Opinion
FBTCV126029435S
05-15-2017
Marjorie Partch v. Wilton Meadows Health Care Center Corporation
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
On April 6, 2017, after trial to the Court, judgment was entered against plaintiff Marjorie Partch (" Partch") in favor of defendant Wilton Meadows Health Care Center Corp. (" Wilton Meadows") on all counts of her complaint.
On April 26, 2017, Partch filed a motion for extension of time to file appeal and a motion to reargue judgment, which she amended on May 8, 2016. On April 27, 2017, Partch filed a motion to open and vacate judgment. For the reasons stated below, these motions are denied.
The Court granted permission to amend the motion to reargue on May 9, 2017. In defendant's objection to the amendment and motion for reconsideration of the granting of permission to amend, Wilton Meadows correctly pointed out that Partch made new arguments and submitted new exhibits, including the patient's bill of rights, C.G.S. § 19a-550, after the original appeal period had expired. Most of the arguments in the amended motion to reargue were made before and the new arguments are of the sort made in the original motion. Although defendant's objection and motion have merit as to the new arguments in the amendment, the filing of the original motion to reargue effectively stayed the appeals period. In light of the similarity and continuity in argument between the original and amended motions, the Court will stick with its decision to permit the amendment in the exercise of its discretion and will rule on the merits of the motion to reargue as amended.
The Court is mindful Partch is a pro se party. " The appellate courts repeatedly have reiterated that " [a]lthough we are solicitous of the rights of pro se litigants . . . such a litigant is bound by the same rules . . . and procedure as those qualified to practice law . . ." (Internal quotation marks omitted.) In re Jason M., 140 Conn.App. 708, 711 n.2, 59 A.3d 902, cert. denied, 308 Conn. 931, 64 A.3d 330, cert. denied, 134 S.Ct. 701, 187 L.Ed.2d 564 (2013); Cersosimo v. Cersosimo, 188 Conn. 385, 394, 449 A.2d 1026 (1982) (same)." Citibank, N.A. v. Joseph, 2015 WL 2260885 *1 (Conn.Super. 2015) (Shapiro, J.).
1. The Motion for Extension of Time to File Appeal is Denied
In her motion for extension of time to appeal Partch offered the following reasons for the requested extension: (1) her removal of another case from state to federal court " following a great deal of extensive research and preparation . . . took urgent precedence over this case"; (2) " new evidence has just emerged over the past few days and cohering today, concerning the practice and pattern of the extended Arms of the Court (Conservators), requiring additional research for this Plaintiff's Appeal (and related federal action)"; and (3) plaintiff is in process of filing a motion to reargue and a motion to vacate and open judgment.
The Rules of Appellate Procedure § 66-1 provides, in pertinent part, that " the judge who tried the case may, for good cause shown, extend the time limit provided for filing the appeal . . . In no event shall the trial judge extend the time for filing the appeal to a date which is more than twenty days from the expiration date of the appeal period."
Defendant argues that the motion to extend was untimely because it was not made within ten days of the expiration of the appeals period. The commentary to Conn. Prac., Rules of Appellate Procedure § 66-1 (2016-17 ed.), states the " 20-day extension to file the appeal" is an exception to the ten-day rule.
Partch has failed to show good cause to extend the appeal period. The first and third reasons recited above simply state that she was too busy with other matters to file a timely appeal. Her claim that " new evidence" has been uncovered in her research concerning the " practice and pattern . . . of conservators, " which she plans to use in her appeal and in a pending federal action, is vague and unsubstantiated. On its face evidence relating to conservators would have no bearing on this case brought against a nursing home. Nor has Partch provided any explanation why this new evidence relating to conservators would delay her filing a timely appeal. Partch has failed to demonstrate good cause to delay the appeal. Cf. Worth v. Korta, 132 Conn.App. 154, 160-61, 31 A.3d 804 (2011) (newly discovered evidence).
