Opinion
No. X02 CV 01-0177433-S
December 16, 2004
RULING ON PLAINTIFFS' MOTION TO REARGUE
Plaintiffs Marcin and Marianna Mazurek move to reargue this court's October 29, 2004 decision on the motion for summary judgment filed by defendant Thomas F. DeJoseph dba Sperry Rail Service and/or Sperry Rail, Inc. ("Sperry"). In that decision, the court granted summary judgment on fifty-four specifications of liability in each of four counts of the complaint and denied summary judgment on three remaining specifications in each of those counts.
The plaintiffs initially contend that the court lacked authority to grant partial summary judgment on some specifications of liability within the various counts and deny summary judgment as to the remaining specifications within those counts. Our appellate courts have not squarely ruled on the extent to which a court can grant summary judgment on some allegations within a count. There is a split of Superior Court authority on this issue. Compare Cocca v. Pocesta, Superior Court, judicial district of Waterbury, Docket No. 086470 (July 13, 1990, Barnett, J.) ( 2 Conn. L. Rptr. 69) (approving such partial summary judgments) with Schofield v. Bic Corp., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 021244 (Memorandum of decision on defendants' motion for partial summary judgment, January 31, 1991, Fuller, J.) ( 3 Conn. L. Rptr. 229) (disapproving).
In Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982), relied upon by the plaintiffs, our Supreme Court addressed a different situation in which the trial court had granted summary judgment on an entire count without addressing both claims within that count. The Supreme Court reversed because there was no basis for summary judgment on the entire count, not because the trial court had granted summary judgment on only part of a count. The plaintiffs' reply brief inaccurately attempts to quote Telesco at pages 718-19 as stating that "[a] motion for summary judgment must show that `no issue of fact exists as to all the issues in a particular count." [sic] (Plaintiffs' reply brief p. 3; emphasis added in plaintiff's reply brief; omission to close the quote within the quote also from plaintiffs' reply brief.) The Telesco court made no such statement. Instead, the court stated: "The trial court's action is fatally flawed in a number of respects. First, it did not address all of the issues raised in the second count." Telesco, supra, 718.
The authority to enter a partial summary judgment stems directly from Practice Book § 17-51. Section 17-51 contained within the Practice Book subchapter addressing summary judgment and is entitled "Judgment for Part of Claim," provides as follows:
If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim.
The Supreme Court has cited the predecessor to Practice Book § 17-51 as a rule "authorizing severance of claims and partial summary judgments." DeLaurentis v. New Haven, 220 Conn. 225, 255 n. 15, 597 A.2d 807 (1991).
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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). This important purpose of summary judgment would be thwarted if the court had to conduct trials for clearly-definable portions of a count for which there is no basis for trial. This point is especially true here in the complex litigation docket. See Practice Book § 23-14. In the present case, for example, the plaintiffs propose that the court conduct a trial on fifty-four specifications of negligence, for which they have failed to marshal sufficient evidence solely because they have withstood summary judgment on three other specifications. Indeed, under the plaintiffs' proposal, plaintiffs could invariably overcome summary judgment by artfully pleading specifications for which there may be insufficient evidence in the same count as properly supported specifications. The plaintiffs' approach would require the court and the parties to conduct expensive and time-consuming trials on invalid claims and thus defeat the salutary purposes of summary judgment. See Calpecto 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1415 (5th Cir. 1993) (when partial summary judgment is granted under federal rules: "the length and complexity of trial on the remaining issues are lessened, all to the advantage of the litigants, the courts, those waiting in line for trial, and the American public in general"). The court accordingly declines to grant reargument on the procedural issue.
Substantively, the plaintiffs try to renew the argument that Sperry is directly negligent even in the absence of a right to control the workplace. As stated in the court's original ruling, the plaintiffs did not properly brief this argument in their opposition to the summary judgment motion. (Ruling, pp. 10-11 n. 7). A motion to reargue "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." (Internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).
The plaintiffs' use of deposition transcripts not presented in their opposition to the summary judgment motion also violates this rule. Furthermore, in their reply brief in support of this motion to reargue, the plaintiffs advance the new theory that Sperry reassumed control of the workplace after replacing the scaffolding. The presentation of new material in a reply brief, especially on a motion to reargue, is improper because it deprives the opponent of an opportunity to respond. See Bovat v. Waterbury, 258 Conn. 574, 585-86 n. 11, 738 A.2d 1001 (2001). The plaintiffs' overall practice of developing and reshaping their opposition to summary judgment in a motion to reargue and then in a reply brief in support of the motion, if allowed, would place an undue burden on the court and the other parties because it would require these participants, all of whom have busy dockets or caseloads, continually to revisit summary judgment motions to which they originally devoted considerable resources in the belief that the original motion would be the decisive stage.
Moreover, the plaintiffs now rely heavily on Raboin v. North American Industries, Inc., 57 Conn.App. 535, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 505 (2000). The Raboin court identified the first exception to the applicable employer nonliability rule as arising "where the employer retains control of the premises or supervises the work of the contractor . . ." Id., 539. The court then stated: "The first exception to the nonliability rule applies to the current situation because in inspecting the foundry, General Signal [owner and employer] retained control of the premises." (Emphasis added.) Id. Raboin thus provides no support for the plaintiffs' argument that the defendant has a direct duty to the plaintiffs even in the absence of a right to control the workplace.
Accordingly, the court denies the motion for reargument.
It is so ordered.
Carl J. Schuman Judge, Superior Court