Opinion
No. CV 03-0479556S
September 8, 2009
MEMORANDUM OF DECISION ON MOTIONS FOR REARGUMENT
The Defendant attorneys have moved to reargue what they believe was the Court's error in failing to dismiss the CUTPA account against them. It is argued that the Court misinterpreted the ambit of the recent case of Chapman Lumber, Inc. v Tager, 288 Conn. 69 (2008). The Defendants' reading of Chapman is much too narrow. That case specifically dealt with allegations of fraud in the case before it, but then more broadly says prior decisional law does not afford blanket immunity "to attorneys for tortious acts they commit against third parties while representing clients. Of course suit can be brought against attorneys for tortious acts committed while representing clients, cf TMK Associates v Landmark Development, 35CLR 387 (2003). The Court discussed the fact that as to such allegations a material issue of fact was raised, see pp 61-62 of decision and the Court frankly agrees with the argument made in objection to the motion to reargue this aspect of the decision on this issue.
The Court in no way suggested or meant to suggest the Plaintiffs will prevail at trial on their factual representations or even on other necessary prerequisites for a CUTPA claim not raised in the motions. The Court merely decided there was a material issue of material fact that prevented it from granting the motion as to the CUTPA count.
2.
The Defendants have filed a motion for clarification raising several issues.
As to one matter, the Court made it clear several times in its opinion that it was working off the claims and allegations of the second amended complaint by specifically referencing it or quoting from it. Insofar as a third and fourth amended complaint have been filed in this case and objections to them have not been acted upon, the contents of these complaints cannot be relied upon to affect the Court's decision because a summary judgment motion cannot be rebutted by pleadings, but must be rebuffed by affidavits and documentary evidence. The Plaintiffs, for example cannot rely on matters raised in these complaints not otherwise supported by their objection to summary judgment raised in their briefs.
The other issues raised in this motion for clarification are not appropriately raised in the sense that the effect of the decision on pending objections to the FDCPA claim and the amended counterclaim should be only part of possible arguments that must be addressed when those objections are reclaimed and separately argued.
3.
The plaintiffs have also filed post-decision motions.
As to the FDCPA claim the Court explicitly ruled and thus only ruled that "the claims under the FDCPA as to the first and second foreclosure action against the law-firm are dismissed."
As to the discovery or lack there of claimed by the Plaintiffs, it is true that the only written decision the Court issued on discovery disputes concerned a motion to compel and the attorney client privilege. The Court denied the Plaintiffs' motion to compel in its December 23, 2008 decision.
As to the discovery issue in general, the Court in its decision has already discussed what it felt to be the relevance of inability to conduct such discovery because of any unresolved discovery disputes and would refer to that discussion. It was not made clear what was hoped to be elicited from discovery beyond the allegations in Mr. Lichtenfel's lengthy affidavit.