Monica Lessard v. Lane Bryant, Inc. (2010)

MEMORANDUM OF DECISION

This matter is before the court concerning the plaintiff Monica Lessard's motion for reargument/reconsideration, dated November 4, 2009 (# 115) (motion), which is addressed to the court's memorandum of decision, dated October 15, 2009 (# 113) (decision), in which the court granted the defendant, Lane Bryant, Inc.'s (Lane Bryant) motion to dismiss (# 104) [48 Conn. L. Rptr. 651].   Lane Bryant filed a memorandum in opposition to the motion, dated January 6, 2010 (# 118).

I

Procedural Deficiency In The Motion

While the motion is premised on Practice Book §§ 11-11 and 11-12,¹ neither the motion nor the memorandum submitted in support of it provide any discussion of their provisions or their applicability.  Practice Book § 11-12(a) requires a “party who wishes to reargue a decision or order rendered by the court ․ [to] file a motion to reargue setting forth ․ the specific grounds for reargument upon which the party relies.”   Similarly, Practice Book 11-11 requires a movant to set forth in his or her motion “the specific grounds upon which the party relies ․” The requirement that the grounds for the motion be specifically set forth therein is analogous to that stated in Practice Book § 10-41, concerning motions to strike, which provides, “[e]ach motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”

Here, the plaintiff's motion fails to comply with the requirements of Practice Book §§ 11-11 and 11-12.   Instead, in her motion, page 1, the plaintiff states that her motion seeks reargument and reconsideration “for the reasons and authorities set forth in the memorandum of law submitted herewith ․”

In response, Lane Bryant has not objected to this deficiency in the plaintiff's motion.   Rather, its memorandum in opposition addresses the plaintiff's arguments, as set forth in her memorandum.   In these circumstances, Lane Bryant has waived the procedural deficiency in the plaintiff's motion.   See Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13 n.4, 779 A.2d 198 (2001) (“Motions to strike that do not specify the grounds of insufficiency are ‘fatally defective’ and, absent a waiver by the party opposing the motion, should not be granted.”   No waiver since the defendants raised the issue in their objection).

II

Second Bite of the Apple

The appellate courts repeatedly have reiterated the standards which govern reargument or reconsideration.  “[T]he purpose of a 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 ․ It also may be used to address ․ claims of law that the [movant] claimed were not addressed by the court ․ [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple.”  (Emphasis in original;  internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94 n.28, 952 A.2d 1 (2008).

“A motion to reargue is not a device to ․ present additional cases or briefs which could have been presented at the time of the original argument.”   (Internal quotation marks omitted.)  C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n.39, 919 A.2d 1002 (2007).  “[A]s a general matter, in the absence of the discovery of some new facts or new legal authorities that could not have been presented earlier, the denial of a motion for reargument is not an abuse of the discretion of the trial court.”   (Emphasis omitted;  internal quotation marks omitted.)  Weinstein v. Weinstein, 275 Conn. 671, 705, 882 A.2d 53 (2005).  “[A] motion to reargue cannot be used to correct the deficiencies in a prior motion ․” Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001).

The plaintiff's presentation in connection with her motion ignores the settled appellate decisional authority, quoted above, concerning motions for reargument.   While, in her memorandum, page 1, the plaintiff cites Opoku v. Grant, supra, 63 Conn.App. 692-93, she ignores the Appellate Court's statement at 63 Conn.App. 692-93, that, “[a] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.”  (Internal quotation marks omitted.)   Likewise, she ignores the similar language in Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 94 n.28, quoted above.

In disregarding settled appellate authority concerning motions for reargument, the plaintiff presents the same arguments advanced previously, which the court addressed in its decision.   For example, the plaintiff's argument in her memorandum, pages 1-2, concerning the additional relief she seeks, is similar to that which she presented in her opposition to the motion to dismiss, pages 9-10, which the court considered previously.   See decision, pp. 15-17.   In essence, she seeks a second bite of the apple.²

Also, in claiming that the court erroneously concluded that she was required to exhaust her administrative remedy, the plaintiff, without citation to any page of the decision, claims that the court's reliance on General Statutes §§ 12-422 and 12-425, is misplaced.   See plaintiff's memorandum, p. 2. As the court stated in the decision, page 8, the plaintiff's complaint is premised on alleged violations of statutes which are part of the Sales and Use Taxes Act, Chapter 219 of Title 12 of the General Statutes (the Act).   See General Statutes § 12-406.  Sections 12-422 and 12-425 are part of the Act as well.   See decision, pp. 10-12.

