) he mistakenly believed that an affidavit that he
provided to the codefendants for use with their motion
for summary judgment served as an answer to the plain-
tiff’s complaint. The plaintiff responds that the defen-
dant’s reliance on these three grounds is unavailing,
and, therefore, the trial court properly denied the
motion to set aside the default. We agree with the
plaintiff.
We first set forth our standard of review and the
relevant legal principles. ‘‘It is well established that [the]
determination of whether to set aside [a] default is
within the discretion of the trial court . . . [and] such
a determination will not be disturbed unless that discre-
tion has been abused or where injustice will result. In
the exercise of its discretion, the trial court may con-
sider not only the presence of mistake, accident, inad-
vertence, misfortune or other reasonable cause . . .
factors such as [t]he seriousness of the default, its dura-
tion, the reasons for it and the degree of contumacy
involved . . . but also, the totality of the circum-
stances, including whether the delay has caused preju-
dice to the nondefaulting party.’’ (Internal quotation
marks omitted.) Chevy Chase Bank, FSB v. Avidon, 161
Conn. App. 822, 833, 129 A.3d 757 (2015).
‘‘A motion to open a default for failure to plead is
governed by Practice Book §§ 17–32 and 17–42. The
opening of a default when a claim for a hearing in
damages has been filed is controlled by Practice Book
§ 17–42 because that is the rule of practice that
addresses the setting aside of a default by the judicial
authority. . . . The distinction between whether Prac-
tice Book § 17–32 applies or Practice Book § 17–42
applies is whether a claim for a hearing in damages is
filed before, or after, a motion to set aside the default
is filed.’’ (Footnote omitted; internal quotation marks
omitted.) Bohonnon Law Firm, LLC v. Baxter, 131
Conn. App. 371, 380, 27 A.3d 384, cert. denied, 303 Conn.
902, 31 A.3d 1177 (2011).7
In the present case, the defendant filed a motion
to set aside the default after the plaintiff already had
requested a hearing in damages. Therefore, the motion
to open in this case is governed by Practice Book § 17–
42. As such, the default could be set aside only after
the court found that good cause existed to set aside
the default. After reviewing the defendant’s grounds for
setting aside the default and the record as a whole, we
conclude that the trial court did not err in concluding
that the defendant failed to establish that there was
good cause for setting aside the default.
The defendant’s first ground is that he was excused
from pleading because he had been exercising his privi-
lege against self-incrimination in the criminal action
against him and in this civil action. We are unpersuaded.
Although the privilege against self-incrimination
affords a person ‘‘the right to refuse to answer questions
in a civil proceeding where the answers might incrimi-
nate him in a future criminal proceeding’’; Tyler v.
Shenkman-Tyler, 115 Conn. App. 521, 526, 973 A.2d
163, cert. denied, 293 Conn. 920, 979 A.2d 493 (2009);
it is ‘‘not self-executing [and] must be expressly invoked
at the time that allegedly incriminatory evidence is
sought to be compelled or introduced.’’ Dunham v.
Dunham, 217 Conn. 24, 32, 584 A.2d 445 (1991), over-
ruled on other grounds by Santopietro v. New Haven,
239 Conn. 207, 682 A.2d 106 (1996).
‘‘A [party] may not use the privilege [against self-
incrimination] as a sword freeing him from his civil
discovery obligations and his responsibilities at trial.’’
United States v. Talco Contractors, Inc., 153 F.R.D. 501,
505 (W.D.N.Y. 1994). ‘‘The privilege applies not only at
trial but also at the pleading stage. . . . However, . . .
a proper invocation of the privilege [does not] mean
that a defendant is excused from the requirement to
file a responsive pleading; he is obliged to answer those
allegations that he can and to make a specific claim of
the privilege as to the rest. . . . [The privilege] pro-
tects an individual not only from involuntarily becoming
a witness against himself in a criminal proceeding but
also from answering specific allegations in a complaint.
. . . But for one to invoke this privilege the party claim-
ing it must not only affirmatively assert it, he must do
so with sufficient particularity to allow an informed
ruling on the claim. . . . [A] blanket refusal to answer
or respond [i]s not sufficient [to invoke the privilege.]’’
