Yeong Gil Kim v. Magnotta

Opinion HENNESSY, J. The plaintiffs, Yeong Gil Kim and Hi-Soon Seo Kim, appeal from the trial court’s denial of their motion for rescission of the underlying stipulated — 205 — judgment. The named defendant, Dominick Magnotta,1 cross appeals from the denial of his motion for a directed verdict and his motion to set aside the jury verdict of a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.2 We affirm the judgment of the trial court. On December 5, 1989, the plaintiffs purchased a car wash business from Raindance, Inc., a corporation owned and controlled by the defendant, for a purchase price of $903,000.3 In addition, the plaintiffs entered into a twenty-five year lease of the premises, fixtures and personalty located at 938 West Main Street, Bran-ford, with a monthly rental payment of $3000. The plaintiffs operated the Branford car wash for the next eighteen months, during which time they fell into arrears on both the rent and note payments. The defendant subsequently brought a summary process action against the plaintiffs. The plaintiffs stipulated to the entry of judgment against them in the amount of $436,743.49 owed under the note, $294.10 in costs, $11,854.69 in rental payments owed and the voluntary surrender of possession of the Branford car wash to the defendant. On December 4, 1992, the plaintiffs filed a complaint against the defendant for fraud, theft4 and violation of CUTPA. The complaint alleged that the plaintiffs were — 206 — induced into purchasing the car wash by the fraudulent misrepresentations of the defendant as to the volume of cars serviced, operating expenses, and past and future gross earnings. In addition, the plaintiffs claim that while the summary process action was pending, the defendant offered to settle if the plaintiffs voluntarily surrendered possession of the Branford car wash and stipulated to the entry of judgment for the full amount due under the note. In exchange, the defendant would forgive all debts relating to the Branford car wash, including the release of the stipulated judgment, pay the attorney’s fees the plaintiffs incurred in connection with the summary process action and transfer title to another car wash located in Hamden to the plaintiffs. The plaintiffs agreed and a stipulated judgment was entered. The plaintiffs claim that the defendant failed to forgive all debts owed, to pay all attorney’s fees and to transfer title to the Hamden car wash. The case was bifurcated at trial, with the jury deciding the issue of liability on all counts and the trial court deciding the remedy should the plaintiffs prevail. On August 25, 1995, the jury returned a verdict in favor of the defendant on the counts of fraud and theft, and in favor of the plaintiffs on the count of a violation of CUTPA. The defendant cross appeals from the denial of his motion for a directed verdict and his motion to set aside the verdict in connection with the CUTPA claim. The trial court then considered the issue of relief. The plaintiffs requested restitution, rescission of the stipulated judgment, punitive damages and attorney’s fees. The court found that restitution was the proper remedy and rendered judgment in the amount of $483,000.5 The court declined to rescind the stipulated — 207 — judgment, reasoning that the four month limitation provided in General Statutes § 52-212a6 and Practice Book § 3267 operated as a bar, absent a showing of fraud, duress, accident or mistake. The jury declined to find fraud, and the court found no duress, accident or mistake. The plaintiffs appeal from the denial of their request for rescission. I The plaintiffs claim that the trial court improperly denied their request for rescission of the stipulated judgment. They claim that the court had jurisdiction to rescind the stipulated judgment and that rescission was an appropriate equitable remedy for a CUTPA violation. We disagree. “A stipulated judgment is not a judicial determination of any litigated right. New York Cent. & H. R. R. Co. v. T. Stuart & Son Co., 260 Mass. 242, 248, 157 N.E. 540 [1927]; Dulles v. Dulles, 369 Pa. 101, 107, 85 A.2d 134 [1952]. It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. Owsiejko v. American Hardware Corporation, 137 Conn. 185, 187, 75 A.2d 404 [1950]; Risk v. Director, 141 Neb. 488, 496, 3 N.W.2d 922 [1942], [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy. 3 Freeman, — 208 — Judgments (5th Ed.) p. 2774. The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement. Harter v. King County, 11 Wash. 2d 583, 591, 119 P.2d 919 [1941].” (Internal quotation marks omitted.) Gillis v. Gillis, 214 Conn. 336, 339-40, 572 A.2d 323 (1990). General Statutes § 52-212a provides that “[u]nless otherwise provided 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. . . .” Practice Book § 326, now Practice Book (1998 Rev.) § 17-4, is essentially the same as § 52-212a. See footnote 6. It is well recognized that a failure to file a motion to open a judgment within four months deprives the trial court of jurisdiction to open the judgment. See Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 558, 468 A.2d 1230 (1983); Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 465, 440 A.2d 159 (1981). “In Celanese Fiber, our Supreme Court held that a trial court lacked jurisdiction to open the judgment unless the otherwise provided by law exception applies. Celanese Fiber v. Pic Yarns, Inc., supra, 465. Unless the parties waive this time limitation, the trial court lacks jurisdiction to entertain a motion to open filed more than four months after a decision is rendered. Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985); Gallagher v. Gallagher, 29 Conn. App. 482, 483, 616 A.2d 281 (1992).” (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Tarro, 37 Conn. App. 56, 59, 654 A.2d 1238 (1995). — 209 — “There are few exceptions to the general rule. The court does have jurisdiction to open a stipulated judgment, on a motion, even after the four month period has elapsed if the movant can show that the judgment was obtained by fraud, duress, accident or mistake. Solomon v. Keiser, 22 Conn. App. 424, [427] 577 A.2d 1103 (1990). Accordingly, Practice Book § 326 does not prevent the later reopening of a judgment obtained by fraud, by mutual mistake or by actual absence of consent. