J.E. Robert Company et al. v. LLC (2011)

MEMORANDUM OF DECISION ON MOTIONS TO REARGUE (# # 481, 483)

This matter is before the court concerning guarantor defendants Andrew J. Julian, Michael Murray, and Stephanie Lord Drake's motions to reargue decision and order granting prejudgment remedy, preliminary injunction, and disclosure of assets.¹  The defendants filed a request for adjudication concerning their motions on January 6, 2011 (# 491).   After consideration, and for the reasons stated below, the motions are denied.

By memorandum of decision, dated November 19, 2010 (# 478) (decision), the court ordered prejudgment remedies against the movants, and ordered them to disclose assets.   The background of this matter is set forth in the decision at pages 1-3.

In their motions to reargue, the movants contend that (1) the plaintiff, Shaw's New London, LLC (SNL) failed to make a prima facie showing to establish the amount of the debt and/or probable cause;  and (2) no prejudgment attachment of limited liability membership interests is permitted.

I

Standard Of Review

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).

II

DiscussionAProbable Cause

The movants argue that SNL failed to establish the amount of the debt since it failed to submit underlying records into evidence at the hearing before the court (PJR hearing), the testimony of Michael F. Cocanougher lacked foundation, and his affidavit was hearsay.

The court is unpersuaded that these arguments warrant reargument.   The court need not repeat the standard of review concerning prejudgment remedies, which is set forth in the decision, at pages 3-6.   As stated therein, the court's determination as to whether a prejudgment remedy is warranted is to be based on probable cause, which is not as demanding a standard as proof by a preponderance of the evidence.

It was previously established, in the court's February 2010 decision on summary judgment (# 349), page 6, that defendant Signature Properties, LLC, the borrower, defaulted under the payment terms of the Note in April 2007.   The Note and Mortgage were admitted as full exhibits at the PJR hearing.

At page 8 of its decision, the court stated that “[t]he court bases its finding as to probable cause concerning the amount of the likely judgment on:  (1) the undisputed fact of the April 2007 default, (2) the undisputed testimony that no payment has been made since then, (3) the terms of the Note and Mortgage, and (4) the appraised value of the property.”  (Footnote omitted.)   A note is “primary evidence of a debt[.]”  New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 597 n.3, 717 A.2d 713 (1998).²

As an officer of SNL and as an employee of J.E. Robert Company, Inc, the special servicer for the trust that held the loan prior to its conveyance to SNL, Cocanougher testified that he had personal knowledge of the Note and Mortgage and that the debt remained unpaid.   Where it is undisputed that no payment has been made, there was no need for underlying records to be presented.   In contrast to New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 757-5 8, 680 A.2d 301 (1996), cited by the defendants, which did not involve an adjudication concerning a prejudgment remedy, here there was no payment of principal and no history of payments upon which a witness relied.   See id., 238 Conn. 750 ns. 6 and 7.

Similarly, this case differs from Federal Deposit Insurance Corp. v. Keating, 44 Conn.App. 556, 558-61, 690 A.2d 429 (1997), also cited by the defendants, which also did not involve an adjudication concerning a prejudgment remedy.   That matter involved computerized records, the contents of which were at issue.   Here, the testimony on which the court relied simply was that the debt remained unpaid after the undisputed April 2007 default.   Also, in contrast to Federal Deposit Insurance Corp. v. Keating, supra, 44 Conn.App. 558, which involved a variable interest rate based on a failed bank's base rate, here, as discussed in the decision, pages 8-9, the interest rates in the Note were fixed.

Based on the Note and Mortgage, and undisputed testimony, including concerning the appraised value of the property, there was sufficient evidence on which to determine probable cause as to the amount of a likely deficiency judgment.

B

Second Bite Of The Apple

The movants' presentation in connection with the motion to reargue ignores the settled appellate decisional authority, quoted above, concerning motions for reargument.   They present new arguments, in support of their contention that no prejudgment attachment of limited liability membership interests is permitted, all of which could have been presented previously.

These arguments were not presented in response to SNL's application for prejudgment remedy and its motion for disclosure of assets, both of which were filed in April 2010, long before the PJR hearing which was held on September 20, 2010.   See # # 384, 384.30.   They were not raised in oral argument after the evidentiary portion of the hearing was concluded.

Instead, raising them in a motion to reargue, after receiving an adverse decision, represents an impermissible effort at a second bite of the apple.   See Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 94 n.28;  Weinstein v. Weinstein, supra, 275 Conn. 705.   The court need not consider these arguments.

CONCLUSION

Based on the reasons stated above, the defendants' motions to reargue (# # 481, 483) are denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Defendant Maureen Julian also filed a motion to reargue (# 482).   In view of her Notice of Bankruptcy Stay (# 489), the court takes no action on her motion..  FN1. Defendant Maureen Julian also filed a motion to reargue (# 482).   In view of her Notice of Bankruptcy Stay (# 489), the court takes no action on her motion.

FN2. Cocanougher's affidavit was only utilized to subtract an amount, for reserve funds, from the likely deficiency judgment.   See decision, p. 10.   The defendants offered no evidence to dispute this credit in their favor..  FN2. Cocanougher's affidavit was only utilized to subtract an amount, for reserve funds, from the likely deficiency judgment.   See decision, p. 10.   The defendants offered no evidence to dispute this credit in their favor.

Shapiro, Robert B., J.