Further, Partch has not shown a need to extend the appeal period under Rules of Appellate Procedure Section 66-1. Partch filed her motion to reargue at the same time as she filed the motion to extend the time for appeal, and filed a motion to open and vacate judgment the next day. These motions were filed within the appeal period and therefore extend the appeal period under Rules of Appellate Procedure § 63-1(c)(1). See e.g., K.A. Thompson Electric Co. v. Westco, Inc., 24 Conn.App. 758, 760, 591 A.2d 822 (1991); Anderson v. City of New London, 2000 WL 264299 *1-2 (Conn.Super. 2000) (Corradino, J.). See generally Conn. Prac., Rules of Appellate Procedure § 63-1 (under § 63-1(c)(1) motion to open judgment or motion to reargue results in automatic extension of appeal period). The motion for extension of time to appeal is denied.
2. The Motion to Reargue is Denied
Partch cites the following bases for her motion to reargue: (1) she had insufficient notice of trial to prepare and arrange for expert and fact witnesses and to complete discovery of relevant evidence for trial; (2) she was denied due process of law because, due to her indigence, she did not have access to transcripts or audio recordings of the three week trial needed to prepare a post-trial brief; (3) without a brief from her, she argues the Court disregarded evidence from credible witnesses, including plaintiff, and ignored inconsistencies in testimony by Amy Lombardo, a social worker who worked for defendant, whose testimony the Court largely credited, as well as statements in nursing reports that plaintiff contradicted; and (4) she accuses the Court of reopening matters decided in previous rulings by other judges on interlocutory motions. In her amended motion Partch asserted rights under the Patients' Bill of Rights, C.G.S. § 19a-550.
In Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001), the Appellate Court discussed the urpose of a motion to reargue:
" [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.
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 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.
Partch had argued before trial and during trial that she did not have sufficient time to conduct discovery, to disclose expert witnesses, to subpoena witnesses and to prepare for trial. These arguments were denied and may not be renewed on a post-trial motion to reargue.
Plaintiff argues she was precluded from calling expert witnesses " such as the Norwalk Hospital staff" and the Long-Term Care Ombudsman. This is not true. Partch did not disclose any expert witnesses in compliance with Practice Book § 13-4. If Partch had called these witnesses they would have been permitted to testify as fact witnesses and whether they could have given expert testimony would have been decided by ruling on any objection. The Court had denied defendant's motion in limine to preclude expert testimony the first day of trial. At that time Partch indicated she was not planning to call any expert witnesses and admitted she had not designated any expert witnesses.
After trial Partch made numerous post-trial motions, including motions to reargue denial of her motions, seeking waiver of fees for transcripts and/or for access to audio tapes. These motions were denied and may not be renewed on a motion to reargue the judgment.
The Court does not agree that Partch could not file a post-trial brief without a transcript or access to audio recording. Plaintiff was given permission to have assistants take notes at counsel table during the trial and the Court granted her extensions to file a post-trial brief; when plaintiff failed to file a brief by the last extended deadline she was given encouragement to file a late brief but failed to do so. Instead, she filed eighteen post-trial motions to the Superior Court and three unsuccessful motions to the Appellate Court. Her claim that she was denied due process in connection with the preparation of a post-trial brief does not address the merits of the decision Partch seeks to reargue and is not a ground for reargument identified by case law, rule or statute.
