J.E. Robert Company et al. v. LLC (2010)

MEMORANDUM OF DECISION

After considering the parties' arguments concerning the defendants Andrew J. Julian and Michael Murray's motion to reargue (# 356), and their motion for partial summary judgment (# 334), the court issues this memorandum of decision.   For the reasons set forth below, the motions are denied.

I

Motion To ReargueABackground

This matter, which was filed in court in August 2007, concerns a note, a mortgage of commercial property located in New London, Connecticut, a guaranty, and related instruments.   On April 13, 2005, defendant Signature Properties, LLC (Signature) agreed, pursuant to a Fixed Rate Note, to pay to JPMorgan Chase Bank, N.A. (JP Morgan) the principal sum of $8,800,000.00, with interest (Note).   To secure the Note, Signature executed a Mortgage And Security Agreement (Mortgage), with respect to commercial property known as 6 Shaw's Cove, New London, Connecticut, a three-story office building.

In its previous memorandum of decision, dated February 3, 2010 (# 349) (February 3, 2010 decision), the court granted plaintiff Shaw's new London, LLC's (SNL) motion for partial summary judgment as to liability, concerning counts one through four of its first amended complaint, dated March 4, 2008 (# 116).   In summary, the court found that Signature defaulted in its payment obligations;  that Signature breached Sections 4.3 and 8.2 of the Mortgage;  that the nonrecourse provisions of Section 10(a) of the Note are null and void, the Note is a full recourse obligation of Signature, SNL is not limited to the security interests granted by Signature, Signature is fully liable for any deficiency judgment which SNL may obtain;  and that the Guarantor defendants (Maureen Julian, Andrew J. Julian, Michael Murray, and Stephanie Lord Drake) are jointly and severally liable for Signature's full recourse obligation under the Note and Mortgage, including any deficiency judgment.

The defendants Andrew J. Julian and Michael Murray (movants) have moved to reargue the February 3, 2010 decision.   See motion to reargue (# 356).   They contend that an October 5, 2006 memorandum (October 5, 2006 memo) cited therein is not unambiguous and that it is not sufficient documentation to evidence that Signature ever terminated the Parking License Agreement between it and 280 Atlantic Street, LLC (Parking Agreement).   They contend that material facts remain in dispute and that summary judgment is not appropriate.   The other defendants have adopted the same arguments.   See # # 358, 359, and 360.

In its objection (# 368), SNL argues that the motion to reargue impermissibly seeks a “second bite of the apple,” by raising grounds which either rehash arguments previously made in opposition to SNL's motion for partial summary judgment as to liability or new arguments that could have been presented when that motion was argued.   In addition, SNL argues that there is no merit to the movants' contentions.

B

Discussion1. 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 ․ [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).

“Newly discovered evidence may warrant reconsideration of a court's decision.   However, [f]or evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence.”  (Internal quotation marks omitted.)  Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006).

The movants' presentation in connection with the motion to reargue ignores the settled appellate decisional authority, quoted above, concerning motions for reargument.   It also ignores and impermissibly contradicts their own previous presentation to the court in opposition to SNL's motion for partial summary judgment.

First, the movants present new arguments, all of which could have been presented previously, in support of their contention that Signature did not terminate the Parking Agreement.   As stated above, the purpose of reargument is not to attempt to put forth different arguments, or arguments which contradict those previously made, after receiving an adverse decision.   In their original memorandum in opposition to SNL's motion, dated October 30, 2009 (# 295), page 10, they argued that “Signature did not Terminate the Parking License Agreement,” and so titled that portion of their brief, which the court considered before rendering its February 3, 2010 decision.   In their memorandum, they did not argue, as they now do in the motion to reargue, page 4, that “Signature did not authorize the preparation of the [October 5, 2006 memo];  did not acknowledge or agree with the contents of the [October 5, 2006 memo];  did not execute the [October 5, 2006 memo];  and/or never received a copy of the [October 5, 2006 memo] or was even aware of its existence prior to the expiration of the Parking Agreement in December 2008.”   All of these contentions were not made in opposition to SNL's motion.   There is no reason why they could not have been presented previously.   Raising them now is part of an impermissible attempt at a second bite of the apple.

