HILB v. Joseph M. Siech (2011)

MEMORANDUM OF DECISION ON MOTION TO REARGUE (# 133)

On March 8, 2010, the defendant filed a motion to reargue concerning the court's memorandum of decision on motion for summary judgment (# 132) (decision).   The plaintiffs' memorandum in opposition to the motion to reargue was filed on January 19, 2011 (# 134).   A request for adjudication was filed on January 25, 2011 (# 136).   The court has considered the parties' presentations on the motion to reargue.

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).

“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).

“[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 defendant argues that the court overlooked the substance of the analysis in the order of dismissal issued in Hilb Rogal & Hobbs Co. v. Donovan, Civil Action No. 3:06-CV54 (AWT) (D.Conn. September 28, 2006).  (Siech's Exhibit B in support of its motion for summary judgment.)   See motion to reargue, ¶ 13.   At page 10 of its decision, this court stated, “That order, at page 3, stated that the court agreed with the defendant's analyses of collateral estoppel and res judicata as set forth on particular pages of the defendant's brief in that case.   The analyses which the Donovan court found persuasive are not before this court to consider.”   Thus, this court did not overlook the Donovan court's analysis.   Rather, it stated that the analyses which the Donovan court found persuasive were not presented to this court to consider in connection with the defendant's motion for summary judgment.

In support of his motion to reargue, the defendant has attached, as Exhibit B, a copy of the defendant's supplemental memorandum of law in Hilb Rogal & Hobbs Co. v. Donovan, supra, dated June 2, 2006 (Donovan supplemental memorandum), to which the Donovan court referred in its order.   The defendant argues that this court should now review the arguments contained in the Donovan order, including the Donovan supplemental memorandum, which was referred to therein.   See motion to reargue, ¶ 20.

The Donovan supplemental memorandum is not newly discovered evidence.   The defendant offers no reason why it was not presented previously, in connection with his motion for summary judgment.   It is evident that the defendant could have presented the June 2006 Donovan supplemental memorandum to this court in connection with his motion for summary judgment (# 129), which was filed on October 2, 2009.

Presenting it with a motion to reargue after receiving an adverse decision seeks a prohibited “second bite of the apple.”  (Emphasis omitted;  internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 94 n.28. The defendant may not “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, supra, 282 Conn. 101 n.39.

Accordingly, the court need not consider the Donovan supplemental memorandum and the arguments and cases contained therein.   Based on the foregoing reasons, and those stated in its decision, the motion to reargue is denied.

The court will hold a scheduling conference in this matter on March 3, 2011, at 10:00 a.m. in Room 312.

It is so ordered.

BY THE COURT

Robert B. Shapiro

JUDGE OF THE SUPERIOR COURT

Shapiro, Robert B., J.