Partch declined to submit a post-trial brief despite lengthy extensions and ample opportunity to submit a brief. A motion to reargue is not a proper substitute for a brief and may not be used to advance arguments that should have been addressed in a post-trial brief. " [A] motion to reconsider is 'not to be used as an opportunity to have a second bite of the apple.'" Opoku v. Grant, supra, 63 Conn.App. at 693. It is not a time to present additional cases or briefs, correct deficiencies in the original motion or submit evidence that could have been presented during the original argument. C.R. Klewin Northeast, LLC v. Bridgeport, supra, 282 Conn. at 101 n.39; Opoku v. Grant, supra, 63 Conn.App. at 692; Durkin Village Plainville, LLC v. Cunningham, supra, 97 Conn.App. at 656." Luzzi, 2011 WL 2177159 *2. See also JPMorgan Chase Bank, N.A. v. Eldon, 144 Conn.App. 260, 277, 73 A.3d 757 (2013). Although the " second bite of the apple" metaphor does not precisely fit here because Partch declined to submit a post-trial brief and argue her case, a motion to reargue should not be used to make arguments that should have been made in a post-trial brief. Nor should it be used to present additional evidence to the Court which could have been presented at trial. See Baillergeau v. McMillan, 143 Conn.App. 745, 754-55, 72 A.3d 70 (2013).
Merely because Partch disagrees with the Court's findings of fact and assessment of witness credibility does not satisfy the " misapprehension of facts" showing needed to reargue the judgment entered. " Disagreement is plainly not enough to reargue." Traylor v. State, 2014 WL 4637249 *1 (Conn.Super. 2014) (Moukawsher, J.). The Court did not overlook or misapprehend the evidence cited by Partch, including her own testimony that she renews in her motion, but rather carefully considered and assessed the testimony she referred to by herself and other witnesses such as Mr. Xavier or Ms. Kosstrin, as well as the admitted exhibits, and simply did not reach the same conclusions from the evidence as Partch urged in her post-trial motions and at trial. See Francis v. State, 2014 WL 3906519 *1 (Conn.Super. 2014) (Huddleston, J.) (" [t]he arguments merely reiterate claims that the court has already considered and rejected"). Further, the testimony recited by Partch was often on tangential matters that were not material to the issues decided. The Court considered the credibility of witnesses and the materiality of their testimony and reached different conclusions than Partch urges in her motion to reargue. Partch also summarized hypothetical testimony from witnesses such as the Ombudsman she did not subpoena or call as witnesses at trial, which simply is not part of the trial record.
Partch misconstrues the Memorandum Decision to the extent she argues that the court credited the nurses' reports over her explanation of the incidents described. The Court did not purport to adjudicate the conflicting versions of events but merely concluded " the sometimes heated exchanges" between Partch and staff would be a valid basis for the treating physician's order that her visits with her mother were to be supervised. The Court also found that the continual disputes between Partch and the staff, professionals and administrators at Wilton Meadows was a reason defendant sought appointment of a conservator for her mother.
For example, Partch points to testimony about financing she received from friends and preparations she had made to modify the homestead in anticipation of her mother's homecoming. These facts were uncontested and credited but in the Court's judgment did not support Partch's argument that the nursing come and conservator had colluded to prevent her mother's return to the homestead.
Partch filed an affidavit from a woman who sat in the audience at trial who, based on her observations at trial, offered comments on the credibility of two witnesses called by defendant who testified at trial, without any admissible evidence of her own to offer. Partch also seeks to introduce evidence of " her background and character" which would not be admissible under Conn. Code of Evid. § 4-4. Inadmissible evidence would not qualify as " newly discovered evidence" that is relevant and material new evidence sufficient for overturning a judgment. See In re Rebecca, 2015 WL 544946 *4 (Conn.Super. 2015) (Stevens, J.). All the evidence described by Partch in her post-trial motions appears to have been available to her prior to trial in the exercise of due diligence. See Light v. Grimes, 156 Conn.App. 53, 69, 111 A.3d 551 (2015). Partch did not present any evidence she exercised due diligence to discover the missing evidence described in her motions. See Bank of America, N.A. v. Thomas, 151 Conn.App. 790, 804-05, 96 A.3d 624 (2014). It is not sufficient merely to state that evidence was newly discovered, Partch was required to submit proof that the evidence is relevant and material and could not have been discovered before trial in the exercise of due diligence. See In re Rebecca, 2015 WL 544946 *4 (Conn.Super. 2015) (Stevens, J.).