Certain of these contentions are contradicted by their own prior memorandum (# 295) in opposition to SNL's motion for partial summary judgment.   For example, concerning Signature's receipt of the October 5, 2006 memo and early termination of the Parking Agreement as of December 31, 2006, the movants stated, at page 9 of their memorandum:  “Indeed, Signature received a Memo dated October 5, 2006 from 280 Atlantic recognizing that in light of the fact that Electric Boat will completely vacate the Premises as of December 31, 2006, the Parking License Agreement would terminate and thereafter, 280 Atlantic would relieve Signature of the obligation to pay the License Fee. Plaintiff's Exhibit B-12.” (Emphasis in original.)

At page 10, they stated, “[i]n light of the fact that there was no longer any need for the Off-Site Parking Spaces nor any Additional Rent being paid therefore, 280 Atlantic Street in its October 5, 2006 Memo to Signature Properties acknowledges that the Parking License would be terminated effective December 31, 2006, i.e. the date that Electric Boat officially vacated the Building.”   At page 19, they stated that as of December 31, 2006, “the Parking License Agreement had expired.”

Thus, in their previous presentation, the movants acknowledged receipt of the October 5, 2006 memo and stated that the Parking Agreement was terminated or expired as of December 31, 2006.   Now, they attempt to claim that it expired in December 2008.   See motion to reargue, page 12.

Similarly, in its objection to SNL's motion for partial summary judgment (# 305), page 5, Signature stated, “On or about October 5, 2006, Signature Properties received a Memo from 280 Atlantic recognizing that in light of the fact that Electric Boat will have completely vacated the Premises as of December 31, 2006, the Parking License Agreement would be terminated and 280 Atlantic would relieve Signature from its obligation to pay the License Fee.” Also, at page 8, Signature stated that it adopted the memorandum of law (# 295) which had been filed by the movants, Andrew J. Julian and Michael Murray, in support of their objection to SNL's motion.¹  Such statements in briefs are binding.   See Rodia v. Tesco Corp., 11 Conn.App. 391, 395, 527 A.2d 721 (1987).

These statements in the movants' memorandum, and in Signature's objection may not be contradicted after receiving an adverse decision.   In analogous contexts, the appellate courts have criticized such conduct.  “We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.   Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967) ․ The plaintiff's attempt to manipulate the arbitration process by reserving objection until after the announcement of the arbitral award is precisely the kind of conduct we discountenanced in Krattenstein v. G. Fox & Co., supra.   We will not reward such conduct here.”  (Internal quotation marks omitted.)   Shore v. Haverson Architecture And Design, P.C., 92 Conn.App. 469, 476-77, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006).

Second, in support of their motion to reargue, the movants impermissibly offer new evidence, which was available to them previously.   In their motion, at pages 4-5, they cite a statement in his deposition by Jason Julian, at page 256 thereof.   This portion of Jason Julian's deposition was not previously presented to the court in the movants' papers in opposition to SNL's motion for partial summary judgment.   It may not be considered at this juncture.

As discussed above, for evidence to be newly discovered, it must be of such a nature that it could not have been earlier discovered by the exercise of due diligence.  “Clearly, the evidence that the defendants attempted to submit falls short of this standard.”  (Internal quotation marks omitted.)  Durkin Village Plainville, LLC v. Cunningham, supra, 97 Conn.App. 656.  “As to the new selections from ․ depositions, there is no question that they were not newly discovered.”  Id.

Third, the movants argue, for the first time, that to the extent that SNL submitted the October 5, 2006 memo to establish the truth of the statements contained therein, it is hearsay and cannot be used for such purpose.   See motion to reargue, page 7. Once again, this argument is one which could have been presented previously.   Offering it now is another effort at a second bite of the apple.