(Citations omitted.) North River Ins. Co. v. Stefanou,
831 F.2d 484, 486–87 (4th Cir. 1987); see also Beth Israel
Medical Center v. Smith, 576 F. Supp. 1061, 1072
(S.D.N.Y. 1983) (‘‘The defendants, of course, are entitled
to assert their Fifth Amendment privilege in their
answer. It is equally plain, however, that an answer
must be filed and a decision made whether and to what
extent the defendants wish to assert the privilege.’’).
Here, the record reveals that the defendant never
affirmatively asserted a specific claim of the privilege
against self-incrimination prior to filing his motion to
set aside the default. Rather, he simply failed to file
any pleading responding to the allegations set forth in
the plaintiff’s complaint. The failure to do so was not
excused by virtue of the defendant’s purported—but
never properly asserted—claim of privilege. Conse-
quently, the trial court reasonably determined that the
defendant’s purported invocation of the privilege
against self-incrimination was not good cause justifying
the opening of the default.
Moreover, the fact that this civil action was pending
while the defendant’s criminal trial was occurring does
not excuse his failure to timely assert the privilege. The
record reveals that the defendant had ample time to
assert his privilege after the criminal trial concluded.
The defendant was sentenced on August 26, 2011, and
the plaintiff did not file a motion for a default until two
months later.
Furthermore, after the clerk entered a default on
October 20, 2011, more than three years passed before
the plaintiff filed a certificate of closed pleadings and
requested a hearing in damages on November 21, 2014.
During that period, the defendant could simply have
filed an answer to the plaintiff’s complaint, and, pursu-
ant to Practice Book § 17–32; see footnote 7 of this
opinion; the clerk would have been required to open
the default. We note that the defendant certainly was
not incapable of filing this or any other motion, as the
record reflects that he made other filings during this
period, including his first motion to dismiss. He simply
never attempted to cure his default by filing an answer,
nor did he, in this civil action, properly assert his privi-
lege against self-incrimination.
Accordingly, it was reasonable for the trial court to
conclude that the defendant’s purported invocation of
his privilege against self-incrimination was not good
cause excusing his failure to plead.
The defendant’s second ground for setting aside the
default is related to the defendant’s purported invoca-
tion of his privilege against self-incrimination. Specifi-
cally, the defendant argues: ‘‘The plaintiff brought suit
against . . . the defendant . . . while [he] was
awaiting his criminal trial for the same accusation, plac-
ing [him] under duress, so [he] chose to exercise his fifth
amendment right to silence during such time . . . .’’ We
are unpersuaded.
‘‘The classical or common law definition of duress
is any wrongful act of one person that compels a mani-
festation of apparent assent by another . . . without
his volition. . . . The defendant must prove: [1] a
wrongful act or threat [2] that left the victim no reason-
able alternative, and [3] to which the victim in fact
acceded, and that [4] the resulting transaction was
unfair to the victim.’’ (Citations omitted; internal quota-
tion marks omitted.) Chase Manhattan Mortgage Corp.
v. Machado, 83 Conn. App. 183, 189, 850 A.2d 260 (2004).
After reviewing the record, we conclude that the
defendant failed to present the trial court with any
factual or legal basis supporting the duress claim. The
defendant’s claim does not satisfy a critical element of
duress because there was no evidence presented of a
wrongful act or threat undertaken by the court or a
party to the action. To begin, it was not ‘‘wrongful’’ for
the plaintiff to maintain this civil action and to expect
the defendant to file a pleading responding to the allega-
tions in her complaint. Indeed, as previously explained,
notwithstanding his purported invocation of the privi-
lege against self-incrimination, the defendant still was
required to file a responsive pleading and could be held
in default for failing to do so. Thus, it also was not
‘‘wrongful’’ for the court to require the defendant’s com-
pliance with the rules of practice governing pleading
in civil actions.
More fundamentally, the alleged source of duress was
the simultaneous occurrence of this civil action and
the criminal action. However, once the defendant was
sentenced in the criminal action, the alleged source of
that duress necessarily was eliminated. As previously
explained, the defendant could have filed an answer
during the two month period separating the sentencing
and the entering of a default; he also could have cured
the default simply by filing an answer during the three
year period separating the entering of a default and
the plaintiff’s request for a hearing in damages. He did
neither. Accordingly, we conclude that the trial court
reasonably rejected that this claim of duress was good
cause excusing the defendant’s failure to plead.