The court properly concluded that “the Act provides comprehensive administrative remedies to a consumer claimant, including judicial review, in which the court may provide such relief as may be equitable.”   See decision, p. 12.   Further, “[e]ven though the plaintiff alleges that Lane Bryant engaged in statutory violations for profit, there has been no showing that, if violations were found to have occurred, the administrative remedy could not include the disgorging of such profits, either through action by the Commissioner, or, on appeal, by the court, under its authority to grant such relief as may be equitable.”   See decision, p. 13.   The court properly concluded that “[t]he plaintiff has not shown that the statutory remedies afforded to her under the Act are inadequate or futile.”   See decision, p. 17.

Equally unpersuasive is the plaintiff's repeating of citations previously set forth concerning the differences between a motion to dismiss and a motion to strike.   See Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007);  Egri v. Foisie, 83 Conn.App. 243, 249, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004).   In opposing Lane Bryant's motion to dismiss, the plaintiff did not request the court to treat Lane Bryant's motion as a motion to strike.   As stated in the decision, page 7, “the [exhaustion doctrine] implicates subject matter jurisdiction ․” (Internal quotation marks omitted;  quoting Garcia v. City Of Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009)).

In seeking reargument, the plaintiff again argues that she “has adequately alleged a CUTPA claim ․” See plaintiff's memorandum, p. 3. The court already has addressed this issue and the plaintiff has failed to cite any principle of law, or facts, which the court misapprehended or overlooked.   The court concluded that “[t]he Legislature has outlined a comprehensive remedial process for tax miscollection.   Invoking a separate statutory procedural prescription, such as CUTPA, threatens to disrupt the administrative process that already occupies the field of tax miscollection ․ ‘[T]he plaintiff may not choose [her] administrative remedy through the framing of [her] own complaint.   If that were possible, the purpose of the exhaustion doctrine would be thwarted.’  (Internal quotation marks omitted.)  Hunt v. Prior, 236 Conn. 421, 435, 673 A.2d 514 (1996).”  (Citation omitted;  internal quotation marks omitted.)   See decision, p. 13.³

In addition, citing General Statutes § 12-408(2)(A),⁴ the plaintiff argues that the court's reliance on General Statutes § 42-110(a) is flawed, since a consumer is not obligated to reimburse a retailer for money that the retailer had no obligation to pay to the State.   See plaintiff's memorandum, p. 4. General Statutes § 42-110c(a)(1) excludes from CUTPA “[t]ransactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state ․”

In its decision, the court properly concluded, citing Blass v. Rite Aid Of Connecticut, Inc., Superior Court, judicial district of Hartford at Hartford, Docket No. HHD CV 09 5026554 (August 7, 2009, Sheldon, J.) (48 Conn. L. Rptr. 217), that “Lane Bryant's alleged actions here ‘are of this very sort.   It collects taxes for the State under the regulatory authority of the Commissioner.   Should [it] violate any provision of [the Act], it is subject to the regulatory authority of the Commissioner.  Section 42-110c(a) thus appears to be a preemptive move by the Legislature to exempt from CUTPA all conduct that is subject to other comprehensive regulatory schemes.’  “ See decision, p. 14.   The transactions or actions permitted by law are the collections by the retailer from the consumer.   If miscollection occurs, a comprehensive remedy is provided by the Act.

The plaintiff also argues that “[s]imply put, Defendant had no right to collect this money from Plaintiff and now has an obligation to give it back to her.”   See plaintiff's memorandum, p. 4. Sales tax refunds, where tax is miscollected, are provided for in the Act.

Contrary to the plaintiff's argument, in her memorandum, page 4, the court explicitly afforded the plaintiff the benefit of those facts necessarily implied from her allegations in her complaint, including that Lane Bryant profited from the allegedly unlawful conduct.   See decision, pp. 5, 13.   The confirmation of these allegations in interrogatory responses, which do not create disputed issues of fact,⁵ showing that Lane Bryant earned and retained interest income on the sales tax collected, adds nothing to support the plaintiff's argument, since the court already has, as required, taken the facts to be those alleged by the plaintiff in her complaint, including that Lane Bryant profited from the alleged conduct.   See State v. Marsh & McClennan Companies, Inc., 286 Conn. 454, 463-64, 944 A.2d 315 (2008).