Partch also asserts that the Court's decision treated a previous ruling by another judge as controlling, and disregarded a contrary ruling by another judge, which simply is untrue and represents a misunderstanding of the Court's memorandum decision, which was not based upon or controlled by any interlocutory rulings. To the extent plaintiff wishes to revisit prior rulings by other judges on interlocutory matters this motion is not the proper vehicle.
Similarly, it is improper to make new arguments that could have been asserted before judgment entered in a post-trial brief, including those relating to prior interlocutory decisions that were not renewed at tria1, such as the reply to objections to the Third Revised Complaint plaintiff filed previously on an interlocutory motion that plaintiff also filed as an exhibit to her post-trial motions. Partch's post-trial motions assert arguments, often not supported by sworn testimony, that were not raised at trial or in a post-trial brief. " Because opening a judgment is a matter of discretion, the trial court [is] not required to open the judgment to consider a claim not previously raised." Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 95, 952 A.2d 1 (2008).
Plaintiff cites previous interlocutory rulings which may be part of the record of the case, but are not part of the trial record. In any event the previous rulings are not binding on this Court as law of the case or otherwise. See generally Breen v. Phelps, 186 Conn. 86, 99-100, 439 A.2d 1066 (1982).
In her amended motion to reargue Partch asserts for the first time it was her duty as health care representative for Dorothy Partch to raise with Wilton Meadows issues relating to her mother's care and treatment and violations of her mother's rights under the Patients' Bill of Rights, C.G.S. § 19a-550. In Whitnum v. Town of Darien, 2015 WL 4880058 *3-4 (Conn.Super. 2015) (Arnold, J.), Judge Arnold applied the plain language of the statute which grants rights to the patient only in concluding a non-patient, like Partch, had no rights under the statute. I agree with Judge Arnold and conclude Partch in her individual capacity has no standing to assert such rights in this lawsuit. This lawsuit is brought only in Partch's individual capacity, not as a representative of her late mother. Judge Bellis had denied her motion to intervene as executrix of her mother's estate before trial. Moreover, no claim under the Patient's Bill of Rights was ever made in this lawsuit, despite numerous iterations of the complaint. It is much too late to inject this new claim and argument into this action. To the extent that Partch cites the statute merely to support her right to question staff concerning the treatment of her mother at the nursing home, the citation of the statute is mere surplusage and not a valid ground for reargument because the Court understood Partch had the right to question her mother's treatment as her health care representative, but that was not material to the Court's decision. The motion to reargue is denied.
" General Statutes § 19a-550 is a patient's bill of rights and sets forth requirements for patient care at assisted living and convalescent care facilities . . . However the plain language of section 19a-550 provides a private cause of action 'to each patient of a nursing home facility.' . . . The plaintiff was not a resident of [the nursing home], and thus, was not a member of the class protected by section 19a-550 and the Regulations of State Agencies." Whitnum, 2015 WL 4880058 *3-4 (citations omitted).
3. The Motion to Open and Vacate Judgment is Denied
Partch asserts that, because she had insufficient time to prepare for trial, she only recently found the following evidence she would have introduced at trial or information she would have used to subpoena additional witnesses: (1) audio recordings of " Plaintiff's coherent conversations with her mother in November 2010, rebutting Norwalk Hospital's claims and confirming the Defendant's nearly daily reports that Mrs. Partch was " verbally responsive"; (2) receipts for preparatory work in the Summer of 2010 for anticipated handicapped modifications to the family home; (3) a 2003 weekly planning calendar of her mother; and (4) contact information relating to her mother's healthcare providers during the years prior to her admission to Wilton Meadows.
Although Partch should have filed a memorandum of law under Practice Book § 11-10, the Court has not denied the motion on this basis and notes that her motion is based on " newly discovered evidence" not on any claimed errors of law.