The defendant’s third ground for setting aside the
default is that he believed that he filed an answer by
providing an affidavit8 to Raffy’s Cafe´ and Robles for
use with their motion for summary judgment. Like the
trial court, we are not persuaded by this claim. As an
initial matter, the defendant has failed to identify any
authority or rule of practice providing that an affidavit
attached to another party’s summary judgment motion
can be construed as the legal equivalent of an answer.
Nevertheless, even if we were to construe the defen-
dant’s submission of the affidavit as an attempt to file
an answer, we would conclude that it failed to respond
sufficiently to the allegations actually directed at the
defendant. As previously set forth, two of the com-
plaint’s four counts were directed at the defendant and
alleged that he intentionally or negligently caused
Brown’s death by stabbing him. The complaint’s
remaining two counts were directed at Raffy’s Cafe´
and Robles and alleged that Raffy’s Cafe´ served the
defendant alcohol on the night of the incident. Although
the affidavit addressed the allegations relating to the
service of alcohol by Raffy’s Cafe´, it did not address at
all the allegations relating to the defendant’s stabbing
of Brown. Therefore, our review of the record leads us
to conclude that, even when taking into consideration
the affidavit, the defendant never made any filing that
reasonably could be construed as answering the opera-
tive allegations made against him. Accordingly, the trial
court reasonably determined that the defendant’s pur-
ported mistaken belief regarding his affidavit was not
good cause excusing his failure to plead.
After reviewing the record as a whole, we conclude
that the trial court reasonably determined that the
defendant failed to demonstrate good cause for setting
aside the default. Although the defendant was incarcer-
ated and facing criminal charges when this civil action
commenced, he had ample time after his criminal trial
concluded to cure the default simply by filing a respon-
sive pleading. We are mindful ‘‘that although we allow
[self-represented] litigants some latitude, the right of
self-representation, however, provides no attendant
license not to comply with relevant rules of procedural
and substantive law.’’ (Internal quotation marks omit-
ted.) Chevy Chase Bank, FSB v. Avidon, supra, 161
Conn. App. 834 n.7. Accordingly, the trial court’s denial
of the defendant’s motion to set aside the default for
failure to plead was not an abuse of discretion.
III
MOTION FOR A NEW TRIAL
The defendant’s final claim is that the trial court
improperly denied his motion for a new trial. In particu-
lar, he argues that the court erred in rejecting his claim
that a new trial should have been ordered on the
grounds that he was denied a reasonable opportunity
to appear and defend the suit, that new evidence was
discovered, and that the judgment was obtained
through fraud. The plaintiff responds that the trial court
did not abuse its discretion in denying the defendant’s
motion for a new trial because none of the defendant’s
asserted grounds warranted the ordering of a new trial.
We agree with the plaintiff.9
‘‘[O]ur standard of review of the trial court’s denial
of a motion for a new trial is limited to a determination
of whether, by such denial, the court abused its discre-
tion. . . . As a reviewing court considering the trial
court’s decision granting or denying a motion for a new
trial, we must be mindful of the trial judge’s superior
opportunity to assess the proceedings over which he
or she has personally presided.’’ (Citations omitted;
internal quotation marks omitted.) In re James L., 55
Conn. App. 336, 345, 738 A.2d 749, cert. denied, 252
Conn. 907, 743 A.2d 618 (1999).
‘‘[A] party is entitled to a new trial on the ground of
newly discovered evidence if such evidence is, in fact,
newly discovered, will be material to the issue on a new
trial, could not have been discovered and produced, on
the trial which was had, by the exercise of due diligence,
is not merely cumulative and is likely to produce a
different result. . . . New trials are not granted upon
newly discovered evidence which discredits a witness
unless the evidence is so vital to the issues and so
strong and convincing that a new trial would probably
produce a different result. . . . The basic question
which the trial court has to decide is whether upon all
the evidence an injustice had been done. In deciding
this question, the court has the exercise of a sound legal
discretion, and its action cannot be disturbed unless this
discretion has been abused.’’ (Internal quotation marks
omitted.) Id.‘‘Evidence is newly discovered if it was not available
at the time of trial, or it could not have been obtained
by the exercise of reasonable diligence.’’ Carter v. State,
159 Conn. App. 209, 223, 122 A.3d 720, cert. denied, 319
Conn. 930, 125 A.3d 204 (2015). ‘‘To entitle a party to
a new trial for newly-discovered evidence, it is indis-
pensable that he should have been diligent in his efforts
fully to prepare his cause for trial; and if the new evi-
dence relied upon could have been known with reason-
able diligence, a new trial will not be granted.’’ (Internal
quotation marks omitted.) LaCroix v. Glens Falls Ins.
