Opinion
DBDCV185012952S
07-09-2019
BETHEL HEALTH AND REHABILITATION CENTER, LLC v. Janet P. DIGLIANI aka Janet Digliani
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Plaintiff Bethel Health and Rehabilitation Center, LLC ("Bethel") has moved to reargue the decision to award counsel fees to defendant Janet P. Digliani pursuant to C.G.S. § 42-150bb. For the reasons stated below, the motion is denied.
" ‘[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.’" Opoku v. Grant, 63 Conn.App. 686, 692 (2001).
In Partch v. Wilton Meadows Health Care Center Corp., 2017 WL 2452941 *2 (Conn.Super. 2017) (Krumeich, J.), this Court discussed limitations on the use of motions to reargue: "A motion to reargue may also be appropriate where there is newly discovered evidence, but may not be used to make arguments or submit evidence that could have been presented had the party exercised due diligence. See Luzzi v. Town of Hamden, 2011 WL 2177159 *1 (Conn.Super. 2011) (Burke, J.) . ‘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.’ ... C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n.39, 919 A.2d 1002 (2007). ‘[A] motion to reargue cannot be used to correct the deficiencies in a prior motion ...’ Opoku v. Grant, supra, 63 Conn.App. at 692. ‘Newly discovered evidence may warrant reconsideration of a court’s decision. However, [f]or 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). Id. 2011 WL 2177159 *1."
The plaintiff asserts that the Court "overlooked" the holding in CHFA v. Affaro, 328 Conn. 134, 151-53 (2018), a case cited and quoted in the memorandum of decision. The argument appears to be based entirely on the omission of the phrase "totality of the circumstances" in the Court’s analysis of the arguments advanced by the parties and in its finding that defendant is entitled to an award based on the preponderance of the evidence. In its objecting memorandum and surreply brief, Bethel made extensive arguments that the "totality of the circumstances" did not support a fee award, which were considered and rejected by the Court. Plaintiff is not permitted to rephrase or repackage arguments previously made or to raise new arguments that could have been made in the motion papers, but were not, in a motion to reargue. The Court considered the standards set forth in Alfaro and the circumstances of the case in making the fee award. Plaintiff’s litany of matters that the Court "had a duty to consider" is a classic "second bite of the apple" by a party disappointed by an adverse decision.
Plaintiff argues that the Court "overlooked" provisions in the contract and failed to consider defendant’s breach of the contract by failing to make required payments while the Medicaid application was pending. In Bethel’s brief and surreply brief, it argued that defendant could not recover fees because she breached the agreement by failing to make payments when due. These arguments were considered and rejected. The Court found that "[t]he parties were aware defendant would be unable to pay resident charges to Bethel at the private pay rate, but could pay her substantially lower out-of-pocket charges if she qualified for Medicaid." The Court specifically rejected the idea, advanced by plaintiff on this motion, that the consumer must show it would have prevailed on the merits to be entitled to a fee award under C.G.S. § 42-150bb if the outcome was favorable citing Alfaro, 328 Conn. at 148. The "nominal" damages argument was also advanced in plaintiff’s objecting brief. In its objecting brief, Bethel complained that defendant deliberately delayed notifying it about the second DSS decision and represented that had it known it would have withdrawn the action before the answer, special defenses and summary judgment motion were filed, the same argument now re-styled as a breach of contract. The evidence presented was that Bethel immediately withdrew the action when these papers were filed, which the Court found more compelling as the impetus for withdrawal than Bethel’s hypothetical arguments as to what it would have done if informed of the DSS decision. Similarly, Bethel argued at length in its objecting brief and surreply that the withdrawal was based on receipt of payment not the filing of the papers by defendant. The new arguments asserting that Medicaid payments were consideration for the withdrawal and its invocation of Wilkes v. Thompson, 155 Conn.App. 278 (2015), a case distinguished in the memorandum decision, are variations on a familiar theme that could have been advanced previously and are similar to rejected arguments. The argument that defendant could not have prevailed on summary judgment was previously advanced and addressed in the decision. The same is true for plaintiff’s argument that it would have been entitled to fees and costs under the agreement had it not withdrawn the action; this line of argument was made previously unsuccessfully. The Court focused on the stipulation because a major thrust of Bethel’s argument was that the stipulation and circumstances described in the emails quoted in its papers and the later withdrawal were tantamount to a settlement, which the Court rejected. As to the argument the Court has "rewritten" the contract, this is merely another expression of pique because the Court did not accept plaintiff’s arguments in overruling its objection to the fee request.
Under Alfaro, the burden was on Bethel to "demonstrate that the withdrawal was unrelated to the defense mounted by the consumer." 328 Conn. at 148. In the motion to reargue, Bethel has not shown that the Court overlooked controlling precedent or misapprehended facts, or that the decision was inconsistent or claims of law were not addressed. Instead, Bethel disagreed with the decision and emptied the cupboard and dished-up re-heated arguments previously considered and rejected or, to the extent not previously advanced, arguments that could have been served in support of the objections initially and are not based on any new evidence that was not previously available to plaintiff.
The motion for reargument is denied.