The movants' new challenge to the October 5, 2006 memo's admissibility also contradicts their previous presentation in opposition to SNL's motion.   As stated above, in their papers in opposition to SNL's motion, the movants cited this document themselves.   The movants' objection to SNL's motion, dated October 30, 2009 (# 294), page 5, also cited facts contained in the October 5, 2006 memo in their own statement of facts.²  They raised no objection to its admissibility for any purpose, including as to the truth of statements made therein.   As the court stated in its February 3, 2010 decision, page 8, any such objection was waived.

Fourth, in their argument that the court misconstrued the October 5, 2006 memo, the movants again raise new arguments, which could have been previously raised, as part of their effort at a second bite of the apple.   For example, they assert that SNL submitted no evidence to show that, as stated therein, that Andrew J. Julian of Signature requested 280 Atlantic, LLC to continue to collect rent from Signature for the “over flow” parking only through December 2006.   They also argue that, in Jason Julian's deposition testimony, he acknowledged and agreed that at no time did Signature terminate the Parking Agreement or ask 280 Atlantic to terminate it.   See motion to reargue, p. 9. Review of the referenced portion of his testimony, at page 255, shows that he stated only that “[b]asically, we were just notified that Electric Boat was going to be actually moving out and they weren't going to be paying for the parking any longer at that point.”   This testimony provides no support for the movants' argument that Signature did not terminate the Parking Agreement.   The October 5, 2006 memo stated that 280 Atlantic understood Signature's position that Signature “will no longer have the cash flow or the need to continue with the parking arrangement.”As the court stated in its February 3, 2010 decision, page 15, “the fact that Electric Boat was no longer paying additional rent to Signature for the parking spaces at 280 Atlantic's parking lot did not cause the Parking Agreement to terminate because the license fee provided for in Section 4 thereof was no longer being paid by Signature to 280 Atlantic.”

Fifth, there has been no showing that the court misapprehended the facts or that its decision is inconsistent.   See Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 94 n.28;  Opoku v. Grant, supra, 63 Conn.App. 692.   Once again, by presenting a line by line series of arguments concerning the terms of the October 5, 2006 memo, the movants improperly seek a second bite of the apple by setting forth arguments which could have been presented before.   In addition, this portion of their new argument in the motion to reargue, page 12, includes a reference to the heading or “Re” portion of that memo, wherein they argue, for the first time, that the memo “does not even expressly refer to the Parking Agreement between Signature and 280 Atlantic, but rather to an agreement between 280 Atlantic and an entity known as Shaw's 6. The Plaintiff SNL failed to submit any evidence regarding the existence of any such parking agreement between 280 Atlantic and Shaws 6;  why such agreement is relevant to the issues involved in the instant case;  and/or otherwise explain this discrepancy.”

It is obvious that the October 5, 2006 memo referred to the Parking Agreement between Signature and 280 Atlantic, and, as quoted above, the movants' and Signature's prior presentations to the court so treated it.   They may not contradict their previous presentations after receiving an adverse decision.   That is not the purpose of a motion for reargument.

Sixth, in support of their motion to reargue, the movants rely on testimony from defendant Maureen Julian, at a December 15, 2009 deposition, pages 138, and 150-51.   Therein, she conclusorily states that Signature did not terminate the Parking Agreement and that, other than December 31, 2008 having come and gone, it has not been terminated otherwise.  “A conclusory assertion ․ does not constitute evidence sufficient to establish the existence of a disputed material fact for purposes of a motion for summary judgment.”  (Internal quotation marks omitted.)  Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793-94, 749 A.2d 1144 (2000).

