Arbor Acres Farm, Inc. v. Thomas Aglio et al. (2010)

MEMORANDUM OF DECISION ON MOTION TO REARGUE (# 176)

This matter is before the court concerning defendants Brian and Lisa Ames' motion to reargue.   After consideration, and for the reasons stated below, the motion is denied.

By memorandum of decision, dated October 27, 2010 (# 175) (decision), the court denied the movants' and other co-defendants' motions for summary judgment as to the first, second, third, fourth, and seventh counts of the plaintiff's amended complaint, and granted their motion as to the plaintiff's fifth count.   The background of this matter is set forth in the decision at pages 1-2.

In the motion to reargue, the movants contend that the decision relied on inadmissible evidence in determining that there was a genuine issue of material fact as to whether Brian Ames' conduct on the plaintiff's property caused the fire which destroyed a building located thereon.   They assert that, when stripped of the speculative and inadmissible evidence of codefendant Thomas Aglio, the plaintiff has failed to submit any admissible evidence to support its claims that Brian Ames engaged in any conduct that was a contributing, proximate cause of plaintiff's damages.

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 movants' presentation ignores their own submission to the court concerning summary judgment, in which they presented as evidence excerpts from co-defendant Thomas Aglio's deposition, which were subsequently referenced in the decision.   In order to point out conflicting versions of the events, at page 6 of the decision, the court cited deposition testimony by co-defendants Jeffrey Timbro and Aglio.   References were made to pages 52 and 53 of Aglio's deposition testimony.

These excerpts of Aglio's deposition testimony, about which the movants now complain, are part of Exhibit C to Brian and Lisa Ames' motion for summary judgment (# 156).   In their memorandum of law in support of their motion for summary judgment (# 157), page 3, the movants cited these and other pages of Aglio's deposition.   At page 4, they cited Aglio's deposition again, pointing out that Aglio's and Timbro's recollections differed.   The movants did not seek to exclude Aglio's testimony from the court's consideration by claiming, as they do now, that it is speculative and inadmissible.   To the contrary, they specifically asked the court to consider it.

Normally, “only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005);  see Practice Book § 17-46.   However, the Supreme Court has stated that parties may “knowingly waive ․ compliance with the procedural provisions of the Practice Book relating to motions for summary judgment.”  (Footnote omitted.)  Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003).   Also, the Supreme Court has stated, “[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.”  Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003).

Here, where the movants asked the court to consider these deposition excerpts, and no objection was raised, the court, in the exercise of its discretion, reviewed the exhibits submitted by the movants.   The court also stated that “[t]he Minor Defendants' laypersons' versions of what caused the destruction are open to question, as to credibility and [as to] being speculative.”   See decision, p. 7.

By introducing the evidence which they now seek to challenge, the movants waived any objection they had to the court's consideration thereof in connection with their motion.   See Parente v. Pirozzoli, 87 Conn.App. 235, 241-44, 866 A.2d 629 (2005).   Likewise, they cannot claim as error that which their own conduct invited.   See State v. Coward, 292 Conn. 296, 305 n.12, 972 A.2d 691 (2009).

In addition, the movants reiterate their previous arguments, including that Timbro and Aglio were the only people in the back room, and that Brian Ames did not cause the fire.   They assert that the “unanimity” of the defendants is sufficient evidence on which they are entitled to summary judgment.   In essence, the movants seek an impermissible “second bite of the apple.”

The court already has addressed these arguments in its decision.   The movants ignore the court's statement that “[m]uch of the evidence which the movants offer, including their own versions of the events, is self-serving.”   See decision, p. 4. The movants' presentation also ignores the court's statements concerning expert testimony as to the cause of a fire.   See decision, p. 6.

Further, the movants argue that Tryon v. Town of North Branford, 58 Conn.App. 702, 755 A.2d 317 (2000), cited in the decision, page 5, is distinguishable, because it involved opinions about intention.   The principles enunciated there are not applicable only in cases involving intent.   For example, the Appellate Court stated, “In deciding whether it is appropriate to render summary judgment, a court is not necessarily entitled to assume the truth of a defendant's declarations concerning intent or a fact known only to a defendant simply because of the absence of an affidavit contradicting the declarations.  Batick v. Seymour, 186 Conn. 632, 645-46, 443 A.2d 471 (1982).”  (Emphasis added.)  Id., 707.

The Appellate Court also stated, “It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citation omitted;  internal quotation marks omitted.)  Id., 717.   This court concluded that “[h]ere, a fact finder would be at liberty to assess each of the Minor Defendants' credibility and to disbelieve their assertions about their own conduct and that of the others.”   See decision, p. 5.

CONCLUSION

For the reasons stated above, and in the court's previous decision, the movants' motion to reargue is denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

Shapiro, Robert B., J.