Acker v. Farrah, No. Cv 93-0704603s (Jul. 30, 1998)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SPECIAL FINDING PURSUANT TO GENERAL STATUTE 52-226a General Statutes 52-226a in pertinent part as follows:

"In any civil action. . . the prevailing party may file a written motion requesting the court to make a special finding . . . that the . . . defense to the action was without merit and not brought or asserted in good faith."

This court was not the trial court in the action. This court replaced the trial judge, Judge Missal when his illness precluded him from continuing with the case after entering a partial judgment. General Statutes 51-183f. Accordingly, the bifurcated portion was completed by this court.

This court continued to preside over the case for subsequent motions.

The case law is clear that this court cannot find in favor of the plaintiff unless it finds clear evidence that the defenses set forth by the defendants are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes. Fattibene v. Kealey, 18 Conn. App. 344, 360-61 (1989). Whether a claim is colorable for the purposes of the bad faith exception is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established. Fattibene. supra, 361.

This court has read the entire trial transcript of 399 pages. The only evidence which might conceivably satisfy the good faith requirements appears on pages 103-104. 115 and 314-315 of the transcript. This was as testimony by the Farrahs to the effect CT Page 9614 that they overpaid for the property. There as not one scintilla of evidence that the plaintiffs breached a duty of good faith and fair dealing. imposed a usurious and unconscionable or inequitable note on the defendants. as alleged in their special defenses. Likewise the counterclaim counts are totally without merit.

It is crystal clear to this court that no reasonable attorney or defendant could have concluded that facts could be established supporting their claims.

The court therefore find that the defense to this action was without merit and not brought or asserted in good faith.

Plaintiffs motion is granted.

Freed. J.