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980).” Citicorp Mortgage, Inc. v. Tarro, supra, 37 Conn. App. 59. In the present case, the plaintiffs failed to file a motion to open the stipulated judgment and to request rescission within four months of the entry of judgment. In the absence of fraud, mistake, duress or accident,8 the trial court was without jurisdiction to order rescission of the stipulated judgment. The plaintiffs raise three arguments to support their claim that the trial court had jurisdiction to rescind the stipulated judgment. Each is without merit. First, the plaintiffs assert that § 52-212a and Practice Book § 326 do not apply to their request for rescission of the stipulated judgment because they did not make the request through a motion to open or set aside the judgment. The plaintiffs misconstrue the language of those two sections. Contrary to the plaintiffs’ assertions, Practice Book § 326 and § 52-212a do not merely concern time limitations on a motion to open or set aside a judgment, but concern the judgment itself. They provide that a civil judgment or decree rendered in the Superior Court “may not be opened or set aside” (emphasis added) whether through a motion to open or set aside the verdict or — 210 — through a request for rescission unless the request is made within four months of entry of judgment. The plaintiffs next assert that the court had independent jurisdiction to open the judgment because they brought a separate action seeking rescission of the judgment. Absent waiver, consent or other submission to jurisdiction, the trial court lacked personal jurisdiction over the defendant after the expiration of the four month period provided in Practice Book § 326 and § 52-212a. See O’Leary v. Industrial Park Corp., 211 Conn. 648, 652-53 n.2, 560 A.2d 968 (1989). This court knows of no authority for the assertion that personal jurisdiction over a defendant in one case confers personal jurisdiction over the defendant in a separate case. It is clear that the plaintiffs cannot confer personal jurisdiction over the defendant, with regard to the stipulated judgment, merely by filing a separate civil action. The plaintiffs finally claim that the “otherwise provided by law” exception in the statute and rule of practice applies, and that the court was not bound by the four month limitation. “A trial court has only limited authority to modify its judgments. Practice Book § 326 provides in part that ‘[u]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any 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 succeeding the date on which it was rendered or passed.’ . . . See General Statutes § 52-212a. “Contrary to the plaintiffs’ assertion, the trial court’s authority was not ‘otherwise provided by law.’ This is not a case in which the legislature has provided the trial court with the statutory authority to modify its previous judgment even after the four month period provided for in Practice Book § 326. See, e.g., General — 211 — Statutes § 46b-86 (the modification of alimony or support orders and judgments can be made ‘at any time’). Nor is this a situation in which the common law has provided the trial court with continuing jurisdiction. See, e.g., Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969) (‘[i]t cannot be doubted that courts have inherent power to change or modify their own injunctions where circumstances or pertinent law have so changed as to make it equitable to do so’).” O’Leary v. Industrial Park Corp., supra, 211 Conn. 652-53 n.2. II The defendant cross appeals from the denial of his motion for a directed verdict and his motion to set aside the jury’s verdict of a violation of CUTPA. We affirm the judgment of the trial court. A The defendant claims that the plaintiffs failed to present any evidence of damages necessary to support restitution.9 We disagree. General Statutes § 42-1 lOg (a) provides in relevant part: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages. . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper. ...” “While CUTPA damages need not be proven with absolute precision, the failure to present any evidence — 212 — concerning the nature and extent of the injury sustained precludes recovery under the statute.” A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 344, 576 A.2d 464 (1990). “We have stated that [t]he ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief. Hinchliffe v. American Motors Corp., 184 Conn. 607, 615, 440 A.2d 810 (1981). An ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed or established. . . . Id., 613. [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known. . . . Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss. Id., 614. A plaintiff need not prove a specific amount of actual damages in order to make out a prima facie case [under CUTPA], Id., 612-13.” (Internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 638-39, 698 A.2d 258 (1997). When a court grants the remedy of restitution, the defendant “is required to account for a benefit that has been conferred on him by the injured party. ... In contrast to cases in which the court grants specific performance or awards damages as a remedy for breach, the effort is ... to prevent unjust enrichment of the [defendant] ... by protecting the injured party’s restitution interest. ... E. A. Farnsworth, Contracts (1982) § 12.19, p. 905; 1 G. Palmer, The Law of Restitution (1978) § 4.1, p. 369; 3 Restatement (Second), Contracts §§ 344 (c) and 370 (1981); and see Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665-67, 368 A.2d 6 (1976); Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 (1959). When an injured party seeks an award of money to protect his restitutionary interest, any award may as justice requires be measured by either (a) the reasonable value to the other party of what he received ... or (b) the extent to — 213 — which the other party’s property has been increased in value or his other interests advanced. 