Ronald F. Bozelko v. Western Surety Company (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 107

FACTS

This action arises of the plaintiff's Petition for a New Trial pursuant to Connecticut General Statutes 52–270.   The defendant had brought an early action against the plaintiff for indemnity on a probate bond it had paid out in the Estate of Antonina Cap. Summary judgment was entered in favor of defendant (Western Surety Company) against the plaintiff in that action.

In the instant action for a new trial the plaintiff alleges he has discovered material evidence of bad faith of the defendant.   The plaintiff alleges he was unable to discover the bad faith with due diligence before or during the Summary Judgment proceedings.

The plaintiff alleges newly discovered evidence of bad faith as follows:

a.  The Defendant and the Administrator CTA of the Estate of Antonina Cap agreed to preclude the Plaintiff from the hearing on the claim under the probate bond.

b. The Defendant and the Administrator had an illegal agreement to share the estate's assets.

c. The Defendant had a secret agreement with the Administrator not to pursue assets which the estate was legally entitled to.

d. The defendant falsely claimed privilege in the proceeding.

e. The Defendant redacted documents submitted to the Defendant and the court to cover up the Defendant's fraudulent conduct.

f. The Defendant hid evidence that would have exonerated the Plaintiff.

g. The Defendant obtained confidential information from the Defendant's attorney advising the same to prevent the Plaintiff from recovering assets belonging to the rightful owner.

h. The Defendant continues to hide evidence that would exonerate the Plaintiff.

The defendant argues the plaintiff's claims regarding new evidence of bad faith were previously raised and litigated in the underlying action during the Summary Judgment proceedings.   The defendant also argues that the plaintiff had ample opportunity to discover and produce the alleged newly discovered evidence in the underlying matter in the exercise of due diligence.

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

Summary judgment is not usually appropriate for issues of motive, intent and good faith.  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 107 (1994).

This court finds that there is a genuine issue of material fact as to the plaintiff's allegations regarding newly discovered evidence that the defendant acted in bad faith as stated in his petition for new trial.   For the foregoing reasons the motion for summary judgment is denied.

Brian T. Fischer, Judge

Fischer, Brian T., J.