III

Evidentiary Hearing

In seeking reargument, the plaintiff contends that the court erroneously failed to hold an evidentiary hearing.   Her presentation contradicts the position she took in her opposition to Lane Bryant's motion to strike her sur-reply brief (# 112), where she argued that an evidentiary hearing was necessary only if the court declined to infer facts from her allegations in her complaint.⁶  As stated above, and in its decision, the court has done so.

As the Supreme Court recently reiterated, “[t]rial courts addressing motions to dismiss for lack of subject matter jurisdiction ․ may encounter different situations, depending on the status of the record in the case ․ [L]ack of subject matter jurisdiction may be found in any one of three instances:  (1) the complaint alone;  (2) the complaint supplemented by undisputed facts evidenced in the record;  or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts ․ Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.”  (Internal quotation marks omitted.)  Columbia Air Services, Inc. v. Department Of Transportation, 293 Conn. 342, 347, 977 A.2d 636 (2009).

“[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.”   (Internal quotation marks omitted.)  Id., 348.   In contrast, “[i]f affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings.”  (Internal quotation marks omitted.)  Id.

In claiming that an evidentiary hearing was necessary, the plaintiff fails to point to any factual dispute which required a hearing.   Lane Bryant's motion was accompanied by no affidavits.   The exhibits presented with the memorandum of law in support of Lane Bryant's motion contained only copies of the Connecticut Department of Revenue Services' Sales and Use Tax Refund Policy (refund policy) and legislative history, and copies of unreported cases.   The motion was addressed to the plaintiff's complaint.   The plaintiff has not disputed the accuracy of Lane Bryant's citations to the refund policy and legislative history.   Thus, the record created by the motion contains no disputed critical facts.   The additional facts contained in Lane Bryant's discovery responses, discussed above, also did not create a factual dispute which required an evidentiary hearing.

Coughlin v. Waterbury, 61 Conn.App. 310, 315-16, 763 A.2d 1058 (2001), cited by the plaintiff, does not support her motion, since it involved a completely different situation, involving disputed issues of material fact which required an evidentiary hearing.   See id.   There, in a personal injury action based on General Statutes § 13a-149, the defendant submitted an affidavit stating that the area where the plaintiff allegedly fell was school property, not city property.   See id., 61 Conn.App. 312-13.   In response, the plaintiff filed an affidavit stating that the defendant city had the responsibility to maintain the area where she sustained injuries.   See id., 313.  “The parties' affidavits squarely conflicted as to which entity had the duty to maintain the property.   Accordingly, a genuine issue of material fact exists as to where the plaintiff fell and whether the city or the board had the duty to maintain that property.”  Id., 315.

Here, as explained above, and in the court's decision, no such conflicting affidavits were presented.   No issues of fact required the court to hold an evidentiary hearing.⁷

CONCLUSION

For the foregoing reasons, and those stated in the court's decision, the plaintiff's motion for reargument/reconsideration is denied.

It is so ordered.

BY THE COURT

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Practice Book § 11-12(c) provides, “[t]he motion to reargue shall be considered by the judge who rendered the decision or order.   Such judge shall decide, without a hearing, whether the motion to reargue should be granted.   If the judge grants the motion, the judge shall schedule the matter for hearing on the relief requested.”.  FN1. Practice Book § 11-12(c) provides, “[t]he motion to reargue shall be considered by the judge who rendered the decision or order.   Such judge shall decide, without a hearing, whether the motion to reargue should be granted.   If the judge grants the motion, the judge shall schedule the matter for hearing on the relief requested.”

FN2. The plaintiff's citation, in her memorandum, page 3, to First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869 A.2d 1193 (2005), concerning the standard of review on a motion to dismiss, is another attempt at a second bite of the apple, since such authority could have been cited earlier, in one of the plaintiff's three submissions which were considered by the court in its decision.   The court cited the standard of review in the decision, pages 4-5..  FN2. The plaintiff's citation, in her memorandum, page 3, to First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869 A.2d 1193 (2005), concerning the standard of review on a motion to dismiss, is another attempt at a second bite of the apple, since such authority could have been cited earlier, in one of the plaintiff's three submissions which were considered by the court in its decision.   The court cited the standard of review in the decision, pages 4-5.