Co., 107 Conn. App. 332, 335, 945 A.2d 489 (2008).
‘‘[O]ur Supreme Court [has] imposed four require-
ments on those seeking relief from a judgment secured
by fraud: (1) There must have been no laches or unrea-
sonable delay by the injured party after fraud was dis-
covered. (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 differ-
ent.’’ (Footnote omitted; internal quotation marks omit-
ted.) Duart v. Dept. of Correction, 116 Conn. App. 758,
769, 977 A.2d 670 (2009), aff’d, 303 Conn. 479, 34 A.3d
343 (2012).
‘‘The want of a reasonable opportunity to appear and
defend is ground for a new trial only when the movant
also establishes that a just defense in whole or in part
existed . . . .’’ (Internal quotation marks omitted.) In
re Juvenile Appeal (84-1), 1 Conn. App. 298, 301, 471
A.2d 662 (1984). ‘‘[A] motion for a new trial will not be
granted . . . on the ground of lack of opportunity to
defend unless a good defense existed.’’ Steve Viglione
Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 712, 462
A.2d 1037 (1983).
With the proper legal framework in mind, we now
consider the specific grounds asserted by the defendant
in his motion for a new trial. Although the parties have
characterized the defendant’s claim as asserting three
distinct grounds for a new trial, the claim appears to
assert only two grounds.10 We conclude that both of
those grounds are without merit.
The defendant’s first ground appears to blend the
theories of fraud and newly discovered evidence. The
thrust of the first ground is that law enforcement, the
state’s attorney, witnesses called by the state at the
defendant’s criminal trial, the judge who presided over
the criminal trial, and the plaintiff all participated in
‘‘conspiratorial fraud.’’ That is, pursuant to ‘‘a chain of
conspiracy,’’ these individuals fraudulently suppressed,
concealed, and withheld evidence favorable to the
defense during the defendant’s criminal trial. In particu-
lar, the defendant contends that (1) the state had sup-
pressed phone records and emergency calls from the
night of the stabbing; (2) the state had failed to provide
the defendant with part of the medical examiner’s
report concerning Brown’s autopsy; and (3) the affidavit
to the defendant’s arrest warrant had ‘‘omitted vital
essential facts’’ from several witness statements, phone
records, emergency calls, and the medical examiner’s
autopsy report. According to the defendant, the alleg-
edly suppressed and concealed evidence exculpates
him from Brown’s death.11 The defendant claims to have
acquired newly discovered evidence of the foregoing
‘‘conspiratorial fraud,’’ but it is unclear from the defen-
dant’s motion and brief when the defendant discovered
such new evidence.
After reviewing the record, we conclude that the trial
court did not abuse its discretion in rejecting the defen-
dant’s first ground for a new trial. Insofar as that ground
alleges fraud, the trial court reasonably could have con-
cluded that the defendant failed to meet his burden of
demonstrating that ‘‘[t]here [was] clear proof of the
[alleged] fraud.’’ Duart v. Dept. of Correction, supra,
116 Conn. App. 769. Our review of the record reveals
that the defendant failed to offer any evidence substanti-
ating his sundry and far-reaching allegations of ‘‘con-
spiratorial fraud.’’ More generally, those allegations
actually appear to attack the defendant’s criminal con-
viction, and the defendant fails to connect them to an
allegedly fraudulently procured judgment in this civil
action. Moreover, insofar as the defendant’s first ground
alleges that he acquired newly discovered evidence, the
trial court reasonably concluded that such allegations of
new evidence did not require the ordering of a new trial.
