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Manzo-Ill v. Schoonmaker

Superior Court of Connecticut, Judicial District of Stamford, Stamford

April 27, 2017



          KENNETH B POVODATOR, Judge


         04/17/2017 192.00 MOTION TO REARGUE/RECONSIDER

         The foregoing, having been considered by the Court, is hereby:

         ORDER: DENIED

         As noted in the court's decision, it is not proper to rely on a document (a version of billing records) not submitted at trial - yet the plaintiff again seeks to have the court consider a version of billing records not presented during the trial. The discussion of those billing records adds nothing of substance to the court's discussion of the records, other than specifically making reference to a March 6, 2010 entry which the court likely would not have addressed - even if raised in a timely manner - because it was several days before the claimed end of representation. As the court had stated in its earlier decision: " The focus of the competing factual presentations of the parties is on the existence and scope of activity that occurred between March 11, 2010 and May 20, 2010. March 11, 2010 is the latest possible date defendant concedes that it might have still represented plaintiff." The court continues to believe that it properly defined the scope in that manner. (Conversely, the plaintiff has failed to explain why the court should, at this juncture (i.e., after a decision has been rendered), expand the time frame to include earlier dates.)

         To the extent that the argument implies or states that the appellate representation continued beyond March of 2010, the plaintiff has not identified any time or billing entry for any appellate-related work beyond the date of claimed termination of representation in the trial court, whether in admitted or non-admitted versions of billing records.

         The court was aware of the appeal, mentioning it in connection with Mr. Schoonmaker's letter in January of 2010 (page 11 of memorandum of decision), and implicitly recognizing essentially-nominal involvement of the defendant in footnote 10 - after noting replacement counsel for the case in chief in the body of the decision, the footnote stated " And a separate attorney who was PRIMARILY RESPONSIBLE for handling the then-pending appeal" (emphasis added). The court further provided an overview of the appellate history of the case in footnote 5. Although the court has not done a meticulous review of the submissions of the parties, the court likely paid more attention to appeal-related issues than did the parties in their post-hearing submissions.

         Notwithstanding attempted invocation of a non-record version of billing records, there has yet to be any evidence identified to the court of representation-related activity by the defendant on the plaintiffs file other than the activities already discussed in great detail in the original memorandum of decision. IF there had been a timely request for the court to take judicial notice of the status of appearances in the then-pending appeal, the defendant (putting aside any objection that might have intervened) would have had an opportunity to offer evidence as to the extent of involvement or non-involvement in the appeal, from mid-March through the end of May of 2010. If the issue had been raised in the plaintiffs initial post-trial brief, the defendant would have had an opportunity to respond in its reply brief. (This is in addition to the possible issue as to whether the appeal was " the same matter" insofar as an appeal often involves a limited or well-defined scenario; see, e.g. footnote 9 of memorandum of decision - since that pending appeal had been filed in 2008 by Mr. Ill. it seems unlikely that the appeal would have involved the issues underlying the plaintiffs complaint directed to her then-counsel.)

         The plaintiff states: " Here, the Plaintiff is moving for the Court to allow reargument, and if reargument were to be granted, the Defendants would have such opportunity to contradict or explain the Defendants' appearance in the appellate matter as well as any billing records the Court takes notice of." Does that include offering evidence, or just an ability " to contradict or explain" based only on the new evidence that the plaintiff claims should be considered? Is there any authority for allowing billing records not offered during an evidentiary hearing to be the subject of judicial notice, post-hearing and post-decision (particularly when there is some question as to whether the proffered records materially differ from evidence already admitted)? Or. is the court to open (re-open) the proceedings to allow the offer of new evidence, with no limits?

         In broad if non-technical terms, the purpose of motion to reargue (or reconsider) is to give the court an opportunity to correct errors or omissions it may have made, not to allow parties an opportunity to augment the record after receiving an unfavorable result on the record as presented during the trial.

         " [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 alleged inconsistencies in the trial court's memorandum of decision as well as 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 or to present additional cases or briefs which could have been presented at the time of the original argument." GMAC MORTGAGE, LLC v. FORD, 144 Conn.App. 165, 184 (2013) (citations and internal quotation marks, omitted).

         The plaintiff has not identified a principle of law missed or misapplied; she has not identified a misapprehension of facts; she has not identified any inconsistencies; and she has not identified any other ...

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