Partch had ample time to conduct discovery and prepare for trial but she chose to prioritize other matters, including other cases in various courts that overlapped this case. This case was filed in August 2012 and went to trial on December 6, 2016. Plaintiff had over four years to conduct discovery and prepare for trial. Partch complains she only had twenty-eight days' notice to prepare for trial, but she had ample time to gather evidence and to subpoena the witnesses she now argues she needed to testify at trial. Partch was aware of the identity of these witnesses, or could have discovered them in the exercise of due diligence, and knew the subjects on which they could testify in time to subpoena them or admissible medical records before or during the three-week trial. Mistakes or neglect by plaintiff in marshaling evidence for trial would not be a proper ground to reopen the judgment. See generally Eremita v. Morello, 111 Conn.App. 103, 106, 958 A.2d 779 (2008).
The parties were notified of the December 6, 2016, trial date on November 8, 2016. Partch made numerous motions to continue the trial before and during the trial, which were denied.
The " new" evidence Partch claims to have discovered, including the audio recordings of " coherent conversations" with her mother in November 2010, receipts from the summer of 2010 for work preparatory to the planned handicapped modifications of the family homestead, and her mother's planning calendar for 2003 bear on matters that were uncontested or tangential, are at best cumulative of evidence at trial and would not have been material to the decision. Also, Partch has provided no explanation why this evidence was not offered at trial; nor has she provided any evidence that she could not have discovered the evidence or located the witnesses prior to trial if she had exercised due diligence. See Light, 156 Conn.App. at 70-71.
Judge Shapiro summarized the standards for opening a judgment for newly discovered evidence in Citibank N.A. v. Joseph, 2015 WL 2260885 *2:
Courts have an inherent power to open, correct and modify judgments . . . A civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment. (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 106, 952 A.2d 1 (2008). A motion to open in order to permit a party to present further evidence need not be granted where the evidence offered is not likely to affect the verdict . . . When a party seeks to open and vacate a judgment based on new evidence allegedly showing the judgment is tainted by fraud, he must show, inter alia, that he was diligent during trial in trying to discover and expose the fraud, and that there is clear proof of that fraud . . . These rules are motivated by the policy that [o]nce a judgment [is] rendered it is to be considered final and it should be left undisturbed by post-trial motions except for a good and compelling reason. (Citations omitted; internal quotation marks omitted.) Id., at 106-07, 952 A.2d 1.
A new trial will be granted on the basis of newly discovered evidence only if: (1) the newly discovered evidence is in fact newly discovered such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not cumulative; and (4) it is likely to produce a different result in a new trial. Ginsburg v. Cadle Co., 61 Conn.App. 388, 392, 764 A.2d 210, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001).
[T]o entitle a party to a new trial for newly-discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted . . . Therefore, [t]he [petitioner] has the burden of proving that the evidence . . . could not have been discovered and produced [in] the former trial by the exercise of due diligence . . . Due diligence does not require omniscience. Due diligence means doing everything reasonable, not everything possible . . . The question which must be answered is not what evidence might have been discovered, but rather what evidence would have been discovered by a reasonable plaintiff by persevering application, [and] untiring efforts in good earnest. (Citations omitted; internal quotation marks omitted.) Skakel v. State, 295 Conn. 447, 506-07, 991 A.2d 414 (2010).
Partch has not borne her burden of proving that the evidence referred to was in fact newly discovered and could not have been discovered earlier in the exercise of due diligence. Ginsburg, 61 Conn.App. at 392; Terracino v. Fairway Asset Mgmt., 75 Conn.App. 63, 77, 815 A.2d 157 (2003); Citibank v. Joseph, 2015 WL 2260885 *2. See also J.E. Robert Co. v. Signature Properties, LLC, 2010 WL 2108268 *4 (2010) (Shapiro, J.) (" . . . for 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").
