Optical Design Associates, Inc. v. LLC (2010)

MEMORANDUM OF DECISION MOTION TO RECONSIDER # 127

BACKGROUND

This matter was referred to Attorney Trial Referee Kenneth Provodator in accordance with General Statutes § 52-434(a) and Practice Book § 19-2A. On February 3, 2010 a Trial Referee's Report was filed.   Thereafter, the plaintiff filed a timely objection which was placed on the short calendar on March 8, 2010.   The plaintiff did not appear for argument on this date.   The court, after considering the findings of the Attorney Trial Referee, the objection of the plaintiff dated February 18, 2010 as well as portions of the trial transcript, issued a Memorandum of Decision dated March 9, 2010 affirming the decision of the Attorney Trial Referee.   On March 15, 2010 the plaintiff filed a “Motion to Reargue Objection to Trial Referee's Report.”   The court granted the motion to reargue and for reconsideration of the decision and set argument for April 19, 2010.   The parties appeared and argued on this date.

DISCUSSION

“[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.”   (Citations omitted;  internal quotation marks omitted.)  Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).  “The granting of a motion for reconsideration ․ is within the sound discretion of the court.”  (Internal quotation marks omitted.)  Mangiante v. Niemiec, 98 Conn.App. 567, 575-77, 910 A.2d 235 (2006).  “A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it.”  (Internal quotation marks omitted.)  Id. 577.

During the course of the reargument, the court inquired as to the basis for the objection to the findings of the Attorney Trial Referee and the subsequent decision of the court affirming the recommendation.   Plaintiff's counsel did not argue that there was a misapplication of the law but argued as to findings of fact by the Attorney Trial Referee.   The plaintiff did not provide the court with an analysis or argument that would lead the court to make changes to its ruling of March 9, 2010.   In fact, the argument of counsel addressed areas of credibility and the balancing of the findings of fact with the conclusions of the Attorney Trial Referee.   The decision as to credibility balanced with the legal requirements falls squarely within the purview of the Attorney Trial Referee.  “Where the evidence is in conflict, its probative force is for the trier of fact to determine.”  Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987).

The plaintiff's argument as to what and how the Attorney Trial Referee should have considered or considered the facts in a different light is not a basis for the court to find that the findings are in error or inconsistent.   The evaluation of the facts is for the trier of fact who observed the witnesses, heard the testimony, and reviewed the exhibits.   The trier determines what evidence is probative.

In the present action, the court has once again reviewed the recommendation of the Attorney Trial Referee to address the motion to reconsider and confirms the decision of the court as set forth in the March 9, 2010 Memorandum of Decision.   Therefore, the court enters judgment in accordance with the report of the Attorney Trial Referee and in accordance with the decision of the court dated March 9, 2010.

THE COURT

Brazzel-Massaro, J.

Brazzel-Massaro, Barbara, J.