3 Restatement (Second), [supra, § 371].” (Internal quotation marks omitted.) Bernstein v. Nemeyer, 213 Conn. 665, 673-74, 570 A.2d 164 (1990). In the present case, the trial court clearly had sufficient evidence to determine “(a) the reasonable value to the other party of what he received ... or (b) the extent to which the other party’s property has been increased in value or his other interests advanced.” 3 Restatement (Second), supra, § 371, p. 202. The court awarded $483,000 to the plaintiffs, which consisted of the return of the $453,000 paid as part of the purchase price and a $30,000 loan the plaintiffs had obtained because of cash flow problems caused by the car wash purchase. The defendant’s claim is without merit. B The defendant next asserts that the CUTPA claim could not be based on misrepresentations made by the defendant because the contract contained a specific disclaimer of any such representations. In addition, the defendant claims that the parol evidence rule barred the introduction of testimony regarding alleged misrepresentations as being in contravention of the express contractual provisions. We are unpersuaded. We decline to review the defendant’s first argument regarding the specific disclaimer because it was not raised in the trial court in the defendant’s motion for a directed verdict. “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to trial. . . .” Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5. Accordingly, we decline to consider this claim raised for the first time on appeal. — 214 — Certain additional facts are necessary to our resolution of the defendant’s second claim. The purchase contract provided in relevant part that “[t]he Buyer hereby further represents that no representations of any kind whatsoever [have] been made to him by the Seller or any representative or agent of the Seller as to the income of the car wash business conducted by Raindance, Inc.; nor has the Seller or [the defendant] made any other warranties, promises, covenants or representations of any kind whatsoever to the Buyer, without limitation, except as may be specifically set forth herein.” The defendant claims that any evidence of misrepresentation should not have been admitted or relied on by the court because its admission was precluded by the parol evidence rule. “The parol evidence rule prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract. Giorgio v. Nukem, Inc., 31 Conn. App. 169, 173-74, 624 A.2d 896 (1993); see also 2 Restatement (Second), [supra, § 213].” (Internal quotation marks omitted.) Foley v. Huntington Co., 42 Conn. App. 712, 733, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). “The defendant seems to claim that a party to a contract may, without liability, make such misrepresentations of fact as he chooses, provided the contract is afterwards reduced to writing and the misrepresentations are not included therein. This indicates a misconception of the parol evidence rule. The [plaintiffs are] not seeking to add to, subtract from, or alter, the terms of the written contract itself. Cohn v. Dunn, 111 Conn. 342, 345, 149 A. 851 [1930]; Nagel v. Modern Investment Corporation, 132 Conn. 698, 700, 46 A.2d 605 [1946]. [They are] claiming that [they were] induced to enter into the contract by misrepresentations of material facts. This action [was] concerned . . . with material misrepresentation in the inducement of the contract. Parol evidence is ordinarily admissible to — 215 — prove such misrepresentation. McLaughlin v. Thomas, 86 Conn. 252, 256, 85 A. 370 [1912]; Kiss v. Kahm, 132 Conn. 593, 595, 46 A.2d 337 [1946].” Presta v. Monnier, 145 Conn. 694, 700, 146 A.2d 404 (1958). “Since the evidence in question was offered to prove such misrepresentations, it was properly admissible notwithstanding the objection of the defendants that it tended to change the terms of a written agreement.” Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 521, 271 A.2d 69 (1970). The judgment is affirmed. In this opinion DALY, J., concurred. Footnotes [1] We refer in this opinion to the named defendant as the defendant. [2] General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” [3] The total purchase price of $903,000 consisted of a $3000 security deposit, a $90,000 payment made upon signing of the purchase agreement, $360,000 paid at the closing and a $450,000 promissory note secured by a chattel mortgage and payable over ten years at a rate of 10 percent interest per year with successive monthly payments of $5946.80. [4] General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.” [5] The award of $483,000 consisted of the return of the $453,000 paid as part of the purchase price and a $30,000 loan the plaintiffs had obtained because of cash flow problems caused by the car wash purchase. The court also awarded $80,000 to the plaintiffs in attorney’s fees. [6] General Statutes § 52-212a provides in relevant part: “Unless otherwise provided 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. . . .” [7] Practice Book § 326 (a), now Practice Book (1998 Rev.) § 17-4 (a), provides : “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any 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 succeeding the date on which notice was sent. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.” [8] The jury found in favor of the defendant on the claim of fraud. The plaintiffs did not claim and the trial court did not find duress, mutual mistake or actual absence of consent. [9] The defendant also claims that the plaintiffs failed to present evidence of damages necessary for their claims of unjust enrichment and rescission. The defendant is not aggrieved and has no standing to raise those claims because the trial court found for the defendant on the claim of unjust enrichment and denied rescission of the stipulated judgment. See Horton v. Hydra Systems International, Inc., 16 Conn. App. 420, 425, 547 A.2d 926 (1988). We decline to review these claims.