Moreover, the " new" evidence described by Partch would have been cumulative of evidence produced at trial (primarily plaintiff's own testimony), largely bears on tangential issues, would not be material and had it been admitted was unlikely to have changed the result. See Ginsburg, 61 Conn.App. at 391-92. In Bennett v. State, 2014 WL 1674095 *4 (Conn.Super. 2014), Judge Vitale expounded on the materiality of the evidence requirement for a new trial:
The second Asherman prong [ Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987)] is that the newly discovered evidence would be material on retrial. Evidence is material when it involves a central issue in the case and is not collateral. See, e.g., Adams v. State, 259 Conn. 831, 836, 792 A.2d 809 (2002). " The new evidence must be such that it is offered not merely to impeach or discredit a witness." State v. Davis, 2 Conn.Cir.Ct. 257, 261, 197 A.2d 668 (1963). " Newly-discovered evidence . . . which impeaches the . . . credibility of a witness, will not suffice ordinarily to grant a new trial, and never unless it appears reasonably certain that injustice has been done in the judgment rendered, and that the result of a new trial will probably be different." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 107, 952 A.2d 1 (2008). " The determination of whether a matter is relevant to a material issue or is collateral generally rests within the sound discretion of the trial court." State v. Davis, 298 Conn. 1, 32, 1 A.3d 76 (2010).
Here, much of the evidence referred to by Partch in her motion papers, most of which was not actually produced by her, appears designed to bolster Partch's credibility on matters of her testimony that was credited by the Court or which were tangential at best. The audio recording made on November 10, 2010 is described by Partch as " rebutting Norwalk Hospital's claims and confirming the Defendant's nearly daily reports that Mrs. [Dorothy] Partch was 'verbally responsive.'" Whether or not that is true is not material to any issues in this case and, in any event, does not speak to the March-July 2010 period in question. Mrs. Dorothy Partch's 2003 calendar, a copy of which was produced as an exhibit to the post-trial motions, concerns events seven years preceding the events at issue at trial and would be background evidence of questionable relevance and materiality. The healthcare providers identified by Partch as treating her mother with " ample opportunity . . . to observe their [mother-daughter] relationship" are not shown to have any relevant evidence to offer. The Court found that Partch had a close relationship with her mother and was her primary caregiver until her mother's major stroke in 2010. The Court also found her mother lived a holistic lifestyle at home and her healthcare was overseen by her daughter prior to her admission to the hospital and nursing home. Further, the providers (who were not identified as treating Dorothy Partch during her residence at Wilton Meadows), if they had relevant evidence to offer, could have been subpoenaed by Partch for testimony at trial; there is no evidence plaintiff could not have done so in the exercise of reasonable diligence. See Rebecca, 2015 WL 544946 *4.
Dorothy Partch's daily activities in 2003-2004 would not appear to be relevant to her life after she suffered the massive stroke in 2010 that resulted in her hospitalization on March 19, 2010, her admission to the nursing home on April 7, 2010 and appointment of the conservator on July 27, 2010.
To the extent any additional evidence described by Partch in her motions may have been relevant, it would be cumulative of evidence at trial, principally Partch's testimony as to preparations to modify the homestead in the Summer of 2010, her relationship with her mother, her mother's lifestyle and homecare from 2003 until her major stroke in March 2010, and her mother being " verbally responsive" in November 2010, all of which was not contested at trial, and would be merely cumulative. " 'By cumulative evidence is meant additional evidence of the same general character, to the same fact or point which was the subject of proof before.' Levine v. Union & New Haven Trust Co., 127 Conn. 435, 440, 17 A.2d 500 (1941)." Bennett, 2014 WL 1674095 *4. This largely cumulative evidence would not have altered the outcome of the trial viewed in the context of all the evidence at trial and was not likely to produce a different result. See Ginsburg, 61 Conn.App. at 392; Bennett, 2014 WL 1674095 *4.
Partch testified about the recording she made of a conversation with her mother on November 10, 2010; although plaintiff said she had a copy, Partch never offered the recording. The only relevance of the recording plaintiff asserted in her testimony at the trial was that she believed it triggered a six-week " blackout period" when she claimed she was prevented by defendant from visiting her mother.
The motion to open and vacate judgment is denied.