50 DAY STREET ASSOCIATES LIMITED PARTNERSHIP v. NORWALK HOUSING AUTHORITY.

2006 Ct. Sup. 1341
No. X08 CV 02 0191396 SConnecticut Superior Court Judicial District of Stamford-Norwalk Complex Litigation Docket at Stamford
January 23, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION FOR REARGUMENT AND RECONSIDERATION (165.00); MOTION TO OPEN JUDGMENT AND REOPEN THE EVIDENCE (167.00)
TAGGART D. ADAMS, JUDGE.

I. Background
On May 17, 2005 this court issued a memorandum of decision following a bench trial of the plaintiff 50 Day Street Associates Limited Partnership’s (50 Day Street) claims that the defendant Norwalk Housing Authority (NHA) was liable in damages for oil pollution of 50 Day Street’s property arising from leaks in one or more underground heating oil tanks owned by NHA and located at its Washington Village Housing Complex. In its decision the court determined there was insufficient evidence to prove that the oil contamination on the plaintiff’s property was caused by the leaks in NHA’s tanks. The court did find that 50 Day Street had proven that NHA had violated General Statutes § 22a-16 and that 50 Day Street was entitled to injunctive relief and reimbursement of some fees and costs.

50 Day Street has moved for reconsideration and reargument pursuant to Practice Book § 11-11 and has also moved to open the judgment and reopen the evidence pursuant to General Statutes §52-212a and Practice Book § 17-4. The basis for these motions is 50 Day Street’s contention that it was unfairly prejudiced by the allowance into evidence of certain opinions of NHA’s expert, Dr. Gordon Binkhorst, developed very shortly before trial and the further contention that “newly discovered material evidence on the issue of causation” should be allowed to be presented. This evidence is described as groundwater measurements taken almost eight months after the conclusion of evidence which are purported to undercut Dr. Binkhorst’s opinion that in the area of the underground tanks the groundwater flow was northward, away from the 50 Day Street property, and that the groundwater could not CT Page 1342 have transported the oil contamination on to 50 Day Street’s property.

II. Standards of Review
The Appellate Court has stated that “the purpose of reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.” Jaser v. Jaser, 37 Conn.App. 194, 202 (1995), quoting In Re Hooker’s Estate, 173 Misc. 515, 517, 18 N.Y.S.2d 107 (1940). There is no question that a trial court has the authority to reconsider a decision. See Practice Book §11-11; Lapuk v. Blount, 2 Conn. Cir.Ct. 271, 198 A.2d 233 cert. denied 151 Conn. 726 (1963). A trial court also has the authority to open a judgment. Practice Book § 17-4; see cases discussed i Gayle v. Young, Superior Court, judicial district of Fairfield, housing court, SPBR 9409-27973 (March 27, 1995, Tierney, K., J.)

50 Day Street contends, and this court does not disagree, that the same general standards are applied in determining a motion to reargue and a motion to open. Generally, those standards impose a heavy but not insuperable burden on the moving party. While such a motion “is not to be granted readily, nor without strong reasons, it may and ought to be when there appears cause for which the court acting reasonably would . . . feel bound in duty to do so.” McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164, 167(1927) (quotation marks and citation omitted); see als PRI Capital Group v. Eastern Capital Funding, LLC, Superior Court, judicial district of Middlesex, complex litigation docket, X04 CV 01 0103512 (March 26, 2004, Quinn, J.). Motions to reargue or to open judgment may be based on newly discovered evidence not previously discovered or discoverable. Hirtle v. Hirtle, 217 Conn. 394, 398 (1991). Such motions, however, are not designed to give a litigant just a “second bite of the apple.” PRI Capital Group v. Eastern Capital Funding, LLC, supra. A decision to reopen testimony rests within the sound discretion of the trial court, and the criteria for a court to open a judgment is analogous to the conditions required for a petition for a new trial based on grounds of newly discovered evidence. McIver v. Warden, 28 Conn.App. 195, 208 (1992).

III. Facts
The NHA property on which is located the Washington Village CT Page 1343 Housing Complex is situated to the north and east of the land parcel known as 50 Day Street owned by the eponymously named plaintiff. For many years three underground heating oil storage tanks serving Washington Village were located approximately 100 feet north of the plaintiff’s property. It was undisputed that at least one of the tanks leaked petroleum product into the surrounding ground before all the tanks were removed in 2003.