This is not newly discovered evidence which warrants reargument.   See Durkin Village Plainville, LLC v. Cunningham, supra, 97 Conn.App. 656.   The defendants had a full and fair opportunity to oppose SNL's motion for partial summary judgment.   As discussed above, in their previous presentation, the defendants submitted an affidavit from Maureen Julian, who is Signature's managing member.   Therein, she did not contest that Signature terminated the Parking Agreement.   Instead, she averred that the termination of the Electric Boat lease made retaining the Parking Agreement “futile,” and that retention of it would have resulted in “unnecessary monthly payments.”   It is obvious that the statements she offered in her deposition could have been presented in her affidavit previously, before SNL's motion for partial summary judgment was fully submitted for the court's consideration and adjudication.

Seventh, the movants again argue that “No Notice of Termination of the Parking Agreement was Ever Recorded on the New London Land Records.”   The same title of a portion of their argument appears in their memorandum submitted in opposition to SNL's motion for partial judgment (# 295), page 12.   In the court's decision, pages 16-17, the court deemed this argument to be abandoned since no legal authority or analysis was cited to support it.   As stated above, reargument may not be used to present legal authority “which could have been presented at the time of the original argument,” (internal quotation marks omitted.)  C.R. Klewin Northeast, LLC v. Bridgeport, supra, 282 Conn. 101 n.39, and such a motion may not be “used to correct the deficiencies in a prior motion ․” Opoku v. Grant, supra, 63 Conn.App. 692.   The court need not consider the citations and discussion in the motion to reargue concerning this contention.³

2. Full and Fair Opportunity

In addition, citing Practice Book § 17-49, the movants argue that they did not have a full and fair opportunity to oppose SNL's motion, since the court should have considered the evidence presented on their motion for partial summary judgment.  “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Boyne v. Town of Glastonbury, 110 Conn.App. 591, 595, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).

The court heard oral argument on SNL's motion for partial summary judgment on November 24, 2009, at the conclusion of which the court stated that it considered the motion to be fully submitted, and counsel stated that they understood.   The movants' motion for partial summary judgment was not filed until January 15, 2010 (# 334).   The court heard oral argument as to that motion on February 23, 2010, after it issued its decision as to SNL's motion on February 3, 2010.   As the parties understood, the motions were not scheduled to be heard together.   At no time was the court requested to hold its prior decision in abeyance.

Concerning the termination of the Parking Agreement, the only newly created evidence presented by them in support of their motion for partial summary judgment was excerpts from Maureen Julian's December 15, 2009 deposition, portions of which are discussed above.   In support of that motion, they also presented pages 152-53, wherein she stated that interrogatory answers, which provided the reason why Signature terminated the Parking Agreement, should be amended, since, as discussed above, she asserted that Signature did not terminate the Parking Agreement.   This does not amount to newly discovered evidence which could not have been presented previously.   As discussed above, her deposition testimony does not raise a genuine issue of material fact.

As stated above, the defendants had a full and fair opportunity to oppose SNL's motion.   Reargument is not warranted on this ground.   For the reasons stated above, the motion to reargue is denied.

II

Motion For Partial Summary Judgment

As noted above, the court heard oral argument concerning the defendants Andrew J. Julian and Michael Murray's motion for partial summary judgment (# 334) on February 23, 2010.   In the motion, they seek summary judgment as to counts two, three, four, five and six of SNL's first amended complaint.   The other defendants joined in and adopted the motion.   See # # 340.86, 341.86, and 342.86.   On February 16, 2010, SNL filed a withdrawal as to counts five and six (# 353).

As discussed above, in its February 3, 2010 decision, the court granted SNL's motion for partial summary judgment as to liability concerning counts two, three and four.   Judgment has entered accordingly.   See # 350.   Also, as set forth above, the court has denied the motion for reargument.