FN3. Similariy unavailing is the plaintiff's renewed reference to Illinois decisional law concerning Illinois' Consumer Fraud Act. See plaintiff's memorandum, p. 3. The court already addressed the plaintiff's citation to Illinois authority in its decision, pages 8-9 n.4..  FN3. Similariy unavailing is the plaintiff's renewed reference to Illinois decisional law concerning Illinois' Consumer Fraud Act. See plaintiff's memorandum, p. 3. The court already addressed the plaintiff's citation to Illinois authority in its decision, pages 8-9 n.4.

FN4. Section 12-408(2)(A) provides, in relevant part, “[r]eimbursement for the tax hereby imposed shall be collected by the retailer from the consumer and such tax reimbursement, termed ‘tax’ in this and the following subsections, shall be paid by the consumer to the retailer and each retailer shall collect from the consumer the full amount of the tax imposed by this chapter or an amount equal as nearly as possible or practicable to the average equivalent thereof.”.  FN4. Section 12-408(2)(A) provides, in relevant part, “[r]eimbursement for the tax hereby imposed shall be collected by the retailer from the consumer and such tax reimbursement, termed ‘tax’ in this and the following subsections, shall be paid by the consumer to the retailer and each retailer shall collect from the consumer the full amount of the tax imposed by this chapter or an amount equal as nearly as possible or practicable to the average equivalent thereof.”

FN5. See discussion below in part III..  FN5. See discussion below in part III.

FN6. Therein she stated, at page 1, that her references to Lane Bryant's limited discovery responses in her sur-reply “merely amplify” the inevitable inference that Plaintiff can in fact prove at trial that [Lane Bryant's] acts or practices for profit have violated Connecticut's public policy, caused Plaintiff and the putative Class substantial factual injury, and deprived Plaintiff and the putative Class of the possession and use of their money.   Compl. ¶¶ 6-10.   To the extent that the Court is unwilling to infer these facts from Plaintiff's allegations, a Standard Tallow hearing should be held because there is no plausible dispute that there are disputed issues of fact relevant to the Court's subject matter jurisdiction over Plaintiff's claims.”  (Emphasis in original.)   See plaintiff's opposition to defendant's motion to strike (# 112), page 1;  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 55-56, 459 A.2d 503 (1983)..  FN6. Therein she stated, at page 1, that her references to Lane Bryant's limited discovery responses in her sur-reply “merely amplify” the inevitable inference that Plaintiff can in fact prove at trial that [Lane Bryant's] acts or practices for profit have violated Connecticut's public policy, caused Plaintiff and the putative Class substantial factual injury, and deprived Plaintiff and the putative Class of the possession and use of their money.   Compl. ¶¶ 6-10.   To the extent that the Court is unwilling to infer these facts from Plaintiff's allegations, a Standard Tallow hearing should be held because there is no plausible dispute that there are disputed issues of fact relevant to the Court's subject matter jurisdiction over Plaintiff's claims.”  (Emphasis in original.)   See plaintiff's opposition to defendant's motion to strike (# 112), page 1;  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 55-56, 459 A.2d 503 (1983).

FN7. Similarly, the plaintiff has provided no basis for its request that the court vacate its decision to permit the plaintiff to conduct discovery with respect to factual issues pertaining to subject matter jurisdiction.   This request is contradicted by her statement, in her memorandum, page 5, that she still contends that the motion to dismiss should be denied on the face of the pleadings, meaning her complaint.   As with her previous submissions, the plaintiff has not outlined what discovery she would like to conduct that may demonstrate that she was not required to exhaust her administrative remedies.   See decision, p. 17.   Thus, she again seeks a second bite of the apple..  FN7. Similarly, the plaintiff has provided no basis for its request that the court vacate its decision to permit the plaintiff to conduct discovery with respect to factual issues pertaining to subject matter jurisdiction.   This request is contradicted by her statement, in her memorandum, page 5, that she still contends that the motion to dismiss should be denied on the face of the pleadings, meaning her complaint.   As with her previous submissions, the plaintiff has not outlined what discovery she would like to conduct that may demonstrate that she was not required to exhaust her administrative remedies.   See decision, p. 17.   Thus, she again seeks a second bite of the apple.

Shapiro, Robert B., J.