Assuming arguendo that the defendant did discover
evidence of fraud occurring in the criminal trial, he
failed to present the trial court with sufficient facts
demonstrating that such evidence was newly discov-
ered. The defendant’s motion for a new trial is unclear
as to when he discovered such evidence. At one point,
the defendant asserts that the evidence ‘‘was discovered
through this civil suit,’’ suggesting that he had acquired
the evidence in the course of this litigation and, thus,
could have used that evidence in this suit before judg-
ment was rendered. At another point, he contends that
he discovered the purported evidence ‘‘on or about
November 2012,’’ which was more than one year after
the defendant’s criminal trial ended. This date also was
approximately two years before the pleadings were
closed and twenty-nine months before the trial court
rendered judgment after holding a hearing in damages.
Irrespective of the precise date of discovery, the rep-
resentations in the defendant’s motion indicate that he
is claiming that the discovery occurred before a hearing
in damages was requested. Thus, his claim must fail
because he knew, or through due diligence could have
known, the alleged information before the lapse of the
opportunity to open the default and contest the plain-
tiff’s allegations. See Baker v. Whitnum-Baker, 161
Conn. App. 227, 243, 127 A.3d 330 (2015) (‘‘Even if the
information offered were presumed to be ‘evidence,’
the information was either already known or could have
readily been discovered through due diligence in
advance of the trial. . . . This ‘evidence,’ such as it is,
could have been discovered before the dissolution trial
began, and it does not warrant a new trial . . . .’’
[Emphasis added.]), cert. denied, 321 Conn. 922, 138
A.3d 282 (2016), petition for cert. filed (U.S. Sept. 6,
2016) (No. 16-8757).
The defendant’s second ground alleges that he was
deprived of a reasonable opportunity to appear and
defend the plaintiff’s claims. Specifically, he argues that
the trial court erred in failing to sua sponte issue a
writ of habeas corpus ad testificandum ordering the
department of correction to transport him from prison
to the hearing in damages. We conclude that the trial
court did not abuse its discretion in rejecting this claim.
First, the record reveals that the defendant failed to
establish that he had a just defense. See In re Juvenile
Appeal (84-1), supra, 1 Conn. App. 301 (‘‘[t]he want of
a reasonable opportunity to appear and defend is
ground for a new trial only when the movant also estab-
lishes that a just defense in whole or in part existed’’
[internal quotation marks omitted]). As previously
addressed in part I of this opinion, the trial court prop-
erly denied the defendant’s motion to set aside the
default entered against him for failure to plead. Criti-
cally, the defendant does not contend on appeal that he
lacked notice of the hearing in damages that occurred as
a result of his default. Even if the defendant had
appeared at the hearing in damages, however, he would
not have been able to contest liability. See Practice
Book § 17-34 (a) (‘‘[i]n any hearing in damages upon
default, the defendant shall not be permitted to offer
evidence to contradict any allegations in the plaintiff’s
complaint, except such as relate to the amount of dam-
ages, unless notice has been given to the plaintiff of
the intention to contradict such allegations . . . nor
shall the defendant be permitted to prove any matter
of defense, unless written notice has been given to the
plaintiff of the intention . . . to prove such matter of
defense’’); Practice Book § 17-35 (‘‘The notices required
by [§] 17-34 shall be [made in compliance with the rules
governing service of pleadings in civil actions]. . . .
[N]otice of defenses must be filed within ten days after
notice from the clerk to the defendant that a default
has been entered.’’). Accordingly, having failed to pro-
vide the proper notice of his intention to contradict
the plaintiff’s allegations or to present a defense, the
defendant cannot establish that he would have had a
proper defense at the hearing in damages.
Second, the record reveals that the defendant’s
absence at the hearing in damages was the result of his
own failure to exercise due diligence. See Jacobs v.
Fazzano, 59 Conn. App. 716, 724, 757 A.2d 1215 (2000)
(‘‘[d]ue diligence is a necessary condition to success in
prosecuting a [motion] for a new trial’’). Again, the
defendant does not claim on appeal that he lacked
notice of the hearing in damages.