In its decision this court found that the migration of underground oil contaminants is generally controlled by the groundwater flow and the court found that 50 Day Street did not prove by a preponderance of the evidence that the groundwater flow was southward from the leaking tank on NHA property toward the 50 Day Street property. The groundwater elevation measurements taken in August and September 2004 showed the groundwater running northward, away from plaintiff’s property. The court also found that 50 Day Street had not proven this groundwater flow to be an anomalous or temporary condition. This last stated finding was directly contrary to the contention of 50 Day Street that the groundwater flow had been temporarily affected by the groundwater pumping activities undertaken in the spring of 2004 to remediate the pollution near the NHA underground tank sites. This contention was based on an opinion presented by Mr. Cluen, the plaintiff’s expert, that this pumping activity had reduced the groundwater elevation at and near the pumping area creating what he testified was an artificial cone of depression near the tank sites and changing the groundwater flow in that area from what was historically a southerly direction to a northerly flow.

IV. Discussion A. Dr. Binkhorst’s Testimony.
One segment of the plaintiff’s argument is that it was unfairly prejudiced by the court’s denial of a motion in limine objecting to admission of Dr. Binkhorst’s testimony. Therefore, the plaintiff contends that the only way to rectify the error in letting in Dr. Binkhorst’s evidence is to allow the new evidence proffered by Mr. Cluen.

This argument is not persuasive. Connecticut courts have held that the appropriate remedy for late disclosed evidence is to request a continuance. In the absence of such a request the Connecticut Supreme Court has refused to consider the propriety CT Page 1344 of the admission of late disclosed evidence on appeal Roche-Dinkeloo Associates v. New Haven, 205 Conn. 741, 749
(1928). However, as will be discussed at more length shortly, the plaintiff did not request a continuance of the trial in its motion in limine or at the time the motion was argued on the first day of evidence, September 14, 2004, or at any other time. Indeed, on that same day 50 Day Street strongly opposed the continuance of the trial date requested by NHA. The court determines that its decision not to preclude Dr. Binkhorst’s evidence (although allowing the plaintiff to depose Dr. Binkhorst again before he testified) was not incorrect and provides no basis for reargument or reopening the evidence.

B. Newly Discovered Evidence.
50 Day Street’s motion to open is primarily based on the affidavit of Mr. Cluen which sets forth the facts arising from the groundwater testing done in June 2005, a couple of weeks after the rendering of this court’s decision. Newly discovered evidence may be the basis for a motion to open. Hirtle v. Hirtle, supra. The standard that must be met is that the proffered evidence must be “newly discovered, such that it could not have been discovered earlier by the exercise of due diligence . . . and . . . likely to produce a different result in a new trial.” Besade v. Interstate Security Service, 212 Conn. 441, 452 (1989) quoting Asherman v. State, 202 Conn. 429, 434
(1987).

50 Day Street’s motion does not meet the above standard. As discussed in the May 17, 2005 decision Mr. Cluen’s opinion that the groundwater flowed in a generally southerly manner from the leaking tank site on NHA’s property to and across the plaintiff’s property was based on groundwater elevation readings on the 50 Day Street property but only “just a belief” as to the groundwater flow direction on NHA property. 50 Day Street and Mr. Cluen had no information on groundwater flow on NHA property until September 2004 when Dr. Binkhorst and NHA took elevation readings on both properties. As Mr. Cluen said, he “made an assumption” that the groundwater flow was from NHA land to the 50 Day Street site, and that assumption was the basis of his expert opinion that the oil contaminants in the ground at plaintiff’s property came from NHA’s tanks.

Mr. Cluen and his company, GZA Geoenvironmental, Inc., were retained by 50 Day Street in 2000. As early as 2001 GZA reported CT Page 1345 its belief to 50 Day Street that the underground tanks at NHA were a potential source of the oil contamination on plaintiff’s property. This was the only potential source identified. Ex. 31. Also in 2001 GZA recommended to 50 Day Street that monitoring wells be installed on both properties and measurements of groundwater levels and flows be made. Ex. 38, p. 4. Both Mr. Cluen, GZA and the plaintiff were well aware that groundwater flow is critical to determining the direction of oil pollutant migration and that groundwater flow between the NHA underground tank site, and plaintiff’s property could not be fully measured or evaluated without information about groundwater elevation on the NHA property.

