Shrobar v. Jensen

• Decision Date: 22 April 1969
• Citation: 257 A.2d 806,158 Conn. 202
• Court: Connecticut Supreme Court
• Parties: Lawrence SHROBAR et al. v. Else C. JENSEN et al.

Page 806

257 A.2d 806

158 Conn. 202

Lawrence SHROBAR et al. v. Else C. JENSEN et al.

Supreme Court of Connecticut.

April 22, 1969.

Carroll W. Brewster, New Haven, with whom, on the brief, was Donald F. Keefe New haven, for appellants (plaintiffs).

Charles M. Needle, Bridgeport, with whom, on the brief, was David Goldstein, Bridgeport, for appellees (defendants Jensen).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

KING, Chief Justice.

The defendants Else C. Jensen and Christian D. Jensen, hereinafter referred to as the defendants, are the owners of a plot of land in Ridgefield on which they operate a small gasoline filling station. Although this property is in a residential zone and therefore constitutes a nonconforming use, the defendants, in 1967, obtained a variance from the Ridgefield zoning board of appeals which permitted them to replace the existing structure with a modern three-bay service station equipped for minor repairs to automobiles, greasing and lubrication, charging of batteries, changing and sale of tires and the sale of other automotive equipment. The plaintiffs, a group of neighboring landowners, sought to appeal from the granting of the variance, but, owing to the alleged negligence of a deputy sheriff, the appeal process was not served within the time allowed by law, the appeal was dismissed, and no further action has been taken in regard to it.

Subsequent to the dismissal of their appeal, the plaintiffs instituted the present suit, seeking to enjoin the defendants from carrying out their plans for the service station. The first count of the complaint attacked the adequacy of the public notice of the hearing before the zoning board at which the defendants' application was presented. On this count the court rendered a summary judgment for the defendants. To each of the remaining two counts on which the plaintiffs now rely, concerning claimed misrepresentations made to members of the public and members of the zoning board itself, a demurrer was sustained. From the action of the Superior Court on the foregoing three counts the plaintiffs have appealed. For convenience, we will first consider the court's action in sustaining a demurrer to each of the latter two counts.

In their second count, the plaintiffs alleged that the defendant Else C., Jensen falsely represented to at least one nearby, but unnamed, landowner that the application to the board involved merely a request for permission to make certain minor repairs to the filling station. The plaintiffs further alleged that as a result of this misrepresentation the unnamed landowner did not appear at the hearing to contest the granting of the variance. The trial court sustained a demurrer to this count on the ground that this issue should have been raised by a direct appeal from the action of the board, under General Statutes § 8-8, wherein the plaintiffs would have had the opportunity to introduce evidence of the claimed misrepresentations. The plaintiffs claim that the sustaining of the demurrer was erroneous and that when, through the fraud of one party to an action, a party fails to appear and assert a defense, and judgment is rendered against the nonappearing party, equity will enjoin the prevailing party from taking advantage of the judgment. The short answer is that it is nowhere alleged that the unnamed landowner is a party to this action or was a party to the attempted appeal to the Court of Common Pleas. Indeed, it is not alleged that the outcome of the hearing would have been affected even if he had been present.

There is much authority for the proposition that, where a party to an action fails to appear and defend because of the misrepresentations of the prevailing party, equity will enjoin the enforcement of the judgment so obtained. Pearce v. Olney, 20 Conn. 544, 554; Restatement, Judgments § 120(a); 49 C.J.S. Judgments § 372, p. 741; 30A Am.Jur. 735, Judgments, § 801; James Civil Procedure § 11.7. But in the present case the plaintiffs do not claim that the opportunity to appeal from the action of the zoning board was lost because of the misrepresentations. Rather, they allege that their failure to appeal to the Court of Common Pleas was due to the failure of the deputy sheriff properly to serve the appeal papers. The claims which the plaintiffs are attempting to make in this second count should properly have been made on direct appeal, and, since there was no allegation that the fraud of the defendants prevented the plaintiffs from making those claims on direct appeal, on this ground also the second count of the complaint was legally insufficient, and the demurrer addressed to it was properly sustained.

The third count alleges that at the hearing the defendants' attorney made two misrepresentations of fact. Both statements involved the existing use made of the land rather than the proposed use. The first claimed misrepresentation was that the existing structure was larger than the proposed structure, and the second was that the present structure was 'all gas station' when in fact it was also used for living quarters. The plaintiffs did not allege that the board in reaching its decision relied in any way on these statements. Without such a claim of reliance, count three did not state a cause...