Where summary judgment has entered as to particular counts, a cross motion for summary judgment addressed to those counts must be denied as moot.   In CBT Realty Ventures, XXII, Inc. v. Markoski, Superior Court, judicial district of Middlesex, Docket No. 63412 (February 23, 1993, Walsh, J.) (8 CSCR 317) [8 Conn. L. Rptr. 457], affirmed, 33 Conn.App. 388, 636 A.2d 379, cert. granted on other ground, 228 Conn. 929, 640 A.2d 115 (1994) (appeal withdrawn July 18, 1994), the trial court denied the plaintiff's cross-motion for summary judgment “on the ground that the granting of the defendants' motion for summary judgment renders the plaintiff's cross-motion for summary judgment moot.”   The Appellate Court stated that the plaintiff's cross-motion “necessarily” was denied.   See id., 33 Conn.App. 391.

Other decisions are to the same effect.   See Honan v. Dimyan, Superior Court, judicial district of Danbury at Danbury, Docket No. CV 00 0338202 (November 8, 2001, White, J.), holding that granting of motions to dismiss and for summary judgment rendered moot plaintiffs' motion for partial summary judgment as to the same count), affirmed, 76 Conn.App. 906, 822 A.2d 373, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003);  Dudrow v. Ernst & Young, LLP, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01 CV98 0144211 (September 20, 1999, Hodgson, J.) (motion was moot as to counts adjudicated on prior motions);  Campanaro v. Jenkins, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 98 85603 (April 15, 1999, Schuman, J.) (granting of defendant's motion for summary judgment, “which was filed first, renders the plaintiff's motion moot.”).

Accordingly, since SNL's motion for partial summary judgment as to liability was granted as to counts two, three, and four;  and the motion for reargument has been denied, the defendants' motion for partial summary judgment is denied as moot.

CONCLUSION

For the foregoing reasons, and those stated in the court's February 3, 2010 memorandum of decision, the defendants Andrew J. Julian and Michael Murray's motion to reargue and motion for partial summary judgment are denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Similarly, in her affidavit in opposition to SNL's motion, paragraph 8, defendant Maureen Julian stated that Electric Boat's termination of its lease with Signature “rendered the retention of the Parking License Agreement and payments thereof to be futile.”   In paragraph 9 thereof, she stated that retention of the Parking Agreement “would have resulted in unnecessary monthly payments to 280 Atlantic Street, LLC ․”.  FN1. Similarly, in her affidavit in opposition to SNL's motion, paragraph 8, defendant Maureen Julian stated that Electric Boat's termination of its lease with Signature “rendered the retention of the Parking License Agreement and payments thereof to be futile.”   In paragraph 9 thereof, she stated that retention of the Parking Agreement “would have resulted in unnecessary monthly payments to 280 Atlantic Street, LLC ․”

FN2. Therein, they stated, “On or about October 5, 2006, 280 Atlantic noted in a memo that in light of the fact Electric Boat will have completely vacated the Premises as of December 31, 2006, the Parking License Agreement would be terminated and 280 Atlantic would relieve Signature from its obligation to pay the License Fee. Plaintiff's Exhibit B-12.” (Emphasis in original.).  FN2. Therein, they stated, “On or about October 5, 2006, 280 Atlantic noted in a memo that in light of the fact Electric Boat will have completely vacated the Premises as of December 31, 2006, the Parking License Agreement would be terminated and 280 Atlantic would relieve Signature from its obligation to pay the License Fee. Plaintiff's Exhibit B-12.” (Emphasis in original.)

FN3. The movants also argue that Signature is not a party to the Boundary Line Agreement between 668 Bank Street, LLC;  280 Atlantic Street, LLC;  and 698 Bank Street, LLC. Since they do not cite any controlling authority, or misapprehension of facts or inconsistency in the court's decision, reargument is not warranted as to this aspect of the motion to reargue..  FN3. The movants also argue that Signature is not a party to the Boundary Line Agreement between 668 Bank Street, LLC;  280 Atlantic Street, LLC;  and 698 Bank Street, LLC. Since they do not cite any controlling authority, or misapprehension of facts or inconsistency in the court's decision, reargument is not warranted as to this aspect of the motion to reargue.

Shapiro, Robert B., J.