From 2001 onward however, the plaintiff made no effort to obtain such information. Admittedly, the facts in this case indicate that a simple request to NHA to allow testing and monitoring on NHA property might not have been favorably received. Nevertheless, after this lawsuit commenced, the plaintiff made several requests, during discovery, to obtain information from NHA property, and the court is not aware of any occasion in which it denied such requests. The court believes that a discovery request to determine groundwater elevations on NHA property, particularly if accompanied by a statement of the reasons therefore indicating the importance of groundwater flow to the issue in this case, would have been granted. “Due diligence” requires a party to have done “all that was reasonable” to discover the new evidence. Terracino v. Fairway Asset Management, Inc., 75 Conn.App. 63, 75-76 (2003). Regardless of its outcome, the lack of such a discovery request by the plaintiff in these circumstances constitutes a failure of due diligence.

The court also concludes that even after the trial commenced there was opportunity for 50 Day Street to seek to offer the now proffered evidence within the trial context and prior to the rendering of this court’s May 17, 2005 decision. During the trial the court twice brought up the issue of obtaining evidence in the future to resolve the issue of whether there was a temporary depression or inverted “cone” in the groundwater level at the tank site. These inquires were based on Mr. Cluen’s testimony that he believed the groundwater level conditions evidenced on NHA’s property were temporary. Mr. Cluen stated that more would be known in three or six months. Tr. September 23, 2004, 34-35. Dr. Binkhorst, who disagreed with Mr. Cluen’s theory of temporary deviation, thought that little would change in three to six CT Page 1346 months. Tr. September 28, 2004, 66-68. In this context the experts’ responses are not so important as the fact that this court was openly evincing an interest in what was available to it as probative evidence that the parties thought would be useful. Despite this invitation plaintiff made no effort to request that the trial record be kept open to receive evidence on groundwater levels in November or December 2004 which would have been six or seven months after the pumping at the remediation site ceased. While such a request might not be the norm, it is not unheard of, nor was the court’s granting such a request out of the realm of possibility since it would have occasioned little or no delay.[1] In the absence of any such request, the court determined in the course of writing its decision that plaintiff had consciously decided that its case was sufficiently presented without additional evidence. It is exactly this type of strategic decision making by the plaintiff that precludes a finding that there is newly discovered evidence which could not have been discovered earlier by exercise of due diligence. For the same reason, it ill behooves this court to grant the plaintiff’s motion made after it became apparent that its litigation decision to forego any effort to present further evidence had not led to the desired result.

Furthermore, while it is a closer question, the court also concludes that the proffered evidence, which falls far short of definitively showing the groundwater flow direction when the contamination occurred, is not such as to be likely to produce a different result in the case, i.e. a finding that the oil leak and NHA’s negligence caused the pollution on plaintiff’s property. The proffered evidence indicates that the groundwater elevation at a monitoring well (MW-5) closest to the NHA property was 1.7 feet above the groundwater at a monitoring well (MW-3) at a more southerly point. Mr. Cluen’s affidavit points out that the relationship between the groundwater levels of MW-5 and MW-3 in June 2005 were much more akin to the relationship that existed prior to the April 2004 pumping than the relationship shown in the August-September 2004 measurements. Mr. Cluen suggests that these recent measurements support his expert opinion that the south to north groundwater flows shown by Binkhorst’s testimony and the August-September 2004 measurements were a temporary condition caused by the pumping, and the present flows have reverted to their former north to south direction, over both NHA and 50 Day Street properties.

The court notes, however, that the proffered evidence does not CT Page 1347 directly prove what the direction of the groundwater flow was in the years prior to 2004. Nor does the evidence contradict or undermine other evidence which the court relied upon in determining there was a failure to prove causation. This other evidence included evidence that the groundwater level did not fall significantly near the underground tank site between May 2003 and September 2004, the lack of evidence that groundwater levels north of the tank site were artificially depressed and evidence that significant oil contamination existed in the earth north of the tank site, all as noted in the May 17 decision. Therefore, the court cannot say that the proffered evidence set forth in Mr. Cluen’s affidavit would likely change the result.

In determining whether newly discovered evidence supports the granting of a petition for a new trial, the court must be persuaded that the new evidence “will probably, not merely possibly” lead to a different result. Shabazz v. State, 259 Conn. 811, 823 (2002) [quoting Lombardo v. State, 172 Conn. 385, 391 (1977)]. For the above reasons, this court is not so persuaded.

The plaintiff’s motion to reconsider and motion to reopen are denied.

[1] The court notes that the final post-trial memoranda of the parties were filed on December 22, 2004 and post-trial oral arguments were heard on January 24, 2005.

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