Michael Rogan v. Sally Rungee (2012)

MEMORANDUM OF DECISION RE REQUEST FOR SPECIAL FINDING # 127

I

PROCEDURAL HISTORY

On March 30, 2012, this court, Wiese, J., granted the defendant's, Salley Rungee, motion for summary judgment on the one remaining count in this action.   On April 13, 2012, the defendant requested that the court make a special finding, pursuant to General Statute § 52–226a, that the plaintiff, Michael Rogan, brought this action without merit and it was not asserted in good faith.   On April 19, 2012, the plaintiff filed a brief in opposition.

II

DISCUSSION

General Statute § 52–226a provides:  “In any civil action tried to a jury, after the return of a verdict and before judgment has been rendered thereon, in any civil action tried to the court, not more than fourteen days after judgment has been rendered, the prevailing party may file a written motion requesting the court to make a special finding to be incorporated in the judgment or made a part of the record, as the case may be, that the action or a defense to the action was without merit and not brought or asserted in good faith.   Any such finding by the court shall be admissible in any subsequent action brought pursuant to section 52–568.”   In construing this section, our Appellate Court “declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes.”  (Internal quotation marks omitted.)  Beverly v. State, 44 Conn.App. 641, 648–49, 691 A.2d 1093 (1997).

“A special finding under General Statutes § 52–226a can be made only when two elements have been shown:  (1) ‘the action was without merit and (2) ‘the action ․ was not brought or asserted in good faith.’   Both must be found in order for ‘the court to make a special finding.’   Trial courts have upheld the denial of a motion for special finding in which the plaintiff's action was determined to be commenced without merit but the court had insufficient evidence to make a finding that it was not brought or asserted in good faith.”   Shea v. Chase Manhattan Bank, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 96 0149647 (June 15, 2000, Tierney, J.).

“In common usage, it (good faith) has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and generally speaking means being faithful to one's duty or obligation.”  (Internal quotation marks omitted.)  Id. “Whether a claim is colorable for the purposes of the bad faith exception is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established.”  (Internal quotation marks omitted.)   Fattibene v. Kealey, 18 Conn.App. 344, 361, 558 A.2d 677 (1989).

Here, the court lacks sufficient evidence to make a finding that this action was not brought in good faith.   Additionally, the plaintiff could not be reasonably expected to foresee changes in the law that occurred in the recent Appellate Court case, State v. Jimenez–Jaramill, 134 Conn.App. 346, 373, 38 A.3d 239 (2012), that was decided after the motion for summary judgment was filed.

Therefore, “this court cannot make a finding as requested by the defendant under General Statutes § 52–226a of either (1) ‘the action was without merit’ and/or (2) ‘the action ․ was not brought or asserted in good faith.’   “ Shea v. Chase Manhattan Bank, supra, Superior Court, CV 96 0149647.

III

CONCLUSION

For the foregoing reasons, the defendant's request for a special finding is denied.

So Ordered:

BY THE COURT

PETER EMMETT WIESE, JUDGE

Wiese, Peter E., J.