Furthermore, the trial court indicated at the hearing
in damages that it believed that the defendant could
have taken the necessary steps to attend the hearing:
‘‘I’ll note for the record, [the defendant] had the oppor-
tunity to be here. He didn’t file a [m]otion for a [h]abeas
to bring him in. He had done so in the past. So, he’s
fully aware of the ability to do that.’’ Indeed, the record
reveals that the defendant previously had filed an appli-
cation for a writ of habeas corpus ad testificandum
requesting transportation to court for oral argument on
his motion to dismiss. Thus, the trial court reasonably
could have concluded that the defendant knew how to
arrange for his appearance in court and that his failure
to do so with respect to the hearing in damages resulted
from him not acting diligently.12
Accordingly, we conclude that the trial court did not
abuse its discretion in denying the defendant’s motion
for a new trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Raffy’s Cafe´ I, LLC, doing business as Raffy’s Cafe´, and Rafael Robles
also were cited as party defendants in this action, but they are not involved
in this appeal. Therefore, we refer to Bennett as the defendant in this opinion.
2
The defendant does not present his challenge to the denial of his motion
to dismiss as the first claim in his brief. However, because that motion
implicates subject matter jurisdiction, we address the denial of his motion
as a threshold issue.
3
Raffy’s Cafe´ and Robles moved for summary judgment on these two
counts, and the trial court granted their motion.
4
A writ of habeas corpus ad testificandum is ‘‘[a] writ used in civil and
criminal cases to bring a prisoner to court to testify.’’ Black’s Law Dictionary
(10th ed. 2014).
5
We note that the defendant’s ‘‘sovereign immunity’’ claim more resembles
a ‘‘sovereign citizen’’ argument than a traditional invocation of sovereign
immunity. ‘‘The sovereign citizens are a loosely affiliated group who believe
that the state and federal governments lack constitutional legitimacy and
therefore have no authority to regulate their behavior.’’ United States v.
Ulloa, 511 Fed. Appx. 105, 106 n.1 (2d Cir. 2013). ‘‘Th[is] defense has no
conceivable validity in American law.’’ (Internal quotation marks omitted.)
United States v. Jonassen, 759 F.3d 653, 657 (7th Cir. 2014), cert. denied,
U.S. , 136 S. Ct. 152, 193 L. Ed. 2d 114 (2015).
6
Noting that ‘‘[t]he defense of collateral estoppel is a civil law analogue
to the criminal law’s defense of double jeopardy’’; (internal quotation marks
omitted) Wiacek Farms, LLC v. Shelton, 132 Conn. App. 163, 167 n.4, 30
A.3d 27 (2011), cert. denied, 303 Conn. 918, 34 A.3d 394 (2012); the trial
court also addressed whether the principles of collateral estoppel deprived
the court of jurisdiction. We conclude that the court’s determination that
‘‘collateral estoppel . . . is not a ground to challenge the court’s subject
matter jurisdiction’’ was correct. See, e.g., State v. T.D., 286 Conn. 353, 360
n.6, 944 A.2d 288 (2008) (‘‘[T]he doctrine of collateral estoppel does not
implicate a court’s subject matter jurisdiction. . . . Even when applicable,
therefore, collateral estoppel does not mandate dismissal of a case.’’ [Cita-
tions omitted.]).
7
Practice Book § 17-42 provides in relevant part: ‘‘A motion to set aside
a default where no judgment has been rendered may be granted by the
judicial authority for good cause shown . . . .’’
Practice Book § 17-32 (b) provides in relevant part: ‘‘If a [defendant] who
has been defaulted under this section files an answer before a judgment
after default has been rendered by the judicial authority, the default shall
automatically be set aside by operation of law unless a claim for a hearing
in damages . . . has been filed.’’
8
Raffy’s Cafe´ and Robles successfully moved for summary judgment on
the counts directed at them that sounded in dram shop liability and reckless
service of alcohol. They had argued that they were not liable for Brown’s
death because it was undisputed that they did not serve the defendant
alcohol on the night of the stabbing. The defendant apparently agreed to
provide them with an affidavit wherein he attested to, in pertinent part, the
following: ‘‘On July 10, 2009, I was the owner of 159 Springdale Avenue,
Meriden, Connecticut. . . . Raffy’s Cafe´ is located directly adjacent to 159
Springdale Avenue, Meriden, Connecticut, with only a small driveway sepa-
rating the properties. . . . In the roughly three- to four-hour period before
11:30 p.m. on July 10, 2009, I had been hanging out in the parking area of
159 Springdale Avenue. . . . At no time did I enter Raffy’s Cafe´ on July 10,
2009. . . . At no time did anyone from Raffy’s Cafe´ serve alcohol to me on
July 10, 2009.’’
9
The defendant’s pleading that requested a new trial was entitled ‘‘Petition
for a New Trial.’’ (Emphasis added.) The trial court, however, characterized
the pleading as a motion for a new trial. Although the defendant called the
pleading ‘‘Petition for a New Trial,’’ ‘‘[w]hen a case requires the court to
determine the nature of a pleading, courts are not required to accept the
label affixed by the moving party.’’ Redding v. Elfire, LLC, 98 Conn. App.
808, 818, 911 A.2d 1141 (2006). After reviewing the record, we conclude that
the pleading was ‘‘the functional equivalent of a motion, not a petition.’’ Id.,
816; see also id., 819–20 (pleading called ‘‘petition for a new trial’’ was
properly treated as motion for new trial where pleading, although served
upon adverse party, was not filed in separate action and was denied rather
than dismissed by trial court). Specifically, we note: (1) the defendant did
not serve the pleading upon the plaintiff by writ and complaint; (2) the
defendant did not commence a separate proceeding by filing it in a new
action instead of the action for which he was seeking a new trial; and (3)
the trial court treated it as a motion by referring to it as a ‘‘motion’’ and by
denying it rather than dismissing it.
10
As explained in more detail below, we address the defendant’s allega-
tions of fraud and newly discovered evidence together because the gravamen
of the defendant’s claim is that he acquired newly discovered evidence
of fraud.
11
For instance, the defendant asserts that the phone records call into
doubt whether he was present at the time of the stabbing. Regarding the
medical examiner’s report, the defendant claims that the state suppressed
seven pages wherein it was supposedly concluded that Brown’s cause of
death was a gunshot wound. Furthermore, he asserts that the allegedly
suppressed emergency calls demonstrate that the arrest warrant omitted
that an emergency caller reported that she (1) saw someone other than the
defendant push Brown during the altercation; (2) heard a gunshot; and (3)
saw and heard someone other than the defendant make a phone call after
the stabbing and admit to killing Brown.
12
The defendant has not identified any authority imposing a duty on the
court to arrange for an incarcerated self-represented party’s appearance in
a civil matter by issuing, sua sponte, a writ of habeas corpus ad testificandum.
Likewise, we are unaware of any such authority. We do note, nevertheless,
that the decisional law appears to suggest that no such duty exists.
In McDuffee v. McDuffee, 39 Conn. App. 412, 664 A.2d 1164 (1995), an
incarcerated party in postjudgment dissolution proceedings claimed that
the trial court’s refusal to grant her a continuance for child custody hearings
violated her due process rights. Id., 415. In rejecting this claim, this court
reasoned: ‘‘[The appellant] confuses her own inaction in failing to arrange
to be present or to provide testimony at the hearing with an affirmative
action by the trial court denying her the right to be present. This is a private
custody dispute, and the court did nothing to prevent the [appellant] from
appearing. The record is devoid of any indication that the [appellant] availed
herself of any of the procedures that would have allowed her to provide
evidence or to be present.’’ (Emphasis omitted; footnote omitted.) Id., 416.
We noted that procedures that the appellant could have used in securing
her appearance at the hearings included ‘‘seek[ing] a writ of habeas corpus
ad testificandum.’’ Id., 416 n.5. See also In re J.F., 113 S.W.3d 698, 701 (Mo.
App. 2003) (‘‘[a] . . . court is not obligated to order, sua sponte, an inmate’s
appearance at a hearing in a civil case [to which he is a party]’’ [internal
quotation marks omitted]); cf. Muhammad v. Warden, Baltimore City Jail,
849 F.2d 107, 111–12 (4th Cir. 1988) (‘‘Ideally, . . . a [party] should be
present . . . [because] [n]ot only the appearance but the reality of justice
is obviously threatened by his absence. The law recognizes this of course,
but it also recognizes that there are countervailing considerations of expense,
security, logistics, and docket control that prevent according prisoners any
absolute right to be present.’’); In re Colburn, 30 Ohio St. 3d 141, 141–42,
507 N.E.2d 1138, 1139–40 (1987) (‘‘[t]he rule advanced here and elsewhere
governing issuance of the writ [of a habeas corpus ad testificandum] in civil
actions is that a litigant, including a [self-represented] prisoner, whether
plaintiff or defendant, does not have an absolute right to issuance of the
writ